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HomeMy WebLinkAboutCity Council Meeting - Council - Agenda - 03/16/2004 oil M rMik City of Kent City Council Meeting Agenda March 16, 2004 Mayor Jim White Julie Peterson, Council President Councilmembers Tim Clark Debbie Raplee Ron Harmon Les Thomas Bruce White Deborah Ranniger KENT N A 5 HI N G T 0 N City Clerk's Office SUMMARY AGENDA KENT CITY COUNCIL MEETING KENT March 167�,�2.004 W A S H I M O T O N Council Chambers 7:00 p.m. MAYOR: Jim White COUNCILMEMBERS: Julie Peterson, President Tim Clark Ron Harmon Deborah Ranniger Debbie Raplee Les Thomas Bruce White #####k##k####k#kk###kk#k####kkk######kkk#########k#######k##k##kkkkk######k##k### 1. CALL TO ORDER/FLAG SALUTE 2. ROLL CALL 3. CHANGES TO AGENDA A. FROM COUNCIL,ADMINISTRATION, OR STAFF B. FROM THE PUBLIC 4. PUBLIC COMMUNICATIONS A. Employee of the Year B. Introduction of Appointee C. Economic Update D. t Do wn Partnership Economic Update ' ,s"�,�� uP da to Po,�- 5. PUBLIC HEARING 22HEAARIN©S fi O~ � ne,W None 6. CONSENT CALENDAR A. Minutes of Previous Meeting -Approve B. Payment of Bills-Approve b C. Auigur-Fawcett Rezone�r nance-Adopt t� D. 2003 Consolidated Annual Performance Evaluation Report-Authorize 36 E. 2004 Limited Tax Gc=ral Obligation Refunding Bond Or ce-Adopt b8 F. Budget Adjustmen ce for Adjustments on December 31, 2003 -Adopts Department of Ecology Coordinated Prevention Recycling Grant-Authorize H. Pacific Highway High Occupancy Vehicle Lanes Agreement with Metro Transit for Bus Shelter Pads-Authorize ` 1. 94th Avenue South and S. 248th Sanitary Sewer Installation Charge in Lieu of W' Assessment-Authorize J. Burlington Northern Santa Fe Indefinite Term Lease for Land Agreement- Authorize K. Puget Sound Energy Agreement for S. 228th St. Underground Power Conversion-Authorize L. Right of Way Quit Claim Deed for S. 228th St./Russell Road-Authorize M. Washington Conservation Corps Labor Agreement-Authorize N. King County Agreement for Construction of Pioneer Street Improvements- Authorize O. 1 st Avenue North/4th Avenue North Widening&Utility Trenching Project- Accept as Complete P. Drinking Driver Task Force Appointment-Confirm . D— A03 Commission Arr0in+men+ - Con•Ffm �o✓� R- EXwsecl A-bsence for Courc;t Pr-esIclent - DPP (continued next page) SUMMARY AGENDA CONTINUED 7. OTHER BUSINESS None 8. BIDS A. S. 228th St. Corridor Stone Columns B. S. 228th St. Corridor Sound Barrier C. Riverbend Golf Course Carts 9. REPORTS FROM STANDING COMMITTEES AND STAFF 10. REPORTS FROM SPECIAL COMMITTEES 11. CONTINUED COMMUNICATIONS 12. EXECUTIVE SESSION mmw A. 13. ACTION AFTER EXECUTIVE SESSION 14. ADJOURNMENT NOTE: A copy of the full agenda packet is available for perusal in the City Clerk's Office and the Kent Library. The Agenda Summary page is on the City of Kent web site at www.ci.kent.wa.us. An explanation of the agenda format is given on the back of this page. Any person requiring a disability accommodation should contact the City Clerk's Office in advance at (253) 856-5725. For TDD relay service call the Washington Telecommunications Relay Service at 1-800-833-6388. pr ' .. lir ,0 - t *Ocouncilwill,*at this time,make known the subject of Est,so all may-be*qpedy heard. _ . A) FROM POUNM AAMINJSTRATION, OR STAFF t'. r� siS �5y r � _r4 •_ �"k'e N¢t k Yr .yyX-R�4 i'� H E X Rs•5.�,�J'�^rvfY . x '1µ+g'P %,} ��j 6Mi q. `t.P: - Kv . '"�r���-� �`"ia�[` ■dry■, ry�-�i.� zt'.V:�..C �/�),Y'yTC a^TIQNS A) IEMPLfJ "YEAR B) MMODUCT-I NDF APPOINTEE t . W We PIN I? TENT DEWNTOWN-PARTNERSHIP-ECONOMIC UPDATE IW 14 �2 9t , erg` ,j y}r CONSENT CALENDAR 6. City Council Action: pp � Councilmem lit G�ber k moves, Councilmember seconds to approve Consent Calendar Items A throughIp"K Discussion Action MG 6A. Approval of Minutes. Approval of the minutes of the regular Council meeting of March 2, 2004, and approval of a correction to the minutes of February 17, 2004, by adding the words "regarding a personnel matter" as follows: CHANGES TO THE AGENDA • From Council or Staff. ... CAO Martin added an Executive Session regarding a personnel matter. 6B. Approval of Bills. No bills were approved at Operations Committee meeting of March 2, 2004. • Council Agenda Item No. 6 A-B 40 • K ENT Kent City Council Meeting WASHINGTON March 2, 2003 The regular meeting of the Kent City Council was called to order at 7:00 p.m. by Mayor White. Councihnembers present: Clark,Harmon,Peterson,Raplee, Thomas and White,. Councilmember Ranniger was excused from the meeting. (CFN-198) CHANGES TO AGENDA A. From Council. (CFN-198) At the request of Mayor White, Consent Calendar Items L and M were added. Martin noted the addition of an Executive Session having to do with two items of property disposition and one of ongoing litigation, of approximately 15 minutes with no action anticipated. At the request of staff, the order of the agenda was changed so that the public hearing is the final item. PUBLIC COMMUNICATIONS A. Employee of the Month. (CFN-147) Mayor White announced that Damien Hooper of the Planning Department has been chosen as Employee of the Month for March. B. National Night Out Award. (CFN-155) Judy Mauhl,Public Education Specialist for the Police Department, announced that Kent placed seventh in the nation and displayed the National Night Out plaque. C. Red Cross Month. (CFN-155) Mayor White read a proclamation declaring March as Red Cross Month in the City of Kent, and presented it to Raymond Ma, Red Cross volunteer. D. Introduction of Appointee. (CFN-174) Mayor White introduced Teresa Ferguson, his appointee to the Land Use and Plammng Board. CONSENT CALENDAR PETERSON MOVED to approve Consent Calendar Items A through M. Clark seconded and the motion carried. A. Approval of Minutes. (CFN-198) The minutes of the regular meeting of February 17, 2004, and the following correction to the minutes of February 3 were approved: Addition of the words "at the request of the Council President" to the end of the sentence under Changes to the Agenda from Council or Staff. B. Approval of Bills. (CFN-104) Payment of the bills received through January 30 and paid on January 30 after auditing by the Operations Committee on February 17, 2004. Approval of checks issued for vouchers: Date Check Numbers Amount 1/30/04 Wire Transfers 1607-1619 $1,169,229.86 1/30/04 Prepays & 558511 201,990.01 1/30/04 Regular 559087 2,442,423.24 $3,813,643.11 1 Kent City Council Minutes March 2, 2004 Approval of payment of the bills received through February 13 and paid on February 13 after auditing by the Operations Committee on February 17, 2004. Approval of checks issued for vouchers: Date Check Numbers Amount 2/13/04 Wire Transfers 1620-1630 $1,235,757.55 2/13/04 Prepays & 559088 255,326.68 2/13/04 Regular 559666 916,408.30 $2,407,492.53 Approval of checks issued for payroll for January 16 through January 31 and paid on February 5, 2004: Date Check Numbers Amount 2/5/04 Checks 275070-275345 $ 219,545.42 2/5/04 Advices 159390-160049 1,173,723.63 $1,393,269.05 C. Federal Emergencv Management Agency Emergency Management Performance Grant Funds. (CFN-122) The Emergency Management Division received a grant in the amount of $53,236 from the Washington State Military Department to supplement local budget expenditures through the Federal Emergency Management Agency(FEMA) Emergency Management Performance Grant. The grant monies were accepted and the Mayor was authorized to sign the contract to receive the funds. D. Master Planned Unit Development Modification Criteria, Zoning Code Amendment Ordinance. (CFN-131) Ordinance No. 3681,which amends Section 15.08.400(I) of the Kent City Code to establish a process by which criteria are established to guide the Planning Manager in differentiating between minor and major modifications of master plans located in commercial, office, industrial, and manufacturing zoning districts consistent with planned action ordinances and development agreements was adopted. E. Vision Service Plan Contract. (CFN-149) The Mayor was authorized to sign the Vision Service Plan(VSP) 2004 Contract. F. Morrill Meadows Park. (CFN-118) The Morrill Meadows Park Project (a.k.a. East Hill Park Expansion) was accepted as complete. G. Canterbury Park. (CFN-118) The Canterbury Neighborhood Park Development Project was accepted as complete. H. Riverbend Driving Range Protective Netting and Pole Replacement. (CFN-l18) The Riverbend Driving Range Protective Netting and Pole Replacement Project was accepted as complete. 2 Kent City Council Minutes I March 2, 2004 I. King County Capital Fund for Kent Pool. (CFN-118) $25,000.00 from King County for capital repairs at the Kent Pool was accepted and amendment of the capital budget was authorized. J. The Fund for Improvement in Post Secondary Education Grant. (CFN-122) The Police Department was authorized to apply for grant funds from the Fund for Improvement in Post Secondary Education(FIPSE),which"supports innovative educational improvement projects that respond to problems of national significance". K. Emergency and Basic Life Support Ambulance Services Agreement. (CFN-122) The Mayor was authorized to sign the agreement for services between the City of Kent Fire Department and the two private ambulance companies which currently provide service to our response area. ADDED L. Excused Absence. (CFN-198) An excused absence for Councilmember Ranmger from tonight's meeting was approved. ADDED M. Land Use and Plannine Board Appointment. (CFN-174) The Mayor's appointment of Teresa Ferguson to serve as a member of the Land Use and Planning Board was confirmed. OTHER BUSINESS A. Aulgur-Fawcett Rezone. (CFN-121) Campbell/Nixon &Associates have requested a rezone of approximately one-half acre of property from DCE, Downtown Commercial Enterprise, to GC, General Commercial. The property is located on the west side of Central Avenue between Meeker and Gowe Streets. Kim Marousek of the Community Development Department gave a brief report on the project. CLARK MOVED to accept the Findings, Conclusions and Decision of the Hearing Examiner on the Aulgur-Fawcett Rezone and to direct the City Attorney to prepare the necessary ordinance, including the designation as GC. White seconded and the motion carried. BIDS A. Russell Road Park Field Light Replacement. (CFN-1161) One bid was received for the replacement of light fixtures at Russell Road Park on ball fields 1, 2, 3, 4 and 5 from MUSCO Sports Lighting, LLC in the amount of$114,500.00. PETERSON MOVED to enter into an agreement with MUSCO Sports Lighting LLC in the amount of$114,500.00 for the project. Clark seconded and the motion carried. B. Russell Road and Utility Relocation. (CFN-1038) The bid opening for this project was held on February 23, 2004, with nineteen bids received. The low bid was submitted by Ceccanti, Inc. in the amount of$449,008.11. The Public Works Director recommended awarding the contract to Ceccanti, Inc. WHITE SO MOVED. Clark seconded and the motion carried. REPORTS Council President. (CFN-198) Peterson reported that the Council recently held a successful retreat. 3 Kent City Council Minutes March 2, 2004 Administrative Reports. (CFN-198) Martin reiterated that there will be an Executive Session of approximately 15 minutes to discuss two items of property disposition and one item of ongoing litigation, with no action anticipated. EXECUTIVE SESSION The meeting recessed to Executive Session at 7:25 p.m., and reconvened at 7:45 p.m. (CFN-198) PUBLIC HEARINGS A. Impoundment Reservoir Comprehensive Plan and Initial Zoning, First Hearine. (CFN-377&745) Mayor White noted that after holding public hearings on January 26 and February 23, 2004, the Land Use and Planning Board voted 4-1 to recommend approval of comprehensive plan and initial zoning designations of Urban Separator/SR-1 for the impoundment reservoir property located at the northwest corner of the intersection of 124`h Avenue SE and South 300 Street. Bill Osborne of Planning Services described the options which were considered, explained the evaluation process used and outlined the recommendations of the Land Use &Planning Board and the staff. Mayor White opened the public hearing. The following people spoke against the recommended zoning for environmental and density reasons: Brian Derdowski 70 E. Sunset Way, Issaquah Tom Williams 28624 124`h Avenue SE Ron Novak 29226 118' SE,Auburn Jude Restis 12025 SE 284th Dianne Brooks 29218 118`h Avenue SE, Auburn Gwenn Derdowski 70 E. Sunset Way, Issaquah Carole Novak 29226 118`h SE,Auburn Kathy Hunter 12045 SE 284'h,Kent Noel Gilbrough, Army Corps of Engineers 7359 23rd Ave NW,Ballard Fred Goetz, Army Corps of Engineers 10203 47`h Ave SW, Seattle Kurt Siltmah Puyallup Susan Sanders 29415 118'h Ave SE,Auburn Brian Bartholomew 30328 121 st Ave SE,Auburn Luana Richards 29317 118`h Ave SE, Auburn Al Hurt 29304 118`h Ave SE,Auburn Duane Heier 29513 118`h Ave SE,Auburn Ron Kjerland 28705 124`h Ave SE Bruce Bums 28641 132"d Ave SE,Kent Dietrich Reimer 12221 SE 284`h,Kent Albert Townsend 28322 118`h Ave SE Vonda Marsland 12129 SE 303 Ct., Auburn Erik Pfaff No address given Neat Warner 12110 SE 288th Noelle Rogerson 10637 SE 244th Dave Heutchy 10925 SE 287th Colin Lund 11814 115th Ave. SE,Kirkland 4 Kent City Council Minutes March 2, 2004 Richard Wilson, 1221 2°a Avenue, Suite 500, Seattle, attorney representing Yarrow Bay Development, pointed out that growth must be accommodated, and that the area does not need to be zoned as urban separator in order to preserve the habitat,wetlands and hydrology. There were no further comments from the audience and HARMON MOVED to close the public hearing. Clark seconded and the motion carried. ADJOURNMENT PETERSON MOVED to adjourn at 9:25 p.m. White seconded and the motion carried. (CFN-198) Brenda Jacober, C City Clerk 5 • Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: AULGUR-FAWCETT REZONE ORDINANCE—ADOPT 2. SUMMARY STATEMENT: Adoption of Ordinance No. , rezoning property comprised of approximately .48 acres, located at 111 Central Avenue South, from Downtown Commercial Enterprise (DCE) to General Commercial (GC) (Aulgur- Fawcett Rezone). 3. EXHIBITS: Ordinance • 4. RECOMMENDED BY: Hearing Examiner and City Council 3/2/04 (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? No Revenue? No Currently in the Budget? Yes No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: • ACTION: Council Agenda Item No. 6C ORDINANCE NO. AN ORDINANCE of the City Council of the City of Kent, Washington, relating to land use and zoning, specifically the rezoning of approximately 48 acres of property located at 111 Central Avenue South from Downtown Commercial Enterprise (DCE) to General Commercial (GC). (Aulgur-Fawcett Rezone, #RZ-2003-3). i i RECITALS A. An application to rezone approximately 48 acres of property located at 111 Central Avenue South, Kent, Washington from the current zoning of Downtown Commercial Enterprise (DCE) to General Commercial (GC) was filed on October 2, 2003, on behalf of the owner Aulgur, Fawcett Investments (Aulgur-Fawcett Rezone, #RZ-2003-3). B. The City's SEPA responsible official issued a Determination of Nonsignificance (DNS) (#ENV-2003-38) for the proposed rezone on December 1, 2003, and a public hearing on the rezone was held before the hearing examiner on January 21, 2004. C On February 4, 2004, the hearing examiner issued findings and conclusions that the Aulgur-Fawcett Rezone is consistent with the city's Comprehensive Plan, that the proposed rezone and subsequent development activity would be compatible with the development in the vicinity, that the proposed rezone will not unduly burden the transportation system in the vicinity of the property with significant adverse impacts that cannot be mitigated, that circumstances have changed since the establishment of the current zoning district to warrant the proposed 1 Aulgur-Fawcett Rezone rezone, and that the proposed rezone will not adversely affect the health, safety, and general welfare of the citizens of the City of Kent. D. Based on these findings and conclusions, the hearing examiner recommended approval of the Aulgur-Fawcett Rezone with the condition that a Mixed- Use Overlay Zone be applied to the General Commercial district. E. On March 16, 2004, the City Council determined that the hearing examiner's findings and conclusions are consistent with sections 15.09.050(A)(3) and15.09.050(C) of the Kent City Code, accepted the findings of the hearing examiner, and adopted the hearing examiner's recommendation for approval of the Aulgur-Fawcett Rezone from Downtown Commercial Enterprise (DCE) to General Commercial (GC) with the condition that a Mixed-Use Overlay Zone be applied to the General Commercial District (GC). NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. — Rezone. The property located at 111 Central Avenue South, Kent, Washington consisting of approximately .48 acres depicted in Exhibit "A" (marked "Site"), attached and incorporated by this reference, and legally described in Exhibit "B" attached and incorporated by this reference, is rezoned as follows: King County tax parcel numbers 9179600825 located in Kent, Washington, shall be rezoned from Downtown Commercial Enterprise (DCE) to General Commercial (GC), subject to the condition that a Mixed-Use Overlay Zone be applied to the General Commercial (GC) district. The city of Kent zoning map shall be amended to reflect the rezone granted above. 2 Aulgur-Fawcett Rezone SECTION Z - Severability. If any one or more sections, sub-sections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 3. - Effective Date. This ordinance shall take effect and be in force five (5) days from and after its passage, approval and publication as provided by law. JIM WHITE, MAYOR ATTEST BRENDA JACOBER, CITY CLERK APPROVED AS TO FORM. TOM BRUBAKER, CITY ATTORNEY PASSED: day of 2004. APPROVED: day of 2004. PUBLISHED. day of 2004. 1 hereby certify that this is a true copy of Ordinance No passed by the City Council of the City of Kent, Washington, and approved by the Mayor of the City of Kent as hereon indicated. (SEAL) BRENDA JACOBER, CITY CLERK P 1CrviBORDINANCE1Razone�Aulgur-Faviceri doC 3 Aulgur-Fawceff Rezone i cl Q cu L FJU Meeker Street Sub ect_Sitb _ L C Gowe Seet FT APPLICATION NAME: AULGUR-FAWCETT REZONE REQUEST: #RZ-2003-3 KIVA#RPP4-2033024 SITE MAP EXHIBIT "A" RECEIVED OCT 2 - 2003 AULGUR-FAWCETT REZONE CITY OF KENT #ENV-2003-38 KIVA#RPSA-2033025 `3ERMITCENTER #RZ-2003-3 KIVA#RPP4-2033024 (Kim Marousek, Planner) LEGAL QE5GRIPTI®N 9119600825 AULGUR/FAWETT INVESTMENTS KENT, WA 98032 20,864 SQUARE FEET (0.48 ACRES) CURRENT ZONING / COMPREHENSIVE PLAN: DOWNTOWN COMMERCIAL ENTERPRISE (DCE1 PROPOSED ZONING: GENERAL COMMERCIAL (GC) LOTS 80 9, 10, I1. 12, 13, AND 14, BLOCK 10, WASHINGTON CENTRAL IMPROVEMENT COMPANY'S FIRST ADDITION TO KENT, ACCORDING TO THE PLAT THEREOF, RECORDED IN VOLUME 3 OF PLATS, PAGE(S) 91, IN KING COUNTY, WASHINGTON, EXCEPT THAT PORTION OF LOTS 12 THROUGH 14, INCLUSIVE, CONVEYED TO THE CITY OF KENT AS DISCLOSED UNDER RECORDING NUMBER 9204081194, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID BLOCK 101 THENCE NORTH 003835" EAST ALONG THE EAST LINE THEREOF 1572 FEET TO THE NORTHEAST CORNER OF SAID LOT 12, THENCE SOUTH 89042151" WEST ALONG THE NORTH LINE THEREOF 3,00 FEET, THENCE SOUTH 003635" WEST PARALLEL WITH THE EAST LINE OF SAID BLOCK 10 A DISTANCE OF 49.25 FEET TO A POINT ON A CURVE FROM WHICH THE RADIAL CENTER BEARS NORTH 09021125" WEST 33.00 FEET, THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE CONCAVE TO THE NORTHWEST 3109 FEET TO A POINT OF CUSP WITH A NON-TANGENT LINE (ALSO THE SOUTH LINE OF SAID BLOCK 10), THENCE NORTH 8904251" EAST ALONG SAID SOUTH LINE 16.59 FEET TO THE POINT OF BEGINNING. EXHIBIT "B" • Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: 2003 CONSOLIDATED ANNUAL PERFORMANCE EVALUATION REPORT—AUTHORIZE 2. SUMMARY STATEMENT: Approval of the 2003 Consolidated Annual Performance and Evaluation Report and requests authorization to submit the report to HUD. The 2003 Consolidated Annual Performance and Evaluation Report (C.A.P.E.R.) is required by U.S. Department of Housing and Urban Development(HUD) to report activities and accomplishments using Community Development Block Grant (CDBG) and other funds. 3. EXHIBITS: Consolidated Annual Performance and Evaluation Report • 4. RECOMMENDED BY: Ouerations Committee, Director of Parks and Human Services Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? N/A Revenue? N/A Currently in the Budget? Yes— No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: • ACTION: Council Agenda Item No. 6D PARKS, RECREATION AND COMMUNITY SERIVCES John M. Hodgson, Director Phone 253-856-5100 K E N T Fax 253-856-6050 WASHINGTON Address 220 Fourth Avenue S Kent,WA 98032-5895 DATE: March 2, 2004 TO: Kent City Council Operations Committee FROM: Kathenn Johnson, Supt Housing and Human Services THROUGH: John M. Hodgson, Director Parks, Recreation and Community Services SUBJECT: 2003 Consolidated Annual Performance Evaluation Report (C A.P.E R.) MOTION: I move to recommend approving the 2003 Consolidated Annual Performance and Evaluation Report and authorizing the Mayor to submit the report to HUD. SUMMARY: The 2003 Consolidated Annual Performance and Evaluation Report (CAPER) for the City of Kent, Washington is a report to the U.S. Department of Housing and Urban Development (HUD) on the City's activities and accomplishments using Community Development Block Grants (CDBG) and other funds The report is required by HUD annually and must be submitted by March 31st of each year The report includes information on how CDBG funds were used to further the Goals and Strategies of the Consolidated Plan Other activities conducted by the City that also further the Consolidated Plan are included EXHIBITS: The 2003 Consolidated Annual Performance and Evaluation Report (CAPER.) FISCAL IMPACT: N/A CONSOLIDATED ANNUAL PERFORMANCE AND EVALUATION REPORT 2003 CITY OF KENT, WASHINGTON PARKS, RECREATION & COMMUNITY SERVICES DEPT HOUSING AND HUMAN SERVICES Division �- 0 KE T SYa1wiMGY ola CITY OF KENT, WASHINGTON CITY COUNCIL MAYOR: JIM WHITE COUNCILMEM13ERS: Tim CLARK RON HARMON JULIE PETERSON DEBORAH RANNIGER DEBBIE RAPLEE LES THOMAS BRUCE WHITE HUMAN SERVICES COMMISSION CHAIR: ROD SAALFELD VICE-CHAIR: MELVIN TATE MEMBERS: BRAD BELL SON BOTTEN BRETT HOLLIS CATHY PETERS PERRY RAAK EDNA WHITE DEPARTMENT OF PARKS AND COMMUNITY SERVICES DIRECTOR: JOHN HODGSON HOUSING AND HUMAN SERVICES DIVISION MANAGER: KATHERIN JOHNSON CDBG COORDINATOR: DINAH WILSON HUMAN SERVICES COORDINATOR: MERINA HANSON City of Kent 2003 CAPER TABLE OF CONTENTS Introduction....................................................................................................................1 Part One: Assessment of Goals and Strategies .........................................................1 HOUSING AND HOMELESS STRATEGIES...................................................................... 1 ECONOMIC DEVELOPMENT AND EMPLOYMENT STRATEGIES.............................4 LIVABLE COMMUNITIES STRATEGIES........................................................................... 5 ANTIPOVERTYSTRATEGIES ............................................................................................. 8 BACKGROUND................................................................................................................... 8 DECREASE HOUSING COSTS OF LOW-AND MODERATE-INCOME PERSONS .................................................................................................................................................8 SEEK MEANS TO PROVIDE AFFORDABLE CHILD CARE TO LOW- AND MODERATE-INCOME FAMILIES.....................................................................................9 SEEK IMPROVED PUBLIC TRANSPORTATION SERVICES AND JOB ACCESSIBILITY IN SOUTH KING COUNTY.................................................................9 INCREASE INCOMES OF PERSONS IN NEED ...........................................................9 AFFIRMATIVELY FURTHER FAIR HOUSING..............................................................9 AFFORDABLEHOUSING............................................................................................... 10 CONTINUUMOF CARE................................................................................................... 10 LEVERAGING RESOURCES.......................................................................................... 11 CITIZEN COMMENTS....................................................................................................... 11 SELF-EVALUATION......................................................................................................... 11 PERFORMANCE BASED OUTCOMES........................................................................ 12 Part Two: Additional Program Narrative....................................................................12 RELATIONSHIP OF USE OF CDBG FUNDS TO THE PRIORITIES, NEEDS, GOALS, AND SPECIFIC OBJECTIVES IDENTIFIED IN THE CONSOLIDATED PLAN.................................................................................................................................... 12 NATURE OF AND REASONS FOR CHANGES IN PROGRAM OBJECTIVES.... 12 ASSESS GRANTEE EFFORTS IN CARRYING OUT THE PLANNED ACTIONS DESCRIBED IN THE ACTION PLAN............................................................................ 12 IF FUNDS ARE NOT USED EXCLUSIVELY FOR THE THREE NATIONAL OBJECTIVES, NARRATIVE EXPLANATION MUST BE INCLUDED TO ADDRESS THESE ISSUES............................................................................................. 13 NARRATIVE OF ACTIVITIES INVOLVING ACQUISITION, REHABILITATION, OR DEMOLITION OF OCCUPIED REAL PROPERTY AND HOW RELOCATION WAS ACCOMPLISHED.............................................................................................................. 13 DESCRIBE ECONOMIC DEVELOPMENT ACTIVITIES WHERE JOBS WERE NOT TAKEN BY LOW- OR MODERATE-INCOME PERSONS................................ 13 NARRATIVE REPORT REGARDING LOAN REPAYMENTS. ................................. 13 NARRATIVE DESCRIPTION OF REHABILITATION PROGRAMS. ....................... 13 ATTACHMENTA..........................................................................................................14 INFORMATION FROM HUD'S INTEGRATED DISBURSEMENT AND INFORMATION SYSTEM (IDIS) FOR PROGRAM YEAR 2003............................... 14 ATTACHMENTB..........................................................................................................28 COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) AND HUMAN SERVICES GENERAL FUND ALLOCATIONS FOR PROGRAM YEAR 2003......28 City of Kent 2003 CAPER INTRODUCTION The Consolidated Annual Performance and Evaluation Report (CAPER) for the City of Kent, Washington for program year 2003 is a report to the U.S. Department of Housing and Urban Development (HUD) on the City's activities and accomplishments using Community Development Block Grant (CDBG) and other funds. Kent dedicates all of its CDBG funds to the provision of human services and human services planning and administration. In 2003, Kent's CDBG entitlement from HUD was $973,000. Overall, the activities that were included in the 2003 Action Plan were accomplished. CDBG funds were used in conjunction with $598,810 in the City's Human Services Fund to provide for a wide range of human services and affordable housing needs. The City does not concentrate on one area of human services but supports a continuum of services. This strategy calls for collaborative efforts with other local jurisdictions, King County, the local United Way, and non profit agencies to support the human service systems that exist locally. It also means that community relationships have been developed that allow for comprehensive planning and system development. In 2003, the human services response system was maintained and affordable housing goals were met by using both CDBG funds and local funds. PART ONE: OF •A HOUSING AND HOMELESS STRATEGIES Goal H1: Expand homeownership opportunities throughout the community for all income groups Strategy H1.A: increase the percentage of homeownership in Kent Home Site, a non-profit homeownership assistance agency, continues to provide down payment assistance and first time home buyer education classes to Kent residents. This project was originally funded when the City of Kent was a member of the King County Consortium. The revolving fund allows for activities to continue in Kent. In 2003 Habitat for Humanity built three (3) new homes in Kent. Both the Community Development Department and the Housing and Human Services Division provided staff support to the project. Kent employees as part of the Mayor's Day of Help participated in the build. i City of Kent 2003 CAPER 1 Goal H2: Expand the range of affordable housing choices available to meet the needs of both current Kent residents and residents projected in growth estimates The City of Kent Comprehensive Plan was updated in 2003 with adoption due in 2004. A number of housing options that will promote affordable housing choices are discussed in the Housing Element as well as other sections of the plan. Strategy H2.A: Maintain the existing stock of affordable housing. Home Repair Program In 2003 the City's Home Repair Program provided services to 140 new households. A performance audit and client satisfaction survey was conducted to evaluate the effectiveness of the Home Repair Program. The survey is used to measure progress toward the program's outcome measures. Every homeowner in the Home Repair Program received a brochure that described the risks of Lead Based Paint. Home Repair staff reviewed the information with the homeowner. The Home Repair Program received $355,803 in 2003 funds to support homeownership in Kent through home maintenance. Staff participated in the HOME program through the King County Consortium. Utility Discount Program The Utility Discount Program for seniors provided discounted utility rates for 500 seniors and disabled Kent residents in 2003 increasing home owners ability to afford maintaining themselves in their own home. Regional Affordable Housing Program (RAHP) Staff participated in Senate House Bill (SHB) 2060 "The Document Recording Fee For Low-Income Housing" or the Regional Affordable Housing Program (RAHP) work group that developed Interlocal Agreements for the use of funding. Staff also participated in the application review process to award the funding to agencies providing housing opportunities in King County. Information The City of Kent Tenant/Landlord Guide was translated into Spanish to expand understanding of tenant rights. a City of Kent 2003 CAPER 2 Strategy H2.C: Promote diversity of housing types affordable to a range of income levels and cultural/ethnic diversity The Housing Element of the Comprehensive Plan was updated and includes a diversity of options available for affordable housing and strategies for their inclusion within community character and scale. The City does not independently produce or maintain affordable housing. It always seeks partners in the private sector and other public funders to accomplish its affordable housing goals. The primary public sector funding partners were King County and Washington State. Strategy H3.A: Actively support regional and subregional efforts to provide a coordinated continuum of housing and services for the homeless. Assure the interests of South King County are included in the newly forming countywide planning process to end homelessness City staff provided support and participated in the South King County Homeless Alliance and development of the Safe Harbors homeless management information system. The City works with Kent non-profit homeless providers to develop strategies to assure that priority homeless housing and services are not lost due to budget cutbacks. Strategy H3.13: Provide enhanced case management, services and supported housing for persons with special needs. Parkview Services The City committed to provide $10,000 of general funds toward the acquisition of one single family residence to serve a minimum of two developmentally disabled persons. Radcliffe Place The City committed to provide $10,000 of general funds toward the acquisition of property to develop 135 units of senior housing: 81 independent and 54 service enhanced units for low and moderate— income seniors. City-owned Land The City owns houses located on Parks properties that are leased to non-profit housing providers for the purpose of housing homeless and/or low and moderate-income families. In 2003 two (2) houses were used to house homeless families. Additionally one (1) house was rented to a low-income family. City of Kent 2003 CAPER 3 Housing Targets Housing targets and affordable housing targets have been set for the City and its neighboring jurisdictions under Washington State's Growth Management Act. Kent has been able to substantially meet or exceed these targets for the past several years. Year Housing Units Created 2001 1,208 2002 453 2003 308 ECONOMIC DEVELOPMENT AND EMPLOYMENT STRATEGIES Goal E1: Improve the potential for Kent residents to obtain and retain livable wage jobs. Strategy E1.A: Support multi-dimensional approaches linking services to jobs to improve the ability of people to obtain, progress in, and retain living wage jobs. Human Services and Economic Development Divisions of the City worked with business and community partners to develop a proposal for 2004 funding that would be used to create improved supports for employees such as childcare, job skills development, job readiness, and small business development assistance. Strategy E1.13: Develop "working-family friendly"job environments. The City works with the Kent Chamber of Commerce to provided resource information about the availability of child care and other human services. The City of Kent recognizes the importance for working families to have out of school activities available to their children. City Parks and Recreation staff worked with 20 low income apartment buildings to provide after school opportunities for children on site. After school activities were also made available in 8 elementary schools through a partnership with the Kent School District. Additional services are provided during school breaks and the summer through the day camp program. The City participated in the development of a joint legislative agenda with King County, Seattle and other suburban cities to advocate for increased state funding for childcare and EACAP. Strategy E1.C: Make jobs accessible to all Kent residents. In 2003, the CitY's Economic Development Office worked to attract new manufacturers P to Kent, including JH Carr& Sons furniture manufacturer and Marathon Industries tire manufacturer). Manufacturers are providers of family wage jobs. King County average manufacturing wages top $48,000 annually--highest of all industry groups. City of Kent 2003 CAPER 4 Goal E2: Increase opportunities for businesses to develop and expand in Kent, with particular focus on small business and micro-enterprises. Strategy E2.A: Prepare an economic development strategy for the City. On October 7, 2003, the Kent City Council adopted the Kent Economic Development Strategic Plan 2003-2008. The Plan formalizes the City's economic development policy, set a five-year work plan for the City's Economic Development Manager, and is a marketing piece for the City's business attraction, retention and investment initiatives. In 2003, the City's Economic Development Office consulted with 40 existing or potential businesses providing permitting assistance, general Kent information and assistance in finding locations for sale or for lease In 2003, the City's Economic Development Office wrote several support letters for businesses obtaining financing through Evergreen Community Development Corporation, a non-profit certified by the SBA to make 504 loans. Evergreen provided several loans to help new and existing Kent businesses purchase their own real estate, leading to business stability. LIVABLE COMMUNITIES STRATEGIES A number of factors affect a community's ability to support healthy families and individuals — geographic layout and transportation patterns, community amenities, and services to support individuals and families throughout the life cycle. These goals address the diverse supports needed for Kent residents. Strategy CIA Increase inclusion of immigrants and refugees and people of color in the life of the Kent community. Kent general fund provided operational support to the Ukrainian Community Center to provide assistance with ESL, naturalization classes, case management and family support. In 2003 brochures and applications for the Home Repair Program were translated into Spanish In 2003 Natural Medicine Services that meet the needs of the immigrant refugee community were fund through CDBG and provided by Kent Community Health Center Strategy C1.13: Broaden inclusion of people with special needs in the life of the Kent community. City general funds were allocated to agencies providing housing that included case management services for Kent residents with mental health issues, developmental delays and recovery from substance abuse. City of Kent 2003 CAPER 5 Through the City's Parks, Recreation and Community Services Department individuals with developmental delays are provide a wide range of opportunities for training and socialization. Strategy C2.A: Build neighborhood centersilocal access to services. Human Services staff participates in the Communities in Schools collaboration to provide mentoring services in elementary schools located in low and moderate income neighborhoods. The City is working with a coalition of non profits providers to establish a One Stop Human Service Center to provide a range of human services that assist families to move toward self-sufficiency. The City of Kent applied for a federal VAWA grant to develop a supervised visitation and exchange center for domestic violence survivors and their children. The grant was awarded to the City and a project manager was hired. A community advisory board was selected and began working on strategies to open a center in 2004. The City of Kent is a partner in a late night teen program that provides activities, counseling and education support to at risk youth through funding and dedication of staff. Annually the City of Kent provides a three day youth conference the "Game of Life: Attitudes & Choices" Youth Wellness Conference. The Youth Board activities and the Game of Life initiatives noted included community bonding, mentoring diversity and positive life styles. The City Parks Department offers weekend and evening youth development services including arts and cultural enhancement activities for ages 8-12 and 18-21. CDBG funds were used to replace equipment and redevelop a neighborhood park in a low and moderate income neighborhood. CDBG funds were allocated to Kent Youth and Family Services for the installation of an elevator improving access to the disabled for counseling, substance abuse treatment and other mental health services for youth and their families. The City of Kent supports housing and human services agencies with funds for on-going programming such as feeding programs, medical services, housing stability, and domestic violence housing through its CDBG entitlement. It is the City's policy to support human service programs meeting one of the City's priorities. In 2003, CDBG funds were awarded to the following programs. (A complete list of all agencies . supported by the City, including CDBG-funded projects and General Fund-funded projects, is attached.) City of Kent 2003 CAPER 6 2003 CDBG Programs/Projects (Approved by City Council on Oct. 15, 2002 PROGRAM LOCATION AMOUNT FUNDED Home Repair Program I Citywide $355,803 The Home Repair Program provided rehabilitation assistance and health and safety repairs to 140 unduplicated low- and moderate-income Kent households. Kiwanis Tot Lot#4 1 4th & Crow Street 1 $62,808 Upgraded Kiwanis Tot Lot#4, a neighborhood park in a predominantly low- and moderate-income neighborhood. Improvements included new play equipment, replacement of the perimeter fencing and making the