LUTC PKT 10-06-1997
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City of Federal Way
City Council
Land Use/Transportation Committee
October 6, 1997
5:30 pm
City Hal1
Council Chambers
AGENDA
1.
CALL TO ORDER
2.
AFPROV AL OF MINUTES
3.
PUBLIC COMMENT (3 minute limit)
4.
BUSINESS ITEMS
A.
Subdivision Signs
Action
McClung (10 min)
B.
Applewood Annexation
Action
Moore (10 min)
C.
Non-Conforming Code Amendments/ Action
General Amendments & Water Quality
Clifton/Pratt (45 min)
D.
Streets Policy Guidance
Action
Roe (5 min)
E.
Student Transit Resolution
Action
Roe (10 min)
F.
Master Lease Agreement
for Telecommunications
Info
Wang (20 min)
5.
ADJOURN
Committee Members:
Phil Watkins, Chair
Ron Gintz
Mary Gates
City Staff:
Greg Moore, Director, Community Development Services
Sandy Lyle, Administrative Assistant
661-4116
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Council Chambers
SUMMARY
In attendance: Committee members Pbil Watkins (Chair), Ron Gintz and Mary Gates; Council Member Hope Elder; Deputy
City Manager Philip Keightley; Director of Community Development Services Greg Moore; Deputy Director of Community
Development Services Kathy McClung; Public Works Director Caty Roe; Assistant City Attorney Bob Sterbank; Street Systems
Manager Ken Miller; Surface Water Manager Jeff Pratt; Development Services Manager Stephen Clifton; Traffic Engineer
Rick Perez; SWM Project Engineer Marwai1 Salloum.; Code Compliance Office Betty Croz; Assistant Traffic Engineer H8zem.
EI-Assar; Administrative Assistant Sandy Lyle.
1. CALL TO ORDER
The meeting was called to order at 5:30pm by Cbairman Phil Watkins.
2. APPROVAL OF MINUTES
The minutes of the September 3, 1997, meeting were approved as presented.
3. PUBliC COMMENT
There was no public comment on items other than those included in the agenda.
4. BUSINESS ITEMS
A. SR99 Redevelo.pment Stu<ty Prespntation - In early 1995, during the preparation of the Regional Transportation
Improvement Plan, the SR99/Pacific Highway South Redevelopment Project was formed. Seven jurisdictions including
Federal Way,-IGng County, Kent, Des Moines, SeaTac, Tukwila, and the Washington State Department of
Transportation agreed to sponsor the study phase by applying for a federal grant through Puget Sound Regional
Council. The grant funding was approved. The intent of the project is to prepare a deSign study report, type, size, and
location plans and environmental documentation for SR99 project. Work began in January 1996. Seyed Safavian,
Project Manager for the Washington State Department of Transportation (WSDO1), is currently working on the SR99
Redevelopment Project. He discussed traffic volumes and options to deal with present and future traffic loads. He
showed computer enhanced slides of SR99 through Federal Way following the addition of medians and managed access
similar to that already done in the City of SeaTac. The uniqueness of Federal Way would be preserved and
channelization characteristic to the needs of Federal Way citizens would be encouraged. Medians and access
management increases public/private investment, saves fuel and lives, and increases safety ~ aesthetics.
B. RT A Coordination - With RTA as the lead agency and the City of Federal Way a partner, the Committee m/s/c the
recommendation that City Council approve at the September 16, 1997, meeting, a transportation study. The purpose of
the study is to determine the best locations for RTA funded facilities to be located in the City Center of Federal Way.
The facilities include a downtown transit center, additional park and ride lots, structured parking at park and ride lots,
and center lane access to 1-5 from park and ride lots.
C. Non-Conformine Code Amendments - Keith Dearborn, attorney for Dunn Lumber, commented on his concerns about
valuation. Elaine Mansoor, SeaTac Mall, stated she believed that Tenant Improvements should not trigger non-
conforming provisions. Both share the opinion that the strict non-conforming codes make redevelopment so expensive
that potential business is compelled to locate somewhere else. The completed General Nonconforming Amendments
and proportionality were accepted without change. The Streets portion of the nonconforming discussion was pulled
from the agenda. On the water quality non-conforming issues, the Committee m/s/c some language changes in the
definition of "redevelopment," m/s/c adoption of all triggers as written, m/s/c phasing provisions, and recommended
approval of the staff recommendation. Staff will bring fina1language of the non-confonning code provisions to the
October 6, 1997, Land Use/Transportation Committee meeting.
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D. Street Liehts - The Committee's thoughts on street lighting was toward decorative and historical, something
contemporary. They directed staff to gather information 00 style and cost and return to the October 6, 1997, meeting
with selections for the Committee to choose. Further discussion of this agenda item was deferred.
E. Subdivision Sieru; - Staff notified the Committee that eight of fifty-seven signs marking subdivisions were located in the
public right of way and the others have other problems making them in violation of the City's sign code. The
Committee requested this item be discussed further at the October 6, 1997, meeting.
F. U.pdate on Si~ Code Comp1iønce - The sign notification program bas been completed. This program bas been an on-
going project since 1995 when the City Council adopted new sign reguJations and gave the City staff direction about
conducting an inventory of all signs within the City and informing property and business owners about their sign status.
Kudos to Code Compliance Officer Betty Cmz who bas trained staff, hired interns, worked with the Chamber of
Commerce and numerous business people. She bas been persistent and patient and bas learned how to lead a teain to
accomplish the goal. The result is a cleaner looking City. The won! is out. Sign permits have increased and fewer
contractors are erecting signS without permits.
G. Code Amendment Reqpest (Si~ Code) - Pastor 1oe Rinehart of Cascade Christian Church requested that the
Committee allow an øOWYlweot to the Sign Code permitting the use of portable signs on Sundays at churches housed in
temporary leased facilities. The lack ofpermanent facilities makes the necessity of having directional signs essential to
the survival and success of these congregations. The Committee respectfully denied the request in favor of the policy
established in the Sign Code.
5. FUTUREMEETINGS
The next meeting will be held on October 6, 1997 at 5:30pm in City Council Chambers.
6. ADJOURN
The meeting was adjourned at 7:55pm.
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MEMO
FROM:
Land Use and Transportation Committee
Kathy McClung, Deputy Director CDS ~L,
TO:
DATE:
August 28th, 1997
RE:
Subdivision signs
--------------------------------------------------------~--------
In wrapping up the notification of all property owners about non-
conforming signs, it has come to my attention that we have 57
subdivision signs that are out of compliance with the Code.
About two thirds of the subdivisions do not have homeoWl1er's
associations. Eight of the signs are in public right of way~
The other reasons for non-conformance are as follows:
* 13 exceed the maximum number allowed per subdivision
* 11 exceed the height restriction
* 9 exceed the width allowed
* 21 do not have a required base
17 of these signs would qualify for substantial compliance under
the provisions of the existing code. .
We have two main issues with these signs and are looking for some
Council direction.
1. Where there is no Homeowner's Association, we have a,
notification problem. We could notify every property öwner in the
subdivision but it could result in no one being ultimately
responsible, will create confusion with citizens that won't
understand why they are being contacted, and has the potential t~
make a number of citizens angry for something they feel they are
not responsible for. We have held' back most of the notices to
the Homeowner's Associations because we think all,subdivision
signs should get the same treatment. ".'
2. Subdivision signs are commonly placed-in public right of way.
At the time the subdivision is developed, the property belongs to
the developer and is later dedicated to the city. To,require
that established signs be replåced 'on private propeftywill be
expensive for homeowners and may not be possible if the adjacent
property owner is not willing or the topography does not allow
it. I have discussed this issue with the Public Works Director
and the Street Systems Manager. Their opinion is that these
existing signs are not a problem for th~ city.
Some options to consider are:
A. The code allows an exception to bringing signs into compliance
if they substantially comply with the code. However, it
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requires that the applicant apply for this exception. Since 17
signs wou¡d qualify for this exemption we could 'grant the
exception without an application.
B. We could broaden the language in the exceptions to include
more or all of the ~ubdivision signs.
C. Cary Roe suggested that we provide an administrative variance
for subdivision signs in public right of way. Generally, the City
would not encourage subdivision signs in what will be public
right of way but sometimes there is no good alternative. This
could.address future and existing signs.
At the-meeting we will provide pictures so that you can see the
signs we are discussing. We are asking for direction on this
mattèr as we are concluding our notification. program. Any code
language could be tacked on to the existing non-conforming
amendments, ,the up-coming subdivision code amendments, or delayed
to the 1998 work program.
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MEMORANDUM
To:
Land Use/Transportation Committee
Phil Watkins, Chair
Mary Gates
Ron Gintz ~
Greg Moore, Director of Community Development Services FJ I' ..
Comprehensive PlanlPreanexation Zoning Request - Applewood Area
October 1, 1997
FROM:
SUBJECT:
DATE:
REQUEST
At the City Council meeting of September 16, 1997, a petition was submitted to the City Council
requesting preannexation zoning for the area of the proposed annexation of Applewood, as noted
in the 60 percent petition. Please see Exhibit A, Pre-Annexation Zoning Petition, and Exhibit B,
Map of Proposed Annexation Area, as authorized by the City Council.
OPTIONS
1. Address comprehensive plan/zoning designation concurrent with 'the annexation request.
There are two suboptions available at that time: A) establishing an interim designation (to be
finalized within 12 months) or B) permanent designations.
2.
Address comprehensive plan/zoning designation prior to annexation with preannexation
comprehensive plan/zoning concomitant agreement. This provision was intended, and has
been utilized, for large mixed use projects (Weyerhaeuser and Enchanted Parks). The
language of this option in the Federal Way City Code reads as follows:
a) Purpose. The intent of a pre-annexation concomitant agreement is to create a
process to promote diversity and creativity in site design and to protect and enhance
natural and community features. The process is provided to encourage unique
developments that may combine a mixture of residential, commercial, office, and
industrial uses. By using flexibility in the provisions of a pre-annexation concomitant
agreement, this process will promote developments that will benefit the citizens that
live and/or work within the city.
3.
Address comprehensive plan/zoning designation prior to annexation through preannexation
zoning as allowed by RCW 35A.14.330. This provision would allow preannexation zoning
without having to do a concomitant agreement.
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Land UselTransportation Committee
September 30, 1997
Page 2 .
BACKGROUND INFORMATION
May 12, 1997 The 10 percent Annexation Petition for Applewood received.
July 1, 1997
City Council accepts 10 percent petition and authorizes circulation of the
60 percent petition with an expanded boUndary. Please see Exhibit B, Map
of Proposed Annexation Area.
JUly 21, 1997
Applewood area residents request preliminary indication of what zoning
might be recommended by staff to the City Council.
August 4, 1997
Staff letter indicating preliminary thinking on potential zoning to be
recommended to City Council. See Exhibit C, August 4, 1997, Letter to
Mrs. VanVleet.
KINe COUNTY ZONING
The King County zoning for properties in tlús area is identified on Exhibit D, King County/
Federal Way Zoning.
FEDERAL WAY ZONING
The City of Federal Way zoning for properties adjacent to the proposed annexation area is
identified on Exhibit D, King County/F ederal Way Zoning.
RECOMMENDATION .
1. H, choosing to utilize a process of establishment of comprehensive plan/zoning at time of
aIinexation, it is recommended that the permanent designations be set, not interim
designations.
2.
H, preannexation comprehensive plan/zoning is desired, it is requested that the timing be
combined with the comprehensive plan update currently on the work program. The
comprehensive plan update is scheduled to go forward to the Planning Commission
approximately in December. Combining the preannexation zoning request with an already
existing process of the comprehensive plan would give efficiency of process with the State
Environmental Policy Act (SEP A) for zoning only, staff reports, and hearings and eliminate
potential confusion over timing of the comprehensive plan process.
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Handling preannexation zoning separately outside of the concurrent annexation process, or
without combining with the comprehensive plan change, increases staff and council time and
effort. It requires research, SEP A (for zoning only), staff report, Land Use/Transportation
.committee meeting, two council hearings, etc.
There is no fee identified in the fee schedule for annexations or preannexation zoning. There is
also a policy question as to whether or not to charge fees for annexations and comprehensive
plan/zoning preannexation. The closest fees associated with comprehensive planlpreannexation
zoning would be as noted below:
Comprehensive Plan Amendments
$500.00 + $50.00/acre
Quasi-Judicial Rezones
- to RS Zone
- to RM Zone
- to Commercialßndustrial Zone
$450.00 + $250.00/acre - $11,000.00 max
$650.00 + $800.00/acre - $17,400.00 max
$900.00 + $1,200.00/acre - $18,500.00 max
enc
PRl!ANNl!X.MI!M
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RECEIVED
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EXHIBIT A
PAGE J OF z
SEP 1 6 1997
CCITV CLERKS OFFICE
ITV OF FEDERAL WAY
ΠC~~.
August 11, 1997
Honorable Mayor, City of Fedc;ra1 Way
City Council, City ofFcdcral Way
Community Development Department
33530 l't Way South .
Fede~ Way, WA 98003-6210
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Re: Pre- Atmexation Zoning
(Proposed Applcwood Annexation)
.
Gentlemen:
, We the homeowners of the development of Applewood respectfully JC9,uest pre-annexation
zoning for aD. properties in the proposed 60% petition prior to ~ any ~gTI~tmes.
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EXHIBIT A
PAGE 2- OF þ
Owners Name
Pñnted name
Address
Date
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Proposed,
. po pplewood
Annexation
To the City of
Federal Way..
EXHIBIT
PAGE
S. 2791H ST.
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ADDITION TO
PROPOSED
ANNEXATION
AREA
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ORIGINAL PROPOSED
ANNEXATION AREA ~
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~: i' 3900
'r;h , .Is 325 Feet
Map Date: May 16, 199T.
City of Fedora! Way.
33530 AI'Gt Way S.
FedoraJ Way. WA 98003
(253) 661-4000.
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Thi, It\3P ¡, ¡ntondod for u,o ;u; a
graphical m(l(O ;ootalion ONI. V. Too
City of Fedora! Way makOG no
warranty a' to it, accur;¡cy.
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This proposed annexation is
subject to acceptance by
the Federal Way City Council.
It accepted, signatures
representing at least 60%
ot the assessed value
must be gathered.
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VICinity Map
Legend:
1m . Original Annexation
liB! Area
. I I '- Proposed Adcfltion
- to Annexation Area
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CITY OF II'
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~~ E=IY' 33530 1ST WAY SOUTH
(206) 661-4000
FEDERAL WAY, WA 98003-6210
August 4, 1997
Mrs. Jeannie VanVleet
28318 15th Ave S.
Federal Way, WA 98003
EXHIBIT-' C
PAGE 1 OF
1
Re: Applewood Annexation - Potential Zoning
Dear Mrs. VanVleet:
This letter is a follow-up to our meeting of July 21, .1997. At that meeting, Greg Fewins .and I went
over the next steps in the annexation process including the environmental review process and
circulation of the 60% annexation petition. At that meeting you indicated that you would Ìike a
preliminary indication of the zoning that staff may recomme~d for the annexation area. I have met
with the Community Development Services Director, Greg Moòre and Assistant City Manager, Philip
Keightley to discuss the zoning issue. '
Based on that discussion I can provide you with the following information regarding the zoning. of the
proposed annexation area. There are two major caveats that I must make related to the zoning
~:~cussed in this letter. 1) The zoning designations discussed below are very, preliminary at this point
j developed after a cursory review of existing zoning in the county, zoning in the city surroùnding
the area, the constraints on the property, and existing land uses in the area; When staff revieWs the
annexation proposal in more detail, these zoning recommendations may change prior to going to the
City Council; and 2) The staff recommendation is just that, a recommendation. City Council has final
approval authority on the zoning of the area. The Council mayor may not accept at! or part of the.
staff's recommendation related to the annexation zoning. The preliminary thoughts on zoning are:
3.
Existing store at 279th & SR-99
RS, 7.2 - Single Family Residential
RM zoning, potentially RM 1800 or 2400 - Multi
Family Residential ' '.
BC - Community Business commercial zoning
1.
2.
Applewood neighborhood:
Properties fronting on SR-99
I hope this letter provides you and your neighbors the information need~d to continue the annexation
process. If you have any questions related to this information, please feel free to contact me at 661-
4119.
Respectfully, . .
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. Grego~.ity1c ormick, AICP
Senior Plaln'ner
Mike Reid, President
Granville Southern Corporation
P.O, Box 2878
Kirkland, WA 98083.2878
Proposed
\pplewood
Annexation
Current City and
County Zoning
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R-6
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AM 1800
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RM (FW)
1800
(FW)
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1 ..",0 equals 325 Feet
0 500 Feet
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Map Date: Jdy 3,1997.
City of Federal W~,
33530 Fil'lit W~ S,
Federal W~. WA 98003
(253) 661-4000.
This map is intended for use as a
graphical rep/'8Gootation ONLY. The
City of Federal W~ makes no
warranty as to its accuracy.
This proposed annexation is
subject to acceptance by
the Federal Way City Council.
If accepted. signatures
representing at least 60%
of the assessed value
must be gathered.
Vanity Map
Legend:
Federal Way Zoning (FW)
RS 7.2. - Single Family,
(1 Unitl7,200 SQ. Ft.).
RM 1800 - Multi-l=amily
(1 Unit/1,800 SQ. Ft.}
RM 2400 - Multi-F=amlly
(1 Unit/2,400 Sq. Ft.)
I3C - Community Business
King County Zoning (KC)
R-6 - Single Family,
(6 Units/1 Acre)
À-24 - Multi-Family
(24 Units/1 Acre)
GC - General Commercial
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MEMO
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To:
Land Ug¿¡'ransportation Committee
Phil Watkins, Chair
Mary Gates and Ron Gintz, Committee Members
Greg Moore
Director of Community Development SeIVÍces
Draft Ordinance Nonconformance Provisions
October 1, 1997
From:
Subject:
Date:
Attached you will find a draft of the nonconforming provisions which incorporates all previous
Committee direction on general nonconforming provisions and water quality.
Staff recommendation is for the Committee to recommend approval of the Ordin~ce to the full
City Council.
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ORDINANCE NO.
Q-30. 9'7
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL
WAY, WASHINGTON, AMENDING CHAPTERS 16 AND 22 OF THE
FEDERAL WAY CIlY CODE, PERTAINING TO LAND USE AND ZONING,
ADOPTING. NEW DEFINITIONS, . REVISING EXISTING
NONCONFORMANCE PROVISIONS AND CONSOLIDA TIÑG THE
REQUIREMENTS FOR PUBLIC IMPROVEMENTS INTO TtfE
NONCONFORMANCE, ARTICLE IV OF CHAPTER 22.
A
Amendments to the Federal Way City Code (FWCC) text arè' authorized pur~uant
to FWCC Sections 22-216 and 22-217 pursuant to Process VI review; and
B.
The Federal Way City Council has considered a proposed change to tl)e FWCC
relating to the nonconformance provisions of the code; and
C.
The Federal Way City Council, pursuant to FWCC 22-517, having determined the
Proposal to be worthy of legislative consideration, referred the Proposal to the FegeraLWay
PI~nning Cqmmission for its review and recommendation; and
D.
The City of Federal Way SEPA responsible official has determined that the
, ,
proposed amèndments are procedural in nature and categoriCally exempt from SEP A as
<'
authorized 'by WAC 19~-11-800(20}; and
E.
. . .
The public was gIven opportunities t? comment on the Proposal qurinp the
Planning Commission review; and
, "
F.
The Federal Way Planning Commission, having cohsidered the Proposaf at a
public workshop on April 16, 1997 and public hearings on May 7th and May 21st, 1997 pur~uant
tqFWCC Section 22-523, and all public notices having been duly given pursuant to FWCC
Section 22,.521; and
Ordinance No. 97-_, Page 1
1
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G.
Following the public hearings, the Planning Commission submitted to the Land Use
and Transportation Committee of the City Council its recommendation in favor of proposed.
zoning text amendments affecting various sections of the FWCC as noted previously; and
H.
The Federal Way land Use and Transportation City Council Co91l!1.ittee met on
July 21, September 3 and September 15, 1997 to consider the recommendation of the Planning
'"
Commission and take public comment The land Use and Transportation Committee has
moved to forward the Proposal, with amendments, to the full City Council; and
I.
There was sufficient opportunity for the public to comment on the ProPQsal; NOW,
THEREFORE,
THE CITY COUNCil OF ll-fE CITY OF FEDERAL WAY. WASHINGTON. DOES
HEREBY ORDAIN AS FOllOWS:
Section 1. FIndings. After full and careful consideration, the CitY Council of the City of
Federal Way makes the following findings with respect to the Proposal and the proposed
amendments to the Federal Way City Code (lfFWCCIf):
1.
The proposed code revisions will provide more flexibility relative to structures and
developments that were built in accordance with the codes and laws in effect at the time of
construction; and
I I .
2.
The proposed code revision will require improvements that are reasonably related
to the work being proposed on a given property; and
3.
The City of Federal Way is experiencing a high occupancy rate of commercial
properties. particularly in the City Center Core and Frame areas; and
Ordinance No. 97-_1 Page 2
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4.
The Federal Way SEPA responsible official has determined that the proposed
a.mendments are procedural in nature and categorically exempt from SEP A as authorized by
Wf\.C 197-11-800(20); and
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5.
The proposed code amendments would' not adversely affect the public health,
saffjtý or welfare; and
6.
The Planning Commission, following notice the'reof as required by RCW
35A63.070, held work sessions and public hearings on the proposed regulatory amendments
and ,has considered the testimony, written comments, and material from the public by and
','.... , ,
th~ou,gr said hearings.
Section 2. Conclusions. Pu~uant to FWCC Section 22-217 and based upon the
Findings set forth in Section 1-, the Federal Way City Council makes the following Conclusions
of ,Law with resp~ct to the decisional criteria necessary for the adoption of the Proposal:
1.
The Proposal is consistent with the following Comprehensive Plan 9?al,s' and
policies::;
A
LUG2 - Develop an efficient and timely development review process based
on a public/private partnership.
" '
B.
LUP6 - Conduct regular reviews of development regulations to determine
how to improve upon the permit review process.
2/
The Proposal bears a substantiål relationship to the public health, safety and
welfare because it addresses concerns for the public health, safety, and welfare by
establishing çoherent regulations that reflect a reasoned balance between the rights of
individual property owners and the broader community interest.
Ordinance No. 97-_, Page 3
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3.
The Proposal is in the best interests of the residents of the City in that the
proposed code revision allows structures which complied with the applicable codes and
laws in effect at the time of construction, to continue to be utilized wìth reasonably related
upgrades of the subject property and improvements required by the n<?:n~nfonnance
provisions of the zoning code.
Section 3. Amendment. The Federal Way Zoning Code, Chapter 22, is amended to
provide as set forth in Attachments A through C which are attached and by this reference are
incorporated herein.
Section 4. Severability. The provisions of this ordinance are declared separate and
severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion
of this ordinance or the invalidity of the application thereof to any person or circumstance, shall
not affect the validity of the remainder of the ordinance, or the validity of its application to other
persons or circumstances.
Section 5. Ratification. Any act consistent with the authority and prior to the effective
date of this ordinance is hereby ratified and affinned.
Section 6. Effective Date. This ordinance shall take effect and be in force five (5) days
from the time of its final passage, as provided by law.
.
. .
PASSED by the City Council of the City of Federal Way this
day
of
,1997.
CITY OF FEDERAL WAY
MAYOR, MAHLON S. PRIEST
Ordinance No. 97-_, Page 4
4
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A TrEST:
'.
CITY CLERK, N. CHRISTINE GREEN, CMC
APpROVED AS TO FpRM:
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CITY AITORNEY, LONDI K LINDELL
FILED WITH THE CITY'CLERK:
PASSED BY THE CITY'COUNCIL:
PUBLISHED:
EfFECTIVE DATE:
ORDINANCE NO.
. . '
Ordinance No. 97-_, Page 5
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ATTACHMENT A
SECTION 22-1- DEFINITIONS
Ordinance No, 97-_, Page 6
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Abandoned shall mean knowing,relinquishment. ,by the owner,~'p(right'q.r claim to the
subject property or structure on ~t property, . .'. .'" . - . .'.
propertY or structure to aoother owner. tenant. or lessee. or of resuming the owners use Qf ttm
. . - '- ì: ;;
bankruptcy. or mortgage foreclosure)."
'.
Acœssol}' shall mean a ~. activity. structure or part of a s.tAJcture which is subordinate
'and incidental to the main activity or structure on the subject property. -.
Acœssol}' dwelling 'unit (ADU) shall mean either a freestanding deta~ed structurø or an
attached part of a structure which is subordinate and incidental to tne main' or primary dwâlling
unit located on the subject property. providing compJete. in~ependent living,facilities ~xclu~ively
for one single'housekeeping unit. including permanent provisions for living. sleeping. coQking
and sanitation.
ADu, attached shall mean an accessory dwelling unit tþat~. one or more vertical and/or
horizontal walls. in commQn with 'or attached to. the primarydwelllftg uni~ ..
ADU, detached shall mean a freestanding accessory dwelling unit that is not attached or
physically connected to the primary dwelling unit.
Acœssol}"'hardship dwelling unit ~II mean an attached ADU whicH satisfies the cr~teri~
set forth in Section 22-633 of this Code~
Acœsso¡y/iving facility shan mea~ an area or structure on th~, subject property. which is
accessory to a permitted ~se on à.commercial subject prop~rty, providing provisions:for I.jving!
cooking. sleeping and sanitation for an. employee on the suDjectj>roperty and that ernploye~'s
family. or for the business owner/operator and that personl.s' famiiy. -
Adjoining shall mean property that touches or is;direct,ly acróss a street from the subject
property. For the purpose of height regùlations. any portioríof a structurø which is rnore.,thap
1 00 feet from a low density zone~:is not"èonsidered to be adJoining that zòne. I . '
.;.-.'- ,-
Adult entertainment activity or use shall mean all of the foliôWïng: ..'
(1 )
Adult theater shall mean ,a building or enclosure or any portion thereof used for
presenting material distingÚished or charactéi"ized;,by ari emphasis on matte(
depicting, describing or relating to specified sexual activities or ,specified
anatomical areas (defined as follows) for observation by patrons therein and which
excludes minors by virtue of age.
a.
Specified anatomical areas shall mean both of the following:
(2)
Any person who is engaging in an activity governed by this chapter or who .is the
owner of property subject to this chapter.
Ordinance No, 97-_, Page 7
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,þ.
Average building elevation shall mean a reference datum on the surface topography of
a subject property from which building height is measured. The reference datum shall be a point
no higher than five feet above the lowest elevation taken at any exterior wall of the structure
either prior to any development activity or at finished grade, whichever is lower, provided the
reference datum is equal to or lower than the highest elevati~n at ai1y exterior wall of the
structure prior to development activity.
A verage slope shall mean the average grade of land within each land area representing
a distinct topographical change.
..
Backfill shall mean material placed into an excavated area, pit, trench or behind a
constructed retaining wall or foundation.
Building shall mean a roofed structure used for or intended for human occupancy.
Building mounted signs shall mean all of the following: wall mounted signs, marquee
signs, under marquee signs and projecting signs.
Bulkhead shall mean a wall or embankment used for retaining earth.
Business college shall mean a post secondary institution that offers instruction in
business principles and practices that will enhance one's ability to perform in a business setting,
i.e., secretarial, accounting, purchasing, computers.
Cemetel}'.shall mean land used or intended to be used for the burial of the dead and
dedicated for cemetery purposes, including columbariums, crematories, mausoleums and
mortuaries, and related uses, when operated in conjunction with and within boundaries of such
cemetery.
Center identification sign shall mean a building mounted sign or ground mounted sign
which identifies the name of a development containing more than one office, retail, institutional
or industrial use or tenant and whiCh does not identify any individual use or tenant.
. . .
Ordinance No. 97-_, Page 8
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Medium density use shall mean detached, attached or stacked dwelling units on' a subject
property which contains at least 3,600 square feet of lot area per dwelling ùnit but not more than
7, 199 square feet of lot area per dwelling unit
Medium density zones shall mean the following zones: RS 5.0, RM 3.6 and comparable
" '
zones in other jurisdictions. '
Minor stream shall mean any stream that does not meet the definition of major stream.
Monument sign shall mean a ground moul1ted sign which is attached to, the ground by
means of a wide base of solid appearance and which complies with the standards of Plate 3..
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Moorage facility shall mean a pier, dock, buoy or other structure' providing docking or
moorage space for waterborne pleasure craft. '
. Multiuse complex shall mean all of the following: a group of separate buildings operating
under a common name or management; or. a single ~uilding coritåining' multiple uses where
there are specific exterior entranc9ways for individl,lal uses; or a gr:ðup of uses on separate but
adjoining properties that requesftreatment as a multiuse complex. .
Natural features shall mean physical characteristics of the subject property that are not
manmade.
Natural materials shall m~an materials chemically unaltered from their natural state.
. ...
Noise shåll' mean the intenSity, duration and character Òf sound from any and all sources;
Nonconformance shall mean any use. structure, lo~ COf19ition, activity or anY.other
feature or element of private or'public property~.,or the us~ or utilization of private or påbli'C
property. that does not confonn to any of the proviSions of thi~ chapter or that was nofapproved
by the City of Federal Wayeity-through the appropriate decisibn-maklng process required unper
this chapter.
.'
Nonliving ground cover shall me~n gravel, .chipp'ed b~rk or similar ndnpolluting material
through which water can freely percolate to the"soil beneath.
Normal maintenance shall mean nonnal mai,ntenal1Ç6 in~udes'interior ,and exterior
repairs and incidental alterations. Nonnal m~tnten~~œ,aód ref>àir ~ay in~ude, but is pot IilJ1ite9
to, painting, roof repair and replaçeme'1t, pl4mbiQ~g, wiring and el,Øctrical systems, mecha,nicãl
equipment replacement and weatherizâ~ion. Incidental alteF8tion~ may include construction of
non bearing walls or partitions.'
Normal maintenance - signs may include, but is not limited to: replacing light bulbs.
painting faded or peeling paint. replacing smalp:'pieces o(a darnaged)sign. This does not
include change of color. materials. sign type. size height or text. except for that specifically
permitted for a new tenant change to a multi tenant sign.
Ordinance No. 97-_, Page 9
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On-site hazardous waste treatment and storage facilities shalt mean facilities which treat
and store hazardous wastes generated on the same lot or geographically contiguous or
bordering property. Travel between two properties divided by a public right-of-way, and owned,
operated or controlled by the same person, shall be considered on-site'travel if.
(1) The travel crosses the right-of-way at a perpendicular intersection, or
, -7 -
(2)
The right-of-way is controlled by the property owner and is inaccessible to the
public (see WAC 179-303-040(39».
Property line shall mean those lines enclosing the subject property and those lines
defining a recorded vehicular access easement or tract. The following are categories of property
lines:
(1)
(2)
(3)
The front property line is any property'line that is adjacent to a right-of-way which
is more than 21 feet in width, excluding Interstate 5. If the subject. property. is
adjacent to more than one right-of-way which is more than 21 feet in width, the
applicant shall designate which of the adjacent property lines is the front property
line and the remainder of such adjacent property lines will be considered as either
a rear property line or side property line, based on the definition in this section. If
the subject property is not adjacent to a right-of-way which is more than 21 feet in
width, then the front property line is the property line adjacent or principally
oriented to the street providing primary vehicular access to the subject property,
as determined by the director of the department of community development
The rear property line is any property line that. is farthest from, and essentially
parallel to, the front property line.
The side property line is any property line other than a front property line or a rear
property line.
Public park shall mean a natural or landscaped area, provided by a l;Init of government,
to meet the active or passive recreational needs of people. . .
Public utility shall mean the facilities of a private business organization such as a public
service corporation, or a governmental agency performing some public service and subject to
special governmental regulations, the services which are paid for directly by the recipients
thereof. Such services shall include but are not limited to: water supply, electric powar,
telephone, cablevision, natural gas and transportation for persons and freight The term also
includes broadcast towers, antennas and related facilities operated on a commercial basis.
Public works director shall mean the director of the department of public works of the city.
Ordinance No, 97--. Page 10
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A TT AcHNÌENT~ B
~RTICLE IV - NOtkONFORMA~CE
Ordinance No, 97-_, Page 11
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ARTICLE IV. NONCONFORMANCE*
.Cross reference(s)-Effective date of the zoning regulations and requirements, § 22-9;
district regulations, § 22-571 et seq.; supplementary district regulations, § 22-946 et seq.
. Sec. 22-325. Purpose and intent.
- --
The purpose of this Article is to allow for the continuance and maintenance of legally
established nonconforming uses and structures. and to provide standards delineating the
circumstances in which nonconforming uses and structures must be brought into conformance with
the standards and provisions prescribed within tbiLchapter. In particular. the intent of this Article
is to:
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Ensure a reasonable opportunity for use of legally created lots which do not meet
current minimum code requirements for the zoning district in which they' are located.
Ensure a reasonable opportunity for use. maintenance and minor improvement of
legally constructed buildings. structures and site development features. encourage
a reasonable opportunity for a change of tenants using such buildings. structures.
or features. even where those buildings. structures and features do not comply with
development regulations prescribed by this chapter. and provide more flexibility
relative to structures and developments that were built in accordance with the codes
and Jaws in effect at the time of construction:
Ensure a reasonable opportunity for continuation of legally established uses Which
do not conform to use regulations for the zoning district in Which they are located.
Encourage the replacement of nonconforming uses having potentially undesirable
impacts on conforming uses.
Encourage the upgrading of nonconforming buildings. structures and site
development features which do not comply,with development regulations prescribed
by this chapter.
Sec. 22-326. Administration.
This article establishes When and under what circumstances nonconforming aspects of a
use or development must be brought into conformance with this chapter. The provisions of this
article should be used only if there is some aspect of the use or development on the subject
property that is not permitted under this chapter.
(Ord. No. 90-43, § 2(165.05),2-27-90; Ord. No. 91-113, § 4(165.05),12-3-91; Ord. No. 92-135,
§ 3(165.05),4-21-92; Ord. No. 92-144, § 3(165.05),6-16-92)
Ordinance No. 97-_, Page 12
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Sec~ 22-327. When confonnance is required.
If an aspect, element, activity or use of or on the subject property confonned to the
applicable zoning chapter in effect at the time that aspect, elemen~ activity or use was constructed
or initiated, that aspect, element" activity or use. may continue and need not be brought into
conformance with this chapter unless a provision of this article requires"conformance.
(Ord. No. 90-43, § 2(165.10),2-27-90; Ord. No. 91-113, § 4(165.10), 12-3-91;_O_rd. No. 92-135,
§ 3(165.10),4-21-92; Ord. No. 92-144, § 3(165.10),6-16-92) -.
Sec. 22--328. Regulations applicable to legal nonconfonning use.
If a use is nonconforming in the zone in which it is located, this chapter does not establish
applicable dimensional or other regulations. If ttie use is a legal oonconfonning use. The'refore,
to determine Vinat regulation3 apply, the ~.ty wiil. in order to identify applicable regulations,
determine the zone that allows the nonconforming use~ that is most similar to the zone. in which
the-nonconforming use is located and apply the development regulations of that zone. If the use
is a legal nonconforming use that is allowed in one or more zones other than the zøne in which it
is located. the City determine the zone moSt"<simílar to the zone in which the nonconforming use
is located and apply the development regulations' of that zone.
(Ord. No. 90-43, § 2(165.15),2-27-90; Ord. No. 91-113, § 4(165.15),12-3-91; Ord. No. 92-135,
§ 3(165.15),4-21-92; Ord. No. 92-144, § 3(165.15),6-16-92)
Sec. 22-329. Abatement of nonconfonnar!çe that was illegal when initiated.
(a) Generally. Except as specified in sðbsection (b) of this section, any nonconformance that
was illegal when initiated must immediately be brought .into conformance with this article. The city
may, using the provisions of article IV of thiš chapter or any other applicable law, immediately
abate any nonconformance that was illegal yme,,! .!,(\iti~ted.
(b) Exceptions. If a nonconformance has ever been in complete conformance with an
applicable zoning code it may continue to exist subject to the provisions of this article, and it i.s not
subject to abatement under subsection (a) of this:,section. ' . . "
(Ord. No. 90-43, § 2(165.20),2-27-90; Ord. No. 91-113, § 4(165.20), 12-3-91; Ord. ~o. 92-135,
§ 3(165.20),4-21-92; Ord. No. 92~144, § 3(165.49),6-16-92) '.
Sec. 22-330. Immediate compliance with certain provisions required.
(a) Generally. Regardless of any other provision of this article, the folloy/ing
nonconformances must be immediately brought into conformance with the applicable provisions
of this chapter: .
(1 )
Nonconformance with the noise standards in section 22-956;
. y
Ordinance No. 97-_, Page 13
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(2)
(3)
(4)
(5)
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Nonconfoffi1ance with the lighting standards in section 22-954;
Nonconfoffi1ance with the heat emission standards in section 22-951;
Nonconfoffi1ance with the radiation standards in section 22-::959;
Nonconfoffi1ance with the air quality standards in section 22-947;
-.
(6) NOnCOhfoffi1ance with the water qualit). standards in section 22 1 ~6 et seq ~
Unifoffi1 Fire Code and FWCC sections 8-51 - 8-120. to the extent that the nonconfoffi1ance poses
a threat to life or safety. as detemÏined by the Director in consultation with the appropriate fire
saftey officials: ' .
'(7)
(8)
(9)
(10)
Nonconfoffi1ance with the odor standards in section 22-958;
Nonconfoffi1ance with the provisions in section 22-1111 et seq.; regarding parking
and storage of large vehicles in residential zones;
Nonconfoffi1ance With the provisions in section 22-952 regarding junk;
Nonconfoffi1ance with the glare standards in section 22-950;
(11 ) Nonconfoffi1ance with the provision in section 22-1596 regarding portable outdoor.
signs;
(12) Nonconfoffi1ance with the provision in section 22-1596 regarding location of signs
extending over rights-of-way.
(b) Abatement. The city may, using any of the provisions of section 22-121 et seq. or any
other applicable law, to immediately abate or seek discontinuance of any nonconformance listed
in subsection (a) of this section.
(Ord. No. 90-43. § 2(165.25),2-27-90; Ord. No. 91-113, § 4(165.25),12-3-91; Ord. No. 92-135.
§ 3(165.25).4-21-92; Ord. No. 92-144, § 3(165.25), 6-16-92) . . .
. Cross reference(s)-Enforcement of the provisions regarding nonconformance with the
zoning regulations, § 22-121 et seq.; maximum environmental noise levels, § 22-956; lighting
standards, § 22-954; heat regulation, § 22-951; radiation. § 22-959; air quality, § 22-947; odors,
§ 22-958; water quality, § 22-1196 et seq.; parking and storage of outdoor equipment. § 22-1111
et seq.; junk and junkyards, § 22-952; glare regulations, § 22-950; portable outdoor signs, § 22-
1596 et seq.; signs extending over rights-of-way, § 22-1596 et seq.
Sec. 22-331. Certain nonconfonnances specifically regulated-Generally.
(a) Sections 22-332 through 22 33722-336 specify when and under what circumstances
certain nonconformances must be corrected. If a nonconformance must be corrected under this
Ordinance No. 97-_, Page 14
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~ection, . the applican~ must, as part of the appli~tion for any ~eveloPTe~t pennit,~supmit all
lo(ormation that the CIty reasonably needs to reVIew the correction. In addition, thei<Qty Will not
issue a certificate of zoning compliance or pennit occupancy until the correction is m~~r
(b) If section 22~ applies to a specific noliConfonnance, the proyisions of this, sectiôn-äo
not apply to that same nonconfonnanœ. '.
(qrd. No. 90-43, § 2( 165.35( 1», 2-27-90; Ord. No. 91-113, § 4( 165.35( 1», 12-3.-!;t1; Ord. No. 92-
135; § 3(165.35(1»,4-21-92; Ord. No. 92-144, § 3(165.35(1»,6-16-92) -. . .
Sec. 22-332. Same-Nonconfonning use.
. .;-<
Anynonconformin9.use must be tenninated br~ught into conformance Of ~i3cont1nued if.
(1,)
~
(2)
(3).
Th~ appliCant is making structural al~e~tions. or increasing the grs>ss floor area.r,9f
any struGtu~e that houses or supports the nonconfonning use; ,
Other than as specified in. subsection (1) of .this seçtion, the appliøantis making
Changes or alterations or doing work, other tha~ nortnal mainten~nœ,in any mm
consecutive 12 month period to any' structure that houses or supports the
nonconfonning use and the fair m~et value of that change, 'alt~ration or work
exceeds 15 percent of the assess~ or aperaised ~value- of that structure.' 'The
applicant may provide an appraisal of the injprov~ment structure on the subm
property. 'which has been damaged. The appraisal:tnust b~ from i:i:-source',thatJs
accept~ble to the city. The community development director ma,y (equire the
applicant to provide an apprais.al from a såli~ acceptable to the city if the assèssed
valuation appears to be inappropriat~;¡ If an j3pp~isal is provided by the applicant or
r~uired by the city, the larger of the:two åfflbunts. (value of assessm~ot or .~pp~ais~d
value) shall be used;
The subject property:'has been abandone~ for ~.o or more consecu~~e ~ys or tOe
~. » .' -.,.. y . .
nonconforming use has ceased. for ._18.0 9f -more consecutive day~; or
(4) . The applicant,replaCE!s the.use with a di(f~rent y;¡~. Jhe c,ity m~y allow this ~ange
in use, .if thrßugh process II the cityjt1è~~rTine~ that the proposed new.useliv'iII be
leS;'3 nonoonfonning and will have fe't~ d~p;mental effeds on; the neighbo",oqd than
dkf';the ~,xi~ling use. . . ,. '. .~f= .,
., .
(Ord; No. 90A3,§ 2(t65.35(2», 2-27-90; Ord. N<?;t91-113, § 4{165.35(2», 12-3-91; Ord. No. 92-
135, § 3(165.35(2», ~21~92; Ord. No. 92-144, §;3(:I~Ji35(2»~:6-16-9~)
Gross refereqce(s)-Building code stand~d~, § 5-66.
.. Sec. .22-333. ßame--Nonconforming procedure.
Ordinance No. 97-_, Page 15
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If the subject property contains' a use m: aspect. activity or development requiring approt"Sl
through process I. II. or III, or IV. and the use or activity which ""8S not approved or revievted by
the I iearin9 Cxam~ through any quasi judicial process under this' chapter or any prior applicable
zoning provision. that use.« aspect, activity or development must be reviewed and approved
using the appropriate process ßl under this chapter if: '.
(1)
There is a change in use and this chapter established different or more rigor-ous
standards for the nevi use than for the existing use; "
(21) The applicant is maki",g additions. changes or alterations or doing 'Norl<, other than
normal maintenance or other than tenant improvements. to the subject property in
one consecutive 12 month period the fair market 'i8lue of which exceeds 50 percent
of the assessed or appraised '/Slue of all stnJctures on the subject property. The
applicant may provide an appraisal of the. structures on the subject property.
improvement ~,mich has been damaged. The appraisal must be fr-om a source that
is acceptable to the city. The communit)' de.telopment director may require the
applicant to pfO'ride an appraisal from a source 8CCGptable to the cit)' if the assessed
't'aluation appears to be inappropriate. If an appraisal is provided by thè applicant or
required by the city. the larger of the two amount3 shall be used;
(32)
The subject property has been abandoned for 90 or more consecutive days or The
use conducted on the subject pr-operty has ceased for ~ 180 or more consecutive
days; or
( 4Q) The director of community development determines that there will be substantial
changes in the impåct3 on the neighborhood or the city as a result of the pr-oposed
change The applicant proposes to increase the gross floor area of any use on the
subiect property by 25% or morc. either through addition of neVi floors '¡y'ithin the
structure or enlar-gement of the existing building foot print.
(Ord, No. 90-43, § 2(165.35(3»,2-27-00; Ord, No. 01 113, §.4(16S.35(3», 12-3-91; Ord. No, 92
135, § 3(165.35(3»,421-92; Or'(j. No. 02 144, § 3(165.35(3»,6 1692)
Sec. 22-334. Same-Nonconfonning Development
" .
. If any aspect. structure. improvement or development does not conform to the development
regulations prescribed in this chapter. that aspect. structure. improvement or development must
be brought into conformance or otherwise improved as set forth below. If there are fewer parking
spaces for the uses conducted on the subject property than are requir~d under this chapter, the
additional required number of spaces must be provided if:
(1 )
Change of use - single tenant site: If an applicant proposes a change of use on
property used or occupied by a single tenant or use. the applicant shall meet those
provisions detennined by the Director to be reasonably related and applicable to the
change of use. These provisions shall apply to the entire site.
Ordinance No. 97-_, Page 16
16
. œl . Change of use - multi tenant s~ an applicant proposes a change of use on only:
~, a portion of propertY occup~e tenants or uses. the ~pplicant shall' me~t
those provisions determined by the Director to be reasönably related and applicabl~
. f
of the site related to the use or tenant space on which the change is proposed. =Rte
.~~pplicant is going to change the tlse conducted on the s~bject .property and this
chapter requires more parking spaC83 for the new' use than for the former use;
Increase in Gross Floor Area: If ~ aPPlicant propose~ to is-inèrease incre~ing
.the gross floor area of any use on the subject property in anyone of the following
ways. the' applicant shall comply with the development regulations in effect at the
'time of the proposal. as specified below: ' .- .
(4)
(5)
(6)
. .. ".'~"'~".:':':'.:_'~:~:.':'.:~Á~~=:~:~;r'
(3)
Q.. If a new and separate structure is being constructed on an already
developed site. the applicant shall cOmply with all development regulations
applicable to the geograptJjc porti.2n.2f the site on whiCh .the new structur~ and any
related improvements are to be constructed. .. '. "'. " ,
Abandonment If an applicant proposes any work. induqing tenant improvements, on
" '< "'. ..
tnë subject property 1b§t has been abandoned for 90 or more consecuti'v'e days. ~
applicant shall comply with all development regulations applicable to the subj~
property. to the extent physically or technical~y practic::able on the site; or the use
conducted on the subject pr~perty has ceased for 1800r more consecuth'e d~ys.
The use conducted on the subject property has ceas~d for more than one year. )n
which case the applicant shall repair and/or restore 'the improy~ments on the site
(e.g. d.rnjnage. landscaping. curQing. parting. pai1<io.gjQJJandscåping. etc:) to a
condition as near as physically possible to the condition"required by the requirements
:t ' # ..
of'spproval of the existing development:
The applicant is making any alteration or changes or doing any work. other than
nonnal maintenance or other than tenant improvements, in âny one con~ecu~ive 12
month period to an improvement that is nonconforming and the fair market value'of
the alteration. change or other work exceeds 50 percent of the assessed or
appraised valued of that improvement. The applicant may provide an appraisal of
the improvement(s). The appraisal must be from a source acceptable to the City,
The Director may require the applicant to provide an ~ppraisarfrom a second source
acceptable to the City if the assessed valuation appears to be inaccurate or
Ordinance No. 97-_, Page 17
17
, -',c.__.., ,':;;;<~\~;);:¡);~;j~~itt¥~~~'¡'¡ .
inappropriate. If more than one appraisal is provided by the applicant or required by
the City. the larger of the two amounts shall be used.' In the event this subsection is
triggered with respect to a single-tenant or single-occupant site. the applicant shall.
meet all..£levelopment regulmions appl~e to the property. In the event thi§:
subsection is triagered with respect to a site occupied by multiple tenants or uses.
the applicant shall comply with those development regulations applicable to the
geographic portion of the site on which the alteration. change. or improvement is
proposed. For pwposes of this determ~ue under this section. improvements
required pursuant to Sections 22-334 (Nonconforming Development). 22-336
(street/sidewalk improvements). 22-337 (Nonconforming Water Quality
Improvements) and 22-1473 (street/sidewalk improvements) shall not be counted
towards the 50% threshold which would trigger application of this subsection (22-
3~(6». .
This section (22-334) does not govern application of Articl~X. Community Design Guidelines:
application of Article XIX is governed by FWCC 22-1630 - 22-1639: as amended. This section (22-
334) also does not govern application of development regulations relating to water quality. signs. .
or street/sidewalk improvements: application of those development regulations is governed by
FWCC 22-337. 22-335. 22-336 and 22-1473. all as amended
COrd. No. 90-43. § 2 (165.35{4», 2-27-90; Ord. No. 91-113 § 4 (165.35{4». 12-3-91; Ord. No. 92-
135 § 3 (165.35{4». 4-21-92; Ord. No. 92-144 § 3 (165.35{4}). 6-16-92).
Cross reference(s)-Zoning district regulations, § 22-571 et seq.; plan unit developments.
§ 22-921 et seq; off street parking regulations. § 22-1376 et seq.
Sec. 22-335. Nonconfonning signs.
(a) Purpose In order to ease the economic impact of this code on businesspersons with.
substantial investment in signs in existence on the date of adoption of this code, this section
provides for up to ten years of continued use of a nonconforming sign in its existing state. During
this period, it is expected that the sign may be amortized in its value over this ten-year time period
and/or may be amortized for federal income tax purposes; provided, however, that whether a sign
is amortized for tax purposes shall not affect the application of this section. . '.