site handicapped accessible This project was completed in Dec. 2003 Children's Thera Center 10811 Kent Kan le $100,000 Rehabilitation of Children's Therapy Center which provides treatment and family support services for children with neuromuscular disorders and developmental delays. CDBG funds were used for new construction of a portion of the facility providing intensive therapy services. The project is currently underway and Kent funds will be expended in the first quarter of 2004. Kent Youth and Family Services 202 2nd Ave. S $169,642 The agency will utilize funds to purchase and install an elevator and entrance doors in the Kent Youth & Family Services facility in order to provide accessibility for disabled clients. The funds will not be fully expended until the third quarter of 2004. One-Stop Human Services Center I 214th and 68th 1 $116,002 The Center will bring a variety of human service providers together in one location enabling low and moderate-income clients to meet multiple needs at one site. Providers will screen clients to ensure that 51% of clients meet the national objective. The One-Stop Human Service Center is a collaboration of many local providers of services for low- and moderate-income residents. The Contract for this program has not been awarded at this time. This project will be completed by the fourth quarter of 2004 Kent Community Health Centers 403 East Meeker $44,608 The program provided 5464 low-income Kent clients with 14932 medical visits and 1164 natural medicine visits. The project was completed in 2003 -Emergency Feeding Program I Multiple sites 1 $30,815 The program provided 6,629 low-income Kent clients with 40,782 nutritionally balanced and diet specific meals and resource counseling. The project was completed in 2003 YWCA Anita Vista Transitional HousingConfidential $45,527 The program provided 24 Kent residents that were domestic violence survivors of with 3,339 bed nights. The project was completed in 2003 Multi-Service Center Housing Stability 1205 W. Central $25,000 CDBG funds provided 84 low-income and homeless individuals housing stability financial assistance to defray move-in costs and to prevent eviction. The project was completed in 2003 -Planning and Administration 1400 W. Gowe 1 $194,600 Funds were used to administer Kent's CDBG projects and implement the Consolidated Plan goals and strategies. The project did not expend all of the funds City of Kent 2003 CAPER 7 ANTIPOVERTY STRATEGIES BACKGROUND Poverty is an issue facing almost 12% of Kent's residents, a rate some 50% higher than King County as a whole. Although the City of Kent is a strong hub for business development and transportation to other areas providing job opportunities, rising unemployment rates caused by the current downward trend of the economy are forcing many employers to downsize. The number of young and fragile families, often with one or more children, is growing. The TANF Program, with work mandates, is putting more people into the work force in low-paying jobs. The roots of poverty stem from the lack of living wage jobs, but are exacerbated by high housing and basic living costs, personal and family dysfunction and the special needs of many persons in the community. As noted earlier, the cost of basic living expenses for a single adult with a school-age child is almost $2,300 per month. Among the more expensive items for families to maintain are housing and utility costs, child care and transportation. The current, tenuous state of the human service infrastructure is creating further strain on low- and moderate-income people seeking or trying to maintain employment. The City's anti-poverty strategy focuses on reducing the high cost of basic human needs while seeking innovative solutions to increasing basic income and the provision of supportive services. DECREASE HOUSING COSTS OF LOW-AND MODERATE-INCOME PERSONS The City provided grants through its Home Repair Program of up to $5,000 to assist 140 low- and moderate-income homeowners to make necessary repairs for health, safety, weatherization and housing preservation. The program also provided health and safety assistance to disabled and elderly renters. A grant-funded collaboration with Kent Fire and Life Safety provided free smoke detectors and installation of assistive hardware for renters with special needs. In addition, the City worked with low- and moderate-income households requiring a higher level of weatherization services to apply to the King County Weatherization Program and the King County Housing Authority Rental Rehabilitation Program for assistance. A key part of the strategy is to provide a range of housing at affordable levels. Affordable rental assistance is provided to over 3,000 low- and moderate-income Kent households through the King County Housing Authority and other sponsors of the Section 8 rental assistance program. The City supports the provision of additional vouchers for low- and moderate-income persons paying more than affordable rents. For persons without housing or at-risk of eviction or displacement, Kent provided financial assistance through a Housing Stability Program funded by CDBG. The City City of Kent 2003 CAPER 8 also formed a Homeless Providers Group to work on homeless issues in the community. The City through the Human Services General Fund budget, provided $592,810 in human services funding for vital, basic needs human services programs. The City worked regionally and subregionally, in collaboration with other funders, including the King County HOME Consortium, the King County Housing Authority Weatherization Program, the South King County Planners group, as well as various human service provider groups to coordinate common housing and human service goals. SEEK MEANS TO PROVIDE AFFORDABLE CHILD CARE TO LOW-AND MODERATE-INCOME FAMILIES Kent allocated general fund monies to provide child care subsidies and child care vouchers for low income residents of Kent. The City is also working with the non profit community to develop a program for child care vouchers as part of an employment services support program. SEEK IMPROVED PUBLIC TRANSPORTATION SERVICES AND JOB ACCESSIBILITY IN SOUTH KING COUNTY The City provides a Shopper's Shuttle which assists individuals to access shopping, services and employment. INCREASE INCOMES OF PERSONS IN NEED City of Kent staff actively works with providers and case managers offering homeless housing and services in Kent, assisting clients with information, advocacy and job application assistance to maximize their benefits from programs for which they are eligible. The City funds job training programs through its general fund allocations. Efforts to coordinate services as part of the One Stop Human Service Center were initiated in 2003. Washington Women's Employment and Education and Renton Technical College, Basic Skills program will be collocated in the Center to provide complimentary services. The City continues to pursue the goal to increase business opportunities and jobs in the downtown core as development of the Kent Planned Action Site Project progresses. AFFIRMATIVELY FURTHER FAIR HOUSING City staff continues to participate in King County's programs to ensure fair housing within the community, through interaction with and referral to KCOCRE, WSHRC, housing authorities, and the Fair Housing Center of South Puget Sound. These groups coordinate and cooperatively share information, provide training, and implement fair housing action plans. The City will conduct an Impediments to Fair Housing Study in 2004. City of Kent 2003 CAPER 9 AFFORDABLE HOUSING The City is substantially on target to meet its affordable housing targets, as established in 1994 as part of the King County Comprehensive Planning Policies. Efforts at preserving affordable housing and Section 8 housing continue. CONTINUUM OF CARE The City of Kent participates regionally with the Seattle/King County Continuum of Care for the application and distribution of HUD funds for homeless programs through McKinney funds, Emergency Shelter Grant (ESG) and HOME funds. In addition to regional participation, the City takes action on its own to support a continuum of services for homeless individuals. In 2003 the Regional Affordable Housing Program (RAHP) funds became available through a filing fee surcharge as authorized by the state last year. These funds, referred to as "2060 funds" will be used primarily for acquisition, construction and/or rehabilitation of affordable housing, emergency shelters, and some rental assistance. The City participated in development of the methodology by which these funds will be distributed and in the application review and recommendation process. In 2003, the City supported a number of programs that provided assistance to homeless persons and persons requiring supportive housing. Support for these programs came from a combination of City General Fund and federal Community Development Block Grant resources. Included were: Q Catholic Community Services Emergency Assistance Program -- emergency motel vouchers for individuals and families and emergency financial assistance. Q Catholic Community Services Katherine's House - transitional housing for women Q DAWN Domestic Violence Shelter Program - confidential emergency shelter for victims of domestic violence and their children. Q Emergency Feeding Program - emergency food bags and referrals for homeless and others seeking food. Q Homeless Mobilization Outreach Effort (HOME) — emergency shelter for homeless men 0 Home Repair Program - grants for health and safety-related repairs for low- and moderate-income homeowners. Q Kent Food Bank—emergency financial assistance and food bags. Q Kent Youth and Family Services Watson Manor—transitional housing for parenting teens. 0 Multi Service Center Energy Assistance— financial assistance for energy bills CQ Multi Service Center Housing— emergency and transitional housing for women and families City of Kent 2003 CAPER 10 IZI Multi Service Center Housing Stability— emergency eviction and foreclosure prevention R Pregnancy Aid- emergency housing for pregnant women. 0 YWCA Anita Vista - transitional housing for domestic violence families. The City also provided services to persons with disabilities at the Kent Resource Center, respite and adult day health care for the frail elderly at the Senior Center, and escorted transportation services for seniors living independently in the community. LEVERAGING RESOURCES In 2003, CDBG funds were used in conjunction with $598,810 in local funds to address human services needs. Community agencies report that for every $1 provided by the City of Kent another $7 is leveraged. Community agencies receive the balance of their funding from other federal agencies, the State of Washington, local governments, United Way and other charitable giving campaigns, foundations, private donations and fundraising. CITIZEN COMMENTS Members of the public were notified in the King County Journal of the availability of this CAPER for review prior to its submittal to HUD. No comments were received. The public notice was published on Friday, February 20, 2003 The King County Journal is the City's official publication of record. SELF-EVALUATION The overriding priority for human services expenditures has been to continue to support the wide continuum of services. The 2003 funding continued that policy. The City is meeting its requirements for housing development and affordable housing, as agreed to by the King County Growth Management Planning Policies adopted by the region in 1993. The allocations of the Human Services Fund and the CDBG resources have been responsive to the needs of the community. The City's nine-member Human Services Commission, a citizen's advisory body to the City Council, reviews the human service issues of the Kent community on an ongoing basis and recommends funding allocations based on the current needs. Emerging issues in the past several years have included the increased demands for job training and workforce development, improving the domestic violence system, and addressing needs of the immigrant/refugee population. The City's senior population will increase disproportionately in the next few years, necessitating the need to increase supports to low- and moderate-income seniors and the frail elderly including housing and human services. Proposed funding reductions at local and State levels continue to impact the stability of the human services system. City of Kent 2003 CAPER 11 PERFORMANCE BASED OUTCOMES Kent has evaluated the outcomes of our general fund contracts by requiring fund recipients to submit program outcome reports annually. In addition to providing the City data on the number of service units that were provided, outcome based evaluations provide data on how clients and the greater community were impacted by funded services. CDBG Public Service agencies that were already using Outcome Based Measurement were asked to include CDBG programs on a voluntary basis in 2003. All CDBG agencies will be required to participate in 2004. PART Two: ADDITIONAL PROGRAM NARRATIVE RELATIONSHIP OF USE OF CDBG FUNDS TO THE PRIORITIES, NEEDS, GOALS, AND SPECIFIC OBJECTIVES IDENTIFIED IN THE CONSOLIDATED PLAN. CDBG funds and the $598,810 in the City's Human Services Fund provide the foundation for the City's efforts in human services. The combined funds are allocated by the City Council based on recommendations by the City's Human Services Commission. The Commission is a nine-member citizen advisory body appointed by the Mayor and confirmed by the City Council to provide guidance to the City on human services related issues. The Commission reviews the data from a number of assessments, demographic reports and plans to develop priorities for funding, and then calls for applications from the community. Applications are also sought for capital- related needs from human services agencies, such as the need to renovate office space or counseling space, or to acquire/preserve affordable housing Only CDBG funds may be used for capital projects. The City seeks to maximize use of the 15% cap on public services for CDBG funds. The City elects to take the maximum 20% for Planning and administration. However in 2003 only 10.52% was expended. NATURE OF AND REASONS FOR CHANGES IN PROGRAM OBJECTIVES There were no changes to program objectives in 2003. ASSESS GRANTEE EFFORTS IN CARRYING OUT THE PLANNED ACTIONS DESCRIBED IN THE ACTION PLAN. All CDBG public service funded projects met or exceeded the performance measures required by contract. The City's outcome measures reporting project provided the following additional information on these CDBG-funded public service projects for the most recent reporting period, which ended December 2003. The City elected to start outcome based measurements with the CDBG funded agencies that were already engaged in collecting the data for other contracts. In 2004 all CDBG Public Service programs will be required to begin using outcome based measurements. City of Kent 2003 CAPER 12 'AGENCY >OUTCOME _ . ,. . Emergency Feeding ➢ 94% of clients reported their immediate need for food Program was met YWCA Transitional ➢ 76% of clients in transitional housing moved to Housing permanent housing IF FUNDS ARE NOT USED EXCLUSIVELY FORTHE THREE NATIONAL OBJECTIVES, NARRATIVE EXPLANATION MUST BE INCLUDED TO ADDRESS THESEISSUES All CDBG funds have been used for one of the three national objectives, and primarily to benefit low- and moderate-income residents. NARRATIVE OF ACTIVITIES INVOLVING ACQUISITION, REHABILITATION, OR DEMOLITION OF OCCUPIED REAL PROPERTY AND HOW RELOCATION WAS ACCOMPLISHED No CDBG or City funds were expended for activities that required relocation actions in 2003. DESCRIBE ECONOMIC DEVELOPMENT ACTIVITIES WHERE JOBS WERE NOT TAKEN BY LOW-OR MODERATE-INCOME PERSONS No economic development activities were undertaken with CDBG funds. NARRATIVE REPORT REGARDING LOAN REPAYMENTS No loans have been entered into. NARRATIVE DESCRIPTION OF REHABILITATION PROGRAMS The Home Repair Program is available to remedy health- and safety-related repairs in the homes of low and moderate-income homeowners. Low and moderate-income - income clients qualify for a grant of up to $5,000 for minor repairs to their homes. Typical projects include roofs, plumbing, and electrical improvements. A total of 140 households were assisted in 2003. City of Kent 2003 CAPER 13 • ATTACHMENT A INFORMATION FROM HUD'S INTEGRATED DISBURSEMENT AND INFORMATION SYSTEM (IDIS) FOR PROGRAM YEAR 2003 ➢ CDBG Activity Summary Report(GPR) -C04PR03 ➢ CDBG Financial Summary-C04PR26 ➢ Additional reports analyzing the use of funds are available upon request To request the reports contact the Housing and Human Services Division at 253-856-5070 14 O H mri H H N O W W W 00000000 m0rnr 0 d100 00rn omo Q E- a 0 0 0 0 0 0 0 o n O r m 0 0 r. m 00 r o r, 0 O In O O O O O In m 1O W lD O H N N O O m w 4 O O 0 m d• rl '-i O In Ln m -p m O CD m H O N r� 1, %D ri H O N 1-1 d' W kn 1W m H W 0 '-I lD r ri H W H H d1 ,-i In H %D w w In ri z 0 H E F z i z qH W F W ri 0ErN zw 1-1 wo `" H W a zw > a z a QCQ > ° W>1 co a a Q ^ Q o w Q £ a o0N z a n� c � H Q 0H04 Cn zoaz o w F + o H Cr. w z � OO a 3 uoHw Kc H S7-� H a E+ al F H m a w £ cn A col aza z u whwE rw a [7 w - � ] M z o P: zmry 0: - 4zma OH O Y1 O H W .ti. 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Z o4 cn al z W W Q Q Z Z w � o aaaaazaz� � � � QQzHr Q Q H I W W W W W aaalyr1ccn to E z z x U I OOOOOHH Ha EE3 0 0 �7 H H F rl I xxxxxxb4 ?Gaw W W ?+ xxAC Ix a z W W H A A A I 1tl D 10 10 lD r r r of O H o H H N H H Q Cl) H H I H H H H H H rl H H U] co W H O 0 Q U I U U U Q I 0 0 z E E H SUPPLEMENTAL FINANCIAL SUMMARY INFORMATION Program Drawdown Date Amount City of Kent Home Repair 1/28/04 $29,210.22 City of Kent Home Repair 2/10/04 $60,113.55 Community Health 1/28/04 $11,152.00 Centers - Primary Health and Natural Medicine Multi Service Center— 1/28/04 $2,404.07 Housing Stability Program Kent Youth and Family 1/28/04 $8,166.16 Services — Elevator Project Total $111,046.00 18 W m H O M • x N E W Ga co H O Q W W W U] O F w O x m H E q U r o 0 0 0 0 0 0 0 o r E a a z w °x x w w x ri) w wo x u x � a E El N [n W O H .1[ Yk m h Cl '-I H O O O O O O N cn N d yr ZO z E H H z E 0 4 az ua O E HE. O W w pq aN E H E z z zIX 0 a g O U .. 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H E4 o 0 k H H O m o o 0 00 0000 7.. w O O O O 00 U I H Q m N N 0 O O m 'Cy' ry kD � �o � Ca ATTACHMENT B COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG)AND HUMAN SERVICES GENERAL FUND ALLOCATIONS FOR PROGRAM YEAR 2003 28 2003 CDBG Funding Public Service Community Health Centers $ 44,608.00 Emergency Feeding Program $ 30,815.00 Multi Service Center Housing Stability Program. $ 25,000.00 YWCA $ 45,527.00 Total Public Service $145,950.00 Capital Kent Home Repair Program $ 355,803.00 Kent Parks, Recreation & Community Services — Kiwanis Tot $ 62,808.00 Lot 4 Children's Therapy Center— Community Facility Rehabilitation $ 100,000.00 Kent Youth and Family Services Elevator Project $ 1699642.00 One Stop Human Service Center not contracted at this time $ 116,002.00 Total $ 804,255.00 Planning & Administration Planning and Administration $ 194,600 2003 General Fund Contract Levels ACAP Child & Family Services: APPLE Parenting $ 5,000.00 ACAP Child & Family Services: Child Care Subsidies $ 8,500.00 Catholic Community Services: Family Support Services $ 66,337.00 Child Care Resources: Child Care Vouchers $ 5,563.00 Children's Home Society: Strengthening Families $ 25,400.00 Children's Therapy Center: Therapy Assistance $ 25,000.00 Community Health Center: Primary Dental $ 10,900.00 Community Health Center: Primary Medical $ 58,450.00 Crisis Clinic: Telephone Services $ 5,000.00 DAWN: Shelter $ 5,000.00 H O.M.E.: Men's Shelter $ 30,000.00 King County Coalition Against DV: DV Service System Coordinator $ 15,000.00 Kent Food Bank & Emergency Services: Food Bank $ 30,000.00 Kent Youth & Family Services: Lighthouse (GF) $ 35,000.00 Kent Youth & Family Services: Counseling $ 63,500.00 Kent Youth & Family Services: Teen Parent Housing $ 7,000.00 Kent Youth & Family Services: Teen Substance Abuse Counseling $ 15,000.00 King Co. Sexual Assault Resource Center: Sexual Assault Services $ 20,000.00 Multi-Service Center: Energy Crisis Intervention $ 11,000.00 Multi-Service Center: HEART $ 6,300.00 Multi-Service Center: Housing $ 38,250.00 Pregnancy Aid: Shelter $ 6,000.00 Senior Services of Seattle: Volunteer Transportation $ 5,000.00 Ukrainian Community Center: Community Advocacy $ 7,000.00 Valley Cities Counseling: Senior Counseling $ 25,000.00 Valley Cities Counseling: Survivors Support $ 13,800.00 WWEE: Economic Self-Sufficiency $ 34,595.00 YWCA: DV Services Program $ 21,215.00 Total2003 $ 598,810.00 Other Contracts: Kent Youth & Family Services: Lighthouse — (Criminal Justice) $ 21,191.00 YWCA: DV Community Advocacy Program (Utility Tax) $ 52,851.00 Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: 2004 LIMITED TAX GENERAL OBLIGATION REFUNDING BONDS ORDINANCE - ADOPT 2. SUMMARY STATEMENT: Adoption of Ordinance No. bb�, which refunds the 1996 Limited Tax General Obligation Bonds and will save the city $1.28 million over the life of the issue. It will also shorten the term of these bonds by four years and will save $800,000 in each of the next two years. 3. EXHIBITS: Memo from Finance Director Nachlinger and ordinance 4. RECOMMENDED BY: Operations Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Capital Improvement Amount $ (800,000) Councilmanic Debt $ (800,000) Unbudgeted Revenue: Fund Councilmanic Debt Amount$ (800,000) 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6E FINANCE R. J. Nachlinger, Director Phone.253-856-5260 Fax 253-856-6255 KENON W A$H I N O T O N Address. 220 Fourth Avenue S Kent,WA.98032-5895 DATE: March 2, 2004 TO: Kent City Council Operations Committee FROM: R. J.Nachlinger,Finance Director THROUGH: Mike Martin, Chief Administrative Officer SUBJECT: 2004 Limited Tax General Obligation Refunding Bonds Ordinance MOTION: I move to recommend that the Operations Committee approve the attached ordinance in substantially the form attached and forward it to the City Council at their meeting of March 16,2004. SUMMARY: The 2004 refunding of the 1996 LTGO Bonds will save the City $1.28 million over the life of the refunding issue.It will also shorten the term of these bonds by four years. The restructuring of the outstanding debt with this issue will eliminate the variability of the annual debt service costs. BUDGET IMPACT: This transaction saves $800,000 in each of the next two years. BACKGROUND: The annual debt service costs for the LTGO debt shows an extreme amount of variability over its life. By refundin and restructuring the debt the City can save a significant g g ty g amount; allow for a lesser impact to he budget and allow for the issuance of additional debt with a reduced impact to future budgets. Kent Council Operations Committee 2004 LTGO Refundmg Bonds M R Ri F 7 ORDINANCE NO. AN ORDINANCE of the City Council of the City of Kent, Washington, relating to contracting indebtedness; providing for the issuance of$ par value of Limited Tax General Obligation Refunding Bonds, 2004, of the City to provide funds with which to pay the cost of advance refunding the City's outstanding Limited Tax General Obligation Bonds, 1996, Series A (Tax-Exempt) and paying the administrative costs of such refunding and the costs of issuance and sale of such bonds; fixing the date, form, maturities, interest rates, options of redemption, terms and covenants of the bonds; providing for and authorizing the purchase of certain obligations out of the proceeds of the sale of the bonds herein authorized and for the use and application of the money derived from those investments; authorizing the execution of an agreement with of as refunding trustee; providing for the call, payment and redemption of the outstanding bonds to be refunded; establishing a bond redemption fund; [providing for bond insurance;] and approving the sale and providing for the delivery of the bonds to Lehman Brothers Inc. of Seattle, Washington PASSED MARCH 16, 2004 This document prepared by: Foster Pepper& Shefelman PLLC 1111 Third Avenue, Suite 3400 Seattle, Washington 98101 (206) 447-4400 5042024702 LTGO Refunding Bonds, 2004 N 2 a V T • TABLE OF CONTENTS Page SECTION 1. - Definitions.............................................. ........ ... .. .. ... . ...... .. . .. .. . SECTION 2 -Debt Capacity............ . . ........... ..... ..... ...... . .. . ...... . . ...... SECTION 3. -Authorization and Purposes of Bonds ........ ............ ...... . . SECTION 4. - Description of Bonds. ......... . . .. SECTION 5. - Registration and Transfer of Bonds. ... ...... .. . ... SECTION 6. - Payment of Bonds. .... ..... . . . . ....... .. ......... SECTION 7. - Redemption Provisions and Open Market Purchase of Bonds. ....... SECTION 8. - Notice of Redemption......... . . . . . ...... .. ...... . . . ... . ... .... . ... . SECTION 9. - Failure To Redeem Bonds........................... .. . ........... . ......... . . SECTION 10. - Pledge of Taxes..... .. .. .............. .. . . ......... . ... ..... . . . . . .. SECTION 11. -Bond Fund and Deposit of Bond Proceeds. .. .......... .. . SECTION 12. - Refunding of the Refunded Bonds. ........ ... ... .9 SECTION 13. - Call for Redemption of the Refunded Bonds ... . .. . 1 SECTION 14. - City Findings with Respect to Refunding . . 1 SECTION 15. - Form and Execution of Bonds.. ........ .... .. . .. . .... ...... .. 1 SECTION 16 - Bond Registrar. . . ... .. ..... ............. .. .. . 1 SECTION 17 - Preservation of Tax Exemption for Interest on Bonds . . 1 SECTION 18 - Refunding or Defeasance of the Bonds.. .. 1 SECTION 19. -Approval of Bond Purchase Agreement. .. ...... .. ... 1 SECTION 20. - Preliminary Official Statement Deemed Final.... ...............................1 SECTION 21. - Undertaking to Provide Continuing Disclosure.... . . .... . . .. . 1 SECTION 22. - Bond Insurance. .......................................... ...................................1 SECTION 23. - Severability......... . . . ............... ............ ................ ... ....... . .. .. .. ..1 SECTION 24. - Effective Date . . . . .. ..................................... ............. .. . 2 • 5042024702 LTGO Refunding Bonds, 2004 HAFT ORDINANCE NO. AN ORDINANCE of the City Council of the City of Kent, Washington, relating to contracting indebtedness; providing for the issuance of$ par value of Limited Tax General Obligation Refunding Bonds, 2004, of the City to provide funds with which to pay the cost of advance refunding the City's outstanding Limited Tax General Obligation Bonds, 1996, Series A (Tax-Exempt) and paying the administrative costs of such refunding and the costs of issuance and sale of such bonds; fixing the date, form, maturities, interest rates, options of redemption, terms and covenants of the bonds; providing for and authorizing the purchase of certain obligations out of the proceeds of the sale of the bonds herein authorized and for the use and application of the money derived from those investments; authorizing the execution of an agreement with of as refunding trustee; providing for the call, payment and redemption of the outstanding bonds to be refunded; establishing a bond redemption fund; [providing for bond insurance;] and approving the sale and providing for the delivery of the bonds to Lehman Brothers Inc. of Seattle, Washington I� RECITALS A. Pursuant to Ordinance No. 3301, the City heretofore issued it $22,565,000 par value Limited Tax General Obligation Bonds, 1996, Series A (Tax Exempt) (the "1996 Bonds"), for the purpose of providing the funds necessary to pa part of the cost of acquiring the Centennial Building, acquiring land for City parks improving certain streets and improving the City's Drainage Utility, and by that ordinance reserved the right to redeem the 1996 Bonds prior to their maturity o December 1, 2007, at a price of 101% of par plus accrued interest to the date fixed for redemption. B. There are presently outstanding $21,785,000 par value of 1996 Bond maturing on December 1 of each of the years 2004 through 2008, inclusive, and i 2016 and 2026, and bearing various interest rates from 5.20% to 5.75% (the "Refunded Bonds"). W42024702 1 LTGO Refunding Bonds, 2004 0 0 M F 7 C. After due consideration, it appears to the City Council that the Refunded Bonds may be refunded by the issuance and sale of the limited tax general obligation refunding bonds authorized herein (the "Bonds") so that a substantial savings will be effected by the difference between the principal and interest cost over the life of the Bonds and the principal and interest cost over the life of the Refunded Bonds but for such refunding, which refunding will be effected by: (a) The issuance of the Bonds and the payment of the costs of the issuance of the Bonds and the costs of the refunding; and (b) The payment of the principal of and interest on the Refunded Bonds when due up to and including, and the call, payment and redemption on December 1, 2007, of all of the then-outstanding Refunded Bonds at a price of 101% of par D To effect that refunding in the manner that will be most advantageous to the City it is found necessary and advisable that certain Acquired Obligations i (hereinafter defined) bearing interest and maturing at such time or times as necessary to accomplish the refunding as aforesaid be purchased out of a portion of the proceeds of the Bonds I E. The City Council deems it to be in the best interests of the City to issue and sell the Bonds to pay the cost of advance refunding the Refunded Bonds and to pay the administrative costs of such refunding and the costs of issuance and sale o the Bonds; and F. of ("Bond Insurer"), has made a commitment to issue an insurance policy (the "Financial Guaranty Insurance Policy") insuring the payment when due o the principal of and interest on the Bonds as provided therein, and the City Council o the City deems that the purchase of the Financial Guaranty Insurance Policy is in the best interest of the City. G. Lehman Brothers Inc of Seattle, Washington, has offered to purchase the bonds authorized herein under the terms and conditions hereinafter set forth in the form of a Bond Purchase Agreement. 5042024702 2 LTGO Refunding Bonds, 2004 N M R V 7 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. - Definitions. As used in this ordinance, the following words shall have the following meanings: "Acquired Obligations" means those United States Treasury Certificates of Indebtedness, Notes, and Bonds--State and Local Government Series and other direct, noncallable obligations of the United States of America purchased to accomplish the refunding of the Refunded Bonds as authorized by this ordinance and as defined by Chapter 39.53 RCW. "Bond Fund" means the Limited Tax General Obligation Refunding Bond Fund, 2004, created by this ordinance for the payment of the Bonds. "Bond Insurer" means .] "Bond Register" means the books or records maintained by the Bond Registrar containing the name and mailing address of the owner of each Bond and the principal amount and number of Bonds held by each owner. "Bond Registrar" means the Fiscal Agent. "Bonds" means the $ par value Limited Tax General Obligation Refunding Bonds, 2004, of the City issued pursuant to and for the purposes provided in this ordinance. "City" means the City of Kent, Washington, a municipal corporation duly organized and existing under and by virtue of the laws of the state of Washington "Code" means the United States Internal Revenue Code of 1986, as amended, and applicable rules and regulations promulgated thereunder. "DTC" means The Depository Trust Company, New York, New York. "Finance Director" means the Finance Director of the City. "Financial Guaranty Insurance Policy" means the policy issued by the Bond Insurer insuring the payment of the principal of and interest on the Bonds.] "Fiscal Agent" means the fiscal agent of the state of Washington, or any other paying agent/registrar of the City, as the same may be designated from time to time. "Letter of Representations" means the Blanket Issuer Letter of Representations dated March 16, 1999, between the City and DTC, as it may be W42024702 3 LTGO Refunding Bonds, 2004 amended from time to time. "Refunded Bonds" means the outstanding Limited Tax General Obligation Bonds, 1996, Senes A (Tax-Exempt) of the City maturing in the years 2004 through 2008, inclusive, and 2016 and 2026, issued pursuant to Ordinance No. 3301, the refunding of which has been provided for by this ordinance. "Refunding Plan" means: (a) the placement of sufficient proceeds of the Bonds which, with other money of the City, if necessary, will acquire the Acquired Obligations to be deposited, with cash, if necessary, with the Refunding Trustee; (b) the payment of the principal of and interest on the Refunded Bonds when due up to and including December 1, 2007, and the call, payment, and redemption on December 1, 2007, of all of the then-outstanding Refunded Bonds at a price of 101% of par; and (c) the payment of the costs of issuing the Bonds and the costs of carrying out the foregoing elements of the Refunding Plan. "Refunding Trust Agreement" means a Refunding Trust Agreement between the City and the Refunding Trustee substantially in the form of that which is on file with the Finance Director and by this reference incorporated herein "Refunding Trustee" means o , Washington, serving as trustee or escrow agent or any successor trustee or escrow agent. SECTION 2 - Debt Cayacity. The assessed valuation of the taxable property within the City as ascertained by the last preceding assessment for City purposes for the calendar year 2003 is $ , and the City as of , 2004, has outstanding general indebtedness evidenced by limited tax general obligation bonds, loans, leases and conditional sales contracts in the principal amount of $ incurred within the limit of up to 1- 1/2% of the value of the taxable property within the City permitted for general municipal purposes without a vote of the qualified voters therein, unlimited tax general obligation bonds in the principal amount of$ incurred within the limit of up to 2- 1/2% of the value of the taxable property within the City for capital purposes only issued pursuant to a vote of the qualified voters of the City, and the amount of eoa2024702 4 LTGO Refunding Bonds, 2004 P 0 M F T indebtedness for which bonds are authorized herein to be issued is $ SECTION 3. - Authorization and Purposes of Bonds. The City shall borrow money on the credit of the City and issue negotiable limited tax general obligation bonds evidencing that indebtedness in the amount of$ for general City purposes to provide the funds to carry out the Refunding Plan. The general indebtedness to be incurred shall be within the limit of up to 1-112% of the value of the taxable property within the City permitted for general municipal purposes without a vote of the qualified voters therein. SECTION 4. - Description of Bonds. The Bonds shall be in the aggregate principal amount of $ , shall be dated their date of initial delivery; shall be in the denomination of $5,000 or any integral multiple thereof within a single maturity; shall be numbered separately in the manner and with any additional designation as the Bond Registrar deems necessary for purposes of identification; shall bear interest (computed on the basis of a 360-day year of twelve 30-day months) payable semiannually on each June 1 and December 1, commencing December 1, 2004, to the maturity or earlier redemption of the Bonds; and shall mature on December 1 in years and amounts and bear interest at the rates per annum as follows- Maturity Interest Years Amounts Rates [insert maturity schedule] SECTION 5. - Registration and Transfer of Bonds The Bonds shall be issued only in registered form as to both principal and interest and shall be recorded on the Bond Register. The Bond Register shall contain the name and mailing address of the owner of each Bond and the principal amount and number of each of the Bonds held by each owner. Bonds surrendered to the Bond Registrar may be exchanged for Bonds in any authorized denomination of an equal aggregate principal amount and of the same interest rate and maturity. Bonds may be transferred only if endorsed in the 0 manner provided thereon and surrendered to the Bond Registrar. Any exchange or SN20247 02 5 LTGO Refunding Bonds, 2004 transfer shall be without cost to the owner or transferee. The Bond Registrar shall not be obligated to exchange or transfer any Bond during the 15 days preceding any principal or interest payment or redemption date The Bonds initially shall be registered in the name of Cede & Co., as the nominee of DTC. The Bonds so registered shall be held in fully immobilized form by DTC as depository in accordance with the provisions of the Letter of Representations Neither the City nor the Bond Registrar shall have any responsibility or obligation to j DTC participants or the persons for whom they act as nominees with respect to the jBonds regarding accuracy of any records maintained by DTC or DTC participants of any amount in respect of principal of or interest on the Bonds, or any notice which is permitted or required to be given to registered owners hereunder (except such notice as is required to be given by the Bond Registrar to DTC). For as long as any Bonds are held in fully immobilized form, DTC, its nominee or its successor depository shall be deemed to be the registered owner for all purposes hereunder and all references to registered owners, bondowners, bondholders or the like shall mean DTC or its nominee and shall not mean the owners of any beneficial interests in the Bonds. Registered ownership of such Bonds, or any portions thereof, may not thereafter be transferred except. (i) to any successor of DTC or its nominee, if that successor shall be qualified under any applicable laws to provide the services proposed to be provided by it, (ii) to any substitute depository appointed by the City or such substitute depository's successor; or (ui) to any person if the Bonds are no longer held in immobilized form. Upon the resignation of DTC or its successor (or any substitute depository or its successor) from its functions as depository, or a determination by the City that it no longer wishes to continue the system of book_entry transfers through DTC or its successor (or any substitute depository or its successor), the City may appoint a substitute depository. Any such substitute depository shall be qualified under any applicable laws to provide the services proposed to be provided by it If (i) DTC or its successor (or substitute depository or its successor) resigns from its functions as depository, and no substitute depository can be obtained, or (ii) the City determines that the Bonds are to be in certificated form, the ownership o 5042024702 6 LTGO Refunding Bonds, 2004 0 0 N F 7 Bonds may be transferred to any person as provided herein and the Bonds no longer shall be held in fully immobilized form. SECTION 6. - Payment of Bonds. Both principal of and interest on the Bonds shall be payable in lawful money of the United States of America. Interest on the Bonds shall be paid by checks or drafts of the Bond Registrar mailed on the interest payment date to the registered owners at the addresses appearing on the Bond Register on the 15`" day of the month preceding the interest payment date. Principal of the Bonds shall be payable upon presentation and surrender of the Bonds by the registered owners at either of the principal offices of the Bond Registrar at the option of the registered owners. Notwithstanding the foregoing, for as long as the Bonds are registered in the name of DTC or its nominee, payment of principal of and interest on the Bonds shall be made in the manner set forth in the Letter o Representations. SECTION 7. - Redemption Provisions and Open Market Purchase o Bonds Bonds maturing in the years 2004 through 2014, inclusive, shall be issued without the right or option of the City to redeem those Bonds prior to their stated maturity dates The City reserves the right and option to redeem the Bonds maturing on or after December 1, 2015, prior to their stated maturity dates at any time on or after December 1, 2014, as a whole or in part (within one or more maturities selected by the City and randomly within a maturity in such manner as the Bond Registrar shall determine), at par plus accrued interest to the date fixed for redemption Portions of the principal amount of any Bond, in installments of $5,000 or any integral multiple thereof, may be redeemed. If less than all of the principal amount of any Bond is redeemed, upon surrender of that Bond at either of the principal offices of the Bond Registrar, there shall be issued to the registered owner, without charge therefor, a new Bond (or Bonds, at the option of the registered owner) of the same maturity and interest rate in any of the denominations authorized by this ordinance in the aggregate principal amount remaining unredeemed. 