, (b) Definitions. A nonconforming sign shall mean any sign as defined by section 22-1597
which. was legally in existence on the effective date of this code. February 28. 1990 but which does
not comply with the sign regulations of Article XVIII, "signs" or any other sections of this code. Any
words. terms or phrases used in this section and which are not otherwise defined shall have the
meanings set forth in sections 22-1 and 22-1597 of this Code.
(c) Legal nonconformance.
(1 )
Eligibility. Any nonconforming sign located within the city limits on the date of
adoption of this code, February 28, 1990. or located in areas annexed to the city
thereafter which does not conform with the provisions of this code, is eligible for
Ordinance No. 97-_, Page 18
18
. ,
""""'" ,.,
(2)
(3)
" ,'," ,:,,~:
""", "p"",'
characterization as a legal nonconforming ~ign provided it meets, the following
requirements:
(I)
The sign was covered by a sign permit on the date of adoption of this code,
if one was required under applicable law; or
If no sign permit was required under applicable law for the sign, the sign was
in all respects.. in compliance with applicable law on the d~t~ of adoption of
this CÒde. -,
(ii)
Allowed. All legal rÍortcOnforming signs are allowed subject to all pennit requirements,
the provisions cov.ering loss of legal. nonconfonning status and other limitations set
forth in this sectiOn.
Exclusions. No temporary ~igns, portable signs, special signs, or incidental si9l1s
shall be eligible for èharacterization as legal nonconforming signs. "
(d) Legal nonconforming sign perrtJit.
(1)
(2)
(3)
Required. A legal nonconforming sign pennit is required for each legal
nonconforming sign. The permit sha.1J be obtained by the sign user or the sign owner,
or the owner of the"prop~rty uporrwhichthe sign is located, within 60 days of
notification by the city that the siooJ's' iègal nonconforming. The permit shall be
issued for no fee and shall expire a( tt}~ end of the applicable amortization period
prescribed in FWCC22~(E). ..,
Necessary information. Applications for ,a ,legal nonconforming sign permit ~hall
contain'the name and.addráss of the~ign Úser, the sign owner and the owner ,of the
property upon which the sigñis 10cat~d,alJd such other pertinent information as the
?irect~r of communitydevelop'!'ent "Ì~¥ reqtjr;el1°. ensure compliance with the ~c:ie,
Including proof of the date of InstallatIon o~the sign.
'.' i.
Failure to-comply. k:1egal n9.nconfoqning!~¡gn fqr which no permit has been issued
within the 6O-day peli9d sh~!lwithin~ix mo~~s be brought intp,oompliance with the
code or'be removed. Failùre to co.iJ)ply;§Hall subject the sign user, owner anplor
owner of the propertý on which the:§jgn fs lOcated to the remedies and penalti~s,of
section 22-1604. l: .
(e) Amortization. All legal nonconforming sis¡JOs shall,be 9iscontinued and removed or'mage
conforming within ten years from the effective date of this code, on or before February 28, 2000,
"
and all signs which are made noneonfonning by ~ su~~equåØt amendment to this code shall be
discontinued and removed or made confönning wit.t\ì¡' five years after the date of such amendment
(collectively the "amortization pedod")/Upon tn(i expift:ition of the amortization period, the sign
'shall be brought into conformancEtwith this codð):with.1i1,permit obtained, or be removed;. A ~ign
prohibited pursuant to section 22-1600 may not be. bro~ght into conformance and must therefore
,e, immediately removed upon the expiration of tlfe åmortization period.
Ordinance No. 97-_, Page 19
19
(4)
",. .-."...."...;;¡.l~::~:;:~~:~~
(f) Extension or exemption from amortization period.
(1)
Applicability. This subsection applies to any sign which is required to be removed
pursuant to subsection (e) of this section 'following expiration of the amortization
period. ~
(2)
Purpose. A sign amortization exemption or extension is a mechanism by which the
city may provide relief from the effect of the sign amortization pr-oQram when its
enforcement would fail to noticeably improve the appearance of the neighborhood
and the city any whef}. a hardship would result from its enforcement.
Who may apply. the property owner or the person displayiryg the sign which is
required to be removed pursuant to subsection (e) of this section may apply for a
sign amortization extension or exemption.
(3)
Decisional aiteria. An application for a'sign amortization exemption or extension may
be approved or approved with modification if it satisfies all of the following criteria:
. ,
(a)
The sign is compatible with the architectural design of structures on the
subject property.
(b)
The sign substantially complies with the requirements of the sign code for the
land use district in which it is located. For purposes of this subsection.
"substantial compliance" shall mean that the height of the sign is within ten
percent of the sign height required by Article XVIII of this code and that the
. sign area of the sign is within 20 percent of the sign area required by article
XVIII of this code. Minor deviations from these percentages may be approved
by the administrator if he or she concludes that the resulting sign is
harmonious with the character of the primary structures on the subject
property and with the signs and structures on surrounding properties;
(c)
The enforcement of this code would result in a substantial hardship to the
applicant due to the size, shape, topography, location or surroundings of the
subject property and such hardship was not created b~ any action of the
applicant or would result ina substantial economic hardship to the applicant
because the applicant erected a sign, or made an application for a sign
pennit, between February 28. 1990 and June 6, 1995 if1 compliance with the
existing sign code.
(d)
The sign complies with the city's minimum sign distance at intersection
requirements pursuant to section 22-1151 et seq.;
(e)
If illuminated, the sign is oriented away from residentially developed or zoned
property or is adequately screened so that the source of light is not correctly
visible;
Ordinance No. 97-_, Page 20
20
. .. , '., ." ". ..,' "'. C""";:;;i.i
.. - ",', """"'-""-"-'--'~~"""""".""'-""'..""'~ .._......--.-----~~
(f)
(9)
It is consistent with the citý comprehensive plan; and
It is consistent with the public health, safety and welfare.
Applicable procedure. Except as otherwiseprovid~ ,þy this subsection;(f}, the city
~iII process' an application for a sign amortization ëxemptÎon or extensi~n through
. Process I, Article VI of this code.
(g) Loss of legal nonconforming sign status~ All nonconforming signs shàll be immediately
remçved oi"'modified to conform to all the provisions of this chapter, and a new permit secured
th~refor, and such nonconfdrming Sign soon immediately lose its legal no.nconforming designation
when one or more of the following events occurs:
(2)
(3)
(4)
(5)
(6)
(5)
(1.)
StlJlctural changes. The applicant is. makir:ag strudur:al alter~~ions or: increasing the
gross floor ar:ea of any structure thathouses or suppórts'th.e use with which the legal
nonconforming sign is associated; , . ~r
Other alterations. The applicant is making any change, ,?Iteration or performing work
other than normal ~intenance or other th~p tenant improvements, in any 12-mon~
perJod to any-structure that houses or' supports the use witþ which the nonconformi~g
sig~ is associated and the fair mar:Ket v~~ue of those ch~.[\ges, alteration$ or oth~r
work exceeds 25 percent of the asséssèd :value of that structure as determined by
the King County Assessor;
Abandonment or business cessation. Tþ~ subjêci piop~rty containing;.the ~ign'Îs
abandoned for 90 or more consecutive dais or the activity' conducted. on the subject
property ceases for 180 consecutive days; ,.
. . .
Sign alterations. The~appliC8l)t is making changes, alteratio,ns or performing aqy work
,to :;the legal' noncO{1forming sign 9the~, than Jpgular.and ,normal maintenance.
Prohibited sign alterations inClude relocátihg the ~~no(replacing the sign; provi~ed,
¡however, that repiacingany indivi~.9~1 teQ~rt's!denti~.~tion sign in either a center
!~~ntification Sig!" ~ich seøa,~tely i~ntit{~',the !~na~Js or i.n a t?nant d~rect~ry sign
shall not result In the loss of such sl,~n's,.~~al nonconfoQl1Ing. ~Ign deslgnat,o~.
, ., í.,
Ch~nge in u~. The~ has been a ch~ge'~n use ~n thEfsuþject propE;}rty a~ t~at teqn
is defined bY section 22-1 of this cdge.' , .
Change in tenant. There has been;:a change in ter;1wt or business. on tt:te,subj~ct
preperty. '
.. ,
Iqconnection with any multiuse or multitenaht complex, ,the foregoing events which require
that a nonconforming sign be either removed or.-brought into conformance with this code, shall
apply only to the individuàl owners or tenant's b~ildin¡g ,Í11our:'~ed :qr freestanding signs ~o has
,triggered the elimination of the legal nonconformance and not to t~e otryer signs located on the
Ordinance No. 97-_, Page 21
21
.-...... ".. - ,-.. --., .
", ": ""--"."""'."""'.'.\.W~'~,*¡
~;
~,
subject pro,perty, including any copy change in a center identification or tenant director sign in
order to include such tenant's name.
(h) Historic signs. Nonconforming on-sita historical signs may be retained through Process
II, Article VII of this code, if the sign is detenninsd to be of historic signifiCÇInce by satisfying all of
the following criteria:
(2)
(3)
(4)
(1)
The sign is used in connection with a building which has been designated as a
historic building pursuant to any federal, state or local preservation authority;
s..
The subject sign or signs are substantially unchanged or unaltered since initial
installation;
The subject sign or signs are a good example of the prevailing signage during the
period in time it was installed; and
The subject sign or signs have been well maintained and are not materially
detrimental to the public' health, safety and welfare. '
(I) Exemption. The city may elect not to apply any provisions of this section 22-335 if the
removal of a sign would require the city to pay compensation under any federal, state or other law,
including RCW ch. 47.42.
(Ord. No. 90-43, § 2(165.35(5»,2-27-90; Ord. No. 91-113, § 4(165.35(5», 12-3-91; Ord. No. 92-
135, § 3(165.35(5»,4-21-92; Old. No. 92-144, § 3(165.35(5»,6-16-92; Ord. No. 95-235, § 3,6-6-
95)
Cross reference(s)-8ign regulations, § 22-1596 et seq.
Sec. 22-336. When public improvements must be installed. Same-:-NonGonfonning buffers.
An applicant for a development permit for any type of activity on property on which a
nonconformance is located shall provide the improvements required by Article XVI of this chapter.
as provided in FWCC 22-1473. as amended. . . .
(Ord. No. 90-43. § 2(110.20).2-27-90)
Cross reference(s)-Streets. sidewalks and other public places. ch' 13: rights-of-way. § 13-
26 et seq.: subdivision required improvements. § 20-176 et seq.: drainage program. § 21-26 et seq.
If the subject property does not contain the buffer3 required by this chapter, the required
buffers must be provided if:
(1 )
There is any increase in the gross floor area of any structure on the subject pmperty.
f lowever, the buffers adjacent to preexisting buildings on the subject pmperty need
only be increased to the extent that the land is available for the increase;
Ordinance No. 97-_, Page 22
22
, (r)
(3)
" """.,.,....,..~,.~,...,-""",,,.::':<:'~',};';~~~~~-
There is 8 change in use:-en the subject property and this Ghapter requires larger or
denser ~uffers for the nevi use than for the former use; ,
ü<œpt as .sQécified in subsection (4) of this section, the applicant is making changes,
~lterationS or doing ether work. other, tha~ normal maintenance or other than tenant
improvements, in any 12 month periðd tó any structure on 'the subject property and
fair market ..'alue of these changes, alterations or other work exceeds 50 percent of
the ass~~sed or appraised -.'Slue óf that structure. The appliesn! I!'By, pfO'/ide an
~pr8isål of the improvement which has been damaged. The appråisal must be from
â source that is ~cœptable to the:aty. The community dð'.<elopment director may
require the applicant to prcwide an ::Ë!ppraisal from a source acceptable to the city, if
the assessed valuation appears robe inappropriate. If an appraisal is provided .by
the applicant or required by the city, the'larger of the to.'t'O amounts shall be,use,d;
'hOWð'it'er, the buffers aQjaœnt ta preexisting buildings on the subject prope~y nee,d
only be increased to the extent that.the landìs a'iailable for the increase; or~ .
(4) .. TI,~ subject property has been abandonedJor 90 or more consecutive days,or th,e
ûse conducted on the subjeå propeitt: ~'~ed for 180 or mðf-e consecùti..i days.
(Ord.,.No.9CM3, § 2(16S.3S(6}), 2:-27--90; Ord. No*,91,,113, § 4(165.35(6», 12 3 91; Ord. No. 92-
13.S,'§.:d(165.3S(6», 4 2192; Or'C1. No. 92 144; §3{16~.35(6)), 6-16 ~2)
9ro.$S reference(-s)--Landšcaping, § 22 1561. et seq.
Jec. ~2-337. Same--Any other nonconformance.
Improvem~nts. .
Nonconforming Water Quality
Thisisection sets forth the standards when and under what circumstances a structure.
,improvemèht or~development or propertY that does not Conform to the development regulations
,prescritJed In 'Ghãpter 21 of the FWCC (as'amended) relating ' to water quality. or does no~ conform
to the dèveløpment regulations COI1ta~sion 12 of this chaptm:..(fWCC sections
:22-119'6 -iQ2'::1220. as amended) must be b1ðught into compliance with the development
'iegulaJjons;.ïn Chapter 21~pertaining to Wàter qliálity ãnd Article XIII. Division 12 of thi~ chapter
(FwCd'seétiôns22-1196~22-1220. as.amended). ' .."
, ..~"" .~' .
,.",
o(šù , Redevelopment. ArlY person pro~sing to redevelop a structure. improvement.
. development or. property ,~ust bring that structurð. improvement. development or property into
, .'" 'i' . '. ".
compli~hceWith the develøpment regulations in Oþapter 21 pertaining to water quality and Article
XIII. D .~isiòn 12' of this <$apter:(FWCC sectionš;.e2~1196 - 22-1220. as amended)..; where 'the
propos'édrédevelopment rTleets or exceeds the thresholds set forth below. For the purposes of this
, .~. "q-. .'-'" ,
J.section1 '-rèdevêlop. or -r.êdevelopmenr. means'.~on an ,already developed site, the creation.¡or
mtrotion of:jmpervious suttace. the expansion Qla building ~footprint or addition of a structure.
,~tructu~ldevelopment ind~ding' interior:and/or e#eriòr eonsfruction or remodeling. thé repaIr or
"tepl.8cèment ofimpervio'Us' surface that-~s not part òf a routine maintenance activity. or I.and
kfistUrbing åctivitíes associated with impervious redevelopment. '
" 'r-'
Qr<;1inance No. 97-_" Page 23
23
£Ql
ill
!ID
""""-"",,,';c,,¡"':.':'-:~::~;~;"!.::~~~~~~
ill
Redevelopment which involves the aeation or addition of impervious surfaces having .
an area of 5.000 square feet or more:
.
'i
í21
Redevelopment which invoives the construction of a building footprint or other
structure having a surface area of 5.000 square feet or more. or which involves the
expansion of a building footprint or other structure by 5.000 square feet of surface
area or more:
-.
æ.
Redevelopment which involves the repair or replacement of 5.000 square feet or
more of an impervious surface. when such redevelopment is not part of a routine
maintenance activity:~'
œ
Redevelopment which involves the collection and/or concentration of surface and/or
storm water runoff from a drainage area of 5.000 square feet or more:
LID.
Redevelopment which contains or directly discharges to a floodplain. stream. lake.
wetland. or closed depression. groundwater recharge area. or other water quality
sensitive area determined by the Public Works Director.
Redevelopment which involves a change in use. and the changed use has a potentiBl
to release a new pollutant(s) to surface water systems within the City. For the
purposes of this subsection. -new pollutant(s)8 means a pollutant that was not
discharged at that location immediately prior to the change in use. as well as a
pollutant that was discharged in less quantities immediately prior to the change in
use:
Redevelopment which includes improvements with a cost of $1 oå.oOO or more on an
existing -high use- site. For purposes of this subsection. a -high use site- means any
one of the following: (a) a commercial or industrial site subject to average daily trips
of 100 vehicles per 1.000 square feet of gross floor area: (b) a site subject to
petroleum storage or transfer in excess of 1.500 gallons per year. (c) a site subjgg
to use. storage. or maintenance of a fleet of 25 or more diesel vehicles weighing 10
tons GVW: or (d) a road intersection with average daily trips of 25.000 or more
vehicles on a major roadway. or 15.000 or more vehicles on an intersection roadway.
For purposes of this determining cost under this subsection. improvements required
pursuant to Sections 22-334 (Nonconforming Development). 22-336 (streeUsidewalk
improvements). 22-337 (Nonconforming Water Quality Improvements) and 22-1473
(streeUsidewalk improvements) shall not be counted towards the $100.000 threshold.
which would trigger application of this subsection (22-337(a)(7»:
Redevelopment which includes improvements with a cost of $500.000 or more. For
purposes of this determining cost under this subsection. improvements required
pursuant to Sections 22-334 (Nonconforming Development). 22-336 (streeUsidewalk
improvements). 22-337 (Nonconforming Water Quality Improvements) and 22-1473
(street/sidewalk improvements) shall not be counted towards the $500.000 threshold
which would trigger application of this subsection (22-337(a)(8»;;
Ordinance No, 97-_, Page 24
24
. .'C ...-.."...""._...'-".n,'-'>,...:,\'>;;';':";;'::~:,;;;~~~~
!ID.
Redevelopment of property ~ns or djscharges to a receMng water that ~
a documented water quality proQJem. as detenn~e Public Works DirectorL
where the Director detennines that ~evelopment requires additional specifis¿
ÇQQtrQJs to ad~ocumented water quality problem.
"
.
!Ql Phasing. A person proposing redevelopment for a site greater than one acre in size
may acf:1ieve compliance witbJhe requirements ofJbjs sect~ng andjmplementiD9..a
stormwater management plan. The" plan must be approved by the Public Works-Director prior to
City approval of the proposed redevelopment. and must contain a detailed schedule. extending no
more than five years from the da~e of approval of the redevelopment. for construction of all
improvements required by this section (FWCC 22-337). A person choosing to proceed under this
ubs' -33 a 'de'o a 0 e a a e e a a
perfonnance bond and "bond agreement that: (1) have a tenn equal to the construction schedule
proposed in the plan: and (2) comply with the applicable requirements of sections 22-147 - 22 175.
as amended. .
.(çl ~ter qua~mprovements. A person proposing red~opment on a
properiY or site having a Federal Way Comprehensive Plan designation of CC-P (City Core -
Frame) or CC-C (City Core - Center) may construct water quality facilities required by this section
below grade. .
Cross references: Chapter 21 FWCC; FWCC 22-1196 - 22-1220.
If any nonconformance exists on the subject property, other than as specifically listed in
sections 22 333 through 22-336 with the exception of Article XIX Community Design Guidelines,
these must be brought into conformance if:
t47
t2t
(3)
The applicant is making any alteration or changes or doing any VlOrk, other than
normal maintenance or other than tenant improvements, in any consecuti'ie 12
month period to an improvement that is nonconforming or houses, supports or is
supported by the nonconformance and the fair market value of the alteration, change
or other work exceeds 50 percent of the assessed or appraised value of that
impro'/emenl The applicant may provide an appraisal of the improvement Vt'hich has
been damaged. The appraisal must be from a source that is acceptable to the city.
The, community development director may require the applicant to pro'v'ide an
appraisal from a source acceptable to the city if the assessed valuation appears to
be inappropriate. If an appraisal is prtwided by the applicant or required by the city,
the lar'Qer of the two amounts shall be used;
The use on the subject property is changed and this chapter establishes more
stringent or different standards or requirements for the nonconforming aspect of the
new' use than this chapter establishes for the former use; or
The subject property has been abandoned for ~O or more consecutive days or the
use conducted on the subject pr-operty has ceased for 180 or more consecutive days.
Ordinance No. 97-_, Page 25
25
.. '. -.-.'-"'.-.~-'.~.~tl~_~'..-,~.. ~~1'-
"""""'"...........".. . - - ......
COrd. No. 90-43, § 2{1~.35}, 2-~1...g0; Om. No. 91-113, § 04(165.35}, 12-3,91; Ol'd. No. 92 135,
§ 3(~65.35), 4 21~2; Ord. No. :J-2 144, § 3(165.35),6-16--92)
¡~ec,. 22-338. Additional provision if a quasi-judicial decision is ~quired., ~o_nconformfng
Inad.~ition to any other pro'tisions of this article, if a d8wlopmé'"t activit). or use on the
~ect p'reperty is being decide~ upon ..using either process I, II or III, the ..cit)~ shall, in such
,e~~ess, '.Consi~~~ the degre~ of nonco~ffl\8n~ 8f)d it~ rela~~nsl1!p--to theJ'.'Pposed _~se or
(!wlelopment aåi\,tt. and the at)" may require that the applicant cóffect any nanOQnfoffflanœ that
.exi~,ts on the s~bjeet proPörty.
"'.
. " . '.' .
(Ord. No. 90"-43, § 2(165~0), 2-27...g0; Ora. No. 91-113, § 4(165.40), 12-3...g1.;.Prd. ~o. 92 13~,
§ 3(165.40), 4 21 92; Ord. No.'92 144, § ~(165.40), 6 16 92)
.' Sec. 22-33.119. Special pI:Qvisions for residential uses.
If thE!t;.s,uþject proPi~ contains a residential us.~that ~me nooconfooni.ng as to use or
;density ~s. à" result of u:æ foption of,~is ~ter, that ~ørm;ngl~se or. density is ~mpt !rom'
the prO\'1310ns of sectlon~:-22-327 through 22-338 .and':.v'stea<t~ the following r~ulabons.apply:
(3)
(1 )
If the imprqyements on the subject propertY are damaged or destroyed by any
sudden cau$è, the structure may be reblÍift:. PrQvided ~thát..the number of dwelling
units and th~ gross floor ar~a in and.. on tþe subject property may not beincréased
from that wt1JJh existed immêdiately pñor to the dæ:nage or destructi~n .and aoy, °!her
'noQconf°rrw.ty of,pr on the ,~ubjed prope{!Y may notJn;c¡t.ny way'be increas~d. The
provisions of this~'subsection (1) are orìlyav~l!able. if"the applicant applies for.a
building p~it within 12 .'months after the s~ãderi qamage or destrudiçm and
coQstructiofl?is commenced and completed under that building pe,m:dt.
(2)
Other than as specified in subsection (t) of this -,section, the nonconforming use or
density mu~~ I?e correded. if the applicant is making changes, alterations or doing
oth~rwork..q&;erthan nonnal maintenance, in ar,y 12:;nonth peñpd to~ny structure
on the subj~pr°l?-erty an.d fair m~~et value of~thes~ç-ct1~nges,'aLterations or ottJ,er
'No.;k exceeds 50 percent gf the assess~.or appraised value,qf.that structure,The
applicant may. provide an appraisal of the impr~vement which has been damaged.
Thè appraisal must be from a source that ;is a~ptable to the city. The community
de~elopment~director JOOY r~uire tha';applicant t~, provide aq:appraj~a!. from ~~ource
,. acèept~ble ,to the -city if the'?assessed valuati°'1' appears to be inappropriate. If an
appraisal is provided by the applicant or required QY the city, the lar,ger of.the ~o
amounts shall be used. . . .
~!
The entire stlbject property has been 'abandoned {for 90 or more consecutive days or
all use condÚcted on the subject property has Ceased. for 180 or ~more consecutive
d~. .
Ordinance No. 97-_, Page 26
26
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(Ord. No. 90-43, § 2(165.45),2-27-90; Ord. No. 91-113, § 4(165.45),12-3-91; Ord. No. 92-135,
§ 3{165.45), 4-21-92; Ord. No. 92-144, § 3{165.45), 6-16-92)
Cross reference(s)-District regulations, § 22-571 at seq.
Sec. 22-3389.1. Nonconfonning accessory dwelling units.
(a) Eligibility. Any nonconforïning accessory dwelling unit C'ADU") located-within the city
limits on the date of adoption of this Code, February 28, 1990, or located in areas annexed to the
city thereafter, which does not conform to Sections 22-613, 22-648, 22-965 or any other provisions
of this Code, is eligible for designation as a legal nonconforming ADU provided it meets the
following requirements:
{1}
The ADU was covered by a penn it on the date of adoption of this Code, if one was
required under .applicable law; or
(2)
If no pennit was required under applicable law, the ADU was in compliance with
applicable law on the date of adoption of this Code. '
(b) Allowed. Alilagal nonconfonning ADUs are allowed subject to the provisions related to
loss of nonconfonning status and other limitations set forth in this chapter.
.( c) Loss of legal nonconforming ADU statús. All nonconforming ADUs shall be immediately
removed or modified to conform to all of the provisions of this Code and a permit secured therefor.
and shall lose their legal nonconfonning designation when one or more of the following events
occur. .
(1 )
(2)
(3)
(4)
Increase1n square footage. The applicant is increasing the gross floor area of any
ADU;
Other alterations. The applicant is making any change. alteration or perfonning work
other than normal maintenance or other than tenant improvements. in any 12-month
period to any ADU and the fair market value of such changes. alterations or other
work exceeds 50 percent of the assessed value of that ADU as. detennined by the
King County Assessor,
Abandonment or cessation of occupancy. The subject property containing the ADU
is abandoned for 90 or more consecutive days or the ADU is not occupied for 180
consecutive days; or
Change in use. There has been a change in use on the subject property as that term
is defined by Section 22-1 of this Code.
(Ord. No. 95-245, § 3(E). 12-5-95)
Ordinance No. 97-_, Page 27
27
I,
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Editor's note-Provisions enacted by § 3(E) of Ord. No. 95-245, adopted Dec. 5, 1995, as
.§ 22-339, have been included herein at the discretion of the editor as § 22-339.1.
.
'~.~c. 22-33i1tØ. Special provisions for compliance with government regulations.
The provisions of this section will be followeq regardless of any conflicting regulations of this
~article. fV)y regulations of this article which do not conflict 'With the provisions of this:,section are
yn~ffeçtåd ~y this section.
., Ii - -
(1)
au tanks. Any excavation, development activity or construction performed to comply
with the ""Underground StorâQe Tanks; Technical Requirements and State p¡ogram
Approval; Final Rules" (4Q CFR 280 and 281), as now existing or as hereafter
amended or with th~ provisions o( RCW å'l. 90.76, or any regulatiol')s adopt~d
thereunder, may nofbe used as thè basis, or part of the basis, for requiring that
nonconformance on, the subject property be corrected~
(2)
t.
Other government regulations. Other than as specified in subsection(1} of this
section, the city may, using process ft ßl. exempt a property or use from any of the
requirements of 'this article if. t, ,
a.
The actions or events which form the basis of requiring that nonconformance
on the subject property be corrected are necessitated solely to comply with
local, state or f~~fSl regulation;
,"'",
b. The actions necessitated to comply with those regulations will not significantly
, extend the expected useful life of the nonconforming aspect; and' '
c.
The public beQ~fit ~f complying;with thø local, state or federal r~gulation
clearly outweigns the public benefit in correcting the nonconformance.
(Ord. No. 90-43, § 2(165.50),2-27-90; Ord. No. 91-113, § 4(165.50), 12-3-91;Ord. No. 92~135,
,§ 3(~65.50}, 4-21-92; Ord. No. 92~1.44, §~3(165.50}, 6-16-92)'
~eç. 22-3421-. Prohibition on increasing nonconformance.
. .'
No nonconformance may" in any',way, be enlarged, expanded, increased, intensified,
qampounded or in any other way made greater, except as specifically permitted in this article.
(qrd. No. 90-43, § 2(165.55), 2-27~0; Ord. No. 91-113,,§ 4(165.55}, 12-3-91; Ord. ~o. 92-135,
§ ?(165.55), 4-21-92; Ord. No. 92-144, § 3(165.55}, 6-16-92} ,
Sec. 22.;.341~. Applicability of uniform codes.
Nothing in this article in any'way supersedes or relieves the applicant from compliance with
.the requirements of the city's building codes. the Uniform Building Code. the Uniform Fire Code.
md other construction-related codes as adopted and amended from time to time by the city.
Ordinance No. 97 -_I Page 28
28
",.....L ^
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~
(Ord. No. 90-43, § 2(165.60), 2-27-90; Ord. No. 91-113, § 4(165.60),12-3-91; oret. No. 92-135,
§ 3(165.60),4-21-92; Ord. No. 92-144, § 3(165.60),6-16-92)
Cross reference(s)-Buildings and building regulations, ro. 5.
Sec. 22-3423. Special provision for damaged Improvements.
'.
If a nonconfonning improvement is damaged by sudden accidental cause, ~limprovement
may be reconstructed only if it meets the following requirements and not otherwise:
(1)
(2)
(3)
The cost of reconstrut:ting the damaged improvement does not exceed 75 percent
of the assessed or appraised value of that improvement prior to the damage. The
applicant may provide an appraisal of the improvement which has been damaged.
The appraisal must be from a source that is acceptable to the city. The community
development director may require the applicant to provide an appraisal fonn a source
acceptable to the city if the assessed valuation appears to be inappropriate. If an
appraisal is provided by the applicant or required by the city, the larger Of the tWo
amounts shall be used.
The improvement, as reconstructed, is not any more nonconfonning than it was
immediately prior to the damage.
The applicant applies for a building pennit to reconstruct the damaged improvement
within six months of the date of the damage and reconstructs the improvement
pursuant to that building pennil
(Ord. No. 90-43, § 2(165.30),2-27-90; Ord. No. 91-113, § 4(165.30),12-3-91; Ord. No. 92-135,
§ 3(165.30), 4-21-92; Ord. No. 92-144, § 3(165.30), 6-16-92). .
Sec. 22-343. Appeals.
Notwithstanding any other provision in this d1apter. a decision of the Director or the Hearing
Examiner with respect to the application of any prov~ion of thi.§.Mjcle shall be appealable as part
of. and under the process applicable to. any appeal of a decision of the Director or the Hearing
Examiner on the underlying application or project for ~ich City approval is sought.
, (Ord. No. 93-43. Section 2 (175.10(7». 2-27-90: Ord. No. 97-291. Sec. 22-368. 4-01-97).
Cross-reference: Sec. 22-368 (concerning appeal of Process" decision): Sec. 22-400
(concerning scope of appeal of Process III approval). .
Ordinance No, 97-_, Page 29
29
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A IT ACHMENT C
OTHER FEDERAL WAY CITY CODE SECTIONS
" '
Ordinance No. 97-_1 Page 30
30
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Sec. 1646. Underground requirements-New facilities.
(a) All major additions of new facilities (three or more spans arid/or 500 feet or more) shall
be underground. '
(b) Mirior additions of new facilities may be constructed aerially where existing facilities are
aerial.
-.
(c) A penn it from the city public works department shall be required.
L
(Ord. No. 91-90, § 3(A), 3-19-91)
Sec. 16-47. Same-Rebuilds, replacements and additions.
(a) A'relocation necessitated by a public works project including, but not limited to, road
realignment, widening or sewer and water main projects; a major rebuild; or replacement of existing
aerial facilities (three or more spans ánd/or 500 feet or more) shall be underground and a pennit
from the city public works department shall be required; except undergrounding 'shall not be
required in those cases where the public works director finds that undergrounding will not be in the
best interest of the public. '
(b) A minor rebuild, replacement or relocation of existing aerial facilities may be constructed
aerially. No permit shall be required.
(c) When there is casualty damage to an overhead service system or other major service
outage, the facilities may be restored aerially. No pennit shall be required.
(d) An addition of three phase conductors or reconductoring which does not constitute a
major rebuilding will be allowed on existing aerial facilities. No permit shall be required.
(e) The provisions of this section shall not apply to areas when constructing single family
homes in areas zoned for single-family residences, or in other zones if 75 percent of the affected
parcels within the perimeters of the specific project is made up,of single-family residences.
. '.
(Ord. No. 91-~O, § 3(8), 3-19-91)
Sec. 16-48. Same-Service connections.
Servi~connections are facilities extending from a distribution system and terminating on
private pråperty to serve a customer or subscriber. Service connections shall be underground,
unless the distribution system serving the customer or subscriber is aerial, and the building,
structure or facility to be served is new construction or an addition, alteration, or repair thereto is
under $20,000.00 in value.
Ordinance No. 97-_, Page 31
31
. . , .:':"::",':'~'O<":H':"N:."~':::~-:;:~.";-::.~. ,,:':~":':~~~'~::;::~:::.~~:~~=~~
Sec. 22-1113. Commercial and industrial uses.
(a) Generally. Subject to the reqUirements of ~ubsections (b) through (g) of this section, the
uses and activities that are pennitted on a site under this chapter may be conducted out of doors
.~ríl~_ss otherwise regulated or prohibited by this chapter. .
(b) Site plan. The applicant shall submit, for approval to the department of community
development, a site plan drawn to $Cale showing and desaibing the following i_~e~s:
(5)
(6)
(~)
(2)
.
. Locations and dimerisions'of all structures and fences on the subject property.
-
Locations and dimensions of all parking and driving areas on th.e subject property.
(3)
Íi.
. .' .
Locations and dimènsions:' of all existing and proposed outdoor use, activity or
storage areas on the subject property. .
(4)
Locations and description 'of all existing landscaping and buffer on tIJe subject
property. .
TQe nature of the outdoor use, activity or storage.
The intended duration of the outdoor use, activity or storage.
(c) Specific use and develòpmen(requirements. The. city will administratively review and
ither approve or deny any application for Outdoor use, activity and storage based on tqefollowing
standards: '
(1)
(2)
(3)
(4)
(5)
All outdoor use,. activity and storage areas must comply with required byff,ers"for the
primary use. ":.: . ,
A minimum six-foot-high solid screening fence or other appropriate screening
approved by the director of community development is required around~the outside
eages of the area devòtedtb the outdoor use, activity or storage.
. . .
Outdoor use, activity or ~torage areas . located adjoining residential zones or
p~rmitted residentialiuses. may not be lòcated'in the required yards adjoining the
"residential use or zone.
.I( the outdoor storage, area is surrounded on all.sides by industrial zones, tt1en the
height of the outdoor storage shall not exceed the height of the primary structure on
the subject property. In all other cases, the height of items stored outdoors shall not
exceed six feet abovs finished grade.
The outdoor use, activity or storage area may not inhibit safe vehicular and
pedestrian movement to, from and on the subject property.
Ordinance No. 97-_, Page 32
32
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"
..
(d) Exceptions to outdoor use, activity or storage. The following outdoor uses and activities,
wheI1located in commercial and industrial zones, are exempt from the requirement of subsections
(b) and,(c) of this section, provided that the use, activity or storage stiall not inhibit safe vehicular
and pedestrian movement to, from and on the subject property:
(2)
(3)
(4)
(5)
(1)
Outdoor Christmas tree lots if these uses will not operate more than 30 days in any
year.
Outdoor amusement rides, carnivals and circuses and parking lot 'sales which are
accessory to the indoor sale of the same goods and services if these uses will not
operate more than se\ien days in any six-month period.
Outdoor dining and refreshment areas, including espresso carts.
Outdoor display of vehicles for sale or lease; provided that the display area complies
with the parking area screening from rights-of-way requirements in section 22-
1567(e).
Year round outdoor sales and storage of lawn and garden stock. which are
accessory to the indoor sale of the sale goods and services, provided that the use
does not include outdoor play equipment, storage sheds, furniture or mechanical
equipment.
(e) Gross floor area. For the purpose of this chapter, an outdoor use, activity or storage area
will be used in calculating the gross floor area of a use or development if this area will be used for
outdoor use, activity or storage for at least two consecutive months out of every year.
(f) Improvements. If the outdoor use, activity or storage is located on an unimproved area
of the site, the underlying. ground must be improved as required by the departments of public works
and community development.
(9) Moárfication. The applicant.may request a modification of the requirements of subsection
(c) of this section. This request will be reviewed and decided upon under process II. The city may
approve the modification if:
. "
(1 )
(2)
(3)
The modification will not create a greater impact on any nearby residential use than
would be created without the modification.
The modification will not detract from the character of any use.
The modification will not be injurious to public health, safety or welfare.
(Ord. No. 90-43, § 2(115.105(3»,2-27-90; Ord. No. 96-270, § 3(C), 7-2-96)
Ordinance No. 97-_, Page 33
33
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. 5ec..~22-1402. Buffer requirements.
~
. "
~.. The.:buffer requirements of section 22-1116 may be modified if:
-'
(1)' The existing topography of or adjacent to the subject property decreases or
eliminates the nced for -.isual screening; '.
(2)~
.The modification 'Mil. þe of more benefit ~ the adjoining property by causing less
impairment of view or :aunlight; or ~-: -
~,'
~' (3~
The mq,dificption '.vill prO\'i~e 8 visual screen that is comparable or superior to the
,bJJffer required by section 22-1446.
. . .
Ordinance No. 97-_,: Page 34
34
. ;;,:",n." "'C"'h_~'"
...
"
Sec. 22-1473. When public improvements must be installed.
(a) The applicant shall provide the improvements required by this article if the applicant
engages in any activity which requires a development permit, except for the following:
(1)
The applicant need not comply with the provision of this 'article if the proposed
improvements in any 12-month period do not exceed 25 percent of the assessed or
appraised value (based on an MAl appraisal provided by the ~p'plicant) of all
structures on the subject property. whichever is greater.
(2)
The applicant need ~not comply with the provisions of this article if, within the
immediately preceding four years, public improvements were installed as part of any
subdivision or discretionary land use approval under this or any prior zoning code.
, (b) Right-of-way adjacent to and within subdivision and short subdivisions must be dedicated
and improved consistent with the requirements of this article, unless different requirements are
imposed by the city as part of the subdivision or short s~bdivision approval.
(Ord. No. 90-43, § 2(110.20).2-27-90)
Cross reference(s)-Streets, sidewalks and other public places, ch. 13; rights-of-way, § 13-
26 et seq.; subdivision required improvements, § 2~ 176 at seq.; drainage program, § 21-26 et seq.
. I .
Ordinance No. 97-_, Page 35
35
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(
Date:
To:
From:
Subject:
September 30, 1997
Phil Watkins, Chair
Land UselTransportation Committee
Cary Roe, Public Works Director ~ .Ø/
Stephen Clifton, Development Services Manager
Street Frontage Improvements to Non-coriforming Properties -
Proposed Policy When Considering Federal Way City Code (FWCC) Section 22-
1477, Reason #4 as a Basis for Granting Modifications to Road Standards
BACKGROUND
During the September 3, 1997 Land Use and Transportation Committee meeting, committee members
requested staff provide proposed policies to beused by the Department of Public Works when considering
Federal Way City Code (FWCC) Section 22-1477, reason #4 as a basis for granting modifications to road
standards, specifically at the time a property is redeveloped.
Citv Code Redevelopment Compliance Tri2:~ers for Street Fronta2:e Improvements
When an applicant is required to install public improvements pursuant to FWCC 22-1473, the Public
Works Director has the ability, under Section 22-1477, to grant a modification, deferment, or waiver
from the requirements of Article XVI only after consideration of a written request for the following
reasons:
1)
The improvement as required would not be harmonious with existing street
improvements, would not function properly or safely or would not be advantageous to
the neighborhood or city as a whole.
Unusual topographic or physical conditions preclude the construction pf.the improvements
are required.
Proper vertical or horizontal alignments cannot be determined because the existing streets
do not have correct alignments.
The required improvement is part of a larger project that has been scheduled for
construction in the City's capital improvement program.
2)
3)
4)
Discussion Related to Reason #4
The Department of Public Works has, in the past, requested a monetary contribution from developers in-
lieu-of actual frontage improvements if a project is proposed near a Capital Improvement Project (CIP)
that is within a few years of actual construction, specifically 6 years or less. An example of this is the
future Rainier View Plaza. A pro-rata share monetary contribution will be collected at the time of permit
issuance and applied to the future South 312th Street Project.
" ." """~'~-""'~l
t:
<\,;
It becomes difficult to grant deferment, waivers or modifications using reason #4 as a basis when adjacent
CIPs are scheduled beyond six years from when an applicant wants to construct a project. This is due
in part to existing state law, i.e., any money collected from an applicant to address a street related non-
conformance must be spent on the CIP within six years of collecting the money. Failure to spend the
applicant's money within six years results in the City refunding the applicant's money.
~'!
i'
Public Works staff recently contacted jurisdictions in the area, e.g., Bellewe, Redmond, Kirkland, to see
how these cities address the issue of bringing non-conforming street standards up to code during
redevelopment of a project when they are adjacent to a CIP scheduled beyond the six-year period. These
cities have historically allowed an applicant to enter into an agreement to defer the actual construction
of improvements if an applicant agrees to pay money up-front and waive the six-year spending limit. The
Federal Way Law Department is currently evaluating the ability of the City and applicant to waive this
limit. Public Works staff is requesting the City Council consider the following options in order to bring
non-conforming street frontage improvements up to code:
A.
If a CIP project is going to be constructed within 6-years of an applicant constructing hislher
project, then the City has the option to:
1)
Request that an applicant pay the City an amount contributing to the cost of street
improvements immediately adjacent to their project. They would pay the money up-front
and waive, via an agreement, the six-year spending limit, or
2)
Request that the applicant enter into an agreement with the City which would allow the
applicant to defer the improvement if they a) agree to pay the money at the time the City
commences construction and b) waive the six-year spending limit. If the City electS this
option, the applicant must provide a bond for the amount of street frontage
improvements. This is necessary to guarantee that the applicant eventually pays for
improvements at the time a CIP is constructed. An agreement would supplement the
bond and include language which would waive the six-year spending limit.
B.
If a CIP project is not going to be constructed within 6 years of the applicant constructing hislher
project, but is listed on the City's 2a-year CIP project list, then the City has, in addition to
options Al and A2, the option to:
1)
Request that the applicant construct the improvements immediately as part of the project.
NOTE: If a request for modification to right of way requirements is granted by the City, there still may
be instances when an applicant will be required to construct some interim improvements to
address life/safety issues. . .
SUMMARY
The above listed options are for your consideration. Support of options A and B above will give the
Director of Public Works additional flexibility in administering Section 22-1477(4) and does not required
a code amendment. Public Works staff will be available at the October 6, 1997 LUTC meeting to discuss
these policies with committee members.
CMR\SC:jg
K:\LUTC\NONCONF2.STR
"."'.""."':"""" :""""~'-~':,.,-;,.""."...",-........"""..~~.d~
CITY OF ..
- . -- . EDERAL
~~ FlY'
DATE:
September 30, 1997
TO:
Phil Watkins, Chair
Land Use and Transportation Committee
Cary M. Roe, Public Works Director ~
FROM:
SUBJECT:
Federal Way Sclwol District and City of Federal Way
Common VISion for Transit Service
Background
As a part of the process to implement the King County/Metro Comprehensive Six Year Transit
Development Plan, a citizen advisory group, "South County Sounding Board," was formed to
provide KC/Metro with recommendations about service changes in the Greater Federal Way
area. The Federal Way School District (FWSD) participated as a member of the Sounding
Board and in conjunction with that role, submitted a proposal for consideration of utilizing
KC/Metro transit buses for transportation of senior high school students to and from school.
Their proposal was not fully supported by the Sounding Board or the City Council. The
proposal was not forwarded to the King County Council for consideration.
Action
The FWSD is still very interested in their proposal and has solicited support from the City. The
most recent request for support came in a joint meeting between the District and City staff. The
request resulted in the development of a common vision for transit service between the District
and City (see attached). This common vision for transit service was placed'on the agenda for
the joint City CouncillFWSD School Board liaison committee meeting that was held on
September 8, 1997. After discussion of the "topic at the liaison meeting, direction was provided
to develop a Resolution for the City Council's consideration (see attached).
Recommendation
Public Works staff is seeking direction from the Land Use and Transportation Committee on the
attached draft Resolution, and if approved, to forward the Resolution to the October 21, 1997
meeting of the City Council for further consideration.
CMR:jg
attachments
k:: \Iutc\transit.res
'Y~"'H"-_H'__"-_-----~
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FEDERAL WAY SCHOOL DISTRlCf/CITY OF FEDERAL WAY
TRANSIT SERVICE
A COMMON VISION
FEDERAL WAY SCHOOL DISTRIcr GOAL
The Federal Way School District is creating an educational system of schools of choice- enabled by
student transportation. ~:- -
CITY OF FEDERAL WAY GÔAt
Maintain mobility for residents and businesses through a balanced, integrated system of
transportation alternatives that meet local and, regional needs through inteljurisdictionally
coordinated and integrated systems. Give priority to transportåtion alternatives that improve
mobility in tenns of people and goods moved for the least cost Establish mobility levels of
service appropriate for the alternatives and location.
. .
In order to meet the goals of both organizations the following elements of agreement have been.
dewro~æ .
ELEMENTS OF AGREEMENT
. A comprehensive transportation system is vital to the success of both organizations and
Federal Way citizens and businesses.
. Development or expansion of any element of the l~cal transportation system should support
the goals of both organizations and not be at the cost of service to either, and provide a
balanced system that moves the most people at the least cost and at the greatest benefit to the
community.
Support doing things differently in order to create a stronger transportation system.
. Convenient transportation system that supports student riders is likely to create adult transit
customers. .
. The best method of achieving the goals of both organizations is to jointly pursue the efficient
application of aU available resources at the County, State arid National level.
.-
. .' '.'.
. '.
, ",' ,., ""'~""""""";',.,""""""""'" ."".h\;,æ.
~.,-^----~_. .....-
.,."
RESOLUTION NO.
DRAFT
/ð-(-Cj 7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
FEDERAL WAY, WASHINGTON, SUPPORTING A JÖINT EFFORT
BY THE SCHOOL DISTRICT AND THE CITY OF FEDERAL WAY
TO CREATE A COMPREHENSIVE TRANSPORTATION SYSTEM
THAT SUPPORTS STUDENT RIDERSHIP ON püBLIC
TRANSPORTATION. '
WHEREAS, the City of Federal Way ("City") and the Federal
Way School
District
("District"),', ,created a
liaison committee
comprised of two (2) City Council members and two (2) Scho~l Board
members ("Committee") to review issues of common interest; and
WHEREAS, community transportation needs are an area of
common interest; and
WHEREAS, the Committee determined that it is vital to the
community that local Metro bus service and District bus service
needs be more effectively utilized; and
WHEREAS,
the
District
is
attempting
to
create
an
educational system of schools of choice supported by public student
transportation; and
WHEREAS, the City desires to maintain mobility for its
residents and businesses through a balanced, integrated system of
transportation alternatives; and
WHEREAS,
the
City
has
determined
that
local
transportation needs are best addressed through interjurisdictional
transportation systems that are coordinated and integrated; and
Res.#
, Page 1
..,.. ,...'.'
. - . ,~~~.........~"¡"L.Y' "", .,r".....",:"," ..~. .,~
, '"
WHEREAS, the City has concluded that. priority should be
given to transportation alternatives that move the maximum number
of people and amount of goods for the least cost; and
WHEREAS, the Committee has decided that a com~~~hensive
transportation system is vital to the success of both the City, its
citizens and businesses and the District; and
WHEREAS,
the Committee feels that the development or
expansion of any element of the local transportation system should
support the goals of both the City and the District and not be at
the cost of s~rvice to either; and
WHEREAS, the Committee agrees a balanced transportation
system should be provided that moves the most people at the least
cost and at the greatest benefit to the community; and
WHEREAS ,
the
District
will
be
adopting
a
similar
resolution supporting this effort; and
WHEREAS, a convenient transportation system that supports
student
ridership
is
likely
to
create
future
adult
transit
customers; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY' OF FEDERAL
WAY HEREBY RESOLVES AS FOLLOWS:
Section 1.
Resources.
The Federal Way City Council
strongly supports a joint effort with the District to pursue grant
or other application opportunities for any available resources at
the county, state, and federal level to support a comprehensive
transportation system, including utilizing Metro buses for school
Res.#
, Page 2
. :,...:,~..-..,.......~,.'.A~'~J£~'~.~-~~
transportation
and
reallocating
of
existing
state
school
transportation funds for such purposes and for similar innovative
projects.
Section 2.
Joint Pursuit of Goals.
The Federal Way city
-.
Council
strongly
encourages
a
departure
from
the
historical
approach to the issue of transportation alternatives and supports
the city and the District taking the steps necessary to promote an
effective, integrated, innovative and comprehensive transportation
plan.
Section 3.
Severability.
If any section,
sentence,
clause or phrase of this resolution should be held to be invalid or
unconstitutional
by
a
court
of
competent
jurisdiction,
such
invalidity or unconstitutionality shall not affect the validity or
constitutionality of any other section, sentence, clause or phrase
of this resolution.
Section 4.
Ratification.
Any act consistent with the
author~ty and prior to the effective date of the resolution is
hereby ratified and affirmed.
Section 5.
Effecti ve Date.
This resolution shall be
(
effective immediately upon passage by the Federal Way city Council.
/
/
/
/
/
/
/
/
Res.#
, Page 3
RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, this
day of
, 1997.
'.
CITY OF FEDERAL WAY
-.
MAYOR, MARLON S.PRIEST
ATTEST:
CITY CLERK, N. CHRISTINE GREEN, CMC
APPROVED AS TO FORM:
CITY ATTORNEY, LONDI K. LINDELL
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
RESOLUTION NO.