5042024702 7 LTGO Refunding Bonds, 2004 0 0 A F T The City further reserves the right and option to purchase any or all of the Bonds in the open market at any time at any price plus accrued interest to the date of purchase All Bonds purchased or redeemed under this section shall be canceled. Notwithstanding the foregoing, for as long as the Bonds are registered in the name of DTC or its nominee, selection of Bonds for redemption shall be in accordance with the Letter of Representations. SECTION 8. - Notice of Redemption. The City shall cause notice of any intended redemption of Bonds to be given not less than 30 nor more than 60 days prior, to the date fixed for redemption by first-class mail, postage prepaid, to the registered owner of any Bond to be redeemed at the address appearing on the Bond Register at the time the Bond Registrar prepares the notice, and the requirements of this sentence shall be deemed to have been fulfilled when notice has been mailed as so provided, whether or not it is actually received by the registered owner of any Bond Interest on Bonds called for redemption shall cease to accrue on the date fixed for redemption unless the Bond or Bonds called are not redeemed when presented pursuant to the call. In addition, the redemption notice shall be mailed within the same period, postage prepaid, to Moody's Investors Service, Inc , and Standard & Poor's at their offices in New York, New York, or their successors, to Lehman Brothers Inc. at its office in Seattle, Washington, or its successor, [to the Bond Insurer at its principal office in or its successor,] to each NRMSIR or the MSRB and to such other persons and with such additional information as the Finance Director shall determine, but these additional mailings shall not be a condition precedent to the redemption of Bonds. Notwithstanding the foregoing, for as long as the Bonds are registered in the name of DTC or its nominee, notice of redemption shall be given in accordance with the Letter of Representations. SECTION 9. - Failure To Redeem Bonds. If any Bond is not redeemed when properly presented at its maturity or call date, the City shall be obligated to pay interest on that Bond at the same rate provided in the Bond from and after its maturity or call date until that Bond, both principal and interest, is paid in full or until sufficient money for its payment in full is on deposit in the bond redemption fund hereinafter 5042024702 8 LTGO Refunding Bonds, 2004 I I M F T created and the Bond has been called for payment by giving notice of that call to the registered owner of each of those unpaid Bonds. SECTION 10. - Pledge of Taxes. For as long as,any of the Bonds are outstanding, the City irrevocably pledges to include in its budget and levy taxes annually within the constitutional and statutory tax limitations provided by law without a vote of the electors of the City on all of the taxable property within the City in an amount sufficient, together with other money legally available and to be used therefor, to pay when due the principal of and interest on the Bonds, and the full faith, credit and resources of the City are pledged irrevocably for the annual levy and collection of those taxes and the prompt payment of that principal and interest. SECTION 11. - Bond Fund and DeDosit of Bond Proceeds. The Bond Fund is created and established in the office of the Finance Director as a special fund designated as the Limited Tax General Obligation Refunding Bond Fund, 2004, for the purpose of paying principal of and interest on the Bonds. Accrued interest on the Bonds, if any, received from the sale and delivery of the Bonds, together with any net premium and/or contingency amounts received from Lehman Brothers Inc that are not necessary to pay the administrative costs of the refunding and the costs of issuance and sale of the Bonds, shall be deposited into the Bond Fund The remaining principal proceeds of the sale of the Bonds shall be deposited with the Refunding Trustee in accordance with the provisions of Section 12 herein. All taxes and other funds collected for and allocated to the payment of the principal of and interest on the Bonds shall be deposited in the Bond Fund. SECTION 12 - Refunding of the Refunded Bonds. (a) Appointment of Refunding Trustee. of , is appointed Refunding Trustee. (b) Use of Bond Proceeds; Acquisition of Acquired Obligations. All of the proceeds of the sale of the Bonds, exclusive of the accrued interest thereon and any contingency amount which shall be paid into the Bond Fund, shall be deposited immediately upon the receipt thereof with the Refunding Trustee and used to discharge the obligations of the City relating to the Refunded Bonds under Ordinance No 3301 5U2024702 9 LTGO Refunding Bonds, 2004 0 0 N V T • by providing for the payment of the amounts required to be paid by the Refunding Plan and pay costs of issuance of the Bonds. To the extent practicable, such obligations shall be discharged fully by the Refunding Trustee's simultaneous purchase of the Acquired Obligations, bearing such interest and maturing as to principal and interest in such amounts and at such times so as to provide, together with a beginning cash balance, if necessary, for the payment of the amount required to be paid by the Refunding Plan. The Acquired Obligations are listed and more particularly described in Exhibit A attached to the Refunding Trust Agreement between the City and the Refunding Trustee, but are subject to substitution as set forth below. Any Bond proceeds or other money deposited with the Refunding Trustee not needed to purchase the Acquired Obligations and provide a beginning cash balance, if any, and pay the costs of issuance of the Bonds shall be returned to the City at the time o delivery of the Bonds to the initial purchaser thereof and deposited in the Bond Fund to pay interest on the Bonds on the first interest payment date. (c) Substitution of Acquired Obligations. Prior to the purchase o any Acquired Obligations by the Refunding Trustee, the City reserves the right to substitute other direct, noncallable obligations of the United States of America ("Substitute Obligations") for any of the Acquired Obligations and to use any savings created thereby for any lawful City purpose if, (a) in the opinion of Foster Pepper& Shefelman PLLC, the City's bond counsel, the interest on the Bonds and the Refunded Bonds will remain excluded from gross income for federal income tax purposes under Sections 103, 148, and 149(d) of the Code, and (b) such substitution shall not impair the timely payment of the amounts required to be paid by the Refunding Plan, as verified by a nationally recognized independent certified public accounting firm After the purchase of the Acquired Obligations by the Refunding Trustee, the City reserves the right to substitute therefor cash or Substitute Obligations subject to the conditions that such money or securities held by the Refunding Trustee shall be sufficient to carry out the Refunding Plan, that such substitution will not cause the Bonds and the Refunded Bonds to be arbitrage bonds within the meaning o Section 148 of the Code and regulations thereunder in effect on the date of such substitution and applicable to obligations issued on the issue date of the Bonds, and that the City obtain, at its expense: (1) a verification by a nationally recognized 50420247a2 10 LTGO Refunding Bonds, 2004 M 0 M V T independent certified public accounting firm acceptable to the Refunding Trusteei confirming that the payments of principal of and interest on the substitute securities, i ! paid when due, and any other money held by the Refunding Trustee will be sufficient t carry out the Refunding Plan; and (2) an opinion from Foster Pepper & Shefelma PLLC, bond counsel to the City, or its successor, to the effect that the disposition an substitution or purchase of such securities, under the statutes, rules, and regulation then in force and applicable to the Bonds, will not cause the interest on the Bonds o the Refunded Bonds to be included in gross income for federal income tax purpose and that such disposition and substitution or purchase is in compliance with the statutes and regulations applicable to the Bonds. Any surplus money resulting from the sale, transfer, other disposition, or redemption of the Acquired Obligations and the substitutions therefor shall be released from the trust estate and transferred to the Cif for deposit into Bond Fund. (d) Administration of Refunding Plan. The Refunding Trustee i authorized and directed to purchase the Acquired Obligations (or Substitute Obligations) and to make the payments required to be made by the Refunding Plan from the Acquired Obligations (or Substitute Obligations) and money deposited with the Refunding Trustee pursuant to this Ordinance. All Acquired Obligations (or Substitute Obligations) and the money deposited with the Refunding Trustee and any mcom therefrom shall be held irrevocably, invested and applied in accordance with th provisions of Ordinance No. 3301, this ordinance, chapter 39 53 RCW and othe applicable statutes of the state of Washington and the Refunding Trust Agreement. At necessary and proper fees, compensation, and expenses of the Refunding Truste and all other costs incidental to the setting up of the escrow to accomplish th refunding of the Refunded Bonds and costs related to the issuance and delivery of th Bonds, including bond printing, verification fees, [bond insurance premium,] bon counsel's fees, and other related expenses, shall be paid out of the proceeds of the Bonds. (e) Authorization for Refunding Trust Agreement. To carry out th Refunding Plan provided for by this ordinance, the Mayor or Finance Director of the City is authorized and directed to execute and deliver to the Refunding Trustee Refunding Trust Agreement substantially in the form on file with the Finance Directo 5042024702 11 LTGO Refunding Bonds, 2004 M 0 M V 7 and by this reference made a part hereof setting forth the duties, obligations and responsibilities of the Refunding Trustee in connection with the payment, redemption, and retirement of the Refunded Bonds as provided herein and stating that the provisions for payment of the fees, compensation, and expenses of such Refunding Trustee set forth therein are satisfactory to it. Prior to executing the Refunding Trust Agreement, the Mayor or Finance Director of the City is authorized to make such changes therein that do not change the substance and purpose thereof or that assure that the escrow provided therein and the Bonds are in compliance with the requirements of provisions of the Code governing the exclusion of interest on the Bonds from gross income for federal income tax purposes. SECTION 13. - Cal/ for Redemption of the Refunded Bonds. The City calls for redemption on December 1, 2007, all of the then-outstanding Refunded Bond at a price of 101% of par plus accrued interest. Such call for redemption shall b irrevocable after the delivery of the Bonds to Lehman Brothers Inc. The date on which such Refunded Bonds are herein called for redemption is the first date on which such Refunded Bonds may be called. The proper City officials are authorized and directed to give or cause t be given such notices as required, at the times and in the manner required, pursuant to Ordinance No. 3301 in order to effect the redemption prior to their maturity of the Refunded Bonds. SECTION 14. - City Fmdmgs with Respect to Refunding. The City Council finds and determines that the issuance and sale of the Bonds at this time will effect a savings to the City and is in the best interest of the City and its taxpayers and in the public interest In making such findings and determinations, the City Council has given consideration to the fixed maturities of the Bonds and the Refunded Bonds, the costs of issuance of the Bonds and the known earned income from the investment o the proceeds of the issuance and sale of the Bonds pending payment and redemption of the Refunded Bonds. . The City Council further finds and determines that the money to be deposited with the Refunding Trustee for the Refunded Bonds in accordance with 5042024702 12 LTGO Refunding Bonds, 2004 0 0 M F 7 Section 12 of this Ordinance will discharge and satisfy the obligations of the City under Ordinance No. 3301 with respect to the Refunded Bonds, and the pledges, charges, trusts, covenants, and agreements of the City therein made or provided for as to the Refunded Bonds, and that the Refunded Bonds shall no longer be deemed to be outstanding under Ordinance No. 3301 immediately upon the deposit of such money with the Refunding Trustee. SECTION 15. - Form and Execution of Bonds. The Bonds shall be printed or lithographed on good bond paper in a form consistent with the provisions o this ordinance and state law and shall be signed by the Mayor and City Clerk, either o both of whose signatures may be manual or in facsimile, and the seal of the City or a facsimile reproduction thereof shall be impressed or printed thereon Only Bonds bearing a Certificate of Authentication in the following form, manually signed by the Bond Registrar, shall be valid or obligatory for any purpose o entitled to the benefits of this ordinance: CERTIFICATE OF AUTHENTICATION This Bond is one of the fully registered City of Kent, Washington, Limited Tax General Obligation Refunding Bonds, 2004, described in the Bond Ordinance. WASHINGTON STATE FISCAL AGENT, Bond Registrar By Authorized Signer The authorized signing of a Certificate of Authentication shall be conclusive evidence that the Bonds so authenticated have been duly executed, authenticated and delivered and are entitled to the benefits of this ordinance. If any officer whose facsimile signature appears on the Bonds ceases to be an officer of the City authorized to sign bonds before the Bonds bearing his or he facsimile signature are authenticated or delivered by the Bond Registrar or issued b the City, those Bonds nevertheless may be authenticated, issued and delivered and, when authenticated, issued and delivered, shall be as binding on the City as though 5D42024702 13 LTGO Refunding Bonds, 2004 0 0 G V 7 that person had continued to be an officer of the City authorized to sign bonds. An Bond also may be signed on behalf of the City by any person who, on the actual date of signing of the Bond, is an officer of the City authorized to sign bonds, although he o she did not hold the required office on the date of issuance of the Bonds SECTION 16. - Bond Registrar. The Bond Registrar shall keep, o cause to be kept, at its principal corporate trust office, sufficient books for the registration and transfer of the Bonds, which shall be open to inspection by the City a all times The Bond Registrar is authorized, on behalf of the City, to authenticate and deliver Bonds transferred or exchanged in accordance with the provisions of the Bond and this ordinance, to serve as the City's paying agent for the Bonds and to carry out all of the Bond Registrar's powers and duties under this ordinance and City Ordinance No. 2418 establishing a system of registration for the City's bonds and obligations. The Bond Registrar shall be responsible for its representation contained in the Bond Registrar's Certificate of Authentication on the Bonds. The Bond Registrar may become the owner of Bonds with the same rights it would have if it were not the Bond Registrar and, to the extent permitted by law, may act as depository for and permit any of its officers or directors to act as members of, or in any other capacity with respect to, any committee formed to protect the rights of Bond owners. SECTION 17. - Preservation of Tax Exemption for Interest on Bonds. The City covenants that it will take all actions necessary to prevent interest on the Bonds from being included in gross income for federal income tax purposes, and it will neither take any action nor make or permit any use of proceeds of the Bonds or other funds of the City treated as proceeds of the Bonds at any time during the term of the Bonds which will cause interest on the Bonds to be included in gross income for federal income tax purposes. The City also covenants that it will, to the extent the arbitrage rebate requirement of Section 148 of the Code, is applicable to the Bonds, take all actions necessary to comply (or to be treated as having complied) with that requirement in connection with the Bonds, including the calculation and payment of an penalties that the City has elected to pay as an alternative to calculating rebatabl arbitrage, and the payment of any other penalties if required under Section 148 of the Code to prevent interest on the Bonds from being included in gross income for federa income tax purposes. The City certifies that it has not been notified of any listing o W420247 02 14 LTGO Refunding Bonds, 2004 M 0 1 V T proposed listing by the Internal Revenue Service to the effect that it is a bond issue whose arbitrage certifications may not be relied upon. SECTION 18. - Refunding or Defeasance of the Bonds. The City may issue refunding bonds pursuant to the laws of the state of Washington or use money available from any other lawful source to pay when due the principal of and interest on the Bonds, or any portion thereof included in a refunding or defeasance plan, and t redeem and retire, refund or defease all such then-outstanding Bonds (hereinafter collectively called the "defeased Bonds") and to pay the costs of the refunding o defeasance. If money and/or direct obligations of the United States of America maturing at a time or times and bearing interest in amounts (together with money, i necessary) sufficient to redeem and retire, refund or defease the defeased Bonds in accordance with their terms are set aside in a special trust fund or escrow account irrevocably pledged to that redemption, retirement or defeasance of defeased Bond (hereinafter called the "trust account"), then all right and interest of the owners of the defeased Bonds in the covenants of this ordinance and in the funds and account obligated to the payment of the defeased Bonds shall cease and become void The owners of defeased Bonds shall have the right to receive payment of the principal o and interest on the defeased Bonds from the trust account The City shall include i the refunding or defeasance plan such provisions as the City deems necessary for the random selection of any defeased Bonds that constitute less than all of a particular maturity of the Bonds, for notice of the defeasance to be given to the owners of the defeased Bonds and to such other persons as the City shall determine, and for an required replacement of Bond certificates for defeased Bonds. The defeased Bond shall be deemed no longer outstanding, and the City may apply any money in an other fund or account established for the payment or redemption of the defeased Bonds to any lawful purposes as it shall determine. If the Bonds are registered in the name of DTC or its nominee, notice o any defeasance of Bonds shall be given to DTC in the manner prescribed in the Letter of Representations for notices of redemption of Bonds. [Notwithstanding anything in this section to the contrary, if the principa of and/or interest due on the Bonds is paid by the Bond Insurer pursuant to th Financial Guaranty Insurance Policy, the Bonds shall be treated as remainin 5CW20247 02 15 LTGO Refunding Bonds, 2004 outstanding for all purposes and shall not be considered paid by the City, and the covenants, agreements and other obligations of the City to the registered owners of the Bonds shall continue to exist and run to the benefit of the Bond Insurer, and the Bond Insurer shall be subrogated to the rights of the registered owners ] SECTION 19. - Approval of Bond Purchase Agreement Lehman Brothers Inc. of Seattle, Washington, has presented a purchase contract (the "Bond Purchase Agreement") to the City offering to purchase the Bonds under the terms and conditions provided in the Bond Purchase Agreement, which written Bond Purchase Agreement is on file with the City Clerk and is incorporated herein by this reference. The City Council finds that entering into the Bond Purchase Agreement is in the City' best interest and therefore accepts the offer contained therein and authorizes it execution by City officials. The Bonds will be printed at City expense and will be delivered to the purchaser in accordance with the Bond Purchase Agreement, with the approving legal j opinion of Foster Pepper& Shefelman PLLC, bond counsel of Seattle, Washington, regarding the Bonds. The proper City officials are authorized and directed to do everything necessary for the prompt delivery of the Bonds to Lehman Brothers Inc and for the I proper application and use of the proceeds of the sale thereof. j SECTION 20. - Preliminary Official Statement Deemed Final. The City Council has been provided with copies of a preliminary official statement dated , 2004 (the "Preliminary Official Statement"), prepared in connection with the sale of the Bonds. For the sole purpose of Lehman Brother' compliance with Securities and Exchange Commission Rule 15c2-12(b)(1), the City "deems final" that Preliminary Official Statement as of its date, except for the omission of information as to offering prices, interest rates, selling compensation, aggregate principal amount, principal amount per maturity, maturity dates, options of redemption, delivery dates, ratings and other terms of the Bonds dependent on such matters. SECTION 21 - Undertaking to Provide Continuing Disclosure To meet the requirements of United States Securities and Exchange Commission ("SEC") Rule 15c2-12(b)(5) (the "Rule"), as applicable to a participating underwriter for the Bonds, 5042024702 16 LTGO Refunding Bonds, 2004 0 0 1 V V the City makes the following written undertaking (the "Undertaking") for the benefit o holders of the Bonds: (a) Undertaking to Provide Annual Financial Information and Notice of Material Events. The City undertakes to provide or cause to be provided, either directly or through a designated agent: (i) To each nationally recognized municipal securities information repository designated by the SEC in accordance with the Rule ("NRMSIR") and to a state information depository, if any, established in the state of Washington (the "SID") annual financial information and operating data of the type included in the final official statement for the Bonds and described in subsection (b) of this section ("annual financial information"); (ii) To each NRMSIR or the Municipal Securities Rulemaking Board ("MSRB"), and to the SID, timely notice of the occurrence of any of the following events with respect to the Bonds, if material: (1) principal and interest payment delinquencies; (2) non-payment related defaults; (3) unscheduled draws on debt service reserves reflecting financial difficulties; (4) unscheduled draws on credit enhancements reflecting financial difficulties; (5) substitution of credit or liquidity providers, or their failure to perform; (6) adverse tax opinions or events affecting the tax-exempt status of the Bonds; (7) modifications to rights of holders of the Bonds; (8) Bond calls (other than scheduled mandatory redemptions of Term Bonds); (9) defeasances; (10) release, substitution, or sale of property securing repayment of the Bonds; and (11) rating changes; and (iii) To each NRMSIR or to the MSRB, and to the SID, timely notice of a failure by the City to provide required annual financial information on or before the date specified in subsection (b) of this section. (b) Type of Annual Financial Information Undertaken to be Provided. The annual financial information that the City undertakes to provide in subsection (a)of this section: (i) Shall consist of (1) annual financial statements prepared (except as noted in the financial statements) in accordance with applicable generally accepted accounting principles applicable to governmental units, as such principles may be changed from time to time and as permitted by State law, which statements shall not be audited, except, however, that if and when audited financial statements are otherwise prepared and available to the City they will be provided; (2) a statement of the City's general obligation debt service requirements; and (3) an update of the information set forth in tables [to be determined] 5N2024702 17 LTGO Refunding Bonds, 2004 0 0 M F 7 of the Official Statement for the Bonds; (u) Shall be provided to each NRMSIR and the SID, not later than the last day of the ninth month after the end of each fiscal year of the City (currently, a fiscal year ending December 31), as such fiscal year may be changed as required or permitted by State law, commencing with the City's fiscal year ending December 31, 2004, and (m) May be provided in a single or multiple documents, and may be incorporated by reference to other documents that have been filed with each NRMSIR and the SID, or, if the document incorporated by reference is a "final official statement" with respect to other obligations of the City, that has been filed with the MSRB. (c) Amendment of Undertaking. The Undertaking is subject to amendment after the primary offering of the Bonds without the consent of any holder of any Bond, or of any broker, dealer, municipal securities dealer, participating underwriter, rating agency, NRMSIR, the SID or the MSRB, under the circumstances and in the manner permitted by the Rule. The City will give notice to each NRMSIR or the MSRB, and the SID, of the substance (or provide a copy) of any amendment to the Undertaking and a brief statement of the reasons for the amendment If the amendment changes the type of annual financial information to be provided, the annual financial information containing the amended financial information will include a narrative explanation of the effect of that change on the type of information to be provided. (d) Beneficiaries. The Undertaking evidenced by this section shall inure to the benefit of the City and any holder of Bonds, and shall not inure to the benefit of or create any rights in any other person (e) Termination of Undertaking. The City's obligations under this Undertaking shall terminate upon the legal defeasance of all of the Bonds. In addition, the City's obligations under the Undertaking shall terminate if those provisions of the Rule which require the City to comply with the Undertaking become legally inapplicable in respect of the Bonds for any reason, as confirmed by an opinion of nationally recognized bond counsel or other counsel familiar with federal securities laws delivered to the City, and the City provides timely notice of such termination to each NRMSIR or the MSRB and the SID. (f) Remedy for Failure to Comply with Undertaking. As soon as practicable after the City learns of any failure to comply with the Undertaking, the City will proceed with due diligence to cause such noncompliance to be corrected. No failure by the City or other obligated person to comply with the Undertaking shall constitute a default in respect of the Bonds. The sole remedy of any holder of a Bond shall be 5042024702 18 LTGO Refunding Bonds, 2004 0 0 M V 7 to take such actions as that holder deems necessary, including seeking an order of specific performance from an appropriate court, to compel the City or other obligated person to comply with the Undertaking. (g) Designation of Official Responsible to Administer Undertaking. The Finance Director(or such other officer of the City who may in the future perform the duties of that office) or his or her designee is authorized and directed in his or her discretion to take such further actions as may be necessary, appropriate or convenient to carry out the Undertaking set forth in this section and in accordance with the Rule, including, without limitation, the following actions: (i) Preparing and filing the annual financial information undertaken to be provided; (u) Determining whether any event specified in subsection (a)(ii) has occurred, assessing its materiality with respect to the Bonds, and, if material, preparing and disseminating notice of its occurrence; (iu) Determining whether any person other than the City is an "obligated person" within the meaning of the Rule with respect to the Bonds, and obtaining from such person an undertaking to provide any annual financial information and notice of material events for that person in accordance with the Rule; (iv) Selecting, engaging and compensating designated agents and consultants, including but not limited to financial advisors and legal counsel, to assist and advise the City in carrying out the Undertaking; and (v) Effecting any necessary amendment of the Undertaking. SECTION 22. - Bond Insurance. [To be completed upon the selection of a bond insurer.] SECTION 23: - Severabilitv. If any one or more sections, subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. 5042024702 19 LTGO Refunding Bonds, 2004 0 0 M F 7 SECTION 24: - Effective Date. This ordinance shall take effect and be in force five (5) days from and after its passage, approval and publication as provided b law JIM WHITE, MAYOR ATTEST• BRENDA JACOBER, CITY CLERK APPROVED AS TO FORM- FOSTER PEPPER & SHEFELMAN PLLC Special Counsel and Bond Counsel • PASSED: day of March, 2004 APPROVED: day of March, 2004. PUBLISHED. day of March, 2004 1 hereby certify that this is a true copy of Ordinance No passed by the City Council of the City of Kent, Washington, and approved by the Mayor of the City o Kent as hereon indicated. (SEAL) BRENDA JACOBER, CITY CLERK 5042024702 20 LTGO Refunding Bonds, 2004 • Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: BUDGET ADJUSTMENT ORDINANCE FOR ADJUSTMENTS ON DECEMBER 31, 2003 —ADOPT 2. SUMMARY STATEMENT: Adoption of Ordinance No. amending the 2003 Budget for fmal budget adjustments made on December 31, 2003 in the amount of $2,244,226. These budgets were for LIDS 355, 356, and 357 and were not included on the year-end budget adjustment ordinance approved by Council on December 9, 2003. 3. EXHIBITS: Memo from Finance Director Nachlinger and ordinance 4. RECOMMENDED BY: Operations Committee • (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes No X If no: Unbudgeted Expense: Fund Street Capital Projects Amount $ 1,230,360 Sewerage $ 1,013,866 Unbudgeted Revenue: Fund Street Amount $ 1,230,360 Sewerage $ 1,013,866 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6F FINANCE Robert Nachlinger, Director Phone:253-856-5260 Far 253-856-6255 KENT W A S H I N O T O N Address: 220 Fourth Avenue S. Kent,WA 98032-5895 DATE: February 25, 2004 TO: Kent City Council Operations Committee FROM: Bob Nachlinger, Finance Division Director SUBJECT: Budget Adjustment Ordinance for Adjustments on December 31, 2003 MOTION: Recommend Council approve the budget adjustment ordinance for final 2003 adjustments made on December 31, 2003 totaling $2,244,226. SUMMARY: Authorization is requested to approve the gross budget adjustment ordinance totaling $2,244,226 for final budget adjustments on December 31, 2003. Please note that $1,013,866 has been previously approved by Council. These budgets were for LIDs 355, 356 and 357. The 1,230,360 not yet approved by Council represents street mitigation contributions received from developers during the permitting process. These budget items were not included on the year-end budget adjustment ordinance approved by Council on December 9, 2003. BUDGET IMPACT: BACKGROUND: PIPUMBudget Changes%2003 BCVdotlon Sheet Final 2D03.doc ORDINANCE NO. AN ORDINANCE of the City Council of the City of Kent, Washington, amending the 2003 budget for adjustments made on December 31, 2003. THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS- ORDINANCE SECTION 1. — Budget Adjustment The 2003 City budget is amended to include budget fund adjustments as summarized and set forth in Exhibit "A," which is attached and incorporated into this ordinance. SECTION 2. — Severability. If any section, sentence, clause or phrase of this ordinance 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 ordinance. SECTION 3. — Effective Date This ordinance shall take effect and be in force five (5)days from and after its passage, approval and publication as provided by law. JIM WHITE, MAYOR 1 2003 Final Budget Adjustment ATTEST: BRENDA JACOBER, CITY CLERK APPROVED AS TO FORM TOM BRUBAKER, CITY ATTORNEY PASSED: day of February, 2004. APPROVED- day of February, 2004 PUBLISHED: day of February, 2004 I hereby certify that this is a true copy of Ordinance No. > passed by the City Council of the City of Kent, Washington, and approved by the Mayor of the City of Kent as hereon indicated. (SEAL) BRENDA JACOBER, CITY CLERK 2 2003 Final Budget Adjustment City of Kent Budget Adjustment Ordinance Adjustments December 31, 2003 Exhibit A Adjustment Fund Title Ordinance 001 General Fund 0 110 Street Fund 0 130 Lodging Tax Fund 0 140 Youth/Teen Fund 0 150 Capital Improvement Fund 0 160 Criminal Justice Fund 0 170 Environmental Fund 0 180 Housing & Comm Dev Fund 0 190 Other Operating Projects Fund 0 210 Voted Debt Service Fund 0 220 Non-Voted Debt Service Fund 0 250 Spec Assess Debt Service Fund 0 310 Street Capital Projects Fund 1,230,360 320 Parks Capital Projects Fund 0 330 Other Capital Projects Fund 0 340 Technology Capital Projects 0 350 Facilities Capital Projects 0 410 Water Operating Fund 0 440 Sewerage Operating 1,013,866 480 Golf Operating 0 510 Fleet Services Fund 0 520 Central Services Fund 0 530 Fire Equipment Fund 0 540 Facilities Management Fund 0 560 Insurance Fund 0 620 Firefighters Pension Fund 0 680 Agency and Clearing Fund 0 700 Kent Economic Dev Corp 0 Total Gross Budget Change 2,244,226 Less: Internal Service Funds 0 Other Transfers 0 Internal Transfers 0 Subtotal 0 Total Net Budget Change 2,244,226 Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: DEPARTMENT OF ECOLOGY COORDINATED PREVENTION RECYCLING GRANT—AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the Department of Ecology Coordinated Prevention Grant Agreement in the amount of$82,971, and direct staff to accept the grant and establish a budget for the funds to be spent within the project. 