K:\RESO\TRANSIT.SRV
I
I
Res.#
, Page 4
CITY OF FEDERAL WAY
MEMORANDUM
From:
Oc~ober 2, 1997
City Council Land Use and Transportation Committee
Iwen Wang, Management Services Director ~-( (----)
Date:
To:
Subject:
AT & T Wireless Master Use (Lease) Proposal
AT & T Wireless (the proposer) approached the City for a Master Use Agreement to lease City
properties for siting their wireless transmission apparatus. Staff is seeking direction from Council
on whether the City is interested in leasing City property for these purposes,
The Master Use and Site Lease Structure:
Under the proposal, A Master Use Agreement will outline the general terms and conditions under
which the City and the proposer agree to the lease of properties owned or controlled by the City on
which the proposer desires to site and operate certain wireless communication apparatus.
A Site Lease Agreement will be executed for each specific location of such apparatus, the
initial/end dates, and other conditions that are specific to a site.
By entering into the Master Use Agreement, the City is not obligated to lease any specific sites to
the proposer. By the same token, by entering into the master use agreement, the proposer is not
obligated to make any lease payment until a specific site lease is entered into,
The purpose of a Master Use Agreement is to reduce the time and amount of work accompanying a
typical lease agreement by eliminating the need to repeat general terms and conditions with each
lease.
The City's willingness to enter into or execute a Site Lease Agreement does not waive any
regulatory, taxing, or franchise authority the City has or may have in the future. The City's rights
and obligations to enter into such agreements should be the same as any property owner,
Status of the Proposal:
The City has provided comments to AT & T on an initial proposal and has since received a revised
proposal. A number of significant concerns the City commented on earlier have not been resolved
with this revision, AT & T would like to continue working with the City to reach an agreement
that is mutually acceptable, If the Council is interested in the idea, staff will continue to work with
AT & T and bring back a proposal that is more acceptable at a later date for Council's review
and/or action.
Attached are a redlined copy of AT & T's initial proposal with the City's comments (strikethrough
and redline) and a copy of the revised proposal from AT & T for your information,
k:\Finance\Telecom\A TfUSE.DOC
:, "
W.L. North & Associates, Inc.
CT:, C<.;.
..~ " ¡
Acquisition - Permitting - Construction Management
P.O. Box 1201
Mukilteo, WA 98275
phone (206) 349-1968
fax (206) 349-1606
e-mail: wlnorth@aol.com
August 5, 1997
Ms. Iwen Wang
Management Services Director
City of Federal Way
33530 1st Way South
Federal Way, W A 98003
RE:
Master Use Agreement
Dear Ms. Wang,
Enclosed is another copy of the revised Master Use Agreement for your review. Thank
you for your assistance in helping to move our proposal forward. Please give me a call
and let me know when we can meet to finalize the Agreement language.
Sincerely,
/)) ¡? /U () J--
W.L. North
WNlbn
Enclosures
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MASTER USE AGREEMENT
(Multiple Sites)
THIS MASTER USE AGREEMENT (this "Agreement") is entered into this - day of
,1997 (the "Date of this Agreement"), between THE CITY OF FEDERAL WAY,
Washington ("Landlord"), and AT&T WIRELESS SERVICES, INC., a Delaware corporation ("Tenant").
BACKGROUND
A. Landlord owns or controls improved and unimproved land, right of ways, buildings or
othe: ~mprovemen~s (individua,lIy ,C\nd COII~,' ct_i~~__IY- t~e"\,_r~p..erty") located throughout landlord's
municipal boundaries. (~h I ~-r A. -- ";- '-.L' I ' . ',t. ':)
:' \ ~-
B. landlord desires to lease to Tenant and Tenant desires to lease from Landlord certain
portions of the Property for the sole purposes of installation and operation thereon of wireless
communications apparatus owned and used by \fenant as further described in this Agreement. The
Tenant's right to use portions of the Property which are leased may be either exclusive or non-
exclusive, as more particularly described in section 2 this Agreement.
AGREEMENT
1.
Master Agreement.
a} This Agreement sets forth the basic terms and conditions, except as otherwise
specified in a Site Lease (defined below), governing leases of Property between Landlord to Tenant.
The portion of the Property that is leased by Landlord to Tenant pursuant to a Site Lease and this
Agreement is referred to as a "Site". The process by which individual Sites shall be selected from
time to time and Site Leases executed from time to time shall be as follows. When Tenant becomes
interested in leasing a particular Site from Landlord, Tenant shall send Landlord a non-binding letter
of intent {with appropriate information inserted} in the form of Exhibit A attached hereto (the "Letter
- of Intent"). Sites identified by Tenant in the Letter of Intent shall be selected by Tenant only from
) ~the Property..,WithinG])fays after Landlord's receipt of a Letter of Intent from Tenant, Landlord
shall notify Tenant whether or not Landlord is willing to enter into a Site Lease with Tenant for the
Site identified in the letter of Intent. Landlord may request clarification or additional information
from Tenant during the 15-day period, but landlord shall render such decision within such
timeframe. In the event landlord indicates its willingness to enter into a Site lease for the Site
identified in the Letter of Intent, the parties shall promptly proceed to insert the appropriate terms
and information, execute and deliver a site lease agreement in the form of Exhibit B attached hereto
(each of which is referred to as a "Site lease"). The terms and conditions of each Site lease shall
govern and control in the event of a discrepancy or inconsistency with the terms and conditions of
this Agreement.
C- ~ landlord's indication of its willingness to enter into a Site lease and its execution of
a Site lease shall not imply or infer that Landlord or any other governmental agency has granted any
Governmental Approvals (as defined in section 6) required for Tenant's Permitted Use (as defined in
section 6) of the Site. No Site lease shall be effective unless Tenant obtains during the Due
Diligence Period (as defined in section 6) the necessary Government Approvals for Tenant's
Permitted Use of the Site, and unless Tenant is satisfied with the its feasibility studies of the Site
performed during such Due Diligence Period.
fY'DU >'~~ ~ 'y.'~' 0 ~'-;"v.-:\ ,
p..tfJ C Simultaneously with the ~I+-of-each-Site-~ by Tenant, Tenant shall pay to
Landlord a C - mitment depostt in the amount of $1,000.00. lamflerå 5"'l'IlI d~po~iL ~U~" SUI II ¡lito ---'
an int9r9st beoriAQ ban"" ~C'.C'.f}1 ¡nt gAd keep GuoMt:tAås-sew-ega-ted fram other funds of Landlerd-.
~u8h åøpoait and 2111 interest thereon is rderred to 63 tile "CUIII/TIenGt::IIlt::llt Del'osit". Upon the
commencement of the term of such Site lease, ,th, e G.O"mm,.itrr::l,Qr::1t [).e"o~it shall be. app'lied .to the,fir,s¡ 'd~-r
, R t th d /'.' . ~ ' .:5 k.".;a L..-~d l~ ~ a . J. .
years en ereun er. vJI..,l'~\"'-r,.,<;.ht'L<-""'" ;j¡HJ.-):~-;!: C'-v iA'Wvl(~~~~
cL.er By entering into this Agreement or any Site lease, Landlord does not waive any -tl~ ';~l.U , do
existing or future rights or authorities for the collection of taxes, fees or other charges which are ft.l!
authorized by any state, federal or local laws and which are applicable to Tenant's operations or ~A4. tl:,,~
activities.
2.
Sites. landlord either owns, leases or otherwise has control over the use andlor
, ~ " -.l -, ,I + I .... - J ,¡ I -
'\',..'-"\-':; ~ :1l.\'1 rt....!)rc\1FLr~1"',] J)t'-î' , (1"'/"'\.5,<2.)\'-'-.(. k2--{
~/}\.-v(tA It d.l
access of the Property. Subject to the terms and conditions of this greement and the Site Lease 1;t--...+ ~
for each particular Site, upon execution of the Site Lease, bañdlOfn g' . t-I=te-~clusive
~ ~~S;ØÌOÐ of the respective Site described in each Site Leas However, in the event tha't
Tenant, during the term of a particular Site Lease, shall remove its equipment storage cabinets from
the Site and abandon the location of such cabinets by not replacing the cabinets or otherwise
~~~I~Z~~~I~h~: ~~~~:X~~~i~J~~~~~;:~ ~~' .~~~n ()~~~~J~} Rr~~~~~~~:~i:~t~;()QGO6G the
L \^-v'v\-R '
3 T rv. ~"-I,, .J.-!....., f.i}"~'
. erm.
a) The initial term of this Agreement shall commence upon the date of this
Agreement (the "Commencement Date") and shall expire on the later to occur of: (i) midnight on the
day before the fifth (5th) anniversary of the Commencement Date; or Oi) the expiration of the term
or Renewal Term as the case may be under the last remaining Site Lease~ress otherwise stated
in a Site Lease, the term of a particular Site Lease shall commence on the earlier of: (i) the date
within the Due Diligence Period that Tenant notifies Landlord in writing that Tenant has waived its
right to terminate such Site Lease pursuant to Section 6 below or the terms of the Site Lease (as the
case may be); or (ii) the date Tenant commences construction or installation of its Antenna Facilities
(as defined in section 5 below) on the Site (such earlier date being the "Site Lease Commencement
Date"). Unless otherwise stated in a Site Lease, the initial term of a Site Lease shall expire at
midnight on the day before the fifth (5th) anniversary of the Site Lease Commencement Date
thereunder. ð
\A-Ç>óY\... 'Yv..A.-\k...._,,--t ~ w-
b) lenant shall ha\l~ t ;¡~ .:~Ifio-R8t tA8 9~1i8!.1i~I" t-e-extend each Site Lease
(unless otherwise provided therein) for four (4) additional, five-year terms (each being a "Renewal
Term"). Tenant's use of the Site during each Renewal Term, shall be on the same terms and
conditions as set forth herein and in the applicable Site Lease. Each Site Lease shall automatically I
renew for each successive Renewal Term unless . . in writing of 1=Ultlflt'3 t-rs
intention not to renew such Site Lease at least 'xty (60) days prior to the expiration of the initial
term or any Renewal Term thereunder. Notwit tanding anything to the contrary contained hereìn,
including without limitation the provisions of ~e tion 3(a), in no event shall this Agreement terminate
so long as any Site Lease remains in full force a d effect., ,-r. -Í--\, ,(, -' ' I,
.ùWrf'~ '1'-'0 +1-<-"> 1'1..l o11A...t--..
\'1(,t..J~k.;{ c) Upon expiration)~earlier termination%FanyS~ (un (~ss a renewal is in
.J-.<.A -t1> It,,~ process and the gap is temporary), Tenant shall vacate the Site, remove its above-grade facilities and
) restore the above-grade portion of the subject Site to the same condition it was in at the inception of
uL. tÐ~~ such Site Lease, with the exception of ordinary wear and tear and casualty damage covered by
CDIM-v W insurance. Should the Tenant fail to remove its above-grade facilities and restore the abOVe-grade/::' ~t.,,-...l
~ ~ portion of the subject Site within ninety (90) days after expiration or termination of a Site Lease~Y .~~'~ l ,jC-
.. Landlord at its sole discretion and after notice to Tenant, may remove such facility and complet~ 6~,I,~ .~r~ ~~
'-- such restoration, and Tenant shall be responsible for any and all costs reasonably incurred by I '1 ,-
Landlord."@renant shall have no obligation to remove any of Tenant's below-grade improvements
from the ite upon expiration or termination of a Site Lease; provided that, in the event that
Landlord, . . .. . ,. ... has
. ... ~proposeqf Improvements to be located on the -
Tenant's onopole antenna foundation ~ Sit~hen Tenant shall be obligated to remove such. õf
fo~nc!atio if and to the extent necessary to allow Landlord to construct such improvements. ~ y+il~
G> w\~ zL\<WK o-~~ ~h""\.J. f/r NP.""c""l T-.t-~ ~,. -\.~.l.{'.,; "'-fv--"";¡- ~ Ct\) ctt.~ ,('5\,>~.-",J "l ~... J~t<,td,;.hl.J w
4. Rent. 'It'f \'"' ¿~<.
a) Upon mutual execution of this Agreement, Tenant shall deliver to Landlord
digitized aerial photographs for the entire municipality of Federal WaY~ln addition, commencing on
the date Tenant commences actual construction of its Antenna Facilit s, Tenant shall pay Landlord
the following amounts as "Rent" under each Site Lease: ~.
" l^ ~ D \
:4
- Water-- Tanks: $ Iper annum
- Rooftops/Existing Municipal Towers: $ Iper annum
-.1œzw Landj ~/',"'. - $_/per annum
\ '( \') \ \70
-0-\)",""-:\\',:,\,,.., JI',\ '<'1,-/1"'",:-,
- l,^",~ ; \""'Py~'-c,-c-\ 'v,: ,,'.', (-'",,¡,kL,J '
b) Unlèss òtherWise provided in a Site Lease, Rent shall be payable on or before
the fifth day of each calendar month in advance at Landlord's address specified in section 14 below.
If the term commences on a day other than the first day of a month, Rent shall be prorated for that
Ø}t/~J f f/-1 1-
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.i (~.( j'" i Vt' . ii'
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, I
first month for the number of days from the Commencement Date to the end of the month. If a Site
Lease is terminated on a day other than on the last day of a month, the Rent shall be prorated as of
the date of termination. and, in the event of termination for any reason other than nonpayment of
Rent, all prepaid Rents shall be refunded to Tenant. Monthly Rent payable under any given Site
Lease during each successive Renewal Term shall be the amount equal to one hundred fifteen ç c:/-. ' +(:'"0.--
percent (115%) of the monthly Rent payable under such Site lease for the last full calendar month ~V\~ -<,,' .
immediately prior to the commencement of such Renewal Term. ' , \
c) Tenant shall have the right to use a direct deposit system with regard to Ren] (i("[
payments. landlord agrees to cooperate with Tenant in providing requisite information to Tenant for
such direct deposit. The implementation of the direct deposit system shall be at Tenant's expense. ()L - c L
5. Permitted Use. The Site may be used for: (i) the transmission and reception of
communication signals by wireless means; (ii) the construction, alteration, maintenance, repair,
replacement and relocation of communication facilities, including without limitation, transmitting and
receiving antennas, equipment, cables, supporting mounts, equipment storage cabinets and
structures, perimeter fencing, generators and other facilities and improvements related thereto
(individually and collectively the" Antenna Facilities"); and (iii) activities related to any of the
foregoing (collectively "Tenant's Permitted Use").
f, l ~ '
6.
Due Diligence Period.
a) With respect to each Site for which landlord and Tenant enter into a Site
lease, from and after the date of such Site lease through and including the date which is four (4)
months after the date~ of such Site lèase ('the "Due Diligence Period"), Tenant and its agents,
engineers, contractors and other representatives shall have the right, and landlord hereby licenses
Tenant and such representatives to enter upon the subject Site to inspect, examine, sample and
conduct all engineering tests or studies of the Site, to apply for and obtain all licenses and permits
required for Tenant's Permitted Use of the Site from all applicable governmental or regulatory entities
("Governmental Approvals"), to perform a survey, and otherwise do those things on or adjacent to
the Site that, in the opinion of Tenant, are necessary to determine the physical condition of the Site,
landlord's title to the Site and the feasibility or suitability of the Site for Tenant's Permitted Use, all
at Tenant's expense. Tenant may extend the Due Diligence Period for a period of three (3) months
by providing landlord with written notice of such election prior to the expiration of the initial Due
Diligence Period.
b) If, in Tenant's sole opinion, the Site is not suitable for Tenant's intended use,
or Tenant determines that the operation of a communications facility on or within such Site would
not be in Tenant's best interests, or if all Governmental Approvals for Tenant's Permitted Use of the
Site cannot be granted, issued or obtained, Tenant shall have the right at any time prior to the
expiration of the Due Diligence Period to terminate the Site lease pertaining thereto by sending
written notice of termination to landlord. -in such eveRt, tin:: Commh:melll Dt::¡Josit shall Bo prompt!¥--
œtllrnprl to Tenant. Thoreaft9f; ~either landlord nor Tenant shall have any further obligation or
liability under such Site lease except as otherwise provided herein or therein.
c) Upon (x~~~fio~ror~¡te lease and thereafter during the Due Diligence
Period, landlord shall deliver \~, any reports, environmental studies, surveys, plans,
~~~ui~se~:a~f:nr~~~~~g ~~i ~~~gs:~:~~s l~~~~~~~:spo:~s~ ?¿n ~ ~~~J1ë}~~~~~;~~~~:~~
representation or warranty about the condition or suitability of any of the Sites, and shall not be
responsible for any damages or injuries to Tenant, its agents, officers, employees, contractors, or
representatives due to the condition of the Sites. Tenant shall not be liable to landlord, its agents,
officers, employees, contractors or representatives, or to any third party, on account of any pre-
existing defect or condition on or with respect to the Site, wh~ such defect or condition is fUJl
disclosed by Tenant's inspection. This section 6(c) is subject to the provisions of section 13, and
nothing in this section 6(c) shall alter or affect the liability of landlord or Tenant as may be
established under section 13.
7.
Interference.
a) Tenant shall operate its wireless communications facilities and services
("Telecommunications System") on each Site in a manner that will not cause substantial interference
to uses of such Site by landlord or any other third party users of the property owned by landlord of
-3-
which the Site is a part; provided that; this sentence shall only apply to the extent such uses by
landlord or such third parties were occurring prior to the date of execution of the particular Site
lease. landlord shall not, nor shall landlord permit any of its agents, contractors, representatives,
tenants, licensees, easement holders or any other third party user of landlord's property (collectively
the "landlord Controlled Parties") to, install or operate equipment on or about the Site or otherwise
conduct any operations or activities on or about the Site which cause signal interference with signals
for operation of Tenant's Telecommunications System; provided that, this sentence shall only apply
to the extent such operations and activities first occur after the date of execution of the particular
Site lease.
b) landlord shall, within fifteen (15) days of receipt of written notice from
Tenant of such prohibited interference (which notice shall include the reasonable engineering basis
for the Tenant's claim that landlord or a landlord Controlled Party is causing such interference),
either (a) resolve or cause such landlord Controlled Party to resolve the interference, or (b) cease or
cause such landlord Controlled Party to cease the operations or activities which are causing such
interference; provided that; such fifteen (15) day cure period may be extended for an additional
thirty (30) days so long as landlord initiates substantial efforts toward resolving the interference in
the initial fifteen (15) day period and continues to diligently pursue resolution of the interference
throughout the additional thirty (30) day period.
c) The terms of section 7(a) shall be:included in any subsequent agreement
which landlord might, from time to time, choose to enter into with any future landlord Controlled
Party. Without limiting any other remedy available to Tenant, the parties agree that Tenant shall
have the right to seek specific performance in the event of an alleged breach of the agreements of
landlord under this section 7. landlord and Tenant agree to cause their re9pective engineers to'
consult with the other party's engineers prior to executing any agreement with any future tenant or
user that landlord reasonably believes will result in interference in reception or transmission of
signals by Tenant or such future tenant or user. landlord will provide Tenant with sixty (60) days
prior written notice of any material improvements on or adjacent to a Site which will be performed
by or on behalf of landlord. The term "material improvements" for purposes of this Agreement shall
mean the development, construction, or otherwise alteration of a Property of which the Site is a part
that involves installation of Antenna Facilities. landlord acknowledges that: (i) Tenant operates
under a federal license; (ii) interference with Tenant's Telecommunication System in violation of this
section 7 beyond the cure period specified in this section may cause irreparable damage to Tenant;
(iii) the prompt resolution of any such interference is material to Tenant under each Site lease; (iv)
damages alone may be an inadequate remedy for Tenant in the event of interference; and therefore
(v) Tenant shall have, as one of its remedies, the power to enjoin such interference described above.
The parties agree to cooperate with each other in resolving all interference matters consistent with
the terms of this section.
8.
Improvements; Utilities; Access.
a} Tenant shall have the right, at its expense, to install, construct and maintain
on the Sites the Antenna Facilities in accordance with the plans and specifications approved by
landlord, which approval will not be unreasonably withheld or delayed. The Antenna Facilities shall
be deemed personal property for purposes of this Agreement and each Site lease, regardless of
whether any portion thereof is deemed real or personal property under applicable law, and landlord
hereby consents to Tenant's right to remove all or any portion of any Antenna Facilities from time to
time in Tenant's sole discretion. Tenant shall have the right to modify, supplement, replace, upgrade
or relocate the Antenna Facilities within the Site at any time during the term or any Renewal Term of
the Site lease relating thereto. Any material changes shall be submitted to landlord for its approval,
which approval will not be unreasonably withheld or delayed. The term "material changes" as used
in this section shall include but not be limited to the change of the foot prints(either enlarging or
moving) and any change in the height, color or any other features that are specifically devised for
the disguise of the facility as required by the permitting authority of by landlord. All work by
Tenant shall be performed in compliance with applicable laws and ordinances. Tenant is not
authorized to contract for or on behalf of landlord for work on, or the furnishing of materials to any
Site or any other part of any Site, and Tenant shall discharge of record by payment, bond or
otherwise, within thirty (30) days st!Jbsequent to the date of its receipt of notice thereof from
landlord, any mechanic's, laborer's or similar lien filed against any Site or any Site for work or
materials claimed to have been furnished by or for the benefit of Tenant, its agent, employee,
contractor or affiliates. The Antenna Facilities shall remain the exclusive property of Tenant, and
Tenant shall have the right to remove all or any portion of the Antenna Facilities at any time during
-4-
the term of this Agreement, the term of the relevant Site Lease and following any termination of the
Site Lease or of this Agreement, Any property which is not removed by Tenant within ninety (90)
days after the expiration or earlier termination of the Site Lease pertaining to such property shall,
upon the expiration of such ninety (90) day period, at Landlord's sale discretion and upon notice to
Tenant. be kept in place and Tenant shall be relieved from future liability with respect to such
property. Alternately, Landlord may elect at its sole discretion and after notice to Tenant, to remove
such property in the manner and with the effect as described in section 3(c).
b) , Tenant shall, at Tenant's expense, keep and maintain those Sites which are
under its exclusive control, in good condition and repair and Tenant agrees that its use will not cause
any damage, destruction or waste during the term of the Site Lease pertaining thereto. For Sites in
which there are multiple tenants or users, or in which Tenant does not have exclusive control,
Tenant agrees that its use will not cause any damage, destruction or waste, and that it shall
maintain its Antenna Facilities in good condition and repair.
c) Tenant shall pay all utility charges which result directly from its use of a Site.
Tenant shall have the right, at Tenant's expense, to install separately metered utilities within each
Site and to install or improve utilities on the Site (including, but not limited to the installation of
permanent emergency power generators) so long as such additions or improvements are identified in
the permit plans and specifications. Tenant shall also have the right to temporarily install emergency
portable generators.
d) Unless otherwise restricted in a particular Site Lease, Tenant shall be entitled
to twenty-four (24) hour, seven (7) days per week, vehicular and pedestrian access to the Site. In
addition, Tenant shall have ail additional rights of access and ingress and egress to and from each
Site as necessary and appropriate for Tenant's use of the Site. The location of this access shall be
set forth in each Site Lease and identified as a non-exclusive easement granted by Landlord to
Tenant for the entire duration of such Site Lease for all uses and purposes described in this
Agreement. Tenant shall have no obligation to maintain the access easement and no obligation to
perform repairs thereon unless damage is caused by Tenant.
9.
DefaultlTermination.
a) The occurrence of any of the following shall be an "Event of Default" under
the applicable Site Lease:
(i) if Tenant fails to pay amounts due under the Site Lease within thirty
(30) days after Tenant's receipt of written notice of such failure from Landlord.
(ii) if a party breaches any of its obligations under this Agreement or a
Site Lease (other than a default described in section 9(a)(i) above) and fails to cure such breach
within thirty (30) days after written notice is received by the breaching party from the non-breaching
party; provided, however, that if such breach cannot be cured within such 30-day period, the
breaching party shall have an additional thirty (30) days to complete the cure of such breach so long
as the breaching party commences appropriate curative action within the original 30-day period and
thereafter diligently prosecutes the completion of such cure. Nothing in this section shall alter or
affect the cure rights specifically provided for in section 7 with regard to interference.
b) If Tenant commits an Event of Default hereunder, then Landlord shall have all
rights and remedies permitted by law and elsewhere under this Agreement, and shall have the right
to terminate the applicable Site Lease upon ten (10) days prior written notice to Tenant. If landlord
commits an Event of Default hereunder, then Tenant shall have all rights and remedies permitted by
law and elsewhere under this Agreement, and shall have the right of specific performance or the
right to terminate this Agreement upon ten (10) days prior written notice to Landlord. In addition,
Tenant may terminate any Site Lease (without any penalty) for either of the following:
(i) upon sixty (60) days prior notice that any license, permit or other
Governmental Approval necessary for the construction or operation of the Antenna Facilities or
Tenant's actual or intended use of the Site under such Site Lease is canceled or revoked; or
(ii) upon sixty (60) days prior written notice if Tenant determines, in its
reasonable discretion, exercised in good faith, that based on: (i) technology; (ii) interference with use
of the Site resulting from the acts of any third party, an act of God or from other natural forces; or
-5-
(iii) changes in system design or system usage patterns, renders Tenant's use of the Antenna
Facilities (as the same may have been modified from time to time) on the subject Site inconsistent
with the optimal operation of Tenant's Telecommunications System.
c)
this Agreement.
Termination of a Site lease pursuant to this section will in no event terminate
d) If landlord fails to perform any of its obligations under this Agreement or any
Site lease. and such failure or breach impairs or interferes with Tenant's Permitted Use of the Site,
Tenant may give landlord written notice thereof at any time. If landlord does not cure such failure
within fifteen (15) days after receipt of such written notice from Tenant, or does not commence
appropriate curative action within such fifteen (15) day period and diligently pursue such cure to
completion within an additional fifteen (15) day period, Tenant may, at its option without obligation
and in addition to any other rights or remedies available to Tenant hereunder or under applicable law,
thereafter perform such obligation or other appropriate curative action on behalf and at the expense
of Landlord and do all necessary work and make all necessary payments in connection therewith,
and Landlord shall, on demand, pay Tenant all amounts reasonably expended by Tenant. Any sum
unpaid as required by the preceding sentence shall bear interest at the rate of 12% per annum until
paid. If landlord fails to pay Tenant such costs after an additional ten (10) days notice to landlord,
Tenant may withhold the amount of such costs from installments of Rent next falling due under any
or all Site leases.
e) Notwithstanding anything to the contrary in this Agreement, under no
cir'cumstances shall either landlord or Tenant be liable to the other for consequential or speculative
damages (including withoüt limitation lost sales or profits).
10.
Casualty and Condemnation.
a) If at any time during the term of this Agreement or any Site Lease, a water
tower, building or other facility owned or controlled by Landlord (collectively for purposes of this
section only, "Structure"), upon which Tenant has the right to install its Antenna Facilities should be
destroyed or damaged in whole or in part, Landlord shall, at its sole determination, (which
determination shall be made by notice to Tenant within thirty (30) days after such casualty) either (i)
at its own expense, cause the same to be repaired, replaced or rebuilt, in which case Landlord shall
diligently pursue and complete such repair, replacement or rebuild, and Tenant shall have the right to
locate its Antenna Facilities back on the Site as soon as possible, or (ii) terminate the Site Lease
effective as of the date of the casualty and all rentals and other sums shall be accounted for
between Landlord and Tenant as of the date of such casualty. Rent shall be abated for the period
that a particular Site is not usable for the conduct of Tenant's business. In the event that landlord
notifies Tenant that Landlord intends to repair, replace or rebuild as provided in clause (i) above, and
if Tenant reasonably estimates that such repair, replacement or rebuild will take longer than ninety
(90) days, Tenant shall have the right to terminate the Site Lease effective as of the date of the
casualty and all rentals and other sums shall be accounted for between landlord and Tenant as of
the date of such casualty.
b) If any damage or destruction renders a particular Structure non-operable for a
period reasonably expected to exceed five (5) days, then, unless and until the Site lease is canceled
as described in section 10(a) above, landlord shall permit Tenant to bring and maintain upon the Site
appropriate temporary Telecommunications System facilities as Tenant shall reasonably determine
are necessary to continue to operate Tenant's Telecommunications System and provided that: (i) all
terms and conditions of this Agreement and the specific Site Lease shall apply to such temporary
facilities; (ii) Tenant obtains all necessary permits and authorizations for the construction and
operation of such temporary facilities; and (iii) Tenant shall remove such temporary facilities upon
the sooner of: (a) the restoration of Tenant's permanent Telecommunications System services on the
Site; or (b) termination of that particular Site Lease.
c) If a Site Lease is canceled as described in section 10(a) above, landlord and
Tenant shall confer in good faith in an effort to locate a mutually acceptable alternate Site for Tenant
to construct and operate Antenna Facilities substantially similar to those that were located on the
original Site, and if such mutually acceptable alternate Site is agreed upon, then Tenant and landlord
shall follow the procedures set forth in this Agreement with regard to preparation and execution of a
new Site lease.
-6-
11. Taxes, For each Site upon which Tenant is the exclusive lessee or user, Tenant shall
pay any personal property or ad valorem real property taxes assessed against, or any portion of such
taxes attributable to, that Site. landlord shall furnish Tenant with appropriate tax bills at least thirty
(3D) days prior to the date that payment of such taxes is due. landlord and Tenant shall set forth in
the particular Site lease the appropriate apportionment for Sites upon which Tenant is not the
exclusive lessee or user.
12.
Insurance and Subrogation.
a) Tenant will provide Commercial General Liability Insurance in an aggregate
amount of $1,000,000 and name landlord as an additional insured on the policy or policies. Tenant
may satisfy this requirement by obtaining appropriate endorsement to any master policy of liability
insurance maintained by Tenant,
b) Neither party shall be liable to the other (or to the other's successors or
assigns) for any loss or damage caused by fire or any of the risks enumerated in a standard "All
Risk" insurance policy, and, in the event of such insured loss, neither party's insurance company
shall have a subrogated claim against the other. Each party hereto shall obtain from its insurers
under all policies of fire, theft and other casualty insurance maintained by it at any time during the
term of this Agreement insuring or covering the Site or the Sites or any portion thereof, Antenna
Facilities or operations therein, a waiver of all rights of subrogation which the insurer might have
against the other party, and each party shall indemnify the other party against any loss or expense,
including reasonable attorneys' fees, resulting from the failure to obtain such waiver.
c) landlord shall maintain in force and effect with respect to all Sites included in
a Site lease a policy or policies of extended property insurance (what is commonly called "all risk"
insurance and including earthquake and flood coverage) covering all of landlord's structures or
improvements upon which Tenant's Telecommunications System or any part thereof is located or to
which such Telecommunications System or any part thereof is attached. Such insurance shall be in
the amount of one hundred percent (100%) of the current replacement value of such property.
landlord may self-insure so long as equivalent coverage is afforded for the risks and in the amounts
described in this section 12(c).
13.
Hold Harmless.
a) Tenant agrees to indemnify, defend and hold landlord harmless from and
against injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses
(including reasonable attorneys' fees and court costs) arising from the installation, use, maintenance,
repair or removal of the Antenna Facilities or the breach of this Agreement, except to the extent
attributable to the negligent or intentional act or omission of landlord, its employees, agents or
independent contractors. The indemnification provided in this section shall survive the termination of
this Agreement and any and all Site leases.
b) To the extent permitted by law, landlord agrees to indemnify, defend and
hold Tenant and Tenant's agents, employees, contractors and invitees harmless from and against
any and all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or
expenses {including reasonable attorneys' fees and court costs) arising from any act, omission or
negligence of landlord or its employees or agents, or the breach of this Agreement, except to the
extent attributable to the negligent or intentional act or omission of Tenant, its employees, agents or
independent contractors. The indemnification provided in this section shall survive the termination of
this Agreement and any and all Site leases.
14. Notices, All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt
requested, or sent by overnight carrier to the following addresses (or such other address as a party
shall designate by notice to the other party in the manner provided in this paragraph):
If to landlord, to:
-7-
with a copy to:
If to Tenant, to:
Attn:
with a copy to:
15. Quiet Enjoyment, Title and Authority. landlord represents and warrants to Tenant
that: (i) it has full right, power and authority to execute this Agreement and each Site lease and has
the power to grant all rights hereunder and thereunder; (ii) all approvals and consents (other than
Governmental Approvals) required for this Agreement and each Site lease to be binding and
enforceable upon landlord have been given, granted or obtained; (iii) the person executing this
Agreement and each Site lease on behalf of landlord has been duly authorized to do so;
(iv) landlord either owns, leases or otherwise has control over the use andlor access of the Sites,
and they are free and clear of any liens, mortgages, restrictions or other encumbrances that may
interfere with Tenant's Permitted Use of the Site; (v) landlord's execution and performance of this
Agreement and each Site lease will not violate any laws, ordinances, covenants or the provisions of
any mortgage, lease, easement, license or other agreement binding on landlord; (vi) Tenant shall
have the quiet enjoyment of and 24-hourlseven-day-per-week access to the Site, unless otherwise
specified in a particular Site lease; and (vii) Tenant shall not be disturbed as long as Tenant has not
committed an Event of Default hereunder. Nothing in this section is intended to modify the
provisions of section 2 which address the issue of whether Tenant's right to use and possession of a
particular Site is exclusive or non-exclusive.
16.
Environmental laws.
a) As used herein, the term "Environmental laws" shall mean any and all local,
state or federal statutes, regulations or ordinances pertaining to the environment or natural
resources. As used herein, the term "Hazardous Substance" shall mean any toxic or hazardous
waste or substance (including, without limitation, asbestos and petroleum products) that is regulated
by Environmental laws.
b) Tenant represents, warrants and agrees that it will conduct its activities on
each Site in compliance with all applicable Environmental laws. landlord represents and warrants
that to the best of its knowledge it has in tne past conducted its activities on each Site in
compliance with all applicable Environmental laws. landlord agrees that it will in the future conduct
its activities on each Site in compliance with all applicable Environmental laws. landlord agrees to
notify Tenant in the event that landlord acquires knowledge that a particular Site contains any
Hazardous Substance that could have a material adverse impact on Tenant's Permitted Use of the
Site.
c) landlord shall be responsible for, and after receiving notice shall promptly
conduct any investigation and remediation as required by any Environmental laws or common law
of, all spills or other releases of Hazardous Substance that have occurred or which may occur on any
Site and which are not caused by Tenant, its employees, contractors or other representatives of
Tenant.
d) Tenant agrees to defend, indemnify and hold landlord harmless from and
against any and all claims, causes of action, demands and liability including, but not limited to,
damages, costs, expenses, assessments, penalties, fines, losses, judgments and attorneys' fees that
landlord may suffer due to the existence or discovery of any Hazardous Substance on any Site or
-8-
the migration of any Hazardous Substance to other properties or released into the environment, that
are caused by or result from the activities of Tenant, its employees, contractors, or any other
representatives of Tenant on such Site. Landlord agrees to defend, indemnify and hold Tenant
harmless from and against any and all claims, causes of action, demands and liability including, but
not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and
attorneys' fees that Tenant may suffer due to the existence or discovery of any Hazardous
Substance on any Site or the migration of any Hazardous Substance to other properties or released
into the environment, other than with regard to any Hazardous Substances that are caused by or
result from the activities of Tenant, its employees, contractors, or any other representatives of
Tenant on such Site. The indemnifications in this section specifically include costs incurred in
connection with any investigation of site conditions or any cleanup, remedial, removal or restoration
work required by any governmental authority. The provisions of this section will survive the
expiration or termination of this Agreement and of any Site Lease.
17. Assignment and Subleasing. Tenant may assign this Agreement and/or any Site
Lease and its other rights hereunder and thereunder (including, without limitation its right to renew)
or sublet the Site or any portion thereof, to any'business entity which meets the following criteria:
(i) licensed by the Federal Communications Commission to operate a wireless communications
business; and (ii) (1) is a parent, subsidiary, affiliate of Tenant (for purposes of this clause the term
"affiliate" means an affiliate of Tenant's parent company, AT&T, Inc.); or (2) controls or is controlled
by or under common control with Tenant; or (3) is merged or consolidated with Tenant; or (4)
purchases a majority or controlling interest in the ownership or assets of Tenant. Upon notification
to landlord by Tenant of any such assignment, Tenant shall be relieved of all future performance,
liabilities and obligations under the relevant Site Lease or this Agreement, as the case may be.
Tenant may not otherwise assign or sublet this Agreement or any Site lease without landlord's
consent, which shall not be unreasonably withheld or delayed.
18. Nondisturbance and Attornment. Tenant may, upon notice to landlord, mortgage or
grant a security interest in Tenant's Antenna Facilities, and may transfer the Antenna Facilities to
any such mortgagees or holders of security interests including their successors or assigns
(hereinafter collectively referred to as "Mortgagees"), provided such Mortgagees agree to be bound
by the terms and provisions of this Agreement and any Site lease in the event such Mortgagee
succeeds to Tenant's interest in the Antenna Facilities. landlord shall execute such consent to such
financing as may reasonably be required by Mortgagees. landlord agrees simultaneously to notify in
writing Tenant and a Mortgagee of Tenant having first priority as to Tenant's Antenna Facilities and
which has requested notice from landlord of any default by Tenant and to give such Mortgagee the
same right to cure any default as Tenant, except that the cure period for such Mortgagee for any
default by Tenant, whether monetary or non-monetary, shall not be less than ten (10) days after
receipt of the default notice. Nothing contained herein shall be construed to prevent landlord from
issuing bonds in accordance with applicable law.
19. Successors and Assiqns. This Agreement and each and every Site lease shall run
with the Sites and shall be binding upon and inure to the benefit of the parties specific to this
Agreement, and their permitted successors, personal representatives and assigns.
20.
Miscellaneous.
a) The prevailing party in any dispute arising hereunder shall be entitled to its
reasonable attorneys' fees and court costs. With respect to this section 20(a) and any other
provision in this Agreement providing for payment or indemnification of attorneys' fees, such fees
shall be deemed to include reasonable fees incurred through any applicable arbitration or appeal
process and shall include fees attributable to legal services provided by any in-house counsel and
staff to the prevailing or indemnified party. For purposes hereof, the services of in-house attorneys
and their staff shall be valued at rates for independent counsel prevailing in the metropolitan area in
which such counsel and staff practice. This Agreement shall be construed in accordance with the
laws of the state in which the Property is located.
b) Each party agrees to furnish to the other, within twenty (20) days after
request, such truthful estoppel information as the other may reasonably request.
c) Each Site lease, which shall incorporate the terms hereof by reference, shall
constitute the entire agreement and understanding of the parties with respect to the Site that is the
subject matter thereof and supersedes all offers, negotiations and other agreements with respect
-9-
thereto. Each Site Lease shall be a separate contract and the occurrence of any default thereunder
shall not be deemed to constitute a default under any other Site Lease. There are no representations
or understandings of any kind not set forth herein or in the Site Leases, Any amendment to this
Agreement or any Site Lease must be in writing and executed by both parties.
d) Either party hereto that is represented in this transaction by a broker, agent
or commission salesperson (a "Representative") shall be fully and exclusively responsible for the
payment of any fee, commission or other compensation owing to such Representative, and shall
indemnify and hold the other party harmless from and against any claim to a fee, commission or
other compensation asserted by such Representative, including reasonable attorneys' fees and costs
incurred in defending such claim. The provisions of this subsection shall survive the expiration or
termination of this Agreement and any Site Lease.
e) Each party agrees to cooperate with the other in executing and delivering any
documents (including a Memorandum of Lease in the form attached as Exhibit C) necessary to
protect its rights under or carry out the intents. and purposes of this Agreement and any Site Lease.
The Memorandum of Lease may be recorded by either party. Notwithstanding the foregoing, in no
event shall this Agreement or any Site Lease be recorded by either party.
f) During the entire term of this Agreement, and continuing for a period of five
(5) years thereafter, Landlord agrees not to use or disclose to any person or entity, directly or
indirectly, any of Tenant's Confidential Information or Trade Secrets of which Landlord becomes
aware, except to the extent that (and only to the extent that) (i) the Confidential Information or
Trade Secrets have been disclosed in written form by Tenant to the general public, or (ii) Landlord is
obligated to disclose the Confidential Information and Trade Secrets pursuant to an order issued by a
court in a legal proceeding. For purposes of this Agreement, the phrase "Confidential Information
and Trade Secrets" means all of Tenant's trade secrets, technology, information, methods,
strategies, practices, expansion plans, leasing plans, computer programs and systems, research and
related documentation, customer and supplier information, and all other data, marketing plans,
financial information and any other compilations of information which arise out of or relate to the
business of Landlord. Without limiting the foregoing, the phrase "Confidential Information and Trade
Secrets" shall include the existence and contents of this Agreement and any Site Lease
contemplated by this Agreement. The provisions of this subsection shall survive the expiration or
termination of this Agreement and any Site Lease.
g) If any term of this Agreement is found to be void or invalid, such invalidity
shall not affect the remaining terms of this Agreement, which shall continue in full force and effect.
Headings or captions in this Agreement are added as a matter of convenience only and in no way
define, limit or otherwise affect the construction or interpretation of this Agreement.
h) The sale of any property upon which a Site is located shall be subject to the
terms of this Agreement and the applicable Site Lease.
i)
each Site Lease.
Time is of the essence for each and every provision of this Agreement and
The parties have entered into this Agreement as of the date first stated above.
LANDLORD:
THE CITY OF FEDERAL WAY, WASHINGTON
By:
Name:
Its:
-10-
TENANT:
AT&T WIRELESS SERVICES, INC., a Delaware
corporation
By:
Name:
Its:
STATE OF
COUNTY OF
)
) ss:
)
day of , 1 997, before me personally appeared
- ,known to me to be the ' of The City of Federal
Way, Washington, the municipality that executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of said municipality for
the uses and purposes therein mentioned, and on oath stated that s/he was authorized to execute
said instrument.
On this
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
NOTARY PUBLIC in and for the state
of
Residing at
My commission expires:
STATE OF
COUNTY OF
ss:
day of , 1997, before me personally appeared
-----;-l(nown to me to be the of AT&T Wireless Services, Inc.,
the corporation that executed the within and foregoing instrument, and acknowledged the instrument
to be the free and voluntary act and deed of the corporation for the uses and purposes therein
mentioned, and on oath stated that s/he was authorized to execute the instrument on behalf of the
corporation.
On this
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
NOTARY PUBLIC in and for the state
of
Residing at
My commission expires:
-11-
EXHIBIT A
to the Master Use Agreement dated , 1977
between The City of Federal Way, Washington, as Landlord,
and AT&T Wireless Services, Inc., as Tenant
LETTER OF INTENT
To: The City of Federal Way, Washington
Attention:
Address:
State:
City:
This Letter of Intent is sent to you pursuant to that certain Master Use Agreement by and
between AT&T Wireless Services, Inc. ("AT&T"'.) and The City of Federal Way, Washington (the
"City") dated as of , 1997. Capitalized terms used but not defined in this Letter of Intent
shall have the meaning assigned to those terms in the Master Use Agreement. AT&T hereby notifies
the City that AT&T is interested in leasing from the City the following described Site:
Site Location and
Description:
Type of Site
(monopole, rooftop
water tank or other):
Description of
Equipment to be
Located on Site:
Other Information:
As provided in the Master Use Agreement, please notify the undersigned within 15 days
after your receipt of this letter as to whether the City is willing to enter into a Site Lease for the Site
identified above. Thank you for your attention to this matter.
Very truly yours,
AT&T Wireless Services, Inc.
By:
Name:
Its:
EXHIBIT B
to the Master Use Agreement dated . 1997
between The City of Federal Way, Washington, as Landlord,
and AT&T Wireless Services, Inc., as Tenant
Cell Name:
Cell Site 10:
Site Lease No.:
State:
City:
SITE LEASE AGREEMENT
(Multiple Site Component)
THIS SITE LEASE AGREEMENT. (this "Site Lease") is entered into this day of
, 1997, between The City of Federal Way, Washington {"Landlord"}, and AT&T
WIRELESS SERVICES, INC.. a Delaware corporation ("Tenant").
1. Incorporation of Master Use Agreement. This Site Lease is a "Site lease" as
referenced in that certain Master Use Agreement between Landlord and Tenant, dated
, 1997 (the "Agreement"). All of the terms and conditions of the Agreement are
hereby incorporated herein by reference and made a part hereof without the necessity of attaching
hereto the original or any copy of the Agreement. Unless expressly modified herein, the terms and
conditions of the Agreement shall govern with respect to the subject matter hereof, and, unless
otherwise defined herein, capitalized terms used herein shall have the respective meanings ascribed
thereto in the Agreement.
2,
Sites. The Site leased by landlord to Tenant hereunder are as follows:
[insert general description of the Site, including address and name]
A survey and legal description of the Site, including the access easement, is attached hereto
as Exhibit A,. The Site is a [insert type, i.e. water tower]
3.
expire on
Due Diligence Period. The Due Diligence Period shall commence on
, and
4. Commencement Date. The Commencement Date is [to be filled in after due diligence
contingency is waived] . The initial term shall expire at midnight
on the fifth anniversary of the Commencement Date.
5. Commitment Deposit, A Commitment Deposit in the sum of $
been delivered by Tenant to landlord concurrently with the execution of this Site lease.
has
The parties have entered into this Site Lease as of the date first stated above.
LANDLORD:
THE CITY OF FEDERAL WAY, WASHINGTON
By:
Name:
Its:
TENANT:
AT&T WIRELESS SERVICES, INC., a Delaware
corporation
By:
Name:
Its:
-2-
STATE OF
)
) ss:
)
COUNTY OF
day of , 1997, before me personally appeared
- ,known to me to be the of The City of Federal
Way, Washington, the municipality that executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of said municipality for
the uses and purposes therein mentioned, and on oath stated that s/he was authorized to execute
said instrument.
On this
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
NOTARY PUBLIC in and for the state
of
Residing at
My commission expires:
STATE OF
COUNTY OF
ss:
On this day of , 1997, before me personally appeared
--:known to me to be the of AT&T Wireless Services, Inc.,
the Delaware corporation that executed the within and foregoing instrument, and acknowledged the
instrument to be the free and voluntary act and deed of the corporation for the uses and purposes
therein mentioned, and on oath stated that s/he was authorized to execute the instrument on behalf
of the corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
NOTARY PUBLIC in and for the state
of
Residing at
My commission expires:
-3-
EXHIBIT A
TO SITE LEASE
d legal Description
Site Survey an
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+ ""¡¡,,¡>--vI D~,~ (J~~?Ü,.", (,....J ì
/"'" ~ I«...,¡~- ^ l .
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: +(fJ
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-\. C,pc,:+,\ ~+ "D (- t'" [O.lD'_~
ctLc..:~ ')
EXHIBIT C
to the Master Site Agreement dated , 1997
between The City of Federal Way, Washington, as Landlord,
and AT&T Wireless Services, Inc.. as Tenant
Form of Memorandum of Lease
(See attached)
This Space Provided for Recorder's Use
When Recorded Return to:
AT&T Wireless Services, Inc.
Attention:
Address:
Memorandum of Lease
Grantor(s)
The City of Federal Way, Washington
Grantee(s)
AT&T Wireless Services, Inc" a Delaware corporation
Legal Description
Assessor's Property Tax Parcel Account Number(s)
Reference Numbers of Documents Assigned or Released
-1-
MEMORANDUM OF LEASE
THIS MEMORANDUM OF lEASE (the "Memorandum") is made as of this day of ,
199 , by and between The City of Federal Way, Washington, a municipality ("Landlord") and AT&T
WirëTess Services, Inc" a Delaware corporation ("Tenant").
BACKGROUND
A, As of the date hereof. Landlord and Tenant entered into a certain Site Lease (the
"Lease"); and
B. landlord and Tenant are desirous of entering into this Memorandum in accordance
with the laws of the state in which the Site is located.
NOW, THEREFORE, intending to be legally bound, landlord and Tenant hereby set forth the
following information with respect to the Lease:
1 ,
Landlord's address is
2.
Tenant's address is
3.
The lease is dated as of the date hereof.
4. The description of the Site as set forth in the Lease is as set forth in Exhibit A,
attached hereto.
5. The Lease contains a maximum Due Diligence Period of seven (7) months, thus the
latest date the term can commence is , 199_.
6.
The initial term of the Lease is five (5) years.
7,
Tenant has the right to four (4) additional Renewal Terms of five (5) years each.
8. All property brought onto the Site by Tenant shall remain Tenant's personal property
and, at Tenant's option. may be removed by Tenant at any time during the term, but no later than
30 days after the Lease has expired or been terminated.
WITNESS the due execution hereof.
LANDLORD:
THE CITY OF FEDERAL WAY, WASHINGTON
By:
Name:
Title:
TENANT:
AT&T WIRELESS SERVICES, INC., a Delaware
corporation
By:
Name:
Title:
STATE OF
COUNTY OF
)
) ss:
)
day of , 199 , before me personally appeared
- , known to me to be the - of The City of Federal
Way, Washington, the municipality that executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of said municipality for
the uses and purposes therein mentioned, and on oath stated that s/he was authorized to execute
said instrument,
On this
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
NOTARY PUBLIC in and for the state
of
Residing at
My commission expires:
STATE OF
COUNTY OF
ss:
day of , 199 , before me personally appeared
~nown to me to be the - of AT&T Wireless Services, Inc.,
the Delaware corporation that executed the within and foregoing instrument, and acknowledged the
instrument to be the free and voluntary act and deed of the corporation for the uses and purposes
therein mentioned, and on oath stated that slhe was authorized to execute the instrument on behalf
of the corporation.