3. EXHIBITS: Public Works Director's Memorandum and Coordinated Prevention Grant Agreement • 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: • ACTION: Council Agenda Item No. 6G PUBLIC WORKS DEPARTMENT Don E Widcstrom, P E Public Works Director Phone 253.8565500 Fax 253-858-6500 KEN T Address 220 Fourth Avenue S WASHIa Grow Kent,WA 980325895 DATE: Febmary 25,20M TO: Pub orks Committee FROM: Donli1cstrom,Public Works Director THROUGH. SUBJECT: State of Washmgton Department of Ecology Coordinated Prevention Grant—Grant No G0400228 MOTION Recommend authorizing the Mayor to sign the Department of Ecology Coordinated Prevention Grant for years 2004-05, in the amount of$82,971, directing staff to accept the grant and establishing a budget for the funds to be spent within said project SUMMARY: We are in receipt of the Department of Ecology Coordinated Prevention Grant in the amount of $82,971 for the years 2004-2005 The funds will be used to purchase and distribute Rain Pails and Compost Bins to Kent residents,and to fund a kitchen waste composting plot project BUDGET IMPACT No Unbudgeted Fiscal/Personnel Impact BACKGROUND The Washington State Department of Ecology Coordinated Prevention Grant is used to purchase 6D0 Rain Pails and 300 compost bins for distribution to Kent residents at lower prices to increase waste reduction and recycling and promote the use of recycled content products in the City of Kent Both items are made from 100%recycled content plastic and will provide a market for over 99 tons of recycled plastic The Rain Pails will provide an auxiliary environmental benefit of water conservation through reuse of rainwater on residential lawns and in gardens Through backyard composting, 63 8 tons of organic material will be diverted from the waste stream and reused in residential yards and gardens The kitchen waste composting pilot project will study the effectiveness of kitchen waste composting and determine the annual food waste diversion for different sized households Maya White and Kent Cuy Cowcd Coordmued Preventmn Great—GrwNo G0400 B March 1,2004 1 Grant No. G0400228 Coordmated Prevention Grant Agreement with City of Kent STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND CITY OF KENT This is a binding agreement entered into by and between the State of Washington Department of Ecology, hereinafter referred to as the DEPARTMENT,and the City of Kent,hereinafter referred to as the RECIPIENT,to carry out the activities described herein RECIPIENT NAME&ADDRESS City of Kent 220 0 Ave S Kent WA 98032-5895 RECIPIENT PROJECT COORDINATOR Robyn Bartelt TELEPHONE 253-856-5549 FAX 253-856-6500 E-MAIL rbartelt®ci kent wa us REGIONAL PROJECT OFFICER Steven Williams TELEPHONE 425-649-7048 FAX 425-649-7098 E-MAIL stwA61 Qecy wa gov FUNDING SOURCE Local Toxics Control Account MAX11"ELIGIBLE COST $110,628 STATE GRANT SHARE $82,971 LOCAL SHARE $27,657 STATE MAXIMUM GRANT PERCENT 75% FEDERAL TAX IDENTIFICATION NO 91-6001254 For the purpose of this agreement,the RECIPIENT will be allowed to match the DEPARTMENT share with cash and mterlocal in-kind costs in accordance with pre-application instructions This grant is effective on January 1,2004 Any work performed prior to the effective date of this agreement without prior written authorization and specified in the Scope of Work will be at the sole expense and risk of the RECIPIENT "This agreement shall expire no later than December 31,2005 1of12 Grant No G0400228 Coordinated Prevention Grant Agreement with City of Kent SCOPE OF WORK The task(s)set forth below summarize the RECIPIENT's goals,activities,budget(s)and schedule(s)and expected outcomes Recipient Responsibilities The RECIPIENT is responsible for unplementmg activities identified in the local Solid Waste Management Plan(SWMP),the Moderate Risk Waste Plan(MRWP),and/or the Hazardous Waste Management Plan(HWMP) 1) PROJECT TITLE: RECYCLED CONTENT MATERIAL DISTRIBUTION(WRR) Goal Statement The goal of this project is to increase waste reduction and recycling in the City of Kent by providing the means for residents to purchase low-cost rain barrels made from 100%recycled content plastic Maximum Elieible Cost $66,000 Proiect Description The RECIPIENT shall conduct ram barrel distribution events in the spring and fall of 2004 and 2005 Promotional advertising shall occur prior to the events A total of 600 barrels will be distributed The RECIPIENT shall submit to the DEPARTMENT copies of flyers and any other promotional materials produced in conjunction with this project If the RECIPIENT charges residents a fee for the barrels,the income received from the sale of the bins shall be listed as a credit on voucher support Form C2 2of12 Grant No G0400228 Coordinated Prevention Grant Agreement with City of Kent TARGET: (What measurable change or accomplishment this project will achieve) Over the two-year grant period,600 barrels will be distributed,providing a market for 30 tons of recycled-content material MlI,ESTONES (Intermediate'results that lean(to the ACTIONS MEASUREMENT target) The number of who take the steps by this The actions the How the recipient people or businesses described below date recipient takes to knows the change took encourage the change place' January 04 A Procure barrels and Invoiced and signed and 05 distributor vendor participation agreements February B Arrange date and Receive signed use 04 and 05 site of event permit August 04 and 05 13,979 single-family Receive flyer March 04 C Event publicity Confirmation from households annually and 05 post office September 04 and 05 300 households Attend distribution March 04 D Ihstnbution event Barrels sold,income annually event to buy barrel and 05 held received October 04 and 05 150 households Complete and return September E Collects survey Compiles survey annually survey(others 04 and 05 data results contacted directly) March OS 3of12 Grant No G0400228 Coordinated Prevention Grant Agreement with City of Kent 2) PROJECT TITLE: COMPOST BIN DISTRIBUTION(WRR) Goal Statement The goal of this project is to increase waste reduction and recycling to the City of Kent by providing the means for residents to purchase low-cost compost bms to recycle and reuse compostable yard debris at their residence Maximum Ehptble Cost $ 35,000 Proiect Description The RECIPIENT shall conduct compost bin distribution events in the sprig of 2004 and 2005 Promotional advertising shall occur prior to the events A total of 300 compost burs will be distributed The RECIPIENT shall submit to the DEPARTMENT copies of flyers and any other promotional materials produced in conjunction with this project If the RECIPIENT charges residents a fee for the compost bms,the income received from the sale of the bins shall be listed as a credit on voucher support Form C2 TARGET PLAN I • 4 of 12 Grant No. G0400229 Coordinated Prevention Grant Agreement with City of Kent TARGET: (What measurable change or accomplishment this project will achieve) Over the two-year grant penod,63 8 tons of organic material will be diverted from the waste stream and reused in residential yards and gardens. (tonnage diversion is based past King County surveys that figured 500 Ibs annually per bun,at 85%participation rate) M ULESTONES (Intermediate results that lead to the ACTIONS MEASUREMENT target) the number of who take the steps by this The actions the How the recipient people or businesses described below date recipient takes to knows the change took encourage the change place January 04 A Procure bins and Invoiced and signed and 05 distributor vendor participation agreements February B Arrange date and Receive signed use 04 and 05 site of events permit 13,979 single-fancily Receive flyer March 04 C Event publicity Confirmation from households annually and 05 post office 150 households Attend distribution March 04 D Distribution event Buis sold,income annually event to buy bin and 05 held received 75 households Complete and return September E Collects survey Compiles survey annually survey(others 04 or 05 data results contacted directly) 3) PROJECT TITLE: KITCHEN WASTE COMPOSTING PILOT PROJECT(WRR) Goal Statement The goal of tins project is to study the electiveness of latchen waste composting and determine the annual food waste diversion for different sized households Maximum Enable Cost $9,628 ch dule January 1,2004 through December 31,2005 Proiect Description- TARGET PLAN 5of12 i Grant No G0400228 Coordinated Prevention Grant Agreement with City of Kent TARGET: (What measurable change or accomplishment thcs project will achieve) 12 households in sign up for and remain in the pilot project for the two year grant cycle A report will be published upon project completion outlining results MII.ESTONES (Intermediate results that lead ACTIONS MEASUREMENT to the target) The number who take the steps by this The actions the recipient Haw the recipient knows of people or described below date takes to encourage the the change took place businesses change 42,500 Become aware of March A Kitchen waste project Confirmation from post residents program 2004 solicitation flyers mailed office 200 residents Express interest in April B Flyer responses received panccipatmg in 2004 project 100 Receive I April C Send participation Confirmation from post households applications 2004 application flyers to office qualifying households 12 Sign up to May D Meeting with Participation notices signed, households participate in 2004 participatmg households to meeting held,supplies project educate about and discuss delivered program,and distribute supplies 12 Record quarterly Aug 04 E Compiles results, Database to track quarterly households amount of kitchen Nov 04 follow-ups in households as outcomes waste diverted Feb 05 needed May 05 Aug 05 Nov 05 Dec 05 F Final Report and Published program Jan 06 Findings brochure and press release 6of12 Grant No G0400228 Coordinated Prevention Grant Agreement with City of Kent Communication/Renortln¢: The DEPARTN ENT's project officers will contact the RECIPIENT representatives in accordance with the implementation/verification schedule(s)attached herein It is the responsibility of the RECIPIENT to be prepared to discuss if the project is moving along on schedule and what technical assistance may be required All payment requests must be accompanied by a progress report which is satisfactory to the specifications of the grant officer Payment requests are due at least every 12 months and no more frequently than every six months The RECIPIENT must also complete annual reports on the prescribed forms and submit to the DEPARTMENT a Final Performance Analysis report(FPA)including the effectiveness of the approaches used and any lessons learned,unless instructed otherwise by the DEPARTMENT The FPA is due no later than 45 days following the expiration of this agreement When completing the FPA,the RECIPIENT is required to complete the"innovative/learning pmject" requirement as described on page 53 in the Guidelines under the heading of Project Analysis Project 3 of this agreement must be used as the innovative/learaing project. If the RECIPIENT chooses to complete more than one uinovative/leammg project,projects 1 and 2 may not be used IMPLEMENTATION/VERIFICATION SCHEDULE 1 RECYCLED CONTENT MATERIAL DISTRIBUTION Project I Contact Step Milestone Date Status and Comments C Event Flyers received by single Publicity family households Feb/March 04 and 05 D.Hold Residents attend event—all distribution barrels distributed March 04 and 05 Event E and F Participants using barrels September 04 and 05 Surveying of participants 2 COMPOST BIN DISTRIBUTION Project Contact Step Milestone Date Status and Comments C Event Flyers received by single Publicity family households Feb/March 04 and 05 D.Hold Residents attend events—all Collection bins distributed March 04 and 05 Events 7of12 Grant No G0400228 Coordinated Prevention Grant Agreement with City of Kent 3 KITCHEN WASTE COMPOSTING PILOT PROJECT Project Contact Step Milestone Date Status and Comments D Meeting with participating Participation notices June 04 households to educate about and signed,meeting held, discuss program,and distnbute supplies delivered supplies E Compiles results, follow-ups in Quarterly reports from Nov 04 households as needed participants Aug 05 CPG BUDGET PROJECT TASK MAXIMUM ELIGIBLE COST 1 Recycled Content Matenal Distribution(WRR) $66,000 2 Compost Bin Distribution(WRR) $35,000 3 Kitchen Waste Composting Pilot Project(WRR) $9,628 TOTAL $ 110,628 FUND SOURCE Total Eligible Cost $ 110,628 FUND FUND SHARE(%) MAXIMUM FUND AMOUNT Local Toxics Control Account(LTCA) 75% $82,971 MATCH REQUIREMENT MATCH SHARE(%) MATCH AMOUNT Cash Match or Interlocal Costs 25% S 27,657 ADDITIONAL BUDGET CONDITIONS I Overhead is eligible,the RECIPIENT may charge 25 percent of RECIPIENT salaries and benefits applied directly to the project as overhead 8of12 Grant No G0400228 Coordinated Prevention Giant Agreement with City of Kent 2. The RECIPIENT'contact for billing and invoice questions is NAME* Donna Palmer TELEPHONE. 253-856-5511 3. Grant payments should be made out payable to the following and mailed to tins address City of Kent Public Works Engineering Department 220 40i Ave S Kent WA 98032-5895 SPECIAL TERMS AND CONDITIONS A. MINORITY AND WOMEN'S BUSINESS PARTICIPATION The RECIPIENT agrees to solicit and recruit,to the maximum extent possible,certified minority- owned(MBE)and women-owned(WBE)businesses in purchases and contracts initiated after the effective date of tlus Agreement In the absence of more stringent goals established by the RECIPI ENT's junsdiction,the RECIPIENT agrees to utilize the DEPARTMENT's goals for minority-and women-owned business participation in all bid packages,request for proposals,and purchase orders These goals are expressed as a percentage of the total dollars available for the purchase or contract and are as follows Construction/Public Works 10%MBE 6%WBE Architecture/Bagmeenng 10%M13E 6%WBE Purchased Goods 8%MBE 4%WBE Purchased Services 10%MBE 40/*WBE Professional Services 10%MBE 4Y*WBE No contract award or rejection shall be made based on achievement or non-achievement of the goals Achievement of these goals is encouraged,however,and the RECIPIENT and ALL prospective bidders or persons submitting qualifications shall take the following affirmative steps in any procurement initiated after the effective date of this Agreement 1 Include qualified minority and women's businesses on solicitation lists 2 Assure that qualified minority and women's businesses are solicited whenever they are potential sources of services or supplies 3. Divide the total requirements,when econoancally feasible,into smaller tasks or quantities to permit maximum participation by qualified minority and women's businesses 4. Establish delivery schedules,where work requirements permit,which will encourage participation of qualified minority and women's businesses. 5 Use the services and assistance of the State Office of Minority and Women's Business Enterprises(OMWBE)and the Office of Minority Business Enterpnses of the U S Department of Commerce,as appropriate 9of12 Grant No G0400228 Coordinated Prevention Grant Agreement with City of Kent By signing this Agreement,the RECIPIENT certifies that these steps were,or will be followed Any contractor engaged by the RECIPIENT under this agreement shall be required to follow these five affirmative steps in the award of any subcontract(s) The RECIPIENT shall report to the DEPARTMENT payments made to qualified firms at the time of submitting each invoice and on forms provided by the DEPARTMENT The report will address 1 Name and State OMWBE certification number of any qualified firm receiving funds under the voucher,including any sub-and/or sub-subcontractors 2 The total dollar amount paid to qualified firms under this invoice B INTERLOCAL AGREEMENTS If parties other than the RECIPIENT are contributing to the local share of project costs,memoranda of understanding or other written agreements confirming the contribution must be negotiated These agreements must specify the exact work to be accomplished and be signed by all parties contributing to the local match of this project Copies of these agreements shall be submitted to the DEPARTMENT C PROCUREMENT AND CONTRACTS 1 The RECIPIENT shall follow their standard procurement procedures and/or applicable state law in awarding contracts,RECIPIENTS with no formal procurement procedures must comply with the"Standards for Competitive Solicitation",found in the Administrative Reguivements for Ecology Grants and Loans.WDOE 91-18(Revised October 2000) 2 Following execution,at the request of the DEPARTMENT,the RECIPIENT shall subaut a copy of all requests for qualifications(RFQs),requests for proposals(RFPs),and bid documents relating to this grant agreement to the DEPARTMENT 3 The RECIPIENT may use existing contracts that conform to adopted procurement procedures and applicable state laws The RECIPIENT shall notify the DEPARTMENT if it used contracts entered into prior to the execution of the grant agreement for performance of grant funded activities D SEPA COMPLIANCE To ensure that environmental values are considered by the state and local government officials when making decisions,the RECIPIENT shall comply with the provisions of the State Environmental Policy Act(SEPA),Chapter 41 23C RCW,and the SEPA Rules,Chapter 197-11 WAC Copies of the SEPA documents shall be sent to the DEPARTMENT's Environmental Review Section,the appropriate regional office,and Ecology's Waste Management Grants Section E WETLANDS PROTECTION To comply with the directive of Executive Order 90-04,Protection of Wetlands,all local governments are requested and encouraged to make all of their actions consistent with the intent of this executive order, specifically,(1)to avoid,to the extent possible,adverse impacts associated with 10 of 12 Grant No. G0400228 Coordinated Prevention Grant Agreement with City of Kent the destruction or modification of wetlands,and(2)to avoid direct or indirect support of new construction in wetlands wherever there is a practical alternative F FAILURE TO COMMENCE WORK The DEPARTMENT reserves that right to terminate this grant in the event the RECIPIENT fails to commence work on the project funded herem within six(6)months after the effective date G PROJECT INCOME Any project income directly generated as a result of the activities funded by this grant shall be reported as a credit against the expenses of that activity,as required by the DEPARTMENT's Administrative Requirements for Ecology Grants and Loans.WDOE 91-18 (Revised October 2000) H. GRANT PROJECT REPORTING The RECIPIENT,in conjunction with submission of payment requests,or at the request of the project officer,shall prepare Progress Reports and submit them to the DEPARTMENT as required by paragraph J,General Terms and Conditions"Compensation" These reports shall include,but not be hmited to,the following information 1 Brief description of activities for each project 2. Brief discussion of progress toward expected outcomes 3. Notification of any successful projects worth sharing with other junsdictions or the media,needs for technical assistance from the DEPARTMENT,or any other comments and relevant information I PROMOTIONAL AND EDUCATIONAL MATERIALS A copy of all promotional and educational materials developed as part of tins grant shall be submitted to the DEPARTMENT concurrent with public distribution The DEPARTMENT shall have the right to use any printed materials developed as part of tlus project in any manner the DEPARTMENT deems appropriate The Washington State Department of Ecology will be acknowledged for providing finding in all published material and oral presentations that result from this grant J. AMENDMENTS AND MODIFICATIONS No subsequent modification(s)or amendments)of tins grant agreement shall be of any force or effect unless in writing,signed by authorized representatives of the RECIPIENT and DEPARTMENT and made part of this agreement,EXCEPT a letter of amendment will suffice to redistribute the budget without increasing the total maximum eligible cost or to change the DEPARTMENT's Project Officer or the RECIPIENT's Project Coordinator or to extend the period of performance as set forth in the Grant Agreement. 11 of 12 Grant No G0400228 Coordinated Prevention Grant Agreement with City of Kent K ALL WRITINGS CONTAINED HEREIN This agreement,the appended"General Terms and Conditions",and the DEPARTMENT's Administrative Requirements for Ecology Grants and Loans,WDOE 91-18 (Revised October 2000), contain the entire understanding between the parties,and there are no other understandings or representations except as those set forth or incorporated by reference herein IN WITNESS WHEREOF,the parties hereby execute this Grant STATE OF WASHINGTON DEPARTMENT OF ECOLOGY C]TY OF KENT Cullen D Stephenson Date Authorized Official Date Program Manager Solid Waste and Financial Assistance Print Name of Authorized Official Title • 12 of 12 Kent City Council Meeting • Date March 16, 2004 Category Consent Calendar 1. SUBJECT: PACIFIC HIGHWAY HIGH OCCUPANCY VEHICLE LANES AGREEMENT WITH METRO TRANSIT FOR BUS SHELTER PADS —AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the agreement for right- of-way acquisition and construction of the bus shelter pads, and authorize staff to accept the funds and establish a budget for the funds to be spent within the road improvement project, subject to final modification by the City Attorney and Public Works Director. 3. EXHIBITS: Public Works Director's memorandum and agreement with King County Metro Transit • 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6H • PUBLIC WORKS DEPARTMENT Don E Wickstrom, P E Public Works Director Phone 253-866-5500 Fax 253-856-6500 KENT Address 2.20 Fourth Avenue S WASH1MGTOM Kent,WA 98032-5895 DATE: TO: Public Works Committee FROM: Don Wlgkstrom,Public Works Director THROUGH L� SUBJECT: Pacific Highway South HOV Lanes Project Agreement with IGng County Metro Transit for Construction of Bus Shelter Pads MOTION Recommend authorizing the Mayor to sign the Agreement for nght-of-way acquisition and construction of the bus shelter pads, authorize staff to accept the funds and establish a budget for the funds to be spent within said road unprovement project, SUMMARY:This Agreement is between the City of Kent and King County Metro Transit for the acquisition of right-of-way and the construction of concrete shelter pads,litter receptacle pads and retaining walls at twelve of Metro's bus stops along Pacific Highway South Metro has agreed to pay the City$172,000 for this work BUDGET IMPACT, No Unbudgeted Fiscal/Personnel Impact BACKGROUND: King County Metro Transit operates several bus routes along Pacific Highway South through the City of Kent At 12 bus stop location within the City,Metro desires to construct bus shelters behind the sidewalk Because of the ease and cost savings associated with performing this work in conjunction with the City's project,Metro has agreed to pay the City$172,000 to cover the cost of nght-of-way acquisition and construction of the pads After completion of the concrete pad installation,Metro will install the bus shelters at their own expense Mayor White and Kent City Council 1 Pac Hwy 8 HOV Lanes—Metro Transit Agreement between King County and the City of Kent for Funding,Construction and Implementation of Pacific Highway South HOV Lanes Project THIS AGREEMENT is made and entered into this day of ,2004,by and between the City of Kent,hereinafter called the"City,"a municipal corporation of the State of Washington,and King County,acting through its Department of Transportation,hereinafter called the"County,"both of which entities may be collectively referred to hereinafter as thc'Tartics" WHEREAS,the City has undertaken the Pacific Highway South HOV Lanes Project to construct right-of- way improvements from S 272od St to Kent Des Momes Road, and WHEREAS,Pacific Highway South is a major north/south arterial street that serves both local and regional traffic within the City by all modes,including public transit,and WHEREAS,the City desires to improve traffic operations and pedestrian circulation,support transit and enhance the overall safety and aesthetics of Pacific Highway South,and WHEREAS, the County wants to improve transit operations along Pacific Highway South and supports the City's efforts to upgrade this facility in a manner more compatible to transit and pedestrian modes, and WHEREAS, the County has agreed to contribute funding to construct those project elements that directly benefit transit operations, NOW,THEREFORE,in consideration of the mutual covenants contamed herein, the sufficiency of which is acknowledged,the parties hereto agree as follows Section I.City Responsibilities 1 1 The City will be responsible for the design,construction/installation,testing and acceptance of all improvements-including those requested by the County-in plans prepared by the City identified as the"Pacific Highway South HOV Lanes Project"(hereinafter, the"Project") 12 The City shall submit to the County plans for the Protect for review prior to construction.The County will have the opportunity to review plans at 60%,90°/y and 1000/6 13 The City will be responsible for the administration of any contracts it enters into for the performance of its responsibilities under this Agreement The City will provide the County with quarterly progress reports to identify work progress,schedule adherence, and other matters of significance in the performance of this Agreement Prior to the issuance of a change order or acceptance of contractor's work,the City will notify the County and provide the County with the opportunity to comment on and inspect the following items included in.the Project a Bus shelter footings(m the formed stage prior to concrete pour per the Note on C 204- Footings in Attachment C) b Handholds and conduits for providing power to bus shelters However,neither the County's comments on nor inspection of City-led improvements under this Agreement will relieve the City of its responsibility for said improvements City of Kent Agreement Pacific Highway South HOV Lanes Project 2/02/04 1.4 The city shall contact the County two weeks n advance of construction to remove or relocate bus shelters and 3 days in advance to move or relocate a bus stop 15 The City will acquire right of way and install twelve(12)shelter footings,Litter Receptacle pads and Retaining Walls(where applicable) as identified in Attachment B and Attachment C,in order to create accessible bus stops meeting federal,state and King County requirements The City shall exercise due diligence in acquiring said right of way 16 The City will install conduit and wrong from the City's power source to the Metro J-box and conduit from the Metro 7 box to the shelter footing per the Internal Lighbng Design.in Attachment D 17 The City will be responsible for arranging power service and for paying all ongoing electrical power costs related to internal bus shelter lighting improvements This obligation shall survive any expiration or termination of this Agreement 1 8 The City is hereby designated the C minty's construction agent for this project The City will incorporate the County's Plans and Specifications into the City's project and advertise the project for competitive bid The City will administer the construction of the project and shall have final judgment,after consultation with the County,with regards to decisions related to the work of the contractor Section 2. County Responsibilities 21 The County will be responsible for removing the existing shelters and installing new or refiirbished cobalt blue shelter units at their own expense.The Parties agree to manage the phasing of the shelter-related construction so as to minimize the impacts to transit customers 22 The County will install bus shelters with internal lighting capability at up to twelve(12)bus zones as identified in Attachment B.The County will maintain the bus shelters. 23 Upon notification by the City of complehon of work identified in Sectionl 3,the County will inspect the improvements consistent with the County approved plans and specifications If the County finds that any work does not meet the terms of this Agreement,or any specifications or terms established hereunder, the County will prepare a punch list of such items and submit it to the City.Work that does not comply with the agreed upon specifications and terms, except as modified by mutual agreement between the City and County,will be corrected by the City at no cost to the County Notice of acceptance will not constitute acceptance of any unauthorized or defective work or material The County retams all rights hereunder and at law to require the City to remove,repair,replace,or dispose of any unauthorized or defective work or to recover damages for any such work or material. Section 3.Financing 3.1 The construction budget for the Project is$12,000,000 00 The County will contribute directly to the City an amount not to exceed$172,000 to support the project These costs are intended to City of Kent Agreement ' Pacific Highway South HOV Lanes Project 2/02/04 offset City planned construction of transit related improvements identified in Attachment A, Tasks 1,3,and 4 32 The City's Right of way cost estimates are contained on Attachment E 33 If the City and County mutually agree that it is mfeasible to secure right of way(ROW)for a specific site, the County will reduce its contribution under this Agreement by an amount taken from the construction cost estimate for that site(attachment B),the property acquisition costs estimate for the site identified in Exhibit E(less the costs of item B, C,D,E,F and possibly l), as well as a 1/12a'pro-rated share of$60,000 This share is based upon the difference between the City's estimated ROW costs($112,000)and the County's total contribution to the project The City and County may,by mutually written agreement,exceed the estimated parcel costs identified in Attachment E on a site by site basis up a maximum of$172,000 34 Once all available and mutually agreed ROW has been secured,funds not spent by the City on right of way acquisition will available to the City for project construction and the improvements identified herein including any unforeseen costs associated with the bus stop improvements 3 5 The County shall absorb all costs associated with Task 2,Installation of bus shelters, identified in Attachment A 36 The City will invoice the County upon completion of the tasks identified in Attachment A,except for Task 2,Installation of Bus Shelters,wherein the County will remove and install the bus shelters at County expense The County will make payment to the City within thirty(30)days of receipt of an invoice for work deternmmed to be performed in accordance with the terms of the Agreement The County's total payment to the City under this Agreement will not exceed $172,000 Section 4. Ownership and Maintenance 41 Unless otherwise agreed to by the Parties,the City will own and maintain all improvements constructed by the City as part of the Project 42 The County will own and maintain the shelter footings,litter receptacle pads,retaining walls around the shelter footing(where applicable) constructed by the City behind the sidewalk but paid for by the County The County will own and maintain all King County Metro bus shelters, titter receptacles,benches,internal shelter lighting fixtures and bus signage supplied by the County Section S.Legal Relations 51 It is understood that this Agreement is solely for the benefit of the parties hereto and gives no right to any other party No joint venture,agent principal relationship or partnership is formed as result of this Agrecment No employees or agents of one party or any of its contractors or subcontractors shall be deemed, or represent themselves to be, employees or agents of the other Part' 52 To the maximum extent pernvtted by law,each party shall defend,indemnify, and hold harmless the other party and all of its officials,employees,principals,and agents from all claims,demands, City of Kent Agreement ' Pacific Highway South HOV Lanes Project 2/02/04 suits,actions and liability of any kind,including injuries to persons or damages to property,that arise out of,are connected with,or are due to any negligent acts or omissions of the indeinnifj i g patty and/or its contractors,officials, employees,agents and representatives in performing work under this Agreement,provided,however,that if(and only if)the provisions of RCW 4 24 115 apply and any such damages and injuries to persons or property are caused by or result from the concurrent negligence of both parties to this Agreement,or their contractors,officials, employees, agents and representatives,then in such instance each party's obligation hereunder applies only to the extent of the negligence of such party or its contractors, officials,employees,agents or representatives Each party specifically assumes potential liability for actions brought by its own employees against the other party and for that purpose only each party specifically waives,as to the other party only,any im rmnity under the Worker's Compensation Act,RCW Title 51,and the parties recognize that this waiver was the subject of mutual negotiation and specifically entered into pursuant to the provision of RCW 4 24 115 53 The City and the County shall comply and shall ensure that their contractors comply with all federal,state and local laws,regulations,and ordinances applicable to work and services to be performed under this Agreement 54 In the event any party incurs attorney's fees,costs or other legal expenses to enforce provisions of this section against another party,all such fees, costs,and expenses shall be recoverable by the prevaihngparly 55 This Agreement shall be interpreted in accordance with the laws of the State of Washington in effect on the date of execution of this Agreement The Superior Court of King County, Washington shall have exclusive jurisdiction and venue over any legal action ansmg under this Agreement 56 The provisions of this Section shall survive any expiration or termination of this Agreement Section 6. Records and Audit 61 During the progress of the design and construction of all improvements covered by this Agreement and for a period not less than three(3)years from the date of completion of all improvements,records and accounts pertaining to the work of this Agreement and accounting therefore are to be kept available for inspection and audit by representatives of the parties Copies of the records shall be furnished upon request and shall be maintained in accordance with a work order accounting procedure prescribed by the State Auditor's Office Section 7.Agreement Duration and Termination 7.1 This Agreement shall take effect upon execution by both parties and shall expire January 31, 2006,unless extended by mutual agreement of the Parties or unless terminated in accordance with the provisions of this Section 7 72 Either party may temmmte this Agreement in the event that the other party materially breaches this Agreement. Written notice of such tecnmiahon must be given via certified mail by the party terminating this Agreement to the other party not less than fourteen(14)days prior to the effective date of termination City of Kent Agreement 4 Pacific Highway South HOV Lanes Project 2/02/04 73 Either party may terminate for its convenience and without cause by providing written notice to the other party not less than thinly(30)days prior to the effective date of termination 74 Faihue by either party to require full and timely performance of any provision of the Agreement at any tim shall not waive or reduce the right of either party to insist upon complete and timely performance of such provisions or any other provision thereafter Section 8.Identification of Contacts at City and County 8 1 The City and the County each agree to appoint a Project Manager to represent the interests of their respective agencies The two Project Managers will work collaboratively to implement this Agreement 82 All official communication concerning this Agreement should be directed to the following Project Managers Mark Howlett Paul Alexander Project Manager Project Manager City of Kent King County Dept of Transportation 220 4`h Avenue South. 201 S Jackson Street,MS KSC-TR-0413 Kent,WA 98032 Seattle,WA 98104 Any changes in agency contacts from those noted above must be confirmed in writing to the other party Section 9. Entire Agreement This document contains all terms, conditions and provisions agreed upon by the parties thereto, and shall not be modified except by written amendment, Such amendments may be made to this Agreement within the previously approved budget or other applicable authority for and on behalf of the City by its Mayor or designee,and for and on behalf of the County by its General Manager of the Transit Division or designee. The written provisions and terms of this AGREEMENT, together with any attached Exhibits, shall supercede all prior verbal statements of any officer or other representative of either party,and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner this AGREEMENT. This document, including all Exhibits, is the entire agreement between the parties. Should any language in any of the Exhibits to the AGREEMENT conflict with any language contained in this AGREEMENT,the terns of this AGREEMENT shall prevail Section 10. Assignment Any assignment of tins AGREEMENT by either party without the written consent of the non- assigning party shall be void. Section 11.Modification No waiver,alteration,or modification of any of the provisions for the AGREEMENT shall be binding unless in witting and signed by a duly authorized representative of the CITY and the COUNTY City of Kent Agreement Pacific Highway South HOV Lanes Project VOVO4 Section 12.Severability if any provision of this Agreement is held invalid by a court of competent jurisdiction,the remainder of the Agreement shall not be affected thereby if such remainder would then continue to serve the purposes and objectives ongmally contemplated by the parties IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date first written above The City of Kent By Jim White, Mayor Date City of Kent Approved as to Form By Date King Co By �V i-3M "Rick C Walsb, General Manager Date King County Metro Transit Drmon Approved as to Form t' II I , � Jcfl*a Hardung Date D�Udury Prosecuting Attorney City of Kent Agreement Pactfic highway South HOV Lanes Project 2/02/04 Attachment A Funding of Transit Related Elements Pacific Highway South HOV Lanes Project City of Kent,Washington The County contribution for this project is as follows TASK BUDGET Task 1: Bus Zone and Shelter Improvements $52,000 County contribution to the City supporting the construction of bus shelter footings,litter receptacle pads and retammg walls County contribution to the City supporting the construction of handholds,conduit runs,in addition to the wrung and fuses from the City power source to the handholds per County specifications in order to provide power to bus shelter Task 2: Installation of Bus Shelters $83,200 County cost for mstaliation of bus shelters at up to twelve(12)locations Task3: General Street and Pedestrian Improvements $120,000 County contribution to the City to support construction of street rechannelization,northbound and southbound HOV lanes, curb,gutter,sidewalks, and curb ramps. City of Kent Agreement ' Pacific Highway South HOV Lanes Project 2/02/04 i Draft-Attachment B Bus Shelter List Pacific Highway South HOV Lanes Project City of Kent,Washington Shelter Zone Kent Parcel Station Footing Footing Shelter Litter Internal 6"wide Number Type Size Type Receptacle Shelter Retaining Construction Pad Lighting Wall Cost 1 60750 462632(S) 37+55R B21 9'-8'k4'4" F21 Yes Yes No S3,819 70 2 60752 ROW @ S 47+81R B21 9'-8"x4'-4" P21 Yes Yes No $3,819 70 268m St 3 60760 462607(S) 78+90R B21 9'-8 x4'-4" F21 I Yea Yes No $3 819 70 4 60780 ROW@ 105+00 Bll 9'-8"xT Fil Yes Yes No 54,40994 396489(N) 5 60790 396476(N) 122+95R B21 9'-8"x4'4" F21 Yes Yes Yes $5,455 35 6 48950 396469(1) 148+10R B22 18'x4'4" F22a Yes Yes No $6,11152 7 48960 396453(N) 165+50R B21 9'-8"x4'-4" F21 Yes Yes Yes N/A(ROW a y) 8 50480 397246(N) 165+401. B21 9'-8"x4'4" F21 Yes Yes No $3,819 70 9 50481 397232(N) 149+OOL B21 9'-8"x4'4" F21 Yes Yes No $3,819 70 10 61190 397225(l) 140+1OL B21 9'-8"x4'4" F21 Yes Yes No $3,819 70 11 61190 397212(N) 123+601, B21 9'-8"x4'4" F21 Yes Yes No $3,819 70 12 61200 396496N 100+45L B21 9'-8"x4'4" F21 Yes Yes No $3,819 70 13 61220 462656(S) 72+101, B21 9'-8"x4'-4" F21 Yes Yes Yes $5,465 59 City of Kent Agreement • Pacific Highway South HOV Lanes Project 2/02/04 Attachment C Includes D103-Standards for Construction of Tramzt Passenger Facilities Footing Plans,Sections,Details,Notes and Schedule C206-Rock and Concrete Cut Retaining Walls Details C211-Bus Sign Foundation Litter Receptacle Pad Details City of Kent Agreement Pacific Highway South HOV Lanes Project 2/02/04 •-. r{ FOOLING DINENSONS leo ma . • utv.m e� � - �.�Eau�l• •,1 M nar ,Y rY r,A ••/ •I : U M 11M Lis <r♦ •�h n-, NOTES, B%1�1 i00i1N�• ,r r Y , •• wwm rw N.Mlr nuM ,tm rw }-- a•� ' rows K.ra,rnm.roc rw I,I^, f-r t-rt a-a 1.. � .♦ •.. t' t tL,px nloew s�K<�w r•oownc n, ,a . , t :�iN d•rie. tlutt nrw wvr wrvrx yr fatK W<Mt Y a erx w,e,-w.salt roc Iw,r ar<rr : _ 1.I nwl m v.rr w r,r<r rutl•r e . ♦ .1 , IIKlQ X 4YL lY 6IM9Y tl M IPY[M wIL Foon+c •r .y ' j• I aa I s• D• •s_G• s-o• •• 3 I Bt�T� _ 1 I .or,s,es.K f •• .. • 1 1 iwarrxaVn , ♦ m t sn�ra,tr ••, E a,nr+• LESML Ll •art a e[w"T-,���J I! I cur Y i' Ewa •. • ,SPr�q)C. a two � E I ...'.• _ II_ ICI o r. rn Ir ou 1 013 e_.FDOTMO w.♦ •ul er fNDINN. ar Y [ormFn N rose..r e<<al tr �! h• _ ral•�A rr,A'1Moltu mON•_ _�_ aw,[�1 .1Y - • N �r trr,..e- ,trr Kser tau K1M,r«l,r m role a o nNtl•sry vrra Kc K �< �.n-tu pro� rloao•alo,s h vw xs iew m wl.e mtaew MffD ON e.u< M rwcuw K6,w pv K,T.•<!m Ip® OFIFANBR G103 ra.. PASRPI7GBR FACOl118S 3/I-GHAYFER ALL 6• 12-r- SHELTER FOOTING POSED EDGES r J4 REBAR IL 0 12. O C SEE NOTE 3 y•yqM OR IANO FG PAD GRADE (NOTE: 3) I � �AT TOP OF WALL I { SEE NOTE 2 B STRUCTURAL FILL N - 2TE MAX_ �: 1 �• r 4'-6.OIAARRY SPALLS .—• OR FOOTING PAD a 6I FILTER FABRIC T AROR l/VHONC PAD AT BASE OF WALL AT SIDEWALK WITH NO WING WALL I SECTION 1 T'MINUS WASHED ROCK 3/4.CHAMFER AL SCALE 1/2--1-0- _ 4,-0� 4'0 PERFORATED PVC PIPE DAYLIGHT TO PAVEMENT TO IXPOSED EDGE {.t-2.{6 VARIES LIMITS DRAJM B11N PO` AELLSS HIGHER 3'FREEBOARD OVERI I SEE NOTE 2 REPAR SIDEWAIX TO FINSHED GRADE(NOTE 3) I HATCH EXISTING 3' SLOPE NOTE VARI6 SEE SPECS FOR ROCK SIZES 4'-6'OLMRRY SPALLS -F3'[SNm� / 3 FILTER FABRIC FILL F P�ROOFl�EJ ROCK RETAINING WALL FR.iFR FAIHRK; a r= 1 > VARIES.SEE OTHER DETAILS SECTION 3 {� —F" FOR SLAB CA=VTS SCALE NONE - wNus MIAs Eo Roar u - 1 µ RE BAR o +2'o c (EACH WAY) {P PERFORATED PVC PIPE wrua+r TO PAVEMENT TO WITH WING WALL DRAIN FOR WALLS HICHM GENERAL WALL NOTES THAN 2' (NOTE 1) CONCRETE RETAINING WALL 1 NO CONNECT TDRAINAGE EXISTING ED IF WALL f5 LINTER C FEET HIGH SECTION Z CONNECT TO EXISTING DRAIN PIPE, IF APPLICABLE b^ SCALE 1/2--1-0' - 2 CONSDRICT REAR WALL FULL LENGTH OF SHELTER i� POUTING OR LANDING PAD TAPER TO MEET SITE SLOPE JL H J>• k/ 3 RESTORE LANDSCAPING OR SPREAD BEAKY BARK TO Q Q !R, MATLIH EKWM � e -. 41 y mpm D-Pvtm-PE W TmWsr U.-Tn t Dm ,LAN go u AI ® 0TRANSIT PASSENGER FACILITES gyp' ROCK AND CONCRETE C206 a CUT RETAINING WALLS 2' MIN FROM 3'-0• SIGN POST TUBING AT (METRO TO FUWM) OR 4' FROM FOGU E 9• EXIST GROUND �� 71'P �4-4-µ-4-4-I-F44 1-4-1 1.J4 JJ—I—I—I—L L4-4- �\ �^ 1111JJJ_LLL LLJ_ DRIVE RIVET(TTP) ,�1 ���L ddb� JJJ_I_LL 1 < 111 1JJ_t_LL LL ANCHOR BM7 S2* SQUARE KIN ANCHOR / r ILL (TTP OF 4) I *I 11 1 1 I I I I I (METRO) TUBING , n 71_I1 I I rlrrr TTT —1-1-1-1—rr r PLAY CONCRETE WE � \ 7 7 T�l 1 l-r r rJ�r r M6'F 4.4 6/6 • •r-Tj9- 'F-T -9�i-PYf-rf AM A185 ncN ME NOTES 'rTT11�7-rrrr rr tt�ii-1 1 CONCRETE MIX TO BE PER SPECFTCATIONS % a /� U 4 -/4 PEBAR 2 AND D VALL PROVIDE NEW RIVE RIVETS ANCHORTI1BRc ';\/\�12, /�/ PLAN 3 RESTORE AREA TO ORIGINAL CONDITION 14 3/4' i 4 INSTALLATION DETAILS FOR RELOCATION SECTION a C""-•"1 n OF STREET SIGNS AND WNS OTHER THAN BUS SIGNS SHALL HATCH THE EXISTING INSTALLATION AND STANDARDS S BUS SIGN POLE FOUNDATION DETAIL A SECTION r SCALE NONE LNrER RECEPTACL PAD MOTES a BUSx BUS SIGN PEDESTAL ASSEMBLY I SAWCUT ASPHALT PAVEMENT.AS REQUIRED. d (ME (SUPPLIED BY METRO) FOR THE CONCRETE PIS ik 3/4-SS SDWLTS W/WASHERS 2 CONCRETE PAD TO BE CAST IN PLACE ANDDPPLLmNER HEADS METRO) 3 CONCRETE PAD TO BE INSTALLED LEVEL MID PARALLEL (SU WDH THE SHELTER FOOTING OR LANDING PAD 1/2'°SS KIRK BOLT RITX CONCRETE ANC p' 3 T 2•IIINIMUMSLIPPM BY mMEEMBBED LITTER RECEPTACLE PAD (CONCREW DETAILal SCALE C I¢ �A = Ina _BUS SIGN PEDESTAL MOUNT RE m °ip"m°"`'t T""P°""°O'n`°' p"O° im 96 DETAIL B ® w �As Ham TRANTRANSITf PASSENGER FAa ES SCALE NOW — BUS°°•°■°�2/ S IGN FOUNDATION LITTERRECEPT C211 ArI r' DAr) Attachment D Standards for Construction of Transit Passenger Facilities Internal Bus Shelter Lighting Details City of Kent Agreement tD Pacific Highway South HOV Lanes Project 2/02104 Sd SYIIJYd a89A3abtid Lilyu -. � _ J]Sh'SYddO �' _ �rou:InxtsNo�aw wavcars "^°"�' M.IF I..r fY.