On this
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
NOTARY PUBLIC in and for the state
of
Residing at
My commission expires:
-2-
EXHIBIT A
TO MEMORANDUM OF LEASE
Site Survey and Legal Description
MOW HC260404.002 4/17/97
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(206) 661-4000 (' I '
FEDERAL WAY. WA 98003-6210 ( - \ ,
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March 4, 1997
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Attached is a draft response for our discussion at today's meeting, I have not drafted the «letter of intent" 'j: ~" J' J ,~-
referred to in the revised Agreement. What I have in mind is to separate the «Due Diligence" provision I h '.-I} )
from the Site Lease, which is similar to a feasibility contingency. Otherwise, the changes are identified , . - ÁJ (\
by strike-throughs and italics from your original. This draft has not been reviewed by the City Attorney, C ó"--{> /rvcc)
and their changes to this draft could be material, As you probably are aware, any property lease must also ~
be approved by the City Council, which again could have material changes to this draft or the Attorney's -.
draft agreement.
Bill North
W. L. North & Associates, lnc,
P. O. Box 1201
Mukilteo, WA 98275
Subject: Master Use Agreement
Dear Bill:
I also want to bring to your attention that the Lakehaven Utility District owns water and sewer utility
infrastructures within the municipal boundary ofFederaI Way. The City has no legal nor legislative
oversight authority over their operations,
I have calendared in the 10:00 am meeting on March 13 per your voice message. Or, it may be more
efficient use of our time to schedule a meeting after you have a chance to review the changes.
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Sincerely,
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Iwen Wang kð J~ ~
enclosures
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cc:
Landi Lindell, City Attorney
Philip Keightly, Assistant City Manager
Greg Moore, DCS Director
Mehdi Sadri, Information Systems Manager '-:2 If 'z.. / C,¡'7
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Discussion Draft
MASTER USE AGREEMENT
(Multiple Sites)
TIllS MASTER USE AGREEMENT (this "Agreement") is entered into this - day of
199
(the "Date of this Agreement"), between THE CITY OF FEDERAL WAY, Washington ("Landlord"), and AT&T
wrnELESS SERVICES, INC., a Delaware corporation ("Tenant").
BACKGROUND
A
Landlord owns or controls ffiW improved and unimproved land, right of ways, buildings or other
improvements (individually and collectively the "Property") located OR real property throughout Landlord's
municipal boundaries.
B.
Landlord desires to lease to Tenant the non-exclusive right to use and Tenant desires to lease
from Landlord the non-exc/usive right to use certain portions of the Property for the sole purposes of installation
and operation thereon of wireless communications apparatus faeilities owned and used by Tenant described in this
Agreement.
c.
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1.
Master Aereement. This Agreement sets forth the basic terms and conditions, unless otherwise specified
by specific "Site Lease" as defined hereinafter, upon which pertiøß5 effor the Property shall be leased-by between
Landlord to and Tenant The portion of the Property leased by Tenant is referred to herein as a "Site," Sites fas
defined below) shall be selected by Landlord and Tenant jointly from all properties municipally owned, leased, 6f
liceß5ed flroperty, or otherwise controlled as to use and/or access. The portion efthe Pmperty leased by Tenant is
r-eferred to hereiR 85 a "Site. " Upon Landlord and Tenant's selection of a Site, the parties shall insert the
appmpriate tenDS and infonnation, execute and deliver an intent for site lease ("Letter of Intent")ngreement in the
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Discussion Draft
form of Exhibit A attached hereto (-eooh efo,vhieh being her-einafter r-eferred tEl as a "Site Lease"). Additional Sites
shall be identified by Landlord and Tenant from time to time After Site Lease has been executed with the
execution of a Letter of Intent. Upon the delivery of an executed Letter of Intent and a Commitment Deposit in the
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amount of $1,000.00 (the "Commitment Deposit"), Tenant shall have the Due Diligence Period (as defined in
.~
section (6» to obtain the necessary Government Approvals and perform a feasibility study on the Site. Upon
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completion of such feasibility study, Tenant shall deliver an executed Site Leases agreement in the form of Exhibit
B along with items required in Section 6(bJ to the Landlord prior to the expiration of the Due Diligence Period or
extended as applicable.
Landlord shall be approved-, 6f rejected, or request clarification by LaBàlord in
......
accordance with section 6(b) upon receipt of the Site Lease and permit plans. The terms and conditions of each
Site Lease shall govern and control in the event of a discrepancy or inconsistency with the terms and conditions of
this Agreement.
\
By entering into this Agreement, Landlord does not waive any existing or future rights œ::.
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authoritieý" ðt/IU compensations, taxes, .el'-fees permitted by any and all provisions ofsta.~e, fede;al, and local
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laws whicJ:!.JEEJI.}e applicable to a~y or all of the Tenant's operations. ~. ,-'" -t. f>~P l '
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2. Sites. Landlord either owns, leases, or licensed property, or otherwise has control over the use andlor r-
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access of the property. Subject to the terms and conditions of this Agreement and the Site Lease for each
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particular Site, upon execution of the Site Lease, Landlord hereby grants non-exc/usive use leases to Tenant of the
respective Site described in each Site Lease. Simultaneously o,vith the execution of each Site Lease by Tenant,
Tenant shall pay ta LaBElIar-d a commitment deposit in the amoUBt af $1,000.00 (the "Cammitment Deposit").
Upon the commencement of the term af such Site Lease, the Commitment Deposit shall be applied to the first
month's Rent therC1:mder.
3.
Tenn.
2
Discussion Draft
a)
The initial term of Ws Agreement shall commence upon the execution and delivery of Ws
Agreement (the "Commencement Date") and shall expire on the later to occur of: (i) midnight on the day before
the :fifth (5th) anniversary of the Commencement Date; or (ii) the expiration of the term or Renewal Term as the
case may be under the last remaining Site Lease. Unless otherwise stated in a Site Lease, the term of a particular
Site Lease shall commence on the earlier ef (i) the date Tenant Rotifies Landlord iÐ VlritiRg that Tenant has ":..aived
its right to termiÐate such Site Lease date Landlord notifies Tenant in writing of its approval of the Site Lease
pursuant to Section 6(b) below or the terms of the Site Lease (as the ca5e may be), but in no event later than the
date Tenant commences construction or installation of its Antenna Facilities (as defined below) improvements on
the Site; or (ii) the first day after e'<piratien ef the "Due Diligence Period" as deemed in Section 6 belo,,:.. (such
earlier Elate beiag the "Site Lease CeHUfleÐœment Date"). Unless otherwise stated in a Site Lease, the initial term
of a Site Lease shall expire at midnight on the day before the iillh (5th) anniversary of the Site Lease
Commencement Date thereunder simultaneously with the Agreement governing such Site Leases or as thereafter
amended.
b)
TeÐB:ßt shall hwle the right to Upon mutual agreement, this Agreement may be extended eaeh
Site Lease (unless øtherwise pr,ovided therein) for foW' (4) an additional, five-year terms (eaeh being a "Renewal
Term"). Tenant's use of the Site during each Renewal Term shall be on the same terms and conditions as set forth
herein in the Renewal Agreement. Each Site Lease shall automatically renew for each successive Renewal Term
unless Tenant notifies Land1erd either side notifies the other in writing of Tenant's its intention not to renew such
Site Lease at least sixty (60) days prior to the expiration of the initial term or any Renewal Term thereunder.
Notwithstanding anything to the contral)' contained herein, including without limitation the provisions of Section
3(a), in no event shall Ws Agreement terminate so long as any Site Lease remains in full force and effect.
c)
Tenant shaU vacate and restore aU sites to their pre-lease condition upon expiration of this
Agreement or any renewal term(s) hereafter, unless a renewal is in process and the gap is temporary. Should the
Tenant fail to remove any and aU facilities and restore the site to its original condition after 90 days of
lermination of Ih~\SOle discretion wilhoul prior notice, may remove such facWty and
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Discussion Draft
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restore such sites and Tenant shall be responsible for any and all costs incurred by Landlord. If Tenant shall -, '- f
" i .
remain in possession of a Site at the expiration of the last R-enC"Nal Term vlitheut a '.,Titten agreement, such -~', ""<o( .
tenancy shall be deemed a month to month tenancy under the same teI'1Ð5 and conditions of this Agreement and '. tJ....,~~
.. (0 (
the Site Lease pertainiRg to sueh Site. J r ( "-. - I -i~ I
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4.
Rent. CompensaJion.
During the First two years of the initial term:
a)
Upon the occurrence of the first Site Lease, but no later than on the beginning of the third year,
~7
Tenant shall provide Landlord with the wireless data transmission capability between City Hall, Police Facility,
'-
and Community Center (close distance wide area network); Landlord understands the technology is not yet in
--- -----,-----
- -.-----,-.--------
testing phase and wishes to bring the technology to Federal Way by cooperating as a Beta site, which will provide
a better link to the equipment manufacturingfacility in Redmond, Washington;
b)
Upon commencing the 2nd Site Lease, but no later than on the beginning of the third year,
Tènant shall provide Landlord technical support for the homepage setup, maintenance, support and training, and
up to J 0 Government Information internet accounts free of charge;
Upon commencing the 3rd Site Lease, but no late~ than on the beginning of the third year,
~u'P t~o 1 00 unl'ts 0 .Cl'ty owned
Tenant shall provide Landlord with Personal Communication Services CS) UD '
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c)
equipment free of charge;
d)
Commencing the first day of the 3rd year, in addition to the above services, Tenant shall
compensate Landlord 5% of its gross income from all services supported by the antenna generated within the
-..-----
municipal boundary of Federal Way.
Site Lease CommeneemeRt Date under eaeh Site Lease, TeRaßt shall pay Landlord the follovlÌng amounts
as "ReBt":
Water Tanlcs:
S4,800.00Iper annum
RooftopslExisting Municipal TOOllers:
S7,200.OOIper ar.num
4
Discussion Draft
Raw Land:
S6,000.00Iper ar.nwn
The reRtal r-ate for the first two Site Looses executed U:ßder this _A_grooment shall be as set forth above. The rental
rate for Site Leases three through five shall be reduced by ten percent ( 0%). The r-ental rate fer Site Leases six
through ten shall be reduced by twenty per-eent (20%) off the original rate. The rental rate f.ar Site Looses eleven
through fifteen shall be reduced by thirty per-()ent (30%) effthe original rate. The rental rate for Site Looses siJrteen
through hventy shall be reduced by forty percent (10%) off the original rate. The rental rate for Site Leases hyeot)'
one and O'ler shall be reduœd by fifty percent (50%) off the origiÐal rate. Nothing eentained herein shall provide
Tenant with a reductien ef mere the 50% off the origiÐal rates set forth above.
Unless other,vise pre"lÌded in a Site Loose, Rem shall be payable en the first day of each calendar meath
in advanoo at Læuilerd's address speeified in SeetÍoft 11 below. If the term commences on a day other than the first
day of a menth, Rent shall be prorated for that fITst maRth fer the number af Elays from the Commencement Date to
the end of the moRth. If a Site Loose is terminated on a day ether than on the last day of a moRth, the Rent shall be
prerated as ef the date of termination, and, in the event ef termination for any reason other thaR 808payment of
Re8t, all prepaid Re8ts shall be refunded to Tenant. :Me8thly ReDt payable \Hider any giveR Site Lease during each
successive Rencvial Term shall be the amoUBt equal to one ffimdr-ed fifteen perceet (115%) of the menthly Rent
payable \Hider sueh Site Lease for the læ;t full caleDdar meftth immediately prior to the commencemeDt of such
Renewal Term.
Notwithstanding the feregoing, the rental rates and ether terms such as capital expenœtl:tre reeovery and
maintenance charges fer any celiocatieD sites shall be Degotiateå en a per site basis. The foregoing terms shall be
included iD the Site Lease(s) such collocation Site(s).
b)
Te8ant shall have the right to use a Elireet deposit system .'lith regard to Reftt payments.
LaBdlerå agrees to ceeperate '¡'lith Tenant in providing requisite infermatioD to Tenant for such direet deposit. The
implementation of the Elireet deposit system shall be at Tenant's expense.
5
Discussion Draft
5.
Permitted Use. The Site may be used for: (i) the transmission and reception of communication signals by
wireless means; (H) the construction, alteration, maintenance, repair, replacement and relocation of related
antennas, equipment, cables, structures and facilities and improvements related thereto; and (Hi) activities related
to any of the foregoing (collectively "Tenant's Permitted Use").
6.
Due Dilieence Period.
a) With respect to each Site for which Laßàlar-å and Tenant submits a Letter of Intent and Commitment
Deposit enter into a Site Leæ;e, from and after the date of such Site Lease the Letter through and including the date
which is four (4) months after the date of the Letter of such Site'Lease (the "Due- Diligence Period"), Tenant at its
own cost and risk, together with-aBd its agents, engineers, contractors and other representatives shall have the right
to enter upon the subject Site to inspect, examine, sample and conduct all engineering tests or studies of the Site, to
apply for and obtain all licenses and permits required for Tenant's Permitted Use of the Site from all applicable
governmental or regulatory entities ("Governmental Approval"), to perform a survey, and otherwise do those
things on or adjacent to the Site that, in the opinion of Tenant, are necessary to determine the physical condition of
the Site, Landlord's title to the Site and the feasibility or suitability of the Site for Tenant's Permitted Use, all at
Tenant's expense. Tenant may extend the Due Diligence Period for a period of three (3) months by providing
Landlord with written notice of such election prior to the expiration of the initial Due Diligence Period. Landlord
makes no representation nor warranty about the condition, or suitability of any such sites, and shall not be
responsible for any damages or injuries to the Tenant, its agent, officers, employees, contractors, or any its
representatives due to the condition of these sites. Laßàlar-å shall deliver in a timely maRDer, any ref!ÐJ1s,
enVÍr-enmeotal smwes, surt~'s, plans ar ather reasonable infermatiao r-elatiog ta the Site. Tenant shall not be
liable to Landlord or any thir-å party OR account of any pre-existing defect or conditicw on or with respect to the
Site, whether or not such defect or condition is disclosed by Tenant's inspection. If, in the sole and absolute opinion
of Tenant, the Site is not suitable for Tenant's intended use, or Tenant determines that the operation of a
communications facility on or within such Site would not be in Tenant's best interests, Tenant shall have the right
6
Discussion Draft
at any time prior to the expiration of the Due Diligence Period to tenninate the Site Lease pertaining thereto by
sending written notice of tennination to Landlord. In susR event, the CaæmitmeRt Deposit shall be returned to
TeRant in its eRtirety. Thereafter, neither Landlord nor Tenant shall have any further obligation or liability under
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P ,h~ I' appearance, and access requirement to the property, and other additional infonnation as requested by Landlord.
ev f\1,' I
. 17
f(~ (1:5-5 . Landlord shall review these materials and ma/œ a decision within 45 days from receipt of the same. Tenant shall
W¡~'ì .ll be notified in writing the approval, denial, or any request for clarification. Should the Landlord decide not to
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. ~ C ; ~ proceed with the lease, the Commitment Deposit shall be returned to Tenant in its entirety. Neither Landlord nor
((ð~~ Tenant shall have any further obligation or liability to each other under such Site Lease except as otherwise
such Site Lease except as otherwise provided herein or therein. '" I -1'1, " - ~-7 L, J \,rV,L.k-. "
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b) ~~ceiPtiniGo~ern~ental APPrO~;¡enant shall submit to Landlord such pennit plans
and drawings in digital fonnat identijÿing location, dimensipn, foot print, type of structure, material, color and
provided herein or therein.
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Tenant shall operate its wireless communications facilities and services bf£-~-~
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("Telecommunications System") in a manner that will not cause substantial inteñerence to Landlord or to any Q \'\"'\.1~,J c,'
'¡
other third party leœted on uses of Landlord's property;. Pf-Ð"Aded that~ the rights ef StIch third party or Lanålenl's 6 1 ""it.... '-.....
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7.
Interference.
use f)redates the Elate ef the particular Site Lease. Fr-em and after the àate ef eaeh particular Site Lease,. Landlord
f'i"\"~~";-"'o,
shall not; nor shall knowingly pennit any of its tenants to-, install new equipment on or about the Site if such
equipment is likely to causes direct signal inteñerence with Tenant's operations signals,.; provided that; the rights
of such third party or Landlord's use subsequent the date of the particular Site Lease. Landlord shall, within five
~ forty-five (45) days of receipt of written notice from Tenant of such inteñerence, which notice shall include the
r-ea:sonable engineering basis evidence for the belief that a new use by Landlord or its tenant is causing inteñerence
to Tenant, either initiate substantial effort toward resolving the inteñerence to Tenant's signals, or cea5ß suspend
operation of the new facilities which are causing in such inteñerence until the interference is resolved, or aI/ow
Tenant to terminate the specific Site Lease. Additionally, Landlord shall, ,vithin five (5) days of receipt ef written
7
Discussion Draft
notice Hem Tenant of such interference, 'Nmch netice shall include the roosonable engineering basis for the belief
that such ether teRfUlt ef Landlord is causing interfer.ence to TeßaBt, require such other tenant to either resep¡e the
interference to Tenant or ooase operation of the faeilities which are causing in such interference. The terms of this
prO".1sion shall be included in any subsequent agreement which LaRdlor-d might, from time te time, choose to enter
into '.vith any fuMe teaant or user. Tenant's right to seek specific performance terminate the specific Site Lease of
this provision shall be its sole remedy for any alleged breach of this provision. Landlord and Tenant agree to cause
their respective engineers to consult with the other party's engineers prior to executing any agreement with any
future tenant or user that Landlord reasonably believes could be ð*peeted to will result in interference in reception
or transmission of signals by Tenant or such future tenant or user. Landlord will provided Tenant with sixty (60)
days prior written notice of any material improvements on or adjacent to a Site which will be performed by or on
behalf of Landlord. "Material Improvement" on a Site under this Agreement or any Site Lease governed by this
Agreement shall mean the development, construction, or otherwise alternation of a property that affects more than
50% of the land area or increases the value by 50% of the complete property of which the Site is a portion.
Landlord acknowledges that: (i) Tenant operates under a federal license; (ii) continuing Knowing interference with
Tenant's TelecornmUIÚcation System on a continuing basis in violation of this section may cause irreparable harm
damages to Tenant; and (ill) the prompt cessation resolution of any such interference is material to each Site
Lease; and therefore (i...) Tenant shall hœ'¡e, as eRe of its rights, the fle".¡er to enjoin such interfer-ence described
aÐeve. The parties agree to cooperate with each other in resolving all interference matters.
8.
Improvements; Utilities; Access.
a)
Tenant or its affiliates shall have the right, at its expense, to install, construct and
maintain on the Sites cornmUIÚcations facilities, including, without limitation, radio and other communications
transmitting and receiving antennas, supporting mounts, cables, equipment, equipment storage structures,
perimeter fencing and other improvements relating thereto (collectively, the "Antenna Facilities") in accordance to
the plans and specifications approved by governing authority and Landlord. The Antenna Facilities shall be
8
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deemed personal property for purposes of this Agreement and each Site Lease, ,regardless of whether any portiòn
Discussion Draft
thereof is deemed real or personal property under applicable law, and Landlord hereby consents to Tenant's óght
and responsibility to remove all or any portion of any Antenna Facilitie~ from time to time in Tenant's sole
discretion. Tenant shall have the óght to modify, supplement, replace, up~de or relocate the Antenna Facilities
I
\
within the Site at any time duóng the term or Renewal Term of the Site ~ re~~tiIlg thereto. Any material
/...-- \ ,--~:'",--,
changes shall be submitted to Landlord and Landlord's approval sh4i.~not be unreasonable Wi~~~';jþ"Material
Changes" as related to antenna facilities include but are not limited to the change of the foot prints-either
enlarging or moving, height, color, or any other features that are specifically devised for the disguise of the
facility as required by Permitting authority and/or by Landlord.
All work by Tenant shall be performed in
compliance with applicable laws and ordinances. Tenant is not authoózed to contract for or on behalf of Landlord
for work on, or the furnishing of materials to any Site or any other part of any Site, and Tenant shall discharge of
record by payment, bond or otherwise, within ten (10) days subsequent to the date of its receipt of notice thereof
from Landlord, any physical or title defects including but not limited to mechanic's, laborer's or similar lien filed
against any Site or any Site for work or mateóals claimed to have been furnished by or for the benefit at--the
instance of Tenant, its agent, employee, contractor, or affiliates.
The Antenna Facilities shall remain the
exclusive property of Ten ant, and Tenant shall have the óght to remove all or any portion of the Antenna Facilities
at any time duóng the term of this Agreement, the term oftbe relevant Site Lease and following any termination of
the Site Lease or of this Agreement, O;¡oother as the result ef default by Tenant or otBerv,'Îse. Any property which is
not removed by Tenant within ninety (90) days after the expiration or earlier termination of the Site Lease
pertaining to such property shall, at Landlord's sole discretion and judgment, be kept in place and Tenant shall be
relieved from future liability under this Agreement; remove, or cause them be removed, and restore the Site to the
pre-Lease conditions at Tenant's cost. upon the expiration of such ninety (90) day peóod, become the property of
Lanàlord, and Tenant shall ther-eafier haole no óghts, abligat:ioBs or liabilities whatsolWer with respeet thereto.
Tenant shall ha"le BO obligatioB to remove below grade impr-G"lCments from the Site UpOB the e*fJiration or
termination of this Agreement.
9
Discussion Draft
b)
Tenant shall, at Tenant's expense, keep and maintain those Sites which are under its
exclusive control, in commercially reasonable good condition and repair and Tenant agrees that its use will not
cause any damage, destruction or waste during the tenD of the Site Lease pertaining thereto. For Sites in which
there are multiple tenants or users, or in which Tenant does not have exclusive control, Tenant agrees that its use
will not cause any damage, destruction or waste, and that it shall maintain its Antenna Facilities in good repair.
Upeø terminatiOR of eaeh Site Lease, Tenaøt ...All r-etum the abø"'1e grade partieR of the subject Site and all abø>1e
grade impr-ovemeRts therooø Rot r-effie-led by TeRftRt iR geed ooRditieø, "lAth the æfOe¡3tieR of rœ50Roole wear and
tear-.
c)
Tenant shall pay all utility charges which result directly from its use of a Site. Tenant
shall have the right, at Tenant's expense, to install separately metered utilities within each Site and to install or
improve utilities on the Site (including, but not limited to the installation of permanent emergency power
generators) so long as such additions or improvements are identified in the permit Plan and Specifications. Tenant
shall also have the right to temporarily install emergency portable generators.
d)
Tenant shall be entitled to twenty-four (24) hour, seven (7) days per week, access to the
Site and shall have all additional rights of access and ingress and egress to and from each Site unless such
unlimited access is otherwise restricted by specific Site Lease. The location of this access shall be set forth in each
Site Lease and ideRtified as an easemeRt.
9.
Default/Termination.
a)
The occurrence of any of the following shall be an "Event of Default" under the
applicable Site Lease:
10
Discussion Draft
i)
if Tenant fails to pay amounts due under the Site Lease within thirty (30) days
after Tenant's receipt of written notice of such failure from Landlord;
ii)
if a party breaches any of its obligations under this Agreement or a Site Lease
(other than a default described in Section 9(a)(i) above) and fails to cure such breach within thirty (30) forty-five
(45) days after written notice is received by the breaching party from the non-breaching party; provided. however,
that if such breach cannot be cured within such ~5-day period, an Event of Default will not be deemed to have
occurred so long as the breaching party commences appropriate curative action within such ~ 45-day period and
thereafter diligently prosecutes such cure to completion;
b)
If Tenant defaults hereunder, then Landlord shall have all rights to pursue any and all
venues pennitted by Law and provisions provided elsewhere in this Agreement, including but not limited to the
may tenninateion of the applicable Site Lease upon ten (10) days prior written notice. If Landlord defaults
hereunder, then Tenant shall have all rights pennitted by law including but not limited to the right of specific
perf.ormaBOO er the right to tenninate this Agreement upon ten (10) days prior written notice. In addition, Tenant
may tenninate any Site Lease (without any penalty or further liability fer terminatien) for either of the following:
(i)
upon sixty (60) days prior notice that any license, pennit or Governmental
Approval necessary for the construction or operation of the Antenna Facilities or Tenant's actual or intended use of
the Site under such Site Lease is canceled or revoked; or
(ii)
upon sixty (60) days prior written notice if Tenant detennines, in its reasonable
discretion, exercised in good faith, that based on: (i) technology; (ii) interference with use of the Site resulting from
the acts of any third party, an act of God or from other natural forces; or (iii) changes in system design or system
usage patterns, renders Tenant's use of the Antenna Facilities (as the same may have been modified from time to
time) on the subject Site inconsistent with the optimal operation of Tenant's communications system.
11
Discussion Draft
c)
Termination of a Site Lease pursuant to this section will in no event terminate this
Agreement.
d)
If Landlord fails to perform any of its obligations er breaches any '.'larranties under this
Agreement or any Site Lease, and such failure or breach impairs or interferes with Tenant's Permitted Use of the
Site, Tenant may give Landlord written notice thereof at any time. If Landlord does not cure or commence
appropriate curative action such faihH'-e within fiftOOB (15) forty-five (45) days after receipt of such written notice
from Tenant, Tenant may, at its option, terminate affected Site Lease. ',vithout obligatiea aBd in additieB te aay
other rights er r-emeàies available to TeRant hereüBder or üBder applieable 18-'::, ther-eafter t>erform such abligatiea
er ether at>t>r-et>riate C\Kative actioa on behalf aRd at the expeBSe ef LaBàlonl aBEt do all necessary work aBd make
all aooessmy paymeats ia sennestioa there>;IÎtR, aBd LaBdlenl shall, ea demaBd, pay TeRant the amount so paid by
Tenaat. If LaBdlor-d fails to pay TeRant such oosts after aB additional tea (10) days notice to LaBàlor-d, TeBaBt may
withheld the amoont of such casts from iRStallmems efReÐt Rem falliag ooe ander aBY or all Site Leases.
e)
Under no circumstances whatsoever shall Landlord be responsible for any damages to
the Tenant exceeding the current calendar years' lease payment on a specific site.
10.
Casualty and Condemnation.
Landlord and Tenant shall be responsible for insuring their own property against nature and man-made
disasters. Tenant shall provide proof of liability insurance as provided in section 12 of th is Agreement.
a)
If at any time during the term of this Agreement or any Site Lease, a v¡ater tewer,
building or other facility owned by Landlord upon which Tenant has leased the right to install its Antenna Facility
Teleeemmwricatioa System (cellooti'¡ely fer PW'}3oses of this sestiea only, "Facility"), should be destroyed or
damaged in whole or in part, Landlord, at its sole determination may chose to provide 1) an alternate site and
Tenant may either accept or reject such sites, 2) terminate specific Site Lease. o'l+'n expense, shall CIWSe the same
to be FeJ3air-ed, feplaeed or rebuilt. If Landlonl has Rat oommeneed sush ret>air, r-eplacemeat or rebuildiag '.vithia
12
Discussion Draft
thirty (30) days after the date of such damage or dest.ïiction. Tenant may, ia its sole discretioa IlÐd \!poa ',vrÏttea
aotice to Landlord, either:
(i) elect to reb\:Ù.ld the Facility as provided ia this sectioa, ia which eveRt, the Site
Lease shall reoommence on the date of such election as if the Site Lease had just been approved by the parties
hereto (iooluding ',vithout limitation the term. of such Site Lease). Landlord agr.ees that if the Facility sh6uld be
damaged or substantially destroyed and the Landlord bas insurance c6vemge that ',"1m apply upon such an event,
Lanàlerd ".ill utilize those iR5ltF8Rce proceeds to r-eå\:Ù.ld such Faeility. If hewever, those proceeds are insuffieient
to reb\:Ù.ld the damaged Facility, and Tenam eloots to reb\:Ù.ld the same, Landlord vAll contributed these insurance
pr-eceeds t6 Tenant for that purpose; or
(ií) termiaate the Site Lease as of the date set fertll ia such notice and all reaWs and
other SUffi5 shall be accoWlted fer between Landlord and Tenant as of the date of such destructi6n. R-ent shall be
abated fer the period that a particular Site is not usable for the oonduct ef Teaant's basiness.
b)
If any such damage or destruction which renders a particular Facility non-operable for a
period reasonably expected to exceed five (5) days, Tenant shall have, and Landlord hereby grants to Tenant. the
right to bring and maintaÍa upoa the Site such jointly shall determine appropriate temporary communications
facilities location as Tenant shall reasonably determine are necessary to continue to operate Tenant's
communications system and provided that: (i) all terms and condition in this Agreement and the specific Site
Lease shall apply to such temporary facilities do Bet violate the terms of the section contained hereia entitled
"Interference"; (ii) Tenant obtains all necessary permits and authorizations for the construction and operation of
such temporary facilities; and (iii) Tenant shall remove such temporary facilities upon the sooner of: (a) the
restoration of Tenant's permanent telecommunications services on the Site; or (b) termination of that particular
Site Lease
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Discussion Draft
c)
If a Facility becomes partially or totally destroyed, or otherwise affected, so as to be
rendered useless for the placement of Tenant's Telooomml:HlÍeatioBS System Antenna Facility as contemplated
under this Agreement or any Site Lease, whether by Act of God or any other causes other than an act of Landlord
or its agents, or an act of Tenant or its agents, in violation of this Agreement, neither Landlord or Tenant shall
have the duty to replace or rebuild such damaged facilities. However, in such event, should Landlord and Tenant
decide an acceptablealternative.s.it~!enant may shall have the right 8:8å eptieft to construct, after securing all
ne~Government AP~ sol. expense, an tel.......ønioaHo85 _BOpel. 0< _10< Antenna Facility
st.--ucbK-e on such Landlord's property eft or adjacent te the Alternate Site, to a height at least equal te the height at
vlhieh Tenant's TelooollllBUftioatiaas System were ar 'Nere substantially similar to be plaeeà OR the Facility
pursuant to the Site Lease. If TeRaRt elects this eptioft, TeaaBt '.'.'ill obtaift all required de'lelapmefttal appr-o,..als.
Laaàlofå sha:ll assist TeRant ift obtaiBiRg sueh appmvals, and shall CORSeRt to aRy procedar-es Imd appliOatiORS
deemed ReEìeSsary by TeR8:8t fer this pu-I"pose.
i)
If Tenant elects to construct such a replacement structure, Tenant shall provide
written notice of its intention to do so to Landlord within ninety (90) days of the date the Facility is rendered
useless. The failure to provide such notice shall result in the tennination of that particular Site Lease without
further obligation by either party, other than as otherwise provided in this Agreement regarding the event of
tennination.
ii) If Teaant elects te oeRStruct SUCR replaeemeRt struotw'e after the Faoility is rendered
useless, TeRant sha:ll haYle the right to looate and operate Oft the Site or immediately aåjaceot to the Site temporary
emergeooy equipmeRt, ifteluåiftg '../ithout limitation, a portable ImteBBa st.--uetw'e up te the height ooRtemplated by
the partioular Site Lease for plaoemeftt ef Tenant's Telecemmuniœt:iens System eft the FaGility aeœssary to
maiRtaiR its telooommunioatioBS eapability eR the Site.
14
Discussion Draft
11. Taxes. For each Site, Tenant shall pay any personal property or real property taxes assessed on, or any
portion of such taxes attributable to that Site. Landlord and Tenant shall set forth the appropriate apportionment
for collocation Sites in the applicable Site Lease.
12. Insurance and Subrogation.
a)
Tenant will provide Commercial General Liability Insurance in an aggregate amount of
$1,000,000 and name Landlord as an additional insured on the policy or policies. Tenant may satisfy this
requirement by obtaining appropriate endorsement to any master policy of liability insurance maintained by
Tenant.
b)
Neither party shall be liable to the other (or to the other's successors or assigns) for any
loss or damage caused by fire or any of the risks enumerated in a standard" All Risk" insurance policy, and, in the
event of such insured loss, neither party's insurance company shall have a subrogated claim against the other. Each
party hereto shall obtain from its insurers under all policies of fire, theft and other casualty insurance maintained
by it at any time during the term of this Agreement insuring or covering the Site or the Sites or any portion thereof,
Facilities or operations therein, a waiver of all rights of subrogation which the insurer might have against the other
party, and each party shall indemnify the other party against any loss or expense, including reasonable attorneys'
fees, resulting from the failure to obtain such waiver.
13. Hold Harmless.
a)
Tenant agrees to indemnify, defend and hold Landlord harmless from and against
injury, loss, damage or liabìlity (or any claims in respect of the foregoing), costs or expenses (including reasonable
attorneys' fees and court costs) arising from the installation, use, maintenance, repair or removal of the Antenna
Facilities or the breach of this Agreement, except to the extent attributable to the negligent or intentional act or
15
Discussion Draft
omission of Landlord, its employees, agents or independent contractors. The indemnification provided in this
section shall SUIVÍve the termination of this Agreement and any and all Site Leases.
b)
To the extent permitted by law, Landlord agrees to indemnify, defend and hold Tenant
and Tenant's agents, employees, contractors and invitees harmless from and against any and all injury, loss,
damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys'
fees and court costs) arising from any act, omission or ne~nce of Landlord or its employees or agents, or the
b- of tbis A_At or IH1j' of tile v..........ü" -..~t to tho ...... _Ie to tho BegligeRt or
imeBtional act or omission of Tenant, its employees, ageat5 or independent øentraøto~ The indemnification
provided in this section shall survive the tennination of this Agreement and any and all Site lases.
14. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall
be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by overnight
carrier to the following addresses:
If to Landlord, to:
with a copy to:
If to Tenant, to:
Attn:
with a copy to:
15. Quiet Enjovment of Title and Authoritv. Landlord and Tenant acknowledge CO'leÐ&Rts and v;ammts that:
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Discussion Draft
(i) it has full right, power and authority to execute this Agreement and each Site Lease and has the power
to grant all rights hereunder and thereunder; (ii) it has good, marketable 8Ðd unencumbered title to the Sites are
free and clear of any liens, or mortgages, restrictions or other encumbrances that will interfere with Tenant's
Permitted Use of the Site; (iii) its execution and perfonnance of this Agreement and each Site Lease will not
violate any laws, ordinances, covenants, or the provisions of any mortgage, lease or other agreement binding on
Landlord; aBà (iv) Tenant shall have the quiet enjoyment of and 24 hourl7 day per week access to the Site, unless
as specified in the Site Lease, and (v) such Site Leases are non-exclusive, non-transferable use rights for the
specific Sites. Landlord does not surrender title, easement, nor in any way suggest Tenant has sole enjoyment to
the Sites.
and Tenant shall not be disturbed as long as Tenant is not in default beyoBd any applicable gt'ace or
cure period.
.,-/""
16. Environmental Laws.
i ( ¡J .+- ,- ~i-'h/I ð-v1
'~rP'v'l/' C;v~ V V\ \ . r?
L tÁ/Vlê€ t~ /~V';;L/ .
r(?
Ø:. 'a) As used herein, the tenn "Environmental Laws' shall mean any and all local, stale °' fOOernl
~ statutes, regulations or ordinances pertaiIÙng to the environment or natural resources. As used herein. the term
"Hazardous Substance" shall mean any toxic or hazardous waste or substance (including, without limitation,
asbestos and petroleum products) that is regulated by Environmental Laws.
b)
Tenant represents, warrants and agrees that it will conduct its activities on each Site in
compliance with all applicable Environmental Laws. Landlord represents, WIHT8Ðts 8Ðd agrees that to the best of
Landlord's knowledge, it has in the past and will in the future conduct its activities on each Site in compliance with
all applicable Environmental Laws 8Ðd that wlless it notifies Tenant to the contmry, that each Site is free of any
HazardoU5 SubstaBœ as of the date Tenant identifies it 85 a œBwdate for a Site Lease.
17
Discussion Draft
c)
Landlord shall be responsible for, and shall promptly conduct any investigation and remediation
as required by any Environmental Laws or common law to, when duly notified, all spills or other releases of
Hazardous Substance, not caused-selely by Tenant, that have occurred or which may occur on any Site.
d)
Tenant agrees to defend, indemnify and hold Landlord hannless from and against any and all
claims, causes of action, demands and liability including, but not limited to, damages, costs, expenses, assessments,
penalties, fines, losses, judgments and attorneys' fees that Landlord may suffer due to the existence or discovery of
any Hazardous Substance on any Site or the migration of any Hazardous Substance to other properties or released
into the environment, that are caused by or result from Tenant and its employees, contractors, and any other
representatives' activities on such Site. Landlord agrees to, when duely notified of any environmentally hazardous
condition that is attributable to its sole activities on the Site or adjacent sites, defend, indemnify and hold Tenant
hannless from and against any and all claims, causes of action, demands and liability including, but not limited to,
damages, costs, expenses, assessments, penalties, fines, losses, judgments and attorneys' fees that Tenant may
suffer doe to the eJåstense ar discovery af any Haær400s SoÐstaBce an ßfty Site or the ß1ÍgFatiOR of any Haæfdous
SoÐstaBee te other pr-eperties er r-eleaseEl inte the eDVÌrODmeRt, other than with regard to any Hazardous Substances
that are caused by or result from Tenant and its employees, contractors, and any other representatives' activities.
The indemnification in this Section specifically include costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any governmental authority. The
provisions of this Section will survive the expiration or tennination of this Agreement and of any Site Lease.
17.
Assignment and Subleasing. Tenant may assign this :\gF-eement anElier ßfty Site Lease and its other rights
her-euøEler and ther-e\:lßEler (incloding, vlithoet limitation its right ta T-enew) or sublet the Site or ßfty portioD ther-eof,
te a ÐusiRess entity '.vhich meets the faUo'lARg criteria: (i) liseRse<! by the Fe<!er-al CoHllINHiÏoations Commission to
~ ~
operate a ,<,lireless camnmnieations ÐusiRess. (ii) (1) is a parent, soosidiæy, affiliate ar secoossor of TeBaBt; ar
(2) ooRtrals or is oontrolled by or 1:Ißåer sammaR coRteal 'lAth Tenant; or (3) is merged or consolidate<! 'lAth
Tenant; or (4) pw:ehases a majority or oontr-elüRg inter-est in the o".'iHership or assets of Ternmt. Upon notification
18
Discussion Draft
to Landlord by TelUlßt of any such action, Tenant shall be relie'.'ed of all future performance, liabilities and
obligatiOM under the relevant Site Lease or this !Agreement, as the case may be. Tenant may not otherwise assign
or sublet tlús Agreement or any Site Lease without Landlord's consent, which shall not be unreasonably withheld
or delayed
18. Nondisturbance and Attachment. Tenant may, upon notice to LIHullord, mortgage or gr.ant a sectlrity
interest iR TeRaBt's interest, rights or estate under this Agreement, any Site Lease and the AnteHBa Facilities, and
may assign this Agreement, any Site Lease and th~~~)o any such mortgagees or holdem of
security interests iRehlEliag their SI:lccessars or assigns (hereinafter collooti>.ely referred ta as "Mortgagees"),
provided sueh. Mortgagees agree ta be baWld by the terms and provisions of this !.greemeRt and any Site Lease so
assigHed. 1R such. event. Landlord shall exeeute such. caÐ5eRt ta leasehold fiRaRCiag as may reasonably be required
by Mortgagees. Landlard agrees simultaneausly to Ratify iR WritiBg Tenant and a Mertgagee of Tenant haviBg first
priority as to Tenant's leasehold inter-est and whieh has requested notice from Landlord of any default by Tenant
and to gi'¡e sueh Mertgagee the same right to cme any default as TeIla1lt, except that the cure period for such
Mortgagee for any default by Tenant:, ",mether moBetary or BOB monetary, shall Ret be less than ten (10) days after
reooipt of the default Botiee. NothiRg COBtaÎRed hereiB shall be ooBSt.\led to prO"¡eRt Landlord from isSl:lÍBg bOBds
iB aeooràaBce ',vith applicable law.
19. Successors and Assigns. This Agreement and each and every Site Lease shall run with the Sites and the
Parties specific to this Agreement and approved successors and assigns and shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and assigns.
20. Waiver of Landloni's Lien. Landlerd hereby ',wives any and all lieD rights it may have, statutory or
otherwise, ooncemiRg ¡my .'\RteÐÐa Faeilities or any pertien thereef The ...vaivers OORtaineå iR this sootion 8f1Ply
during the terms and any Rene\val Terms of this f.greement and any Site Lease and shall S\lIV¥'¡e the expiratioB or
termination thereof
19
Discussion Draft
21. Miscellaneous.
a)
The prevailing party in any dispute arising hereunder shall be entitled to its reasonable
attorneys' fees and court costs. With respect to this Section 21(a) and any other provision in this Agreement
providing for payment or indemnification of attorneys' fees, such fees shall be deemed to include reasonable fees
incurred through any applicable appeal process and shall include fees attributable to legal services provided by any
in-house counsel and staff to the prevailing or indemnified party. For purposes hereto, the services of in-house
attorneys and their staff shall be valued at rates for independent counsel prevailing in the metropolitan area in
which such counsel and staff practice. This Agreement shall be construed in accordance with the laws of the state
in which the Property is located. The parties agree that the venue for any litigation arising UBder this Agreement or
any Site Lease shall be in a cmmty ether thaB the one in ',\mch the Property is leemed er 'llmch adjoin such county
b)
Each party agrees to furnish to the other, within twenty (20) days after request, such
truthful estoppel ÎIûonnation as the other may reasonably request.
c)
Each Site Lease, which shall incorporate the terms hereof by reference, shall constitute
the entire agreement and understanding of the parties with respect to the Site that is the subject matter thereof and
supersedes all offers, negotiations and other agreements with respect thereto. Each Site Lease shall be a separate
contract and the occurrence of any default thereunder shall not be deemed to constitute a default under any other
Site Lease. There are no representations or understandings of any kind not set forth herein or in the Site Leases.
Any amendment to this Agreement or any Site Lease must be in writing and executed by both parties.
d)
Either party hereto that is represented in this transaction by a broker, agent or
commission salesperson (a "Representative") shall be fully and exclusively responsible for the payment of any fee,
commission or other compensation owing to such Representative, and shall indemnity and hold the other party
20
Discussion Draft
harmless from and against any claim to a fee, commission or other compensation asserted by such Representative,
including reasonable attorneys' fees and costs incurred in defending such claim.
e)
Eaoh party agr-ees to eoopemte vAth the other in executing 1m)' documents (including a
Memorandum of Lease ia the form attached her-eta as Exhibit B) neeessary to proteet its rights under this
Agreement and any Site Lease. The Memorandum of Lease may be recorded in place of any Site Lease, by either
paFty-.
f)
If any tenn of this Agreement is found to be void or invalid, such invalidity shall not
affect the remaining tenDS of this Agreement, which shall continue in fiùl force and effect. Headings or captions in
this Agreement are added as a matter of convenience only and in no way define, limit or otherwise affect the
construction or interpretation of this Agreement
g)
The sale of any property upon which a Site is located shall be subject to the terms
of this Agreement and the applicable Site Lease.
h)
Except as set forth below in Section 20(i), all EÜsputes and clailR5 for damages r-elating
ia any ""ay to the performaÐee, interpretatioa, 'lalidity or breaeh of this .'\greement shall be referræ to fißIÙ and
binding arbitmtioa, before a single arbitrator, under the commercial arbitration rules of the f..merican Arbitration
Association. To the extent that either party ',yould be required to mak-e confidential information available to the
other, an agreement or order shall be entered in the proceeding proteetÎng the confidentiality of, and limiting
access to, such information before either party is required to produœ sueh information. Information pr-øàuœd by
either party shall be \:JSed excl\:JSiyely in the arbitration or litigation that may arise and shall Rot be otherwise
disclosed.
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Discussion Draft
i)
Neither party heFete shall be r-equiræ ta submit te amitratiøn any åisputes er elaims
based UIIon ar arising aut ef any ef the follO"lIÍRg matters, but shall be at all times entitled to pursue any r-emedies
or rights that such party may h£r¡e at lœ:¡ ar in equity, iDeluding, -.vithaut limitation, the right to seek anya-lailable
injUBoû-¡e relief: (i) the parties' respeetF¡e duties ef non iRterfer-enoo in SootieR 7 her-eef, aRd (ii) TenaRt's aeeess to
the Site for testing and inspeetion ef the Site and eaÐ5l."1Iotian, maiRtenanee and apeœtion øf the Antenna
Facilities.
j)
Whenever Wlder tlús Agreement or a Site Lease, the consent or approval of either party
is required or a determination must be made by either party, no such consent or approval shall be unreasonably
. withheld or delayed. and all such determinations shall be made on a reasonable basis and in a reasonable manner.
If a party hereWlder does not actually receive a written response from the other party hereWlder to a request for an
approval witlún fourteen (14) days (unless expressly set forth to the contrary) after the request for the approval is
delivered to the other party, the other party shall be conclusively deemed to have approved the request.
The parties have entered into tlús Agreement as of the date first state above
LANDLORD:
By:
Name:
Its:
Signed, sealed and delivered in the presence of
TENANT:
AT&T WIRELESS SERVICE, INC., a
corporation
By:
Name:
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Discussion Draft
Its:
Signed, sealed and delivered in the presence of:
Witness
Print Name:
Witness
Print Name:
23
Discussion Draft
EXHIBIT A
to the Master Use Agreement dated
, as Landlord, and
between
AT&T Wireless Services, Inc., as Tenant
Cell Name:
Cell Site ill:
Site Lease No.:
State:
City:
SITE LEASE AGREEMENT
(Multiple Site Component)
TIllS SITE LEASE AGREEMENT, (this "Site Lease") is entered into this - day of
,199-
between
a
("Landlord"), and
AT&T WIRELESS SERVICES, INC., a Delaware corporation ("Tenant").
1.
Incorporation of Master Use Agreement. This Site Lease is a "Site Lease" as referenced in that
certain Master Use Agreement between Landlord and Tenant, dated
19 (the "Agreement"). All
of the terms and conditions of the Agreement are hereby incorporated herein by reference and made a part hereof
without the necessity of attaching hereto the original or any copy of the Agreement. Unless expressly modified
herein, the tenns and conditions of the Agreement shall govern with respect to the subject matter hereof, and,
unless otherwise defined herein, capitalized terms used herein shall have the respective meanings ascribed thereto
in the Agreement.
2.
Sites. The Site leased by Landlord to Tenant hereunder are as follows:
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Discussion Draft
3.
Due Diligence Period. The Due Diligence Period shall commence on
and expire on
4.
Commencement Date. The Commencement Date is [to be filled in after due diligence
contingency is wIDved
. The initial tenn shall expire on
4.
Comnútment Deposit. A Commitment Deposit in the sum of $
has been delivered
by Tenant to Landlord C()ncurrently with the execution of tills Site Lease.
6.
Site. A survey and legal description of the Site. including the access easement. is attached hereto
as Exhibit À.
Site Type. The Site is a
7.
Miscellaneous.
The parties have entered into tills Site Lease as of the date first stated above.
Signature blocks
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Discussion Draft
EXHIBIT A
TO SITE LEASE
Site Survey and Legal Description
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Discussion Draft
thus the latest date the tenn can commence is
1 199
6
The iß:itial term ofilie Lease is five (5) years Lease shall have those terms and conditions as set
forth in the Master Use Agreement unless otherwise specified in this section..
7.
Tenant has the right to four (4) additional R-enewal Terms effive (5) years each.
8.
AU property brought onto the Site by Tenant shall remain Tenant's personal property and, at
Tenant's option, may be removed by Tenant at any time during the term. but no later than 30 days after the Lease
has expired or been terminated
WITNESS the due execution hereof.
LANDLORD:
Attest:
By:
Name:
Name:
Title:
Title:
TENANT:
Attest:
By:
Name:
Name:
Title:
Title:
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Discussion Draft
EXIDBIT !1
to the Master Site Agreement dated
between
as Landlord, and AT&T Wireless Services, Inc., as Tenant When recorded return to:
MEMORANDUM OF LEASE
TIllS MEMORANDUM OF LEASE (the "Memorandum") is made as of this - day of ~ 199- by
("Landlord") and AT&T Wireless
and between
a
Services, Inc., a Delaware corporation ("Tenant").
BACKGROUND
A.
As of the date hereof, Landlord and Tenant entered into a certain Site Lease (the "Lease"); and
B.
Landlord and Tenant are desirous of entering into this Memorandum in accordance with the laws
of the state in which the Site is located
NOW, TIIEREFORE, intending to be legally bound, Landlord and Tenant hereby set forth the following
iIÛonnation with respect to the Lease:
1.
Landlord's address is
2.
Tenant's address is
3.
The Lease is dated as of the date hereof.
4.
The description of the Site as set forth in the Lease is as set forth in Exhibit A, attached hereto.
5.
The Lease contains a maximum Due Diligence Period of seven (7) months,
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