•• • A[N;• YYy R{Jryr 1 YV NyM.lpJipyWll.y iwrl[INbHJIAM WIpgry.]/Y J[1 .i1\iYlarl N)11 I Y Lt.W ftlNJ SY6lY14Q1.W)1LYJW IN VNI[0[.O JY AYD4'wl!Y^I�F IILW YJnT J {` YLMNIMOi Pf}d ON OlPO M11[iY NL L1RW'N[Y.r[.UW PY 11 , rig IFf{ 'YITLdY...FAJ])NI.W'•IAIYIW YO.SROi11.tl Nr•M•MR1N'0Yy 01 �Z t 1 W Y.nX10 I4[[OOr rP f<V/<MJ AUV{oi LY[Yw HWO 4401E r1 Al Wiw1 • i i�le� � 1 YOu'ir[iW W1M119bw R4YMYJ VAy`[.1.. 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RM6 aY[1LW11N x.LVY'.)II[4) MWrV iaL a f . lOb C yr'YYTI yL Y Yb•M LYIO)Y AI 1/Dy Y111J Y W!IM Y.rll4)[�.i • i'I f'1 Wa'r4r 1ir.i 1wr l 4c«xLw 9•M 4w.N10 mYLfY+lylu1Yf1 wUWw T]wN r 6Y r11M mfl 4ir l.11 vE.T w L"[.N. l%4Rl lM r J.<VwqTNla TL � � 1 0MY0vxaoU ;n Yiu Mk[ ti.Y•i[.MY M oYbu N fll V 1N[I u/4w Il.L Old lv a Isla.reva4ein Ill YirVx A[iO.W1 bi l•{4 Vn MM li iMlrll M 11�1 VYV•MY�^.}4•[T�V S ._r ^l eK 1mrN Y9 fap 41 i•EM dYi 9.6)L YMr M[W frr. .[•�wi ' ltlM1[tlV.'+YYT T`IN TN16N1TMT'XMN ai[[(/T"H O`iYt1Ww4TY) i4F41_'W..IILYPflAyN4 NRa�T Mr 1MH VM•.M4Tr VrM[4♦YM r1i[fl 1 n � I l -- I I l..e r. lwrM y .VIF1ID[19f ` YYn.OI ® 1 -•r L7-- _ 1 •wM 11 - YY e 1 YVIP I IRYi 1• ` Ywf! f .�w.r�w iYf t:'Jffa� I Attachment E City of Kent Estmmted Right of Way Costs City of Kent Agreement " Pacific Hrghway South HOV Lanes Project 2/02/04 smolt»ROW cod 11010 Bl d Ken PMPCW ROW CrY YrK3l CeW 39etlle SOr-Iv3d3 TnO W lh P9 UD ]eM1W f•wY BRwte TM P'NNenes led M AB9e91r1 �) (D710e dYYYI) Cwi�'0 TeW Ke196AA od PTMbt 9SOAA 63e0r hefnw6w IJur tC BbOlr lleotle4 IeMyef Orf.e�hLeFP4 CerP,A.Iwdrl Dire Neteletr•bpee llNlrt4 (q 1.'{r! hwl P{ee dw Sly 921 it Tne 16btr lrelYri INt NOB• NwTW Iiy IOAq Pr Car MlYr MCa Car APeam OOrrr N1f Olr _ 607 {61a )7 BII 9;4{J' P31 n Y Iie a b St f100 l lx50 1 3{ 317' ROW! {7{BIR MI ;116'4' P11 P Yr Yr w 0 1 0 A 1m 70 W 60760 111 a MI 9;114• P21 P r Yr No b t> 31 f3 a IOM �. 4N p . r 601 ROW ) Bll 1;'ex Pll O Y. Y. Ne 0 0 W b ,30 SO 10 m ' 131H9t B31 ;14i RI r 1 40,54 I>D 3x70 00 i IW OR B21 16YPI' 1 n a Ne 693 -- Sx00 SISB f7)0 31 39N 1 B ;'n1' P31 P Yr Yn Yr 73D 333 Y. Sim 16 60 16)leK. BSI 9;'Ni' ME P Yr Ma I Ye I No an as I lll.lwlSM s)tD >D f3 Slx 1 HSI -P a{1• P31 ! Yq Yr No 60]3 4733 SUM f600 a Sp it i «O 1120 SPRSS 1 OL B31 -S'st'�/• Ptl ! Y. No Tq Ne Nri n33 31 5700 i1S0 0 61i 3MI 1]1t60L B11 ;YfJ' R1 T. Yq N wn 13l Yq 11 I100 ISO t/SO p { 4 61 ))6{ 1a0Na BSI 9-YOP�' Rt } n vq No eon {x.)] Ne a000 t0 31 310,e60 61M61M x AIM 73�101. @I P;'aH' P!1 P Yq Ne Yq Yq wn3 )nn No IS l00 f60D 3000 a10 v $S 14 t 61130 • BII 9;a7 PII Yr Ne Yn NO 0 0 A f0 f012SO SO b Slt tl BIS ix3 Nett OR WON MA dBW rld 284114 Sn3pn laOeoB ISM Mx3tled 2OWN Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: 94TH AVENUE SOUTH AND S. 248TH SANITARY SEWER INSTALLATION CHARGE IN LIEU OF ASSESSMENT— AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Public Works Department to establish a charge in lieu of assessment for sanitary sewer connection for affected properties on a portion of 94`�Ave S and S 248 h Street, which are shown on the attached map. 3. EXHIBITS: Public Works Director's memorandum and vicinity map • 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? N/A Revenue? N/A Currently in the Budget? Yes No If no: Unbudgeted Expense: Fund Amount$ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6I PUBLIC WORKS DEPARTMENT 40* Don E Wickstrom, P E Public Works Director • Phone 253-856-5500 KEN T Fax 253-656-6500 7 W A s H i N o T o N Address 220 Fourth Avenue S Kent,WA 98032-5895 DATE: March 1,2004 TO: Public Works Co ee FROM: Don Wickstro SUBJECT: 94'Ave S. and S 248t'Street Improvement Sanitary Sewer Installation Charge in Lieu of Assessment MOTION Authorize the Engineering Department to establish a charge in lieu of assessment for sanitary sewer connection for the affected properties as shown on the attached map SUMMARY: The City funded the construction of a sanitary sewer on a portion of 94'i' Ave S and S 248"' Street which was constructed in conjunction with a street improvement project The request is to establish a charge in lieu of assessment to allow the City to recuperate a portion of it's cost from the properties serviced upon connection BUDGET IMPACT- No Unbudgeted Fisca"ersonnel Impact BACKGROUND: S 248" St between 94"'and 96"' Ave S was unsewered As part of the recent road construction project in this area the City funded the sewer construction within the new road improvement area to avoid excavation of the new improvements at a later date to install the sewer This sewer is shown on the City's sewer comprehensive plan The total amount to be collected is $53,897 93 Tlus amount is to be distributed to 5 lots as shown on the attached map at a rate of$10,779 59 per lot The total project cost for sewer was $125,993 26 The cost of$72,095 33 for the sewer on 94`" Ave is not included in the charge because there are no fronting properties to service Pubhe Works Committee 1 94'e1248*charge m hen of assessment March 1,2004 I M ❑ 1 1 w a 1 1 1 ; Scale: 1" = 150' 1 ❑ ❑ FL ; ; ; ; 1 1 O 1 1 1 i a ❑ 1 i 1 59245 1922059255 I' 19220 92 19� ❑ 19220 92 ❑ II ❑ 1 1 1 i anitary-Sewer S 248TH ST - 1 1 a� i Y 1 1 1 1 , 1 .} 1 \ 1 rd , O ---- - -------------- 94TH AVE S And S 248TH St Charge In Lieu Of Assessment ,..0&6. 4 • Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: BURLINGTON NORTHERN SANTA FE INDEFINITE TERM LEASE FOR LAND AGREEMENT—AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the Indefinite Term Lease for Land Agreement with Burlington Northern and Santa Fe Railroad, subject to the Public Works Director's concurrence of the language therein. 3. EXHIBITS: Public Works Director's memorandum and Indefinite Term Lease for Land Agreement 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6J PUBLIC WORKS DEPARTMENT Don E, Wickstrom, P E Public Works Director Phone 253-856-5500 Fax 253-856-6500 K E N T Address 220 Fourth Avenue S WASNINOTON Kent,WA 96032-5895 DATE: March 1,2004 TO: Publi4=Co mmittee FROM: Do ,Pubhc Works Director THROUGH SUBJECT: Indefinite Term Lease for Land Agreement MOTION Recommend authorizing the Mayor to sign the Indefinite Term Lease for Land Agreement with The Burlington Northern And Santa Fe Railway Company subject to the Public Works Director's and the City Attorney's concurrence of the language therein SUMMARY: The City has negotiated a new lease agreement with the BNSF Railroad for continued use of a public alley between Gowe Street and Titus Street along the westerly margin of the Railroad right-of-way The previous permit was revoked by the Railroad due to access • constraints and safety concerns following the planned installation of new crossing protection equipment required to meet federal safety standards for the Sounder Commuter Rail trains to operate at lugher speeds The new lease agreement requires the City to install a bamer along the easterly and northerly margins of the leased premises,prohibits parking, and only allows access from Titus Street The terms and conditions of the agreement have been reviewed and approved by the Legal Department, Risk Management, and the Public Works Department BUDGET IMPACT; No Unbudgeted Fiscal/Personnel Impact The cost of mstallmg the bamer guardrail is estimated at$8000 to $10,000 BACKGROUND The BNSF Railroad is in the process of upgrading their signal and crossing protection equipment(cantilever flashing lights and new crossing gates)on all of the at- grade roadway crossings of their rail lines within the City of Kent The upgrades are required in order to meet federal safety standards to operate the Sounder Commuter Rail trams at higher operating speeds The installation of the new equipment at the Gowe Street and Titus Street crossings will be initiated in next few weeks The planned improvements create a conflict with the current use of the existing railroad-pemntted alleyway which encompasses the westerly 12 feet of the BNSF right-of-way between Gowe Street and Titus Street(See attached map) As such,the BNSF Railroad officially notified the City that the permit granted in 1954 by the Northern Pacific Railway Company(currently BNSF)for a public alley was revoked effective September 30,2003 The City was given 30 days notice to vacate the premises in accordance with the terms and conditions of the permit The City has worked cooperatively with the Railroad and the abutting property owners along the east side of 1st Avenue to comply with the order Mayor White and Kent City Council 1 Indefuute Term Lease for Land-Authorize March 1,2004 The alleyway has been used by the abutting property owners and businesses for storing garbage containers and is part of the collection route for the City's contract garbage hauler It is also used as a secondary access way by some of the businesses for loadmg and unloading • Due to the importance of the public alley, the City has negotiated a new lease agreement with the Railroad The new agreement provides restricted public access to that portion of the Railroad property which lies between the westerly margin of their right-of-way and a line 12 feet westerly of and paralleling the centerline of the westernmost mainline tracks Access to the alley will be closed from Gowe Street and will only be allowed from Titus Street This has been discussed with the abutting property owners and the City's contract garbage hauler. The City will be responsible for installing a bamer along the easterly boundary and northerly boundary of the leased premises in order to prevent vehicles from crossing outside of the leased area and creating a safety hazard. The cost of installing the bamer(a guard rail or jersey bamer)is estimated at between$8000 and$10,000 The terms and conditions of the new lease agreement have been reviewed and approved by the City's Legal Department,Risk Management,and the Public Works Department Mayor White and Rent City Council y ty 2 Indefinite Tetm Lease for Land-Authorize Match 1,2004 Form Approved by VP-Law 0 INDEFINITE TERM LEASE LAND THIS INDEFINITE TERM LEASE FOR LAND (-Lease') is made and entered into to be effective as of the 15th day of January, 2004 ("Effective Date"), by and between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY,a Delaware corporation("Lessor")and THE CITY OF KENT,a(n)municipal corporation('Lessee") RECITALS A. Lessor is in the railroad transportation business and owns or controls a system of rail tracks ("Lessor's Track(s)'and various real properties associated therewith, including certain Premises as described below which Lessee desires to lease from Lessor B. Lessor has agreed to lease to Lessee the Premises, subject to the terms, conditions and limitations provided herein AGREEMENTS In consideration of the mutual covenants herein,Lessor and Lessee hereby agree as follows Section 1. Premises and Term. A. Lessor leases to Lessee and Lessee leases from Lessor, subject to the covenants, agreements, terms, provisions and conditions of this Lease, that certain parcel of real property, situated in the City of Kent, County of King, State of Washington, along Line Segment 51, Mile Post 16 35 and constituting the shaded area shown upon Print No 3- 31894, dated 09/1812003, revised 09/26/2003 a copy of which is attached hereto as Exhibit "A"and made a part hereof ("Premises') B Lessee leases the Premises from Lessor beginning January 15,2004("Commencement Date"), and shall continue until terminated by either party as provided in this Section 1(B) This Lease may be terminated by either party,at any time, without cause,for convenience, by serving upon the other party written notice of termination at least thirty(30) days in advance Upon the expiration of the time specified in such notice, this Lease and all rights of Lessee shall absolutely cease C. INTENTIONALLY OMITTED D. Each consecutive twelve-month period this Lease is in effect, beginning with the Effective Date of this Lease, is herein called a"Lease Year- E. Lessee acknowledges that it is assuming all risks associated with Lessor's right to terminate this Lease at any time as provided above, and (Q Lessor gives no assurance that Lessor will delay termination of this Lease for any length of time whatsoever, (n) Lessee may expend money and effort during the term of this Lease which may not ultimately be of any benefit to Lessee if Lessor terminates this Lease, but nonetheless, Lessor shall have the right to terminate the Lease it Lessor determines in its sole and absolute discretion that Lessor desires to terminate,and (nih)in no event shall Lessor be deemed to have any legal obligations to continue to lease the Premises for any length of time Section 2. Use and Compliance A. Lessee may use the Premises for the sole and exclusive purpose of a public alley and for no other Purpose without the prior written consent of Lessor Lessee shall respond to Lessor's reasonable inquiries regarding the use or condition of the Premises B. Lessee shall comply with all Laws applicable to Lessee, the Premises, this Lease and Lessee's activities and obligations hereunder, and shall have the sole responsibility for costs, fees, or expenses associated with such compliance As used herein, the term "Laws' shall mean any and all statutes, laws, ordinances, codes, rules or BNSF- IndermiheTamLaw-land Foma405,Rev IIr26M I - 1 - Form Approved by VP-Law regulations or any order,decision, injunction,judgment,award or decree of any public body or authority having jurisdiction over Lessee, the Premises,this Lease,and/or Lessee's obligations under this Lease, and shall include all Environmental Laws (as defined in Section 4(A)) C. If any governmental license or permit is required or desirable for the proper and lawful conduct of Lessee's business or other activity in or on the Premises, or d the failure to secure such a license or permit might in any way affect Lessor, then Lessee, at Lessee's expense, shall procure and thereafter maintain such license or permd and submit the same to inspection by Lessor Lessee, at Lessee's expense,shall at all times comply with the requirements of each such license or permit Section 3. Rent. A. Lessee shall pay as rental for the Premises,in advance,an amount equal to N/A($0.00)annually during the term of the Lease, ("Base Rent") Base Rent, if any, shall increase 3% annually during the term of the lease Lessor reserves the right to change rental rates as conditions warrant Billing or acceptance by Lessor of any rental shall not imply a definite term or otherwise restrict either party from canceling this Lease as provided herein Either party hereto may assign any receivables due it under this Lease, provided, however, such assignments shall not relieve the assignor of any of its rights or obligations under this Lease All rent and other monetary payments under this Lease from Lessee to Lessor shall be delivered solely to the following address Staubach-its Attomey-in-Fact for BNSF P O Box 847574 Dallas,Texas 75284-7574 Lessor shall have the right to designate at any time and f m time to time a different address for delivery of such payments by written notice to Lessee pursuant to the notice provisions of Section 36 below No rent or other payment sent to any other address shall be deemed received by Lessor unless and until Lessor has actually posted such payment as received on the account of Lessee, and Lessee shah be subject to all default provisions hereunder, late fees and other consequences as a result thereof in the same manner as d lessee had failed or delayed in making any payment a. Lessee acknowledges that Lessor utilizes the rental collection system involving direct deposit of monies received through a financial institution selected by Lessor,which precludes Lessor's ability to exercise rejection of a rental payment before Lessee's check is cashed Lessee agrees that as a condition of Lessor granting this Lease Lessee hereby waives any rights it may have under law to force continuation of this Lease due to Lessor having accepted and cashed Lessee's rental remittance Lessor shall have the option of rejecting Lessee's payment by refunding to Lessee the rental amount paid by Lessee,adjusted as set forth in this Lease,and enforcing the termination provisions of this Lease C. Lessee shall pay the Base Rent and all additional amounts due pursuant to Section 9 as and when the same become due and payable, without demand, set-off, or deduction Lessee's obligation to pay Base Rent and all amounts due under this Lease is an independent covenant and no act or circumstance, regardless of whether such act or circumstance constitutes a breach under this Lease by Lessor,shall release Lessee of its obligation to pay Base Rent and all amounts due as required by this Lease D. If any Base Rent or any payment under Section 9 or any other payment due by Lessee hereunder is not paid within five(5)days after the date the same is due, Lessor may assess Lessee a late fee("Late Fee")in an amount equal to 5% of the amount which was not paid when due to compensate Lessor for Lessor's administrative burden in connection with such late payment In addition to said Late Fee, Lessee shall pay interest on the unpaid sum from the due date thereof to the date of payment by Lessee at an annual rate equal to(i)the greater of(a)for the period January 1 through June 30. the prime rate last published in The Walt Street Journal in the preceding December plus two and one- half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent(2 1/2%), or(b)twelve percent (12%). or(ii)the maximum rate permitted by law,whichever is less BNSF- LnderimicTemLmn-Land Fmtn444 aev IIJ26M -z- Form Approved by VP-Law Section 4. Environmental. A. Lessee shall strictly comply with all federal, state and local environmental laws and regulations in its occupation and use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Clean Air Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws') Lessee shall not maintain any treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws, on the Premises Lessee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws, on or about the Premises B. Lessee shall give Lessor immediate notice to Lessor's Resource Operations Center at(800)832-M52 of any release of hazardous substances on or from the Premises and to Lessor's Manager Environmental Leases at(765) 435-2386 for any violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Lessee's use of the Premises Lessee shall use its best efforts to promptly respond to any release on or from the Premises Lessee also shall give Lessor's Manager Environmental Leases immediate notice of all measures undertaken on behalf of Lessee to investigate, remedrate, respond to or otherwise cure such release or violation and shall provide to Lessor's Manager Environmental Leases copies of all reports and/or data regarding any investigations or remedtations of the Premises C. in the event that Lessor has notice from Lessee or otherwise of a release or violation of Environmental Laws on the Premises which occurred or may occur during the term of this Lease, Lessor may require Lessee, at Lessee's sole risk and expense, to take timely measures to investigate, remedrate, respond to or otherwise cure such release or violation affecting the Premises or Lessor's nght-of-way D. Lessee shall promptly report to Lessor in writing any conditions or activities upon the Premises which create a risk of harm to persons,property or the environment and shall take whatever action is necessary to prevent injury to persons or property ansing out of such conditions or activities, provided, however, that Lessee's reporting to Lessor shall not relieve Lessee of any obligation whatsoever imposed on it by this Lease Lessee shall promptly respond to Lessor's request for information regarding said conditions or activities E. Hazardous Materials are not permitted on the Premises except as otherwise described herein Lessee expects to use on the Premises the following Hazardous Materials None, and to store on the Premises the following Hazardous Materials (as defined in Section 4(F) below) None Use or storage on the Premises of any Hazardous Materials not disclosed in this Section 4(E)is a breach of this Lease F. For purposes of this Section 4, `Hazardous Materials" means all materials, chemicals, compounds, or substances (including without limitation asbestos, petroleum products, and lead-based paint) identified as hazardous or toxic under Environmental Laws G. If Lessor has reason to believe that environmental damage has occurred during Lessee's occupancy of Premises and, Lessor may, at its option prior to termination of this Lease, require Lessee to conduct an environmental audit of the Premises through an environmental consutbng engineer acceptable to Lessor, at Lessee's sole cost and expense, to determine d any noncompliance or environmental damage to the Premises has occurred during Lessee's occupancy thereof The audit shall be conducted to Lessor's satisfaction and a copy of the audit report shall promptly be provided to Lessor for its review Lessee shall pay all expenses for any remedial action that may be required as a result of said audit to correct any noncompliance or environmental damage, and all necessary work shall be performed by Lessee prior to termination of this Lease Section S. Access to Adjacent Property by Lessee. if access to and from the Premises can be accomplished only through use of Lessor's property adjacent to the Premises, such use is granted for ingress and egress only and on a non-exclusive basis, subject to such restrictions and conditions as Lessor may impose by notice to Lessee Lessor shall have the right to designate the location or route to be used Lessee understands and agrees that all of the terms and obligations under this Lease applicable to Lessee shall also be applicable to Lessee with respect to Lessee's use of any property adjacent to the Premises which Lessee may use just as though the property has been specifically described as part of the Premises, including, without limitation, the BNSF- Indefimtc Term L"sc—Land Foam 405,Rcv r V2&M -3 - Form Approved by VP-Law indemnity provisions of Section 13 Notwithstanding anything to the contrary herein, this Section 5 shall not grant Lessee any right to cross any of Lessor's Tracks Any such crossing rights may only be granted by a separate written agreement between Lessor and Lessee Section 6. Access to Premises by Lessor. A. Lessor and its contractors, agents and other designated third parties may at all reasonable times and at any time in case of emergency, in such manner as to not unreasonably interfere with Lessee's use of the Premises as allowed hereunder, (i)enter the Premises for inspection of the Premises or to protect the Lessor's interest in the Premises or to protect from damage any property adjoining the Premises,(a)enter the Premises to construct,maintain,and operate trackage, fences, pipelines, communication facilities, fiber optic lines, wireless towers, telephone, power or other transmission lines, or appurtenances or facilities of like character, upon, over, across, or beneath the Premises, without payment of any sum for any damage, including damage to growing crops, (in)take all required materials and equipment onto the Premises,and perform all required work therein,for the purpose of malung alterations,repairs,or additions to the Premises as Lessor may elect If Lessee defaults in its obligation to do so,(iv)enter the Premises to show the Premises to holders of encumbrances on the interest of Lessor in the Premises, or to prospective purchasers or mortgagees of the Premises, and all such entries and activities shall be without any rebate of rent to Lessee for any loss of occupancy of the Premises,or damage, injury or inconvenience thereby caused B. For purposes stated in this Section 6, Lessor will at all times have keys with which to unlock all of the doors and gates on the Premises,and Lessee will not change or alter any lock thereon without Lasso>'s permission C. In an emergency, Lessor will be entitled to use any and all means that Lessor may deem proper to open doors, gates, and other entrances to obtain entry to the Premises Any entry to the Premises by Lessor as described in this Seclion 6 shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises,or any eviction of Lessee from the Premises, and any damages caused on account thereof will be paid by Lessee. Section T. Warranties. LESSOR DOES NOT WARRANT iTS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LESSEE IN THE PEACEABLE POSSESSION OR USE THEREOF, NO COVENANT OF QUIET ENJOYMENT iS MADE This Lease is made subject to all outstanding rights or interests of others If the Premises are subsequently found to be subject to prior claim, this Lease shall terminate immediately on notice to that effect from Lessor Lessee accepts this Lease subject to that possibility and its effect on Lessee's rights and ownership of the Lessee Improvements In case of eviction of Lessee by anyone other than Lessor, or anyone owning or claiming bile to or any interest in the Premises, Lessor shall not be liable to Lessee for damage of any kind (including any loss of ownership right to Lessee's Improvements)or to refund any rent paid hereunder,except to return the unearned portion of any rent paid in advance Section 8. Premises Condition;Lessee Improvements A- Lessee represents that the Premises,the title thereto, any subsurface conditions thereof,and the present uses thereof have been examined by the Lessee Lessee accepts the same in the condition in which they now are, without representation or warranty, expressed or implied, in fact or by law, by the Lessor, and without recourse to the Lessor as to the title thereto,the nature,condition or usability thereof,or the uses to which the Premises may be put By taking possession or commencing use of the Premises,Lessee(i)acknowledges that it is relying on its own inspections of the Premises and not on any representations from Lessor regarding the Premises, (ii) establishes conclusively that the Premises are at such time in satisfactory condition and in conformity with this Lease and all zoning or other governmental requirements in all respects,and (m)accepts the Premises in its condition as of the Commencement Date on an'AS IS; "WHERE IS" and "WITH ALL FAULTS' basis, subject to all faults and infirmities, whether now or hereafter existing Nothing contained in this Section 8 affects the commencement of the term of the Lease or the obligation of Lessee to pay rent as provided above Lessee represents and warrants to Lessor as follows (i)Lessee does not intend to,and will not, use the Premises for any purpose other than as set forth in Secbon 2; (n) Lessee has previously disclosed in writing to Lessor all special requirements (but Lessor shall have no responsibility relative to any such special requirement), if any. which Lessee may have in connection with this intended use, and (iii) Lessee has undertaken and has reasonably,and diligently completed all appropriate investigations regarding the suitability of the Premises for Lessee's intended use Lessee shall comply with any covenants, conditions or restrictions now or hereafter affecting the Premises, and BNSF- 1ndeftmte Term Uwe-Land Form405,Rev 11/2NO2 -4- Form Approved by VP-Law acknowledges that Lessor may place any covenants, conditions or restrictions of record affecting the Premises prior to or during the term of the Lease In such event, this Lease will be subject and subordinate to all of the same without further action by either party, including,without limitation, the execution of any further instruments Lessee acknowledges that Lessor has given material concessions for the acknowledgements and provisions contained in this Section 8, and that Lessor is relying on these acknowledgments and agreements and would not have entered into this Lease without such acknowledgements and agreements by Lessee B. If initial improvements are necessary for Lessee's use of the Premises, Lessee, at Lessee's sole cost and expense, shall, on or after the Commencement Date, construct and install such initial improvements to the Premises which are necessary for Lessee's use of the Premises and are acceptable to Lessor in Lessor's sole discretion ('Lessee Improvements"). The construction and installation of any Lessee Improvements shag be subject to Lessor's prior written approval of plans and specifications for such Lessee Improvements to be prepared by Lessee and submitted to Lessor for approval as set forth below,such approval to be in Lessor's sole and absolute discretion. Within forty-five(45)days after the Commencement Date, Lessee shall submit detailed plans and specifications, and the identity of Lessee's proposed general contractor for the Lessee Improvements for Lessor's review and approval Lessor shall either approve or disapprove the plans and specifications and general contractor (in its sole and absolute discrebon) by written notice delivered to Lessee within sixty(60)days after receipt of the same from Lessee In the event of any disapproval, Lessor shall specify the reasons for such non-approval If Lessor fails to deliver notice to Lessee of Lessor's approval or disapproval of the plans, specifications, and proposed general contractor within the time period discussed above. Lessee's plans, specifications and proposed contractor shall be deemed disapproved If Lessor specifies objections to the plans and specifications or general contractor as herein provided and Lessor and Lessee are unable to resolve the objections by mutual agreement within a period of thirty (30) days from the date of delivery of written mice thereof, Lessee, as its sole remedy, to be exercised not later than ten(10)days after the expiration of said thirty(30)days period, may terminate this Lease by written notice to Lessor. Upon approval of the plans and specifications by Lessor, Lessor and Lessee shall sign the same, and they shall be deemed a part hereof. Alt Lessee Improvements shall be constructed and installed in accordance with the terms and conditions of Exhibit "B"attached to the Lease and all applicable terms and conditions of the Lease regarding alterations and improvements Lessee shall not construct any other alteration or improvement to the Premises without Lessor's prior written consent The Lessee Improvements constructed pursuant to the above provisions shall be owned by Lessee during the term of the Lease and removed from the Premises or surrendered to the Lessor pursuant to Section 20 below upon termination of this Lease Notwithstanding the foregoing, after full execution of this Lease, and within thirty (30) days following approval of plans and specifications by BNSF, Lessee shall install, at its sole cost and expense, a barrier along the easterly boundary and northerly boundary of the Premises so as to prevent vehicles from crossing said easterly and northerly boundary lines The plans and specifications for the banner shall be approved by BNSF in writing Section 9. Taxes and Uttlitles. A. In addition to Base Rent, Lessor shall provide Lessee, pursuant to Section 36. with the invoice for any taxes, or other charges Lessee is liable for under this Section 9, within ten (10) days of Lessor receiving the same Lessee shall pay said amounts when due if this Lease is a transfer of an existing lease, Lessee must make arrangements with the present lessee for payment of any delinquent and current taxes, utilities, and other charges prior to taking possession if such arrangements are not made,Lessee agrees to pay all such taxes, utilities, and other charges If Lessor should make any such payments,Lessee shall promptly upon demand reimburse Lessor for all such sums B. Should the Premises be subject to special assessment for public improvements in the amount of Five Hundred Dollars ($500 00) or less during any Lease Year, Lessee shall promptly reimburse Lessor the amount in full Should the assessment exceed Five Hundred Dollars(SW 00)during any Lease Year then such excess shall be paid by Lessor, but the Base Rent herein shall be increased by an amount equal to twelve percent(12%)of such excess payable for each Lease Year such amounts are payable Section 10. Track Cfearance. A. Lessee shall not place, permit to be placed, or allow to remain, any permanent or temporary material, structure, pole,or other obstruction within(r)8%feet laterally from the centerline of any of Lessor's Tracks on or about the Premises (nine and one-half(9-1j2)feet on either side of the centerline of any of Lessor's Tracks which are curved)or(u) 24 feet vertically from the top of the rail of any of Lessors Tracks on or about the Premises ("Minimal Clearances"), Provided that if any law, statute, regulation, ordinance, order, covenant or restriction ("Legal Requirement") requires BNSF- Inde6mte Term Laue-Lad F=405,Rev Il/MZ -5 - Form Approved by VP-Law greater clearances than those provided for in this Section 10, then Lessee shall strictly comply with such Legal Requirement However,vertical or lateral clearances which are less than the Minimal Clearances but are in compliance With Legal Requirements will not be a violation of this Section 10,so long as Lessee strictly complies with the terms of any such Legal Requirement and posts a sign on the Premises clearly noting the existence of such reduced clearance Any such sign shall be painted with black and white reflective paint B. Lessors operation over any Lessor's Track on or about the Premises with knowledge of an unauthorized reduced clearance will not be a waiver of the covenants of Lessee contained in this Section 10 or of Lessors right to recover for and be indemnified and defended against such damages to property, and injury to or death of persons,that may result therefrom C Lessee shall not place or allow to be placed any freight car within 260 feet of either side of any at-grade crossings on lessors Tracks ` Section 11. Repairs: Maintenance A Lessee shall, at its sole expense, take good care of the Premises(including the bamer described in 8 B and all other Lessee improvements)and shall not do or suffer any waste with respect thereto and Lessee shall promptly make all necessary or desirable Repairs to the Premises and shall keep the Premises as safe as possible for public travel The term "Repairs"means all reasonable repair and maintenance necessary to keep the Premises(including all Lessee Improvements) in good condition and includes, without limitation, replacements. restoration and renewals when necessary Lessee shall keep and maintain any paved areas, sidewalks, curbs, landscaping, and lawn areas in a dean and orderly condition,and free of accumulation of dirt and rubbish B. Lessor shall not have any liability or obligation to fumrsh or pay for any services or facilities of whatsoever nature or to make any Repairs or alterations of whatsoever nature in or to the Premises, including but not limited to structural repairs, or to maintain the Premises in any manner Lessee acknowledges that Lessor shall have no responsibility for management of the Premises Section 12. Safety: Dangerous and Hazardous Conditions. It is understood by Lessee that the Premises may be in dangerous proximity to railroad tracks,including Lessors Tracks, and that persons and property, whether real or personal, on the Premises will be in danger of injury, death or destruction incident to the operation of the railroad, including, without limitation, the risk of derailment, fire,or inadequate clearance (including sight clearance or vision obstruction problems at grade crossings on or adjacent to the Premises), and Lessee accepts this Lease subject to such dangers,and acknowledges that its indemmfication obligations hereunder extend to and include all such risks Section 13. Indemni A. TO THE FULLEST EXTENT PERMITTED BY LAW,LESSEE SHALL RELEASE,INDEMNIFY,DEFEND AND HOLD HARMLESS LESSOR AND LESSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES') FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDiATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO(IN WHOLE OR IN PART). (I) THIS LEASE, INCLUDING,WITHOUT LIMITATION,ITS ENVIRONMENTAL PROVISIONS; (11) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THiS LEASE, (III) LESSEE'S OCCUPATION AND USE OF THE PREMISES; BNSF- Indefinite Tam Lease-[and Fmm 405,Rey 1112AW -6- Form Approved by VP-Law (tv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY, AGGRAVATED BY,OR CONTRIBUTED IN WHOLE OR IN PART,BY LESSEE; OR (v) ANY ACT OR OMISSION OF LESSEE OR LESSEE'S OFFICERS, AGENTS,INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN iF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART,ANY NEGLIGENCE OF ANY INDEMNITEE THE ONLY LIABILITIES WITH RESPECT TO WHICH LESSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WiLLFUL MISCONDUCT OF AN INDEMNITEE. B. Lessee agrees that it will not Initiate with any local, state, or federal government agency an Investigation into the environmental condition of the premises. Lessee agrees that it will not attempt to hold Lessor liable for environmental damage that was not proximately caused by Lessor's gross negligence or willful misconduct C. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA")WHENEVER EMPLOYEES OF LESSEE OR ANY OF ITS AGENTS,INVITEES,OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT,AND ANY SiMiLAR STATE OR FEDERAL STATUTE. D. Upon written notice from Lessor, Lessee agrees to assume the defense of any lawsuit or other proceeding brought against any lndemnitee by any entity, relating to any matter covered by this Lease for which Lessee has an obligation to assume liability for and/or save and hold harmless any lndemnitee Lessee shall pay all costs incident to such defense, including, but not limited to, attomeys'fees, Investigators'fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments Section 14. Eaual Protection It is agreed that the provisions of Sections 10, 12,and 13 are for the equal protection of other railroad companies, including, without limitation, the National Railroad Passenger Corporation (Amtrak), permitted to use Lessor's property, and such railroad companies shall be deemed to be included as Indemnitees under Sections 10,12,and 13 Section 15 Assionment and Sublease A. Lessee shalt not (i) assign or otherwise transfer this Lease or any interest herein, or (a) sublet the Premises or any part thereof, without, in each instance, obtaining the prior written consent of Lessor,which consent may be withheld In Lessor's sole and absolute discretion For purposes of this Section 15, in the event that there are aggregate transfers or other changes in the ownership interests of Lessee resulting in a change of mare than 20%of the ownership interests as held on the date hereof, a transfer shall be deemed to have occurred hereunder Any person or legal representative of Lessee, to whom Lessee's interest under this Lease passes by operation of law, or otherwise,will be bound by the provisions of this Lease B. Any assignment, lease, sublease or transfer made pursuant to Section 15(A) may be made only d, and shall not be effective until, the assignee cures all outstanding defaults of Lessee hereunder and executes, acknowledges and delivers to Lessor an agreement, In form and substance satisfactory to Lessor, whereby the assignee assumes the obligabons and performance of this Lease and agrees to be personally bound by and upon all of the covenants, agreements. terms, provisions and conditions hereof on the part of Lessee to be performed or observed Lessee covenants that, notwithstanding any assignment or transfer,whether or not in violation of the provisions of this Lease,and BNSF- Indefinsie Term Least—[and Form 405.Rev 11126102 -7- Form Approved by VP-Law notwithstanding the acceptance of rent by Lessor from an assignee or transferee or any other party, lessee will remain fully and primarily liable along with the assignee for the payment of the rent due and to become due under this Lease and for the performance of all of the covenants, agreements, terms, provisions, and conditions of this Lease on the part of Lessee to be performed or observed Section 16. Liens. Lessee shall promptly pay, discharge and release of record any and all liens, charges and orders ansing out of any construction, alterations or repairs, suffered or permitted to be done by Lessee on the Premises Lessor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that Is or may be permitted by law to prevent the attachment of any such liens to the Premises,provided,however,that failure of Lessor to take any such action shall not relieve Lessee of any obligation or liability under this Section 16 or any other Section of this Lease Section 17. Insurance. Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease the following insurance coverage. A. All risks property insurance covering all of Lessee's property including property in the care,custody or control of Lessee. Coverage shall include the following ♦ Issued on a replacement cost bass ♦ Shall provide that in respect of the interest of Lessor the insurance shall not be invalidated by any action or inaction of lessee or any other person and shall unsure the respective interests of Lessor as they appear, regardless of any breach or violation of any warranty, declaration or condition contained in such policies by Lessee or any other person • Include a standard loss payable endorsement naming Lessor as the loss payee as its interests i may appear • include a waver of subrogation in favor of Lessor B. Commercial General Liability Insurance This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $1,000,000 each occurrence and an aggregate limit of at least $ 2,000,000 Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for,but not limited to,the following: ♦ Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements,which shall be indicated on the certificate of insurance ♦ It is agreed that any workers'compensation exclusion does not apply to Railroad payments related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed under any Workers Compensation,disability benefits,or unemployment compensation law or sandar law ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property ♦ Any exclusions related to the explosion,collapse and underground hazards shall be removed No other endorsements limiting coverage may be included on the policy C. Business Automobile Insurance This insurance shall contain a combined single JIMA of at least $1.000,0O0 per occurrence,and include coverage for,but not limited to the following ♦ Bodily injury and property damage ♦ Any and all vehicles owned,used or hued i BNSF- Indefinite Term Lease—Land Form 40S.Rev 11/26AM Form Approved by VP-Law D. Workers Compensation and Employers Liability insurance Including coverage for,but not limited to' ♦ Lessee's statutory liability under the worker's compensation laws of the state(s)In which the work is to be performed. If optional under State law,the Insurance must cover all employees anyway. • Employers'Liability(Part B)with limits of at least$500,000 each accident,$500,000 by disease policy limit,$500,000 by disease each employee. E. If construction is to be performed on the Premises by Lessee, Lessee shall procure Railroad Protective Liability insurance naming only the Lessor as the Insured with coverage of at least$2.000,000 per occurrence and $6,000,000 in the aggregate The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following • Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement ♦ Endorsed to include Evacuation Expense Coverage Endorsement • Endorsed to remove any exclusion for punitive damages ♦ No other endorsements restricting coverage may be added • The original policy must be provided to the Lessor prior to performing any work or services under this Lease Other Requirements Ail policies (applying to coverage listed above)shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists Lessee agrees to waive its right of recovery against Railroad for all claims and suits against Railroad In addition, its insurers, through policy endorsement, waive their right of subrogation against Railroad for all claims and suits The certificate of insurance must reflect the waiver of subrogation endorsement Lessee further waives its right of recovery, and its insurers also waive thew right of subrogation against Railroad for loss of its owned or leased property or property under Lessee's care,custody or control Lessee's insurance policies through policy endorsement, must include wording which states that the policy shall be primary and non-contributing with respect to any insurance tamed by Railroad The certificate of insurance must reflect that the above wording is included in evidenced policies All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall include a severabdity of interest endorsement and shall name Railroad and Staubach Global Services - RR, inc as additional insureds with respect to work performed under this Lease Severability of interest and naming Railroad and Staubach Global Services-RR, Inc as additional insureds shall be indicated on the certificate of insurance Lessee is not allowed to self-insure without the prior written consent of Railroad If granted by Railroad, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Lessee in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Lease, be covered by Lessee 's insurance will be covered as if Lessee elected not to include a deductible, self-insured retention or other financial responsibility for claims Lessee may elect to fulfill all or any portion of the above-stated insurance requirements through its program of self-insurance Lessee shall provide a letter stating that d is self-insured as to the stated limits and that said coverage shall apply to property within fifty(50)feet of any trackage. Prior to accessing the Premises, Lessee shall furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audittfolder number if available The policy(ies)shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, renewal,substitution or material alteration This cancellation provision shall be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished BNSF- tndefinne Tenn Lease—Land Fom 405,Rev I I/ AZ -9- Form Approved by VP-Law Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with a current Best's Guide Rating of A-and Class VII or better, and authorized to do business in the state(s)in which the Premises is located. Lessee represents that this Lease has been thoroughly reviewed by Lessee's insurance agent(s)/broker(s),who have been instructed by lessee to procure the insurance coverage required by this Lease Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years,Railroad may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be contracted by Lessee, Lessee shall require that the contractor shall provide and maintain insurance coverages as set forth herein,naming Railroad as an additional insured,and shall require that the contractor shall release,defend and indemnify Railroad to the same extent and under the same terms and oondibons as Lessee is required to release,defend and indemnify Railroad herein Failure to provide evidence as required by this Section 17 shall entitle, but not require, Railroad to terminate this Lease immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Lessee's obligations hereunder The fact that insurance(including,without limitation, self-insurance)is obtained by Lessee shall not be deemed to release or diminish the liability of Lessee including, without limitation,liability under the indemnity provisions of this Lease Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage For purposes of this Section 17, Railroad shall mean"Burlington Northam Santa Fe Corporation',"The Burlington Northern and Santa Fe Railway Company'and the subsidiaries,successors,assigns and affiliates of each Section lS Water Rlahts and Use of Wells. This Lease does not grant, convey or transfer any right to the use of water under any water right owned or claimed by the Lessor which may be appurtenant to the Premises All right, title, and interest in and to such water is expressly reserved unto Lessor,and the right to use same or any part thereof may be obtained only by the prior written consent of the Lessor Lessee shall not use,install or permit to be installed or used any welts on the Premises without the prior written consent of Lessor Section 19. Defoult A. An "Event of Default"by Lessee shall have occurred hereunder if any of the following shall occur (1) if Lessee violates any safety provision contained in this Lease, (11) if Lessee fails to pay rent or any other monetary payment hereunder when due or fails to perform any other obligations under this Lease and such failure continues thirty(30)days after written notice from Lessor to Lessee of Lessee's failure to make such payment or perform such obligations, (fin) if a decree or order of a court having jurisdiction over the Premises for the appointment of a receiver, liquidator, sequestrator,trustee,custodian or other officer having similar powers over Lessee or over all or a substantial part of the property of Lessee shall be entered, or d Lessee becomes insolvent or makes a transfer in fraud of creditors, or an interim receiver, trustee or other custodian of Lessee or of all or a substantial part of the property of Lessee shall be appointed or a warrant of attachment,execution,or similar process against any substantial part of the property of Lessee shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within thirty(30)days after entry,appointment or issuance, (rv) if the Premises is abandoned or vacated by Lessee BNSF- Indefintne Tam Lease-Land Firm 005,Rev 11/26A02 _ 10- Form Approved by VP-Law B. If an Event of Default occurs as provided above. Lessor may, at its option, (n) terminate this Lease by serving five (5)days notice in writing upon Lessee, in which event Lessee shall immediately surrender possession of the Premises to lessor, wittlout prejudice to any claim for arrears of rent or breach of covenant, (u) proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance by Lessee of the applicable provisions of this Lease or to recover damages for a breach thereof,(via)cure the default by making any such payment or performing any such obligation, as applicable, at Lessee's sole expense, without waning or releasing Lessee from any obligation, or(iv) enter into and upon the Premises or any part thereof and repossess the same without terminating the Lease and, without obligations to do so relet the Premises or any part thereof as the agent of Lessee and in such event. Lessee shall be immediately liable to Lessor for all costs and expenses of such resetting, the cost of any alterations and repairs deemed necessary by Lessor to effect such resetting and the full amount, if any, by which the rentals reserved in this Lease for the period of such releting exceeds the amounts agreed to be paid as rent for the Premises for the period of resetting The foregoing rights and remedies given to Lessor are and shalt be deemed to be cumulative and the exercise of any of them shall not be deemed to be an election excluding the exercise by Lessor at any time of a different or inconsistent remedy if, on account of breach or default by Lessee of any of Lessee's obligations hereunder, it shall become necessary for the Lessor to employ an attorney to enforce or defend any of Lessor's rights or remedies hereunder, then, in any such event, any reasonable amount incurred by Lessor for attorneys' fees shall be paid by Lessee Any waiver by Lessor of any default or defaults of this Lease or any delay of Lessor in enforcing any remedy set forth herein shall not constitute a waiver of the right to pursue any remedy at a later date or terminate this Lease for any subsequent default or defaults, not shall any such waiver in any way affect Lessors ability to enforce any Section of this Lease The remedies set forth in this Section 19 shall be in addition to, and not in limitation of, any other remedies that Lessor may have at law or in equity, and the applicable statutory period for the enforcement of a remedy wig not commence until Lessor has actual knowledge of a breach or default Section 20. Termination. Upon the termination of Lessee's tenancy under this Lease in any manner herein provided, Lessee shall relinquish possession of the Premises and shall remove any Lessee Improvements, and restore the Premises to substantially the state and environmental condition in which it was prior to Lessee's use ("Restoration Obligations°) If Lessee shall fail within thirty (30) days after the date of such termination of its tenancy to complete the Restoration Obligations, then Lessor may, at its election (i) either remove the Lessee Improvements or otherwise restore the Premises, and in such event Lessee shall, within thirty (30) days after receipt of bill therefor, reimburse Lessor for cost incurred, (a)upon written notice to Lessee may take and hold any Lessee Improvements and personal property as its sole property, without payment or obligation to Lessee therefor, or(sin specifically enforce Lessee's obligation to restore andlor pursue any remedy at law or inequity against Lessee for failure to so restore Further, in the event Lessor has consented to Lessee Improvements remaining on the Premises following termination, Lessee shall, upon request by Lessor,provide a Bill of Sale in a form aoceptable to Lessor conveying such Lessee Improvements to Lessor Section 21. Survival of Obligations Notwithstanding any expiration or other termination of this Lease, all of Lessee's indemnification obligations and any other obligations that have accrued but have not been satisfied under this Lease prior to the termination date shall survive such termination Section 22. Holding Over, If Lessee fails to surrender the Premises to Lessor upon the termination of this Lease, and Lessor does not consent in writing to Lessee's holding over, then such holding over will be deemed a month-to-month tenancy Lessee's holdover will be subject to all provisions of this Lease Section 23. Multiple Party Lessee. In the event that Lessee consists of two or more parties, all the covenants and agreements of Lessee herein contained shall be the joint and several covenants and agreements of such parties BNSF- Indefinite Term Lease-LwA Fwm 405,Rev 11126/02 - 11 - Form Approved by VP-Law Section 24. Damage or Destruction. • if at any time during the term of this Lease,the Premises are damaged or destroyed by fire or other casualty,then Lessor may terminate this Lease or repair and reconstruct the Premises to substantially the same condition in which the Premises existed immediately prior to the damage or destruction, except that Lessor is not regwred to repair or reconstruct any Lessee Improvements, personal property, furniture, trade fixtures, or office equipment located on the Premises and removable by Lessee under the provisions of this Lease Section 25. Eminent Domain. If any part of the Premises are taken by eminent domain, Lessor may either terminate this Lease or continue the Lease in effect If Lessor elects to continue the Lease,rent will be reduced in proportion to the area of the Premises taken by eminent domain, and Lessor shall repair any damage to the Premises resulting from the taking All sums awarded or agreed upon between Lessor and the condemning authority for the taking of the interest of Lessor dr Lessee,whether as damages or as compensation, will be the property of Lessor,without prejudice, however, to claims of Lessee against the condemning authority for moving costs and the unamortized cost of leasehold improvements paid for by Lessee taken by the condemning authority If this Lease is terminated under this Section 25, rent will be payable up to the date; that possession is taken by the condemning authority, and Lessor shall refund to Lessee any prepaid unaccrued rent less any sum then owing by Lessee to Lessor Section 26 Representations. Neither Lessor nor Lessor's agents have made any representations or promises with respect to the Premises except as herein expressly set forth Section 27. Signs No signs are to be placed on the Premises without the prior written approval of Lessor of the size, design, and content thereof Section 28. Consents and Approvals. Whenever in this Lease Lessor's consent or approval is required, such consent or approval shall be in Lessor's sole and absolute discretion If Lessor delays or refuses such consent or approval, such consent or approval shall be deemed denied, and Lessee in no event will be entitled to make, nor wtH Lessee make, any claim, and Lessee hereby waives any claim, for money damages (nor will Lessee claim any money damages by way of set-off counterclaim or defense) based upon any claim or assertion by Lessee that Lessor unreasonably withheld or unreasonably delayed its consent or approval Section 29. Captions The captions are inserted only as a matter of convenience and for reference, and in no way define, lunit or describe the scope of this Lease nor the intent of any provision thereof Section 30. Public Record Subject to the requirements of RCW 4217 250 through 42 17 310 (Public Disclosure), it is understood and agreed that this Lease shall not be placed of public record Lessor shall be given timely notice and opportunity to comment on any request for information encompassing this lease Section 31. Governing Law. All questions concerning the interpretation or application of provisions of this Lease shall be decided according to the laws of the state in which the Premises are located BNSF- Indefinite Term[ease-Land Form 405,Rer 1126M2 - 12- Form Approved by VP-Law Section 32. No Waiver. One or more waivers of any covenant, term, or condition of this Lease by Lessor shall not be construed as a waiver of a subsequent breach of the same covenant, term,or condition The consent or approval by Lessor to or of any act by Lessee requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act Section 33. Bindina Effect. All provisions contained in this Lease shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of Lessor and Lessee to the same extent as if each such successor and assign was named a party to this Lease Section 34. Force Maieure Except as may be elsewhere specifically provided in this Lease, if either party is delayed or hindered in, or prevented from the performance required under this Lease (except for payment of monetary obligations) by reason of earthquakes, landslides, strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts of God or other reason of the like nature not the fault of the party delayed in performance of its obligation, such party is excused from such performance for the period of delay The period for the performance of any such act will then be extended for the period of such delay Section 35 Entire Agreement/Modification This Lease is the full and complete agreement between Lessor and Lessee with respect to all matters relating to lease of the Premises and supersedes any and all other agreements between the parties hereto relating to lease of the Premises If this Lease is a reissue of an existing agreement held by Lessee, it shall supersede and cancel the previous lease or leases, without prejudice to any liability accrued prior to cancellation This Lease may be modified only by a wntten agreement signed by Lessor and Lessee Section 36. Notices. Any notice or documents required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given or shall be deemed to have been served and given if(i)delivered in person to the address hereinafter set forth for the party to whom the notice is given,(it)placed in the United States matt,certified-return receipt requested, addressed to such parry at the address hereinafter set forth, or(in)deposited into the custody of any reputable overnight carrier for next day delivery, addressed to such party at the address hereinafter set forth Any notice mailed as above shall be effective upon its deposit into the custody of the U S Postal Service or such reputable overnight carrier, as applicable, all other notices shall be effective upon receipt All rent and other payments due to Lessor hereunder shall also be made as provided in Section 3(A) above, and delivery of such rental and other payments shall only be effective upon actual receipt by Lessor From time to time either party may designate another address or telecopy number within the 48 contiguous states of the United States of America for all purposes of this Lease by giving the other party not less than frfteen (15)days'advance written notice of such change of address in accordance with the provisions hereof If to Lessee City of Kent 220 Fourth Avenue South Kent,WA 98032-5895 Attn Public Works Director If to Lessor The Burlington Northern and Santa Fe Railway Company 2500 Lou Menk Drive,AOB-3 Fort Worth,Texas 76131-2828 Attn Director—Real Estate BNSF- Indefinite Term I=c—Land Form 405,Rev 11Q6102 - 13 - Form Approved by VP-Law With a copy to 110 Staubach Global Services-RR,Inc. 5650 North Riverside Drrve,Suite 101 Fort Worth,Texas 76137 Attn Director—Leases and Permits Section 37. Counterparts. This Agreement may be executed in multiple counterparts, each of which shalt, for all purposes,be deemed an original but which together shall constitute one and the same instrument,and the signature pages from any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts of this Agreement may also be exchanged via electronic facsimile machines and any electronic facsimile of any partys signature shall be deemed to be an original signature for all purposes Section 36. Relabonship. Notwithstanding anything else herein to the contrary, neither party hereto shall be construed or held,by virtue of this Lease, to be the agent, partner,joint venturer, or associate of the other party hereto, it being expressly understood and agreed that the relationship between the parties hereto is and at all tines during the term of this Lease,shall remain that of Lessor and Lessee Section 39. Severability, It any clause or provision of this Lease is illegal, invalid or unenforceable under present or future taws effective during the term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision as similar in terms to such illegal,invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable Section 40. Transferability: Release of Lessor. Lessor shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this Lease and in the Premises,and upon such transfer, Lessor shall be released from any further obligations hereunder,and Lessee agrees to look solely to the successor in interest of Lessor for the performance of such obligations Section 41. Tax Waiver. Lessee waives all rights pursuant to all Laws to protest appraised values or receive notice of reappraisal regarding he Premises(including Lessor's personalty),irrespective of whether Lessor contests the same. Section 42. Attorneys'Fees. If ony action at law or in equity is necessary to enforce or interpret the terms of this Lease, the prevailing party shall be entitled to reasonable attomeys'fees,costs,and necessary disbursements in addition to any relief to which it may be entitled BNSF- Inde1mteTvm1Aa=—]snit Fmm405,Rev 111261e2 - 14- Form Approved by VP-Law Executed by the parties to be effective as of the Effective Date above LESSOR The Burlington Northern and Santa Fe Railway Company By Name, Title LESSEE City of Kent By Name- Title. SNSF- Indefinite Tam LAw-Land Form 4%.Rev 11l2&M - is - f ,3rzss 'i3a dM } a D p C Ltsi "I a 1 1 'I f•tl�r►S�'1Y1}ry�� Y• ( m 9r W 1 - 61 �: �> o ( II I a n\>! e • ' I - � � • � hilt I _ - iaV• t' 4 o"1C+++7'_'s'z6 FlR7." _"�_ —` +•F\cY-'Y+40 7_�a'L"S LO Q i w r +r ;,Opt v I r f I f I 1 ' ra» �FFgr or 1, Try ar.ay.1/R192'LY I P f I �y I �. i t t I •nr I I 0. � � • f � .� < � �r I D w I I If t to + I I I 41 w LL plq y� O ��3Y3fiBel ..C, .Any K ♦ - W 33 {t Q �-a Z i LL-jr , w co z Y Wz —N— W i W 1 !�7 �1 - � prywaul AP�rv� 0 0 < o � off Z MT W a: «� O I � i �+ � i 1 �t= I � ..� LL 00 W Z =1 u < ��y�� I lu I e�'i q'►h'/1'a4'�dY'�(I/� W�E Y O 1 EXHIBIT"B" WORK LETTER AGREEMENT THIS WORK LETTER AGREEMENT(the"Agreement")supplements that certain Indefinite Term Lease for Land ("Lease") dated by and between The Burlington Northern and Santa Fe Railway Company, a Delaware corporation("Lessor")and ,a(n) ("Lessee") in the event of any conflict between the provisions of this Agreement and the provisions of the Lease, the provisions of this Agreement shall control Unless the context otherwise requires, capitalized terms not defined herein shall have the meaning assigned to such terms in the Lease In the event Lessee uses one or more general contractors or subcontractors ("Contraclor(s)") for any improvements, alterations, build out, finish out, or other similar work on the Premises ("Work"), Lessee agrees to and accepts the following 1 Prior to performing any Work.Lessee shall obtain Lessor's approval of each Contractor and any Work to be performed by such Contractor shall be performed pursuant to a written contract between Lessee and the Contractor ("Work Contract")approved in advance by Lessor 2 Prior to commencing any Work, Lessee shall submit for Lessor's review and approval Lessee's plans, specifications and/or drawings for such Work (collectively, "Plans") in accordance with the procedure set forth in the Lease 3. All o must e t Lessee's and expense and in accordance with the Plans which Work m b performed a L see sole cost p have previously been approved by Lessor 4 Lessee shall cause its Contractors to meet all insurance and indemnification requirements required of Lessee under the Lease and shall obtain indemnification and insurance provisions from its Contractors in favor of Lessor and in the same form as set forth in the Lease 5 Prior to the commencement of the Work, all required local building, fire, health and other departments must approve all Plans requiring approval by local building codes to addition, the Work shall be performed, installed and/or constructed in accordance with all applicable federal, state and local laws, codes, ordinances, rules and regulations, including without limitation,the Americans With Disabilities Act of 1990,42 U S C A 12101 at seq 6. Lessee shall be responsible for obtaining all municipal and other governmental licenses or permits for the Work with copies furnished to Lessor prior to commencement of any construction T Lessee shall famish Lessor, for Lessors approval, a copy of its schedule of the Work Lessee shall perform the Work in accordance with the schedule approved by Lessor, and any changes in such schedule must be approved by Lessor in writing in advance 8 Notwithstanding the status of the completion of the Work, Lessee's obligation for payment of Base Rent and other amounts due under the Lease shag commence on the Commencement Date provided in the Lease Notwithstanding anything herein to the contrary, Lessor may, in Lessors sole discretion, permit Lessee and Lessee's Contractors to enter the Premises prior to the Commencement Date in order to commence Work, provided, however, that Lessee agrees that such early entry or occupation of the Premises shall be governed by al of the terms and conditions of the Lease and this Agreement(including the insurance and indemnity requirements therein),as such terms and conditions are more specifically set forth in the Lease and this Agreement 9. During construction, Lessor reserves the right to inspect the Work at any time upon reasonable notice to Lessee Work 10 Lessee's Contractors shall keep the Premises reasonably dean at an times during the performance of the 11 All Work must be performed in a good and workmanlike manner, free from defects in materials and workmanship. 1 Form Approved by VP-Law 12 If any matenalman's, mechanic's, laborer's or any other liens for any work claimed to have been undertaken for Lessee or at Lessee's request is filed against the Premises. Lessee shall indemnify, defend and hold harmless Lessor from any such liens filed during the term of the Lease and shall, at Lessee's own expense, cause an such hens to be removed within ten(10)days after written notice from Lessor to Lessee of the filing thereof 13 Lessee must obtain Lessor's reasonable approval that the Work has been completed n substantial accordance with the approved plans and specifications Lessor shall receive copies of all Certificates of Occupancy and as-built drawings(electrical,mechanical,fire and architectural)prior to approving the Work 14 All guarantees and warranties provided by Lessee's Contractors shaft be issued to Lessee and,for Work which is or will at the termination of this Lease be Lessor's property, also to Lessor IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first set forth above LESSOR The Burlington Northam and Santa Company By Name Title LES B Name T • BNSF- Indefinite Tern Lease—land Form 405,Rev 11/26M -2- December 30,2003 Mary Kaye Bardue Burlington Northern Santa Fe Railway Co %Staubach Company 999 Third Avenue,Suite 2120 Seattle,WA 98104 RE City of Kent,Washington Proof of Comprehensive General Liability and Auto Liability for lease of Alley between Gowe St.and Titus St. in Kent,WA Evidence of Coverage The above captioned entities are members of the Washington Cities Insurance Authority (WCIA),which is a self-insured pool of 108 municipal corporations in the State of Washington WCIA has $2 million per occurrence combined single limn of liability in its self insured layer that may be applicable in the event an incident occurs that is deemed to be attributed to the negligence of the member.This coverage includes bodily injury including death and personal injury,property damage,fire legal liability,and products completed operations This coverage also includes business automobile coverage in the amount of$2 million,property damage and bodily injury, for all vehicles including owned,hired and non-owned. WCIA provides contractual liability coverage to the City of Kent The contractual liability coverage provides that WCIA shall pay on behalf of Kent all sums which the member shall be obligated to pay by reason of liability assumed under contract by the member. This would include the hold harmless provision written in your favor for the agreement with the City of Kent WCIA is an Interlocal Agreement among municipalities and liability is self funded by the membership. As there is no insurance policy involved and WCIA is not an insurance company,your organization cannot be named as an"additional insured". Sincerely, e!5V, U �-�— Eric B. Larson Assistant Director Washington Cities Insurance Authority(WCIA) iCc, Chris Hills, City of Kent Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: PUGET SOUND ENERGY AGREEMENT FOR S. 228TH ST. UNDERGROUND POWER CONVERSION—AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the Puget Sound Energy Construction Agreement upon concurrence of the language in that Agreement by the City Attorney and the Public Works Director. 3. EXHIBITS: Public Works Director's memorandum and Puget Sound Energy Construction agreement • 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6K PUBLIC WORKS DEPARTMENT Don E Wickstrom, P E Public Works Director Phone 253456-5500 Fax 253-856-6500 KEN T Address 220 Fourth Avenue S WADHINOTON Kent,WA 98032-5895 DATE: March 1,2004 TO: Public Works Committee FROM: Dotikstrom,Public Works Director THROUGH SUBJECT: Puget Sound Energy Construction Agreement for 228th Street Underground Power Conversion MOTION Recommend authorizing the Mayor to sign the Puget Sound Energy Construction Agreement upon concurrence of the language therem by the City Attorney and the Public Works Director SUMMARY: iAs part of the South 228th Street project,overhead utilities need to be converted to underground in accordance with City ordinance The attached agreement with Puget Sound Energy establishes a scope of work,schedule, and costs for PSE's work The Public Works Director recommends approval of the agreement and that the Mayor be authorized to sign same BUDGET IMPACT No Unbudgeted Fiscal/Personnel Impact i BACKGROUND Existing overhead power lines are in conflict with the future location of the South 228d'Street bridge over the Green River The City has requested PSE to relocate overhead power lines on Russell Road and Frager Road for approximately 1800 feet to allow for construction of the S 228th St. improvements The City will provide the trenching and vault excavation PSE will provide and install the conduits and vaults The schedule 74 conversion agreement outlines the requirements and the 60/40 cost split of which the City's share is approximately$40,000 • Mayor White and Kent City Council ] PSE Construction Agreement March 1,2004 SCHEDULE 74 UNDERGROUND CONVERSION Project Construction Agreement Project Name- 22e Street Phase 1 Conversion Project Number 104879041101019557 THIS Agreement,dated as of this—day of ,2004,is made by and between the CITY OF KENT,a Municipal Corporation(the"Govemment Entity"), and PUGET SOUND ENERGY, Inc,a Washington Corporation (the"Company") RECITALS A. The Company is a public service company engaged in the sale and distribution of electnc energy,and pursuant to its franchise or other rights from the Govemment Entity,currently locates its electric distribution facilities within the jurisdictional boundaries of the Government Entity. B. The Government Entity has determined that it is necessary to replace the existing overhead electric distribution system within the area specified in the Project Plan(as defined below) (the "Conversion Area')with a comparable underground electric distribution system,all as more specifically described in the Project Plan (the"Conversion Projectl. C The Govemment Entity and the Company have previously entered into a Project Design Agreement dated as of December 1.=(the"Design Agreementl,pursuant to which the parties completed certain engineering design,cost assessment,operating rights planning and other preliminary work relating to the Conversion Project and,in connection with that effort,developed the Project Plan D. The Government Entity and ttie Company wish to execute this written contract in accordance with Schedule 74 of the Companys Electric Tariff G('Schedule 74'to govern the completion of the Conversion Project,which both parties intend shall qualify as an underground conversion under the terms of Schedule 74. AGREEMENT The Government Entity and the Company therefore agree as follows• 1 Definitions (a) Unless specifically defined otherwise herein,all terms defined in Schedule 74 shall have the same meanings when used in this Agreement,including,without Limitation,the following• i) Cost of Conversion, ii) Public Thoroughfare, III) Temporary Service, iv) Trenching and Restoration; v) Underground Distribution System;and vi) Underground Service Lines (b) "Company-Initiated Upgrade"shall mean anyfeature of the Underground distribution System which is required by the Company and is not reasonably required to make the Underground Distribution System comparable to the overhead distribution system being replaced For purposes of the foregoing,a"comparable"system shall include,unless the Parties otherwise agree,the number of empty ducts(not to exceed two(2),typically having a diameter of 6"or less) Constriction Agreement Schedule 74 City of Kent 22e Street Ph 1 Conversion PSE S10487go4 of such diameter and number as may be specified and agreed upon in the Project Plan necessary to replicate the load-carrying capacity(system amperage class)of the overhead system being replaced. (c) "Estimated Reimbursable Private Conversion Costs'shall mean the Companys good faith estimate of the Reimbursable Private Conversion Costs,as specified in the Project Plan and as changed and adjusted from time to time in accordance with Section 6,below. (d) "Estimated Reimbursable Temporary Service Costs"shall mean the Company's good faith estimate of the Reimbursable Temporary Service Costs,as specified in the Project Plan and as changed and adjusted from time to time in accordance with Section 6,below (e) "Estimated Reimbursable Upgrade Costs°shall mean the Companys good faith estimate of the Reimbursable Upgrade Costs,as specified in the Project Plan and as changed and adjusted from time to time in accordance with Section 6,below (f} "Estimated Shared Company Costs'shall mean the Company`s good faith estimate of the Shared Company Costs,as specified in the Project Plan and as changed and adjusted from time to time in accordance with Section 6,below. (g) "Estimated Shared Government Costs'shall mean the Government Entitys good faith estimate of the Shared Government Costs,as specified in the Project Plan and as changed and adjusted from time to time in accordance with Section 6,below. (h) "Government-Requested Upgrade"shall mean any feature of the Underground Distribution System which is requested by the Government Entity and is not reasonably required to make the Underground Distribution System comparable to the overhead distribution system being replaced For purposes of the foregoing,any empty ducts installed at the request of the Government Entity shall be a Government-Requested Upgrade (1) "Partf shall mean either the Company,the Government Entity,or both (j) "Private Property Conversion"shall mean that portion,if any,of the Conversion Project for which the existing overhead electric distribution system is located,as of the date determined in accordance with Schedule 74,(1)outside of the Public Thoroughfare,or(it) pursuant to rights not derived from a franchise previously granted by the Government Entity or pursuant to rights not otherwise previously granted by the Government Entity (k) "Project Plan"shall mean the project plan developed by the Parties under the Design Agreement and attached hereto as Exhibit A.as the same may be changed and amended from time to time in accordance with Section 6,below. The Project Plan includes,among other things, (I)a detailed description of the Work that is required to be performed by each Party and any third party,(it)the applicable requirements and specifications for the Work,(III)a description of the Operating Rights that are required to be obtained by each Party for the Conversion Project(and the requirements and specifications with respect thereto), (nr)an itemization and summary of the Estimated Shared Company Costs, Estimated Shared Government Costs,Estimated Reimbursable Private Conversion Costs (d any), Estimated Reimbursable Temporary Service Costs(d any)and Estimated Reimbursable Upgrade Costs(if any),and(v)the Work Schedule (1) "Operating Rights"shall mean sufficient space and legal rights for the construction,operation, repair,and maintenance of the Underground Distribution System. (m) "Reimbursable Private Conversion Costs"shall mean(I)all Costs of Conversion, d any,incurred by the Company which are attributable to a Private Property Conversion,less(n)the distribution Pole replacement costs(d any)that would be avoided by the Company on account of such Private Property Conversion,as determined consistent with the applicable Company distribution facilities Construction Agreement.Schedule 74 2 City of Kern 22e Sheet Ph 1 Conversion PSE#10487904 i replacement program,plus(m)lust compensation as provided by law for the Companys interests in real property on which such existing overhead distribution system was located prior to conversion;provided that the portion of the Reimbursable Private Conversion Costs attributable to the Costs of Conversion under subparagraph(i)of this paragraph shall not exceed the Estimated Reimbursable Private Conversion Costs without the prior written authorization of the Government Entity (n) "Reimbursable Temporary Service Costs'shall mean all costs incurred by the Company which are attributable to(i)any facilities installed as part of the Conversion Project to provide Temporary Service,as provided for in Schedule 74,and(u)the removal of any facilities installed to provide Temporary Service(less salvage value of removed equipment), provided that the Reimbursable Temporary Service Costs shall not exceed the Estimated Reimbursable Temporary Service Costs without the prior written authorization of the Government Entity (o) "Reimbursable Upgrade Costs"shall mean all Costs of Conversion incurred by the Company which are attributable to any Government-Requested Upgrade,provided that the Reimbursable Upgrade Costs shall not exceed the Estimated Reimbursable Upgrade Costs without the prior written authorization of the Government Entity (p) "Shared Company Costs"shall mean all Costs of Conversion(other than Reimbursable Upgrade Costs,Reimbursable Private Conversion Costs and Reimbursable Temporary Service Costs) incurred by the Company in connection with the Conversion Project, provided,however,that the Shared Company Costs shall not exceed the Estimated Shared Company Costs without the prior written authorization of the Government Entity For the avoidance of doubt,the"Shared Company Costs"shall,as and to the extent specified in the Design Agreement, include the actual, reasonable costs to the Company for the"Design Work'performed by the Company under the Design Agreement. (q) "Shared Government Costs"shall mean all Costs of Conversion incurred by the Government Entity in connection with(i)any duct and vault installation Work which the Parties have specified in the Project Plan is to be performed by the Government Entity as part of the Government Work, and(it)the acquisition of any Operating Rights which the Parties have,by mutual agreement, specified in the Project Plan are to be obtained by the Government Entity for the Conversion Project,but only to the extent attributable to that portion of such Operating Rights which is necessary to accommodate the facilities of the Company,provided,however,that the Shared Government Costs shall not exceed the Estimated Shared Government Costs without the prior written authorization of the Company. (r) 7otal Shared Costs"shall mean the sum of the Shared Company Costs and the Shared Government Costs. For the avoidance of doubt,the Total Shared Costs shall not include,without limitation,(i)costs to the Govemment Entity for Trenching and Restoration,or(it) costs associated with anyjoint use of trenches by other utilities as permitted under Section 3(b) (s) 'Work"shall mean all work to be performed in connection with the Conversion Project,as more specifically described in the Project Plan,including,without limitation,the Company Work(as defined in Section 2(a),below) and the Government Work(as defined in Section 3(a),below). (t) 'Work Schedule"shall mean the schedule specified in the Project Plan which sets forth the milestones for completing the Work,as the same may be changed and amended from time to time in accordance with Section 6, below. 2. Obligations of the Company Constriction Agreement Schedule 74 3 City of Kent 226m Street Ph 1 Conversion PSE#10487904 (a) Subject to the terms and conditions of this Agreement,the Company shall do the following as specified in,and in accordance with the design and construction specfications and other requirements set forth in,the Project Plan(the'Company Work) i) furnish and install an Underground Distribution System within the Conversion Area (excluding any duct and vault installation or other Work which the Parties have specified in the Project Plan is to be performed by the Government Entity), ii) provide a Company inspector on-sde at the times specified in the Work Schedule to inspect the performance of any duct and vault installation Work which the Parties have specified in the Project Plan is to be performed by the Govemment Entity,and in) upon connection of those persons or entdies to be served by the Underground Distribution System and removal of facilities of any other utilities that are connected to the poles of the overhead system,remove the existing overhead system (including associated wires and Company-owned poles)of 15,000 volts or less within the Conversion Area except for Temporary Services. (b) Upon request of the Government Entity,the Company shall provide periodic reports of the Progress of the Company Work identifying(t)the Company Work completed to date,(ii)the Company Work yet to be completed,and(iii)an estimate regarding whether the Conversion Project is on target with respect to the Esbmated Shared Company Costs,the Estimated Reimbursable Private Conversion Costs(if any),the Estimated Reimbursable Temporary Service Costs(if any),the Estimated Reimbursable Upgrade Costs(if any)and the Work Schedule (c) Except as otherwise provided in the Company's Electric Tardf G,the Company shall own,operate and maintain all electrical facilities installed pursuant to this Agreement including,but not limited to,the Underground Distribution System and Underground Service Lines (d) Subject to the terms and conditions of this Agreement,the Company shall perform all Company Work in accordance with the Project Plan,the Work Schedule and this Agreement. 3. Oblicabons of the Government Entity (a) Subject to the terms and conditions of this Agreement,the Government Entity shall do the following as speafied in,and in accordance with the design and construction specifications and other requirements set forth in,the Project Plan(the'Government Work'} i) provide the Trenching and Restoration, o) perform the surveying for alignment and grades for ducts and vaults,and is) perform any duct and vault installation and other Work which the Parties have specified in the Project Plan is to be performed by the Government Entity (b) Other utilities may be permitted by the Government Entity to use the trenches provided by the Government Entity for the installation of their facilities so long as such facilities or the installation thereof do not interfere(as determined pursuant to the Company's electrical standards)with the Underground Distribution System or the installation or maintenance thereof Any such use of the trenches by other utilities shall be done subject to and in accordance with the joint trench design specifications and installation drawings set forth or otherwise identified in the Project Plan,and the Government Entity shall be responsible for the coordination of the design and installation of the facilities of the other utilities to ensure compliance with such specifications and drawings (c) Upon request of the Company,the Government Entity shall provide periodic reports of the progress of the Government Work identifying(1)the Government Work completed to date,(e)the Government Work yet to be completed,and(w)an estimate regarding whether the Conversion Project is on target with respect to the Estimated Shared Government Costs and the Work Schedule Construction Agreement-Schedule 74 4 Crty of Kent 22e Street Ph 1 Conversion PSE#10487904 (d) The Government Entity shall be responsible for coordinating all work to be performed in connection with the street improvement program within the Conversion Area (e) Subject to the terms and conditions of this Agreement,the Government Entity shalt perform all Government Work in accordance with the Project Plan,the Work Schedule and this Agreement 4 Work Schedule (a) The Government Entity and the Company have agreed upon the Work Schedule as set forth in the Project Plan. Changes to the Work Schedule shall be made only in accordance with Section 6,below (b) Promptly following the execution of this Agreement,and upon completion by the Government Entity of any necessary preliminary work,the Government Entity shall hold a pre-construction meeting involving all participants in the Conversion Project to review project design,coordination requirements,work sequencing and related pre-mobilization requirements. Following the pre- construction meeting,the Government Entity shall give the Company written notice to proceed with the Work at least ten(10)business days prior to the commencement date specified in the Work Schedule (c) Subject to the terms and conditions of this Agreement,each Party shall perform the Work assigned to it under this Agreement in accordance with the Work Schedule So long as the Company performs the Company Work in accordance with the Work Schedule,the Company shall not be liable to the Government Entity(or its agents,servants,employees,contractors, subcontractors,or representatives)for any claims,actions,damages,or liability asserted or arising out of delays in the Work Schedule 5 Location of Facildies All facilities of the Company installed within the Conversion Area pursuant to this Agreement shall be located,and all related Operating Rights shall be obtained,in the manner set forth in the applicable provisions of Schedule 74,as specified by the Parties in the Project Plan 6 Chanaes (a) Either Party may,at any time,by written notice thereof to the other Party,request changes in the Work within the general scope of this Agreement(a"Request for Change"),including,but not limited to (i)changes in,substitutions for,additions to or deletions of any Work, (u)changes in the specdications,drawings and other requirements in the Project Plan, (iri)changes in the Work Schedule,and(iv)changes in the location,alignment,dimensions or design of items included in the Work No Request for Change shall be effective and binding upon the Parties unless signed by an authorized representative of each Party (b) If any change included in an approved Request for Change would cause a change in the cost of, or the time required for,the performance of any part of the Work,an equitable adjustment shall be made in the Estimated Shared Company Costs,the Estimated Shared Government Costs,the Estimated Reimbursable Private Conversion Costs(d any),the Estimated Reimbursable Temporary Service Costs (d any),the Estimated Reimbursable Upgrade Costs(if any)and/or the Work Schedule to reflect such change The Parties shall negotiate in good faith with the objective of agreeing in writing on a mutually acceptable equitable adjustment. If the Parties are unable to agree upon the terms of the equitable adjustment,either Party may submit the matter for resolution pursuant to the dispute resolution provisions in Section 10,below. (c) The Work Schedule,the Estimated Shared Company Costs,the Estimated Shared Government Costs,the Estimated Reimbursable Private Conversion Costs,the Estimated Reimbursable Temporary Service Costs and/or the Estimated Reimbursable Upgrade Costs shall be further Construction Agreement Schedule 74 s City of Kent 22e Street Ph 1 Conversion PSE#10487904 equitably adjusted from time to time to reflect any change in the costs or time required to perform the Work to the extent such change is caused by (i)any Force Majeure Event under Section 11, below,(i)the discovery of any condition within the Conversion Area which affects the scope,cost, schedule or other aspect of the Work and was not known by or disclosed to the affected Party prior to the date of this Agreement,or(w)any change or inaccuracy in any assumptions regarding the scope, cost,schedule or other aspect of the Work which are expressly Identified by the Parties in the Project Plan. Upon the request of either Party,the Parties will negotiate in good faith with the objective of agreeing in writing on a mutually acceptable equitable adjustment If,at any time thereafter, the Parties are unable to agree upon the terms of the equitable adjustment,either Party may submit the matter for resolution pursuant to the dispute resolution provisions in I Section 10,below (d) Notwithstanding any dispute or delay in reaching agreement or arriving at a mutually acceptable equitable adjustment,each Party shall,d requested by the other Party,proceed with the Work in accordance with any approved Request for Change Any request to proceed hereunder must be s for rejecting the accompanied led a written statement setup forth the requesting P reason n Pa by 9 � 9 � !a 3 proposed equitable adjustment of the other Par ty 7. Comoensation and Payment (a) Subject to and in accordance with the terms and conditions of this Agreement(including,without limitation, the payment procedures set forth in this Section 7),payment in connection with the Conversion Project and this Agreement shall be as follows ) The Total Shared Costs shall be allocated to the Parbes m the following percentages (A)sixty percent(600k)to the Company,and(B)forty percent(400/6)to the Government Entity u) The Government Entity shall pay one hundred percent(100%)of all Reimbursable Private Conversion Costs,if any. in) The Government Entity shall pay one hundred percent(1000/6)of all Reimbursable Upgrade Costs,if any Iv) The Government Entity shall pay one hundred percent(1000/6)of all Reimbursable Temporary Service Costs, if any v) The Government Entity shall pay one hundred percent(1000/6)of the costs a incurs to perform that portion of the Government Work specified in Section 3(a)(i)and(ii)(i e, Trenching and Restoration and surveying). vi) The Company shall pay one hundred percent(1000/6)of the costs it incurs to design, provide and construct any Company-Initiated Upgrade vu) The Company shall pay one hundred percent(100%)of the costs it incurs to obtain Operating Rights outside the Public Thoroughfare (b) Based on the allocation of responsibilities set forth in Section 7(a),above,the Parties shall determine the net amount payable by the Government Entity or the Company, as applicable,to the other Parry under this Agreement(the Net Amourill The Net Amount shall be determined by using the amount of the Total Shared Costs allocated to the Government Entity under Section 7(a)(i), and adjusting such amount as follows 1) Subtracting(as a credit to the Government Entity)the amount of the Shared Government Costs. rr) Adding(as a credit to the Company)the amount of all Reimbursable Private Conversion Costs,Reimbursable Upgrade Costs and Reimbursable Temporary Service Costs ni) Subtracting(as a credit to the Government Entity)any payments previously made to the Company by the Government Entity under the Design Agreement which,under the terms of the Design Agreement,are to be credited to the Government Entity under this Agreement Construction Agreement Schedule 74 e City of Kent 22e Street Ph 1 Conversion PSE#10487904 The Net Amount,as so calculated,(A)will be an amount payable to the Company d it is a positive number,and(B)shall be an amount payable to the Government Entity if it is a negative number (c) Within sixty(60)business days of completion of the Conversion Project,the Government Entity shall provide the Company with an itemization of the Shared Government Costs(the"Government ftemization'),together with such documentation and information as the Company mayreasonably request to verify the Government Itemization. The Government Itemization shalt,at a minimum, break down the Shared Government Costs by the following categories,as applicable (i)property and related costs incurred and/or paid by the Government Entity, including any costs of obtaining Operating Rights,and(it)construction costs incurred and/or paid by the Government Entity, including and listing separately inspection, labor, materials and equipment,overhead and all costs charged by any agent,contractor or subcontractor of the Government Entity (d) Within thirty(30) business days after the Company's receipt of the Government Itemization and requested documentation and information,the Company shall provide the Government Entity a written statement(the"Company Statement')showing(i)an itemization of the Shared Company Costs,(n)the Parties'relative share of the Total Shared Costs based on the Companys itemization of the Shared Company Costs and the Government Entity's itemization of the Shared Government Costs set forth in the Government Itemization, (m)any Reimbursable Private Conversion Costs,(iv)any Reimbursable Upgrade Costs, (v)any Reimbursable Temporary Service Costs, (vi)any credits to the Government Entity for payments previously made to the Company by the Government Entity under the Design Agreement which, under the terms of the Design Agreement,are to be credited to the Government Entity under this Agreement,and (vu)the Net Amount,as determined in accordance with Section 7(b),above,together with such documentation and information as the Government Entity may reasonably request to verify the Company Statement The itemization of the Shared Company Costs included in the Company Statement shall,at a minimum, break down the Shared Company Costs by the following categories, as applicable (i)design and engineering costs,and(n)construction costs,including and listing separately inspection,labor,materials and equipment,overhead and all costs charged by any agent,contractor or subcontractor of the Company (e) Within thirty(30)business days after the Government Entity's receipt of the Company Statement and requested documentation and information,the Net Amount shall be paid by the owing Party to the other Party,as specified in the Company Statement 8 Indemnification. (a) The Government Entity releases and shall defend,indemnify and hold the Company harmless from all claims,losses,harm,liabilities,damages,costs and expenses(including,but not limited to, reasonable attorneys'tees)caused by or arising out of any negligent act or omission or willful misconduct of the Government Entity in its performance under this Agreement During the performance of such achvitres the Government Entity's employees or contractors shall at all times remain employees or contractors,respectively,of the Government Entity. (b) The Company releases and shall defend,indemnify and hold the Government Entity harmless from all claims,losses,harm,liabilities,damages,costs and expenses (including,but not limited to, reasonable attomeys'fees)caused by or ansing out of any negligent act or omission or willful misconduct of the Company in its performance under this Agreement During the performance of such activities the Company s employees or contractors shall at all times remain employees or contractors, respectively,of the Company (c) Solelyfor purposes of enforcing the indemnification obligations of a Party under this Section 8, each Party expressly waives its immunity under Title 51 of the Revised Code of Washngton,the Industrial Insurance Act,and agrees that the obligation to indemnify,defend and hold harmless provided for in this Section 8 extends to any such claim brought against the indemnified Party by or on behalf of any employee of the indemnifying Party. The foregoing waiver shall not in anyway Construction Agreement Schedule 74 7 City of Kent 22P Street Ph 1 Conversion PSE#10487904 preclude the indemnifying Party from raising such immunity as a defense against any clam brought against the indemnifying Party by any of its employees 9. Conversion of Service to Customers within Conversign Area (a) Upon commencement of the Work,the Government Entity shall notify all persons and entities within the Conversion Area that seance Imes to such customers must be converted from overhead to underground service within the applicable statutory period following written notice from the Government Entity that service from underground facilities are available in accordance with RCW 35 96 050 Upon the request of any customer,other than a single family residential customer, within the Conversion Area,the Company shall remove the overhead system and conned such persons'and entities'Underground Service Lines to the Underground Distribution System (b) The Parties acknowledge that single family residences within the Conversion Area must(i) provide a service trench and conduit,in accordance with the Company's specifications,from the underground meter base to the point of service provided during the conversion,and(u)pay for the secondary service conductors as defined in Schedule 85 of the Company's Electric Tariff G The Government Entity shall exercise its authority to order disconnection and removal of overhead facilities with respect to owners failing to convert service lines from overhead to underground within the timelines provided in RCW 35 96 050. 10 Dispute Resolution (a) Any dispute,disagreement or claim arising out of or concerning this Agreement must first be presented to and considered by the Parties A Party who wishes dispute resolution shall notify the other Party in writing as to the nature of the dispute Each Parry shall appomt a representative who shall be responsible for representing the Party's interests The representatives shall exercise good faith efforts to resolve the dispute. Any dispute that is not resolved within ten(10)business days of the date the disagreement was first raised by written notice shall be referred by the Parties'representatives in writing to the senior management of the Parties for resolution In the event the senior management are unable to resolve the dispute within twenty(20)business days (or such other period as the Parties may agree ,a upon),each g p ) Party may pursue resolution of the dispute through other legal means consistent with the terms of this Agreement. All negotiations pursuant to these procedures for the resolution of disputes shall be confidential and shall be treated as compromise and settlement negotiations for purposes of the state and federal rules of evidence (b) Any claim or dispute arising hereunderwhich relates to any Request for Change or any equitable adjustment under Section 6,above,or the compensation payable by or to either Partyunder Section 7,above,and which is not resolved by senior management within the time permitted under Section 1O(a),above,shall be resolved by arbitration in Seattle,Washington,under the Construction industry Arbitration Rules of the American Arbitration Association then in effect The decision(s)of the arbdrator(s)shall be final,conclusive and binding upon the Parties All other disputes shall be resolved by litigation in any court or governmental agency,as applicable,having Jurisdiction over the Parties and the dispute (c) In connection with any arbitration under this Section 10,costs of the arbitrator(s),hearing rooms and other common costs shall be divided equally among the Parties Each Party shall bear the cost and expense of preparing and presenting its own case(including,but not limited to,its own attomeys'fees), provided,that, in any arbitration,the arbdrator(s)may require, as part of his or her decision, reimbursement of all or a portion of the prevailing Party's costs and expenses (including, but not limited to, reasonable attorneys'fees)by the other Party (d) Unless otherwise agreed by the Parties in writing,the Parties shall continue to perform their respective obligations under this Agreement during the pendency of any dispute. Construction Agreement Schedule 74 e City of Kent 22e Street Ph I Conversion PSE#10487904 11. Uncontrollable Forces In the event that either Party is prevented or delayed it the performance of any of its obligations under this Agreement by reason beyond its reasonable control(a'Force Maleure Event"),then that Party's performance shall be excused during the Force Maleure Event Force Maleure Events shall mchide, without limitation,war, civil disturbance,flood,earthquake or other Act of God, storm,earthquake or other condition which necessitates the mobilization of the personnel of a Party or its contractors to restore utility service to customers;laws,regulations,rules or orders of any governmental agency; sabotage,strikes or similar labor disputes involving personnel of a Party,its contractors or a third party;or any failure or delay in the performance by the other Parry,or a third party who is not an employee,agent or contractor of the Party claiming a Force Maleure Event, in connection with the Work or this Agreement Upon removal or termination of the Force Maleure Event,the Party claiming a Force Maleure Event shall promptly perform the affected obligations in an orderly and expedited manner under this Agreement or procure a substitute for such obligation The Parties shag use all commercially reasonable efforts to eliminate or minimize any delay caused by a Force Maleure Event 12 Insurance (a) PSE shall, and shall require each of its contractors to,secure and maintain in force throughout the duration of the Conversion Project(or,it sooner,until termination of this Agreement) comprehensive general liability insurance,with a minimum coverage of$2.000.000 per occurrence and$2.000.000 aggregate for personal injury, and$2 0. 00.000 per occurrence/ aggregate for property damages,and professional liability insurance in the amount of$2,000.000 (b) The Government Entity shall ensure that each of its contractors performing any Government Work secures and maintains in force throughout the duration of the Conversion Project(or,it sooner, until termination of this Agreement)insurance policies having the same coverage,amounts and limits as specified Section 12(a),above (c) In lieu of the insurance requirements setforth in Section 12(a),above,the Company may self- insure against such risks in such amounts as are consistent with good utility practice Upon the Government Entity's request,the Company shall provide the Government Entity with reasonable written evidence that the Company is maintaining such self-insurance 13. Other• (a) Agreement Subiect To Tariff This Agreement is subject to the General Rules and Provisions set forth in Tariff Schedule 80 of the Company's electrical Taritt G and to Schedule 74 of such Tariff as approved by the Washington Utilities and Transportation Commission and in effect as of the date of this Agreement (b) Termination, The Government Entity reserves the right to terminate the Conversion Project and this Agreement upon written notice to the Company In the event that the Government Entity terminates the Conversion Project and this Agreement,the Government Entity shall reimburse the Companyfor all costs reasonably incurred bythe Company in connection with the Work performed prior to the effective date of termination In such event,the costs reimbursable to the Company(i)shall not be reduced by any Shared Government Costs or other costs#)wired by the Government Entity,and(n) shall be paid within thirty(30)days after the receipt of the Company's invoice therefor Sections 1,5,7,8,9,10, 11 and 13 shall survive any termination of the Conversion Project and/or this Agreement (c) Facilities Greater Than 15.000 Vohs Nothing in this Agreement shall in anyway affect the rights or obligations of the Company under any previous agreements pertaining to the existing or future facilities of greater than 15,000 Vohs within the Conversion Area Construction Agreement Schedule 74 City of Kent 221P Street Ph 1 Conversion PSE#10487904 i (d) Compliance With law The Parties shall,in performing the Work under this Agreement,comply with all applicable federal,state,and local laws,ordinances,and regulations. (e) No Discrimination The Company,with regard to the Work performed by the Company under this Agreement,shall comply with all applicable laws relating to discrimination on the basis race,color, national origin, religion,creed,age,sex,or the presence of any physical or sensory handicap in the selection and retention of employees or procurement of materials or supplies (f) Independent Contras The Company and the Government Entity agree that the Company is an independent contractor with respect to the Work and this Agreement The Company is acting to preserve and protect its facilities and is not acting for the Government Entity in performing the Work Nothing in this Agreement shall be considered to create the relationship of employer and employee between the Parties Neither the Company nor any employee of the Company shall be entitled to any benefits accorded employees of the Government Entity by virtue of the Work or this Agreement The Government Entity shall not be responsible for withholding or otherwise federal u or contributing to the State Industrial Insurance deducing ede al income tax or social security con g Program,or otherwise assuming the duties of an employer with respect to the Company,or any employee of the Company (g) Nonwaiver of Rights or Remedies No failure or delay of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any other right under this Agreement,and no course of dealing or performance with respect thereto,shall, except to the extent provided in this Agreement,be construed as a waiver or,or choice of,or relinquishment of any right under any provision of this Agreement or any right at law or equity not otherwise provided for herein The express waiver by edher Party of any right or remedy under this Agreement or at law or equity in a particular instance or circumstance shall not constitute a waiver thereof in any other instance or circumstance (h) No Thud Party Beneficiaries. There are no third-party beneficiaries of this Agreement Nothing contained in this Agreement is intended to confer any right or interest on anyone other than the Parties, their respective successors,assigns and legal representatives (1) Governmental Authority This Agreement is subject to the rules,regulations,orders and other requirements, now or hereafter in effect,of all governmental regulatory authorities and courts having jurisdiction over this Agreement,the Parties or either of them All laws,ordinances,rules, regulations, orders and other requirements, now or hereafter in effect,of governmental regulatory authorities and courts that are required to be incorporated into agreements of this character are by this reference incorporated in this Agreement (j) No Partnership This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the Parties or to impose any partnership obligations or habtlity upon either Party Further, neither Party shall have any right,power or authority to enter into any agreement or undertaking for or on behalf of,to act as or be an agent or representative of,or to otherwise bind the other Party. (k) Severabdity. In the event that any provision of this Agreement or the application of any such provision shall be held invalid as to either Party or any circumstance by any court having jurisdiction,such provision shall remain in force and effect to the maximum extent provided by law,and all other provisions of this Agreement and their application shall not be affected thereby but shall remain in force and effect unless a court or arbitrator holds they are not severable from the invalid provisions. Construction Agreement Schedule 74 10 Cny of Kent 22e Street Ph 1 Conversion PSE#1 p4879o4 (I) Notice Any notice under this Agreement shall be in writing and shall be faxed(with a copy followed by mad or hand delivery),delivered in person,or mailed,properly addressed and stamped with the required postage,to the intended recipient as follows i li to the Government Entity. City of Kent Attn Fax. If to the Company Puget Sound Energy, [no 6905 South 221P Street,SKC-SVC Kent,WA 98032 Attn Mary Ausbum,AICP Fax (253)395-6882 Any Party may change its address specified in this Section 13(I)by giving the other Party notice of such change in accordance with this Section 13(I) (m)Apolicabie Law This Agreement shall in all respects be interpreted,construed and enforced in accordance with the laws of the State of Washington(without reference to rules governing conflict of laws),except to the extent such laws may be preempted by the laws of the United States of America. (n) Entire Agreement This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and all other agreements and understandings of the Parties,whether written or oral,with respect to the subject matter of this Agreement are hereby superseded in their entireties,provided,however,that except as expressly set forth in this Agreement,nothing herein is intended to or shall alter,amend or supersede the Design Agreement and the same shall remain in full force and effect in accordance with its terms (o) Successors and Assnons. This Agreement shall be binding upon and inure to the benefit of the respective successors,assigns,purchasers,and transferees of the Parties,including but not limited to, any entity to which the rights or obligations of a Party are assigned,delegated,or transferred in any corporate reorganization,change of organization,or purchase or transfer of assets by or to another corporation, partnership,association,or other business organization or division thereof. Government Entity. Company CITY OF KENT PUGET SOUND ENERGY,INC BY BY ITS ITS Date Signed Date Signed Approved as to form Construction Agreement Schedule 74 City of Kent.22e Street Ph 1 Conversion PSE#10487904 Exhibit A "Project Plan" Schedule 74 Undeuround Conversion PUGET SOUND ENERGY City of Kent 228`h Street Corridor Conversion PSE Notification Number 10487904 PSE Superior Order Job Number: 101019557 Introduction Tlns Project Plan describes work to be performed by Puget Sound Energy(PSE)and the City of Kent (the City)for the conversion of certain PSE electrical distribution system facilities as descnbed herein(the Conversion Project). In addition to this document,the Project Plan includes and consists of the following. • Attachment A-Applicable drawings,requirements and specifications for the Conversion Project work. • Attachment B -Summary of Estimated Conversion Project Costs. Revisions to this Project Plan must be mutually approved by the City and PSE. Scope of Work Pursuant to PSE's Rate Schedule 74,PSE will convert its existing overhead electrical distribution system of 15 kV or less to an Underground Distribution System within the following project area(the Conversion Area):Along aportion of 228'i St. from Station 54+00(PV04)to Station 60+00 Q03)and Russell Rd from Station 0+00 to Station 8+00, and the Frager Rd Station 7+30(P-I 1)to Station 11+50 (P09).The total footage is approximately 1840 feet The project includes removal of PSE's existing overhead distribution facilities from the areas described above. PSE will,at it's expense install a 6"conduit system from Station 55+00(PV04)to Station 60+00 (POI)along 22e St in preparation to extend it when the bridge is constructed.The 6"conduit is considered a system upgrade. Additionally,the relocation of the overhead river crossing to a permanent overhead location approximately one span north of it's existing location will be completed at PSE's expense per the Franchise Agreement.A Department of Natural Resources permit is required for the river crossing. If,this relocation is temporary due to requirement by any permitting jurisdiction that the overhead power crossing be removed and installed in the bridge(converted to underground), City of Kent 1 228 th St Com&r Conversion #101019557 i then PSE will be reimbursed by the city for the full cost of the installation and removal of tnrrary facilities. In tlus event, extension of the three phase 1/0 primary cables from J03 along 228 , across the bridge and down to Frager Road on the west side of the river will be considered part of this conversion as a Shared Government Cost and will be constructed in coordination with the bridge construction. i The existing overhead distribution facilities to be converted are located within the City's public thoroughfare and are a Shared Cost There are no City of Kent requested upgrades included in the conversion project. Responsibilities of Parties c� a) The City will provide all surveying for equipment placement locations and establish all grade elevations for the Underground Distribution System within the Conversion Area Because the city is responsible for final grade elevations and excavation for the vaults,any subsequent adjustment of vault lids to match final grade surfaces other than adjustment incorporated in the vault design,will be done at the city's expense b) The City will incorporate PSE's desiga for the Underground Distribution System into a bid package.The City will prepare drawings and specifications for the bid package for the trenching and vault excavation.The City will advertise for bids,evaluate bids,award a contract and monitor the selected Contractor's activities. c) The City will provide all necessary excavation,bedding,backfill,off-site disposal,and site restoration for the Conversion Project, along with the coordination of other utilities participating in the Conversion Project. d) The City will provide all necessary flagging and traffic control for the trenching, excavation, and duct and vault installation phase of this project e) The City will provide PSE ten(10)working days notice prior to the start of duct and vault installation to allow for delivery of PSE's materials to the job site and scheduling of the installation crew. f) The City will provide a secure staging area for PSE's ducts and vault materials storage. g) A schedule for vault deliveries will be provided to PSE to coincide with the City contractor's schedule.Five days notice is required by the vault vendor. h) The City will coordinate removal of other utilities from PSE's poles within the Conversion Area and any joint use by other utilities of trenches for the Conversion Project. i) The City will attend weekly construction meetings with PSE and City's contractor. City of Kent 2 228 th St Corridor Conversion #101019557 Pueet Sound Enerev a) PSE will design the Underground Distribution System including duct and vault location,size, quantity,matenals,customer service locations as well as all other design work required to provide a complete system. b) PSE will provide all of the duct and vault materials necessary for the Conversion Project. Duct and vault materials will be delivered to thejob site in accordance with the City Contractor's schedule, following ten(10)working days notice provided by the City of the start of duct and vault installation c) PSE will install and proof all ducts and vaults for the Underground Distribution System. d) PSE will complete and energize the Underground Distribution System within 20 working days followmg the installation and of the duct and vault system.A working day is defined as Monday through Fnday between the hours of 7.00 a m.and 6.00 p.m, excluding holidays. e) PSE will notify the City in writing when the Underground Distribution System is energized. f) Pursuant to PSE's pole attachment agreements with other utilities,P SE will provide timely notice to other utilities attached to PSE's poles within the Conversion Area that such poles will be removed and that such other utilities must relocate their facilities g) PSE will complete removal of its overhead electric distribution system including,service wire,conductors, down guys,anchors,poles and service Imes within 30 working days from the date that the underground distribution is energized and all other utrlities have been removed from PSE's poles. h) PSE is responsible for all flagging and traffic control during the installation of the Underground Distribution System(except for installation of ducts and vaults),connection of customer service lines and removal of the existing overhead distribution system facilities. i) PSE will fill and holes left from pole removal with crushed rock. j) PSE will attend weekly construction meetings with the City and City's contractor. Additional Right-of-Way The existing overhead distribution system facilities withm the Conversion Area are located within the Public Thoroughfare.The new Underground Distribution System will be located within the Public Thoroughfare,or other equivalent rights(Title to which shall be in the City's name)pursuant to Schedule 74, Section 3 All new facilities will be located within existing Public Thoroughfare and no additional Right-of-Way is necessary for this project. Schedule The City and PSE will perform the work described in this Project Plan in accordance with the agreed upon Project Schedule. The current schedule is that excavation for installation of the vault and duct system will start in early March and will be completed by mid-March. Line work will start when the installation of the vault and duct system is complete. City of Kent 3 228 th St Comdor Conversion #101019557 Cost Allocation ! Cost allocation for this project will be governed by PSE's Rate Schedule 74.Refer to Section 7 "Compensation and Payment"of the Construction Agreement for additional information Cost Assumptions The project design,construction plans and cost estimates are based on the following assumptions Construction conditions that are not consistent with these assumptions may result m a request for change or an equitable adjustment to project compensation under Section 6 of the Construction Agreement 1. Following acceptance of tlus Project Plan and execution of a Construction Agreement,the City will begin construction of the underground trenching and vault excavation in March, 2004. 2. The enclosed cost estimate is based on the specific scope of work to be performed by the City and PSE. 3. Once PSE's vault and duct crews are mobilized,the utility trench will be provided by the city in one continuous-nonstop effort,end to end,until completed The Daily Productivity Rate is based on the City's contractor opening a minimum of 250 lineal feet of trench per day 4. After completion of the utility trenching work,starting approximately mid-March 2004,PSE will be provided continuous access to the construction site and associated electrical work during the core business hours from 7:00 am.to 6.00 pin Monday through Friday,excluding holidays. Should lane closures become necessary PSE is limited to worlung between the hours of 8.30am to 3.30pm.Work performed outside of core business hours may be subject to overtime rates at PSE's discretion 5 PSE's design.is based on roadway design drawings provided by the City dated October 24, 2003 and PSE preliminary plans approved by the city on January 12,2004. 6. The City is solely responsible for the cost of traffic control for trenching and excavation. The cost of traffic control for installation of the ducts and vaults is a Shared Government Cost. 7. A City Street-Use permit is the only City permit necessary for PSE to perform its work for this Conversion Project and will be issued within two(2)weeks of submitting a complete permit application(including any supporting documentation reasonably required by the City).The cost estimate assumes there will be no charge for the permit 8 Locations for PSE's facilities as shown on the plans are available for use 9 Work requiring a scheduled disruption of electric service to non-residential customers will be done during work hours specified in assumption 4 above and will be scheduled with a minimum of two (2)business days notice. PSE will notify customers of scheduled service interruptions. 10. With the possible exception of the overhead river crossing,work does not include installation and/or removal of"temporary"facilities at the request of others during construction. City of Kent 4 228 th St Comdor Conversion #101019557 . Additional Considerations Service Conversions There are no existing secondary services within the conversion area. New Service It is anticipated that the city will request a permanent service for street lights and two services to be used for construction of the bridge.It is anticipated that these services will be installed sometime in 2004 and will be used through 2006.These services are not included in this design. They may be installed during the installation of this conversion or at a later date.When designed and installed, they will be subject to Schedule 851ine extension charges These costs will be quoted separately. PSE Facilities Design Standards PSE Design Standards applicable to this Conversion Project are included in the"Electric Distribution Trench/DuctNault Construction Standards 2003 previously e-mailed and included with this package. Acceptance of Protect Plan The City and PSE mutually agree to and accept this Project Plan as of the date indicated below: For the City: For PSE- By BY Its: Its: Date: Date: City of Kent 5 228 th St Corridor Conversion #101019557 Pi1GG7 SOUND Hww P M 710M4 ProleM TYb CRy o KKmM 778fh Conommn Phm 1 Prq*d Dnwwm CMr1M1uoRb Uo RAN OalydWo 74 Prof Mrr000r/Pbbf om WM ft*o Wgmmmrl Pmmrmf 7 mGrunt MmIcM Wbm MorlPbbf Main gbm RorMbnf RONs1m 1MM 8 m Ow Cmb prier TOW 100%GE omrmmabd TmImubd PMMm Gov Rp Tm*"Nr CmWROW RoYobNabo ToW100% Cm EnMy cos Co Ian uggmdo SoMm Wllhin 5Ymom Cop P{O Coob Telmrl Coamwucuw PSERN L" f $ - f i s i - f - i f D. D $ 4,10D • E/ m* tsm 1.5m s 1G.5 s s 1MOD f - s s - s 3 - s 4,7070D s 24.10D PSEEawprmrR s i - i • s i f - s s f • s POE blpve n $ - $ $ . s s s - 6 i - s . S SWAM HPWN CrmmMosw%loo s NAM S - s "AM f { - s - f f s 14.000 s ".900 Operadn Rghb { - 1 - i - s - i - s - s - s - s - s 11s s 11 0 Tow-Corbwww i. W-va s s 85300 S Is - i s - s - i 75,400 s 114700 Mange O"bm CMp OrdrI f - f - f - f - s - f - S - s - i - i CNrpmodvx { - s - ! f - $ - f - O - f - S - i Ohre 016mr3 s - i s - f - s - s - i 3 - 3 - i Chrp ddor4 s - s - f - t s - s - s - s - f - s ChrW'r Q s - s s f - $ - i - f - i - f - f OrWrs s - f - s - s - s - s - s - s - f - s Oldw? aw•CWnGoommo f Taw CoebO f 75 400 3 113 m a1C bMt oilan C mwohm wem i 33AOD s 25,4ro I s 70,400 - Fib � - t1r0v r srMrrbm po0bod M WWRW wwlh SGdw 7 ossolwlWo 74 CorwudlmPpownwm �BIrrW Cmb N msombd Io1G bOm Gauimrem Eery mN 60O blMCoimmry r TdN Cob mrWduOo Ooorrrrrmm E1mfY iamb W Wrrd4q,robrmsm mM gr1'm71m CmwburJmn BbblMrm P"W VXMs02M1 PUGET SOUND �mtrJr wh• .r3 r? Projed TMIe:City of Kent 22111h Comenan Pbees 1 Project Dascnpuoe Convert 1600 M to DG RNM Sctredule 74 Project MansW I Phone S Tam Ouaon Prefect Engineer I Phone 0 Tam O"m MmKgral Ltatson WIF I Phone 0•Wry Ausbum ProjectR 101019557 RwAsbn0 Revmm tHte Protect Costs Estimate Summary' Shave Costa f 100%Govenunem Entity Reenbut>rabI&Costs Pnor Toth 100%GE GovemmaM Toall SlureO Pnval oY e G Real Temporary Corrv/Rebe RembtrmabM ToW 100% Company EnW Coats Conversion Upgmde Smmes Whhw Brews Costs I PSECosts ProlsdTot&10 Estimate I Estmsts Estmate Estmate E urrmte Estimate ESWMO Estma a I Esthnape Esbntste Design Cnc%4 s 13,600 $ • s 13.000 $ s - s $ • $ $ 1,600 $ 1SAW Construdron Costs $ 66,3CO S • s 66 300 S - S - S s - $ s 25400 1 f 3 700 Total Project Cost $ 102,100 $ - S 102,100 S - s - S .-S - S s 27.000 S 129,100 Allowtron of Total Estimated Pm Costs at Co!" of ComstslOn Pm PwN s 61 27,000 s N Govemnr , ect s 40,600 S S /0,800 _ IYataa 'Prepared to rap uMmIl a0ocabon desmnetad proles mate omWS nt ee01 Sclmdtde 74 DoKn d Conabtxtgn Aynmmft 2 Shand COste am eiooeted 40%to the Govem oM ErMy wW 60%to fhe Company d Om Cone sm Project m mm~ r Total Cosh exdutlsa CraYvnwnerd EnKy mats of bwKhrs%todmebon,and staveyng 4 OmOn Coat mduds wry approved rfimye orders es of the date ctdus eamnete Pmpat Eetlmate Pm4ad 2MI7/t00a a 02 AM Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: RIGHT OF WAY QUIT CLAIM DEED FOR S. 228TH STJ RUSSELL ROAD—AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to execute a Quit Claim Deed dedicating a portion of South 228d' Street and Russell Road as public right-of-way upon concurrence of the language in the deed by the City Attorney and Public Works Director. 3. EXHIBITS: Public Works Director's memorandum, Quit Claim Deed, Legal Description and vicinity map • 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? N/A Revenue? N/A Currently in the Budget? Yes No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6L PUBLIC WORKS DEPARTMENT Don E Wickstrorn, P E Public Works Director Phone 253-856-5500 Fax 253-856-MO KEN T Address 220 Fourth Avenue S WASH114GTOH Kent,WA 98032-5895 DATE: March 1, 2004 TO: Public Works Committee FROM: D*kstrom,Public Works Director THROUGH SUBJECT: Right of Way Dedication on South 228t6 St./Russell Road MOTION Recommend authorization for the Mayor to execute Quit Claim Deed subject to the City Attorney and the Public Works Director's concurrence of the language therein SUMMARY: The attached map reflects property currently owned by the City Said map also denotes that i portion thereof which we are recommending to be dedicated as public nght-of-way for the construction of south 228tn Street and the relocation of Russell Road on the east side of the Green River I BUDGET IMPACT No Unbudgeted Fiscal/Personnel Impact I BACKGROUND The relocation of private and/or quasi private utilities(power, gas, telephone, cable TV)have become a major problem with respect to controlling costs and tune per implementing any City Capital improvement project Were the entire City parcel denoted as public right-of-way then these pnvate/quasi private utilities would by virtue of state law or a City granted franchise be able to locate/relocate their facilities just about anywhere they wanted to within the property By separating out the public right-of-way they are then restricted to said right-of-way Because much work associated with the 228s' Street corridor around this immediate area is yet to be determined,defusing the nght-of-way limits will hopefully minimize future conflicts with those utilities that are presently being relocated The bottom line is that hopefully this action will save the City time and money in the future Mayor Wtute and Kent City Council 1 ROW S 228"/Russell Rd—Quit Claim Deed March 1,2004 AFTER RECORDING MAIL TO Property Management City of Kent 220 4th Avenue South Kent,WA 98032 Reference Number of Related Document NIA Grantor(s) City of Kent Grantee(s) City of Kent Abbreviated Legal Description Phi.NW i/414-22-4 and Ptn.NE'/.15-22-4 Additional Legal Description is on Page(s) 2 and 3 of Document Assessor's Property Tax Parcel or Account No 000620-0004;D00620-0016;and 000620-0023 Project S.228`s Street Extension and Russell Road Realignment(87-3007R) MUNICIPAL QUIT CLAIM DEED (Corporate) THE GRANTOR,the CITY OF KENT,a municipal corporation,for and in consideration of a dedication to the public for rieht-of-way and utility purposes, conveys and quit claims to City of Kent,a municipal corporation, the following described real estate,situated in the County of KING, State of Washington,including any after acquired title Refer to Exhibit"A"attached hereto and by tlus reference incorporated herein (Refer to Exhibit'W'for sketch of property attached hereto and by this reference incorporated herem) WITNESS WHEREOF,said municipality has caused this instrument to be executed by its proper officers and its official seal to be hereunto affixed this_day of .20_ Dated this day of .20 Grantor—City of Kent Jun White,Mayor STATE OF WASHINGTON ) )ss COUNTY OF KING ) On this_day of 20.before me,the undersigned a Notary Public in and for the State of Washington,duly commissioned and swom personally appeared to me Jim White. known to be the Mayor of The City of Kent,Washington,the corporation that executed the foregoing instrument,and acknowledged the said instrument to be the free and voluntary act and deed of said corporation,and for the uses and purposes therein mentioned,and on oath stated that he was authorized to execute the said instivment and that the seal affixed is the corporate seal for said municipality WITNESS my hand and official seal hereto affixed the day and year first above written Print name Notary Public in and for the State of Washington, Residing at My commission expires s22Bthataxt.R"ee11Rd aQCD page I of 4 EXHIBIT "A" So 22e Street Realignment Right of Way Description That portion of the northwest quarter of Section 14,Township 22 North, Range 4 East,W M and the northeast quarter of Section 15, Township 22 North, Range 4 East, W M , the City of Kent, King County,Washington, described as follows Commencing at the southwest corner of said Section 14, from which point the south quarter corner of said section bears S89'05'45"E, thence N00'39'20"E, along the west line of said Section 14, a distance of 295102 feet to the TRUE POINT OF BEGINNING of the herein described tract, thence S56'26'40"E 1�9 60 feet to the northerly margin of So 22e Street (a k a Russell Road) , thence easterly, along said northerly margin the following courses and distances thence S81004'41"E 167 67 feet, thence S78'10'56"E 11128 feet, thence S12'13'17"W 10 00 feet, said point being hereinafter referred to as point"A", thence S77°46'43'E 70 74 feet to a point of tangency with a 670 00 foot radius, circular curve to the left, thence easterly, along said curve, through a central angle of 10041'30",an arc distance of 125 03 feet to a point of tangency, thence S88'28'13'E 25 18 feet to the southerly prolongation of the west line of Lot 1, City of Kent Short Plat 89-19, as recorded under King County Recording No 9002271332, thence N01005'31"E, along said prolongation and the west line of said Lot 1, a distance of 10 22 feet to the north line of a tract of land conveyed to the City of Kent by deed recorded under King County Recording No 8907201051, thence northwesterly, along said north line, the following courses and distances,thence N76'19'46"W 311 52 feet, thence N53024'12"W 213 00 feet,thence N36'43'42'W 152 91 feet, thence leaving said north line, N47006'22"W 114 83 feet to a point of tangency with a 1030 00 foot radius, circular curve to the left,thence northwesterly, along said curve,through a central angle of 13054'12", an arc distance of 249 94 feet to a point of reverse curvature and the beginning of a 770 00 foot radius, circular curve to the right, thence northwesterly, along said curve,through a central angle of 29052'54", an arc distance of 401 58 feet to the northeasterly margin of aforesaid So 228in Street(a k a Russell Road), said point being on a 595 00 foot radius circular curve to the right, from which point the center of said curve bears S58'52'20"W, thence southeasterly, along said curve and said northeasterly margin, through a central angle of 11*35'43", an arc distance of 120 41 feet to a point of tangency, thence continuing along said northeasterly margin, S19031'57"E 97 29 feet to a point on an 830 00 foot radius, circular curve to the left, from which point the center of said curve bears N43052'00"E,thence leaving said margin, southeasterly, along said curve, through a central angle of 14'52'34", an arc distance of 215 50 feet to a point of reverse curvature and the beginning of a 970 00 foot radius, circular curve to the right, thence southeasterly, along said curve, through a central angle of 13054'12", an arc distance of 235 38 feet to a point of tangency, thence S47006'22"E 32 49 feet,thence S35052'31"W 35 29 feet to a point on a 2019 00 foot radius, circular curve to the left, from which point Page 2 of 4 the center of said curve bears S 28°54'33"W, thence northwesterly, along said curve, through a central angle of 8*11'34", an arc distance of 288 70 feet to the northeasterly margin of aforesaid So 228th Street, thence S28044'04"E, along said margin, 68 74 feet to a point hereinafter referred to as point"B",thence continuing along said margin, S28°44'04"E 71 13 feet to a point on a 193100 foot radius, circular curve to the right, from which point the center of said curve bears S23052'18"W, thence southeasterly, along said curve, through a central angle of 9°41'02", an arc distance of 326 37 feet to a point of tangency,thence S56626'40"E 10613 feet to the TRUE POINT OF BEGINNING Together with that portion of said Section 14 described as follows Commencing at aforesaid point"A", thence S12°13'17"W 60.00 feet to an angle point in the southerly margin of said So 228th Street and the TRUE POINT OF BEGINNING, said point being on a 670 00 foot radius, circular curve to the left, from which point the center of said curve bears S12013'17"W, thence westerly, along said margin and said curve, through a central angle of 6004'23", an arc distance of 7102 feet to a point on a 794 00 foot radius, circular curve to the left, from which point the center of said curve bears N21"49'00"E, thence easterly, along said curve, through a central angle of 500919", an arc distance of 7144 feet to a point which bears S12*13'17"W from the TRUE POINT OF BEGINNING, thence N12*13'17"E 12 49 feet to the TRUE POINT OF BEGINNING And together with a strip of land 88 00 feet in width, having 44.00 feet on each side of the following described centerline Commencing at aforesaid point"B", said point being on a 1975 00 foot radius circular curve to the left, from which point the center of said curve bears S22°13'55"W, thence northwesterly, along said curve, through a central angle of 3°48'39" an arc distance of 131 36 feet to the southwest margin of Russell Road and the TRUE POINT OF BEGINNING of the herein described centerline, thence continuing northwesterly, along said curve, an arc distance of 152 feet, more or less, to the ordinary high water mark of the Green River and the terminus of the herein described centerline The side lines of said strip shall be extended or shortened, as required to terminate at the southwest margin of Russell Road and_the o 3dinary.t}igh water mark of the Green River Containing 126,802 square feet or 2 911 acres 4 S , r 7�7fot/ 7" Page 3 of 4 TfICNERS 115UPYICC M10 41NUII'! � ) w1Y I.SI9CV. m ILCItl4. AN/ Tl mm -Op01 / lit glrrllr r eYl �Y rlmom k Y raY» mrr Y eN» «a.r.r•« �trplr Yr�y rm IiM / Y>sat ti=00� � � no y lnT � InW1Y \ W no 4 CIXfTL ML4L ®� / 4nTN "\ \ FtmY000�20-mW MIYC , ,-Cm Q KOR /\\TL OOW10-U01 / \ \, 0 / M1t11t / m m r.Orf\ «-Ynm TL my UrTA—�• � _N�� \ \ rYR Co \ TL�aoomaaa�-a�a� crrxt:ss cwc AT rxc um \\ \\ TL 18757-mt0 TFiOVGO OMC \ .'.•r-rY a ME. rHR m«nT o -THROWN t Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: WASHINGTON CONSERVATION CORPS LABOR AGREEMENT—AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the Washington Conservation Corps Sponsor Agreement, in the amount of$69,616 and direct staff to pay any expenses out of various capital improvement projects. 3. EXHIBITS: Public Works Director's memorandum and Washington Conservation Corps Sponsor agreement • 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6M PUBLIC WORKS DEPARTMENT Don E Wickstrom, P E Public Works Director Phone 2SU56-5500 Fax 253-856-6500 KEN T Address 220 Fourth Avenue S WASNINOTON }Cent,WA 98032-5895 DATE: March 1,2004 TO: Public Works Committee FROM: Dookstrom,Public Works Director THROUGH SUBJECT: Washington Conservation Corps Sponsor Agreement MOTION: Recommend authorizing the Mayor to sign the Washington Conservation Corps Sponsor Agreement, in the amount of $69,616, directing the staff to accept the grant and establishing a budget for the funds to be spent within said project SUMMARY: This agreement will provide a three member crew and a supervisor to participate in the construction of various capital improvement projects in the Environmental Engineering Section at substantial cost savings to the City of Kent The agreement covers a time period of February 1 through September 30,2004 BUDGET IMPACT- No Unbudgeted Fiscal/Personnel Impact—Funds for the projects have been established as part of the Stormwater Capital Improvement Program BACKGROUND: The Washington State Department of Ecology administers a youth job skills program The youth between the ages of 18-25 will be employed in various capital improvement projects in the Environmental Engineering Program The City of Kent has been participating in this worthwhile program since 2002 Work crews along with a supervisor are provided at low costs to perform various projects to conserve and enhance the State of Washington's natural resources • Mayor White and Kent City Council WA Conservation Corps Sponsor Ageement-Authonm March I,2004 1 WCC AGREEMENT NO WCCD4-16-001 ••••l•® WASHINGTON CONSERVATION CORPS e`c'o`i`o`c'r SPONSOR CONTRACT THIS CONTRACT made by and between the State of Washington Department of Ecology Conservation Corps, hereinafter referred to as the "DEPARTMENT," and that entity whose name appears in item 1, below, hereinafter referred to as the "SPONSOR." 1. SPONSOR City of Kent 2. CONTACTS 3. ADDRESS: Engineerina Deot. 220 4"' Ave. S. - Kent. WA940-3614 98032-5895 OTHER SPONSOR FISCAL OFFICER 4. PROJECT T1TLE/DESCRIPTION : City of Kent 8 month contract S. PROJECT LOCATION: City of Kent 6. SCOPE OF WORK: Various 7. PERIOD OF PERFORMANCE: CONTRACT BEGINS February 1, 2004 CONTRACT ENDS September 30. 2004 8. MAXIMUM BUDGET REIMBURSED to DEPARTMENT by Sponsor Provided by DEPARTMENT Cost Provided by SPONSOR/DONATIONS COST WCC Crew(3 members and $69,616 $69,616 supervisor) Labor (Up to 8 months) Transportation (.46/mile) Per Diem Costs Total DEPARTMENT Cost $69,616 Total SPONSOR COST $69,616 Above cost Not to be Exceeded 20. Special Terms and Conditions 6 No O Yes (See XVII ) 11. Biennial Closures: In accordance with biennial closing procedures, the sponsor must REMARKS reimburse the DEPARTMENT no later than mine 311 701)5 for services or material supplied under this contract when submitted for payment on properly itemized vouchers (Form A -19) AFRS ACCOUNT CODE TRANS APPN PROD PROJECT SUB PROJ ORG Co 003 SUB AMOUNT CODE FUND INDE INDE PROD PNAS INDE OBI x x x INCONSIDERATION OF THE GENERAL TERMS AND CONDITIONS OF THIS CONTRACT,THE PARTIES AGREE AS FOLLOWS I All rights and obligations of the parties to this contract shall be subject to and governed by those General Terms and Conditions contained in the text of this contract instrument and Section XVII 'SPECIAL TERMS AND CONDITIONS" 11 In the event of an inconsistency in this contrail,unless otherwise provided herein,the inconsistency shall be resolved by giving precedence in the following order (a)Applicable Federal&State Statutes& Regulations, (b) Special Terms and Conditions,and (c)General Terms and Conditions 111 This contract and ds appendices, if any, contains all the terns and conditions agreed upon by the parties No other understandings, oral or othermse,regarding the subject matter of this contract shall be deemed to exist or to bind any of the parties hereto. IV This contract shall be subject to the written approval of the authorized representative of the DEPARTMENT and shall not be binding until so approved Only the authorized representative by writing(delegation to be made prior to action)shall have the expressed,implied,or apparent authority to alter,amend,modify,or waive any clause or condition of this contract Furthermore,any alteration,amendment,modification,or waiver of any clause or condition of this contract is not effective or binding unless made in writing and signed by the authorized representative V AUTHORITY AND PURPOSE A Authority The Legislature enacted Chapter 43 220 RCW which created the Washington Conservation Corps,hereinafter referred to as the"WCC," and named the DEPARTMENT as one of six state agencies having implementation authority B Purpose The purpose of this contrad is to establish a formal understanding between the DEPARTMENT and the SPONSOR to accomplish the project described in Section 7 "SCOPE OF WORK" This contract is designed to specify the lands and amounts of goods and services to be used andlor exchanged by The DEPARTMENT and the SPONSOR to their mutual benefit through a WCC project The SPONSOR acknowledges that participation in the WCC program shall not result in the displacement of currently employed workers, including partial displacement such as reduction in hours of nonovertime work, wages, or other employment benefits, nor in the impairment of existing contracts for services VI DEFINITIONS A "SPONSOR Contact" shall mean the person who serves as the SPONSOR's lead on the project and shall cooperate with all parties concerned to promote successful completion of the project described in Section 7 'SCOPE OF WORK' B "SPONSOR Work Director"shall mean the person who specifies work to be performed onsite,ouitlnes,describes,and delegates work to be accomplished, supplies necessary orientation and training for use of special equipment and procedures, and is responsible for directing WCC crew supennsor(s)regarding specific project tasks as described in Section 7 "SCOPE OF WORK" C. "DEPARTMENT Project Leader shall mean the person who is responsible for developing and facilitating the project and shall serve as liaison between the DEPARTMENT and SPONSOR PROJECT LEADER assumes ultimate responsibility to ensure adequate coordination of the project D "Corps Member"shall mean an indnndual enrolled in the WCC program Corps members shall not be considered regular state employees Provisions of law relating to cml service,hours of work, rate of compensation,sick leave,unemployment compensation,state retirement plans and vacation leave do not apply to the Corps members However,medical ad and state industrial insurance will be provided by the DEPARTMENT for each Corps member E "Crew Supervisor'shall mean the person who is responsible for matters relating to personnel administration and overall project direction He/she supervises Corps members (generally four or more) regarding work to be accomplished and is responsible for individual crew safety daily crew supervision and discipline, completes Corps member training plans,and provides a written evaluation of each Cops member'&job performance and skills acquired after two months and at termination of employment VII SCOPE F WORK Both parties agree to compete in a satisfactory and proper manner the services described under the Section 7 'SCOPE OF WORK"of thm contract, and to provide materials and supplies necessary to ensure satisfactory completion of the project, including any special equipment reWred by special work conditions,and to procure any necessary permits such as right of entry The DEPARTMENT agrees to provide Corps members who will be used to complete said work All equipment provided by either the DEPARTMENT or the SPONSOR shag be returned to the provider within fifteen(15)days after termination of firs contract unless othenmse specified in Section XVII "SPECIAL TERMS AND CONDITIONS' VIII PERFORMANCE A Time for Performance Any work performed prior to the effective date of this SPONSOR CONTRACT,or continuing after the compI date of same,unless otherwise agreed upon in writing herein,will be n violation of this contract and Ali beat the SPONSOR's expense B Comollw With AD Laws The SPONSOR agrees to observe all federal and state laws, regulations, and pol�a affecting performance under this contract C Release of Inforttabon or Matenak The SPONSOR will not release any information or materials developed pursuant to this contract without prior written authority from the DEPARTMENT D Final Report Evaluation Within 15 days after termination of this contract the SPONSOR shall provide the DEPARTMENT vmtr a written evaluation of the project At a minimum,the foflovnng shad be evaluated 1 Benefit to Corps members 4 Whether the overall goals and objectives of the project were obtained 22 Environmental benefits 5 Suggestions for program improvement 3 Department cooperation/coordination a Revised estimates of aftemate supplier cost and SPONSOR cost1donabon IX TERMINATION OF CONTRACT A Terilination by SPONSOR for Cause It the DEPARTMENT tads to fulfill in a trinely and proper manner its obligations under this contract, or d DEPARTMENT shag violate any of the covenants,agreements,assurances,or stipulations of the contract,SPONSOR shall have the right to terminate this contract by giving written notice specifying the effective ferminahor►date to the DEPARTMENT at least seven(7) days before such date B Termination by DEPARTMENT for Cause If SPONSOR fails to fulfill in a timely and proper manner its obligations under this contract,or d SPONSOR shag violate any of the covenants, agreements, assurances, or stipulations of the contract, DEPARTMENT shall have the right to terminate this contract by giving written notice specifying the effective termination date to the SPONSOR at least seven(7)days before such date C Termination by DEPARTMENT for Convenience The DEPARTMENT may terminate this contract by giving written notice to SPONSOR of such temunation and specifying the effective date thereof at least ten (10) days before the effective date of such termination In that event all finished or unfinished documents and other materials as described above shall be delivered to DEPARTMENT for its review After the review at the option of DEPARTMENT such doaxnents or material or portions thereof shall become its property D Insufficient Funding In the event funding from state,federal,or other sources is withdrawn, reduced, or limited in any way after the the effective date of this contract and prior to normal completion,the DEPARTMENT may terminate the contract under Section "Terrmnabon by DEPARTMENT for Convenience"clause,subject to renegobabon under those new funding Imutations and conditions X LIABILfTY A When direct supervision is provided by the DEPARTMENT employed crew supervisor, the DEPARTMENT agrees that WCC members working under this contract are agents of the DEPARTMENT, and therefore the DEPARTMENT shall be liable for personal injury or property damage caused by WCC Corps member negligence B When direct supervision is provided by the SPONSOR,the SPONSOR agrees that WCC Corps members working under this contract are agents of the SPONSOR, and therefore the SPONSOR shall be liable for personal injury or property damage caused by WCC Corps member negligence C To the extent that the Constitution and laws of the State of Washington permit,all parties to this contract shall be responsible for damage to persons or property resulting from the negligence on the part of itself, do employees, its agents, or its officers None of the parties assume any responsibility to the other parties for the consequences of any act or omission of any person,firm,or corporation mot a party to this contract XI LION-INSCRIMINATION The DEPARTMENT and the SPONSOR agree to be bound by all federal and state laws,regulations,and policies against discrimination and agree not to discriminate in employment,either directly or indirectly,because of a person's age,sex,sexual onentabon,mental status,creed, color,national origin,or the presence of any sensory,mental,or physical handicap,unless based upon a bona fide occupational qualifirabon XII DISPUTES Except as otherwise provided in this contract,when a bona fide dispute arises between the DEPARTMENT and the SPONSOR and it cannot be resohred,either party may request a dispute resolution with the DEPARTMENT The parkas agree that this dispute resolution process shall precede any action in a judicial tribunal Either party's request for a dispute resolution must A be in wnbng. B state the disputed issues, C state the relative positions of the parbes, D. state the SPONSOR's name,address,and WCC Agreement number, E be mailed to the DEPARTMENT within thirty(30)days after the party could reasonably be expected to have knowledge of the issue(s) which are now in dispute XIII INVOICE VOUCHERS Reimbrasable expenditures under the terms and conditions of this contract shall in no event exceed the amount set forth herein The SPONSOR shall reimburse the DEPARTMENT for services performed when submitted on a properly itemized voucher(Form A-19)in aocordanoe with Section 9."MAXIMUM BUDGET Reimbursement shall be made by the SPONSOR within thirty(30)days of receipt of said voucher XIV AMENDMENTS Changes in the scope of this contract which cause an increase or decrease n the cost of,or the time required for the performance of any part of the scope of work under this contract,shall be accomplished by written amendment and executed by both parties prior to implementation XV SUBCONTRACTS The SPONSOR shall not enter into subcontracts for any of the work contemplated under this contract without obtaining prior written approval of the DEPARTMENTS PROJECT LEADER XVI RECORDS RETENTION Both parties shall maintain books,records,documents and other evidence of accounting procedures and practices which sufficiently and property reflect all direct and indirect costs of any nature expended in the performance of the SPONSOR CONTRACT These records shall be subject at all reasonable times to inspection,review,or audit by duly authorized personnel for sox years after the contract end date XVII SPECIAL TERMS AND CONDITIONS Special terms and conditions of this contract contained in the box below are made a part of this contract(requires initials) Department Sponsor XVII ENTIRE CONTRACT This document contains the entire and integrated contract between the parties,and no statement,promise,inducement or agreement made by the DEPARTMENT or its agents or employees that is not contained in this written contract shall be valid or binding No alteration,addition,or modification of any of the terms or conditions of this contract shall be effective d not in writing and signed by the authorized representatives of the SPONSOR and the DEPARTMENT SIGNATURES SPONSOR DEPARTMENT BY BY TITLE TITLE Field Operations Coordinator DATE DATE I11Qj04 Pre-Approve as to frm by the Assistant Attorney Ue eT— Ecdoar n an EQ"Oppatun and Alrrmasve aceon employer For sperm a=mmodWon needs.contact rile Wastmvion Conservstan Caps at(200)407Be47 rho 7toSpU number is(20e)407�00e Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: KING COUNTY AGREEMENT FOR CONSTRUCTION OF PIONEER STREET IMPROVEMENTS —AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the Interagency Agreement to widen Pioneer Ave. between the City of Kent and King County, in the amount of$300,000, subject to the Public Works Director's concurrence of the language in the agreement and authorize staff to accept the money and establish a budget for the same. 3. EXHIBITS: Public Works Director's memorandum and Interagency Agreement with King County • 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: • ACTION: Council Agenda Item No. 6N PUBLIC WORKS DEPARTMENT Don E. Wickstrom, P E. Public Works Director Phone 253-856-5500 Fax. 253-856-6500 KENT Address, 220 Fourth Avenue S. WASH t N O T O N Kent,WA 98032-5895 DATE: March 1,2004 TO: Public Works Committee FROM: Don Wickstrom,Public Works Director THROUGH: SUBJECT: Interagency Agreement with King County Metro MOTION: Recommend Council authorize the Mayor to sign the interagency agreement between the City of Kent and King County upon concurrence of the language therein by the City Attorney and Pubic Works Director, authorize staff to accept the money and establish a budget for the funds to be spent within said project. SUMMARY:The attached interagency agreement is between King County and the City of Kent for King County Metro to pay the City$300,000 to widen pioneer Ave. to 36 feet between Central Ave. and Railroad Ave. to allow transit utilization We are requesting Council authorization for the Mayor to sign the interagency agreement between the City and King County. BUDGET IMPACT. No Unbudgeted FiscaUPersonnel Impact BACKGROUND The work that the City of Kent took over from Sound Transit includes the widening of Pioneer Ave. between Central Ave. and Railroad Ave to 36 feet on the east portion and 24 feet on the west portion. King County Metro would like the City to widen the road to 36 feet all the way through to provide adequate width for their buses to easily access the commuter rail station on Railroad Ave. They are providing$300,000 to purchase additional right-of-way and pay for the additional improvements to do this work. Attached is the agreement necessary for this transaction. Mayor White and Kent City Council ] Interagency Agreement with KC Metro March 1,2004 Draft Agreement between King County and the City of Kent for the Construction of Pioneer Street Improvements to Support Transit Operations at the Kent Transit Center THIS AGREEMENT is made and entered into this day of 2004,by and between the City of Kent,hereinafter called the"City,"a municipal corporation of the State of Washington,and King County, acting through its Department of Transportation, hereinafter called the"County,"both of which entities may be collectively referred to hereinafter as the"Parties". WHEREAS,the City has undertaken from Sound Transit the responsibility to construct the street improvements on Pioneer Street from Central Avenue and Railroad Avenue, and WHEREAS, Sound Transit had prepared a design for improving Pioneer Street from Central Avenue to Railroad Avenue that includes twenty-four feet of pavement on the western portion of Pioneer Street and thirty six feet of pavement on the eastern portion of Pioneer Street;and WHEREAS,in order to improve transit and traffic operations and enhance overall safety the City and the County support widening Pioneer Street to thirty six feet(36')of pavement from Railroad Avenue to Central Avenue;and WHEREAS, the County has agreed to contribute funding to support construction of the additional right- of-way improvements that directly benefit transit operations at the Kent Transit Center; NOW,THEREFORE,in consideration of the mutual covenants contained herein,the sufficiency of which is acknowledged,the parties hereto agree as follows- Section 1.City Responsibilities 1 1 The City will be responsible for the right-of-way acquisition,design,construction,and acceptance of all improvements in order to provide thirty six feet(36')of pavement from curb to curb on the western half block section of Pioneer Street from Railroad Avenue to Central Avenue. 12 The City will submit to the County plans for the improvements for review prior to construction. The County will have the opportunity to review plans at 60%,90%,and 100%. The City will submit these plans in electronic form By the 60%plan review,the City and County will agree on a striping plan for Pioneer Street from Railroad Avenue to Central Avenue 1.3 The City will be responsible for the administration of any contracts it enters into for the performance of its responsibilities under this Agreement. The City will provide the County with quarterly progress reports to identify work progress,schedule adherence,and other matters of significance in the performance of this Agreement Prior to the issuance of a change order or acceptance of contractor's work,the City will notify the County and provide the County with the opportunity to comment on and inspect.However,neither the County's comments on nor inspection of City-led improvements under this Agreement will relieve the City of its responsibility for said improvements. Metro Transit Pioneer Street Improvements Draft Agreement—Pending Metro Legal Review;City of Kent Review 2/20/04 Page 1 of 5 1.4 The City will administer the construction of the project and shall have final judgment,after consultation with the County,with regards to decisions related to the work of the contractor Section 2. County Responsibilities 2.1 Upon notification by the City of completion of work identified in Section 1, the County will inspect the improvements consistent with the County approved plans and specifications. If the County finds that any work does not meet the terms of this Agreement,or any specifications or terms established hereunder,the County will prepare a punch list of such items and submit it to the City.Work that does not comply with the agreed upon specifications and terms,except as modified by mutual agreement between the City and County,will be corrected by the City at no cost to the County.Notice of acceptance will not constitute acceptance of any unauthorized or defective work or material The County retains all rights hereunder and at law to require the City to remove,repair,replace, or dispose of any unauthorized or defective work or to recover damages for any such work or material. Section 3.Financing 3 1 The County will contribute directly to the City an amount not to exceed$300,000 to support the project. 3.2 The City will invoice the County upon completion of the work.The County will make payment to the City within thirty(30)days of receipt of an invoice for work determined to be performed in accordance with the terms of the Agreement.The County's total payment to the City under this Agreement will not exceed$300,000. Section 4. Schedule 41 The City agrees to complete the work of this Agreement by August 31,2005 Section 5.Ownership and Maintenance 5.1 Unless otherwise agreed to by the Parties,the City will own and maintain all improvements included in the Project Section 6.Legal Relations 6.1 It is understood that this Agreement is solely for the benefit of the parties hereto and gives no right to any other party No joint venture, agent-principal relationship or partnership is formed as result of this Agreement.No employees or agents of one party or any of its contractors or subcontractors shall be deemed,or represent themselves to be,employees or agents of the other ply 6.2 To the maximum extent permitted by law,each party shall defend,indemnify,and hold harmless the other party and all of its officials,employees,principals,and agents from all claims,demands, suits,actions and liability of any kind,including injuries to persons or damages to property,that arise out of,are connected with,or are due to any negligent acts or omissions of the indemnifying Metro Transit Pioneer Street Improvements Draft Agreement—Pending Metro Legal Review; City of Kent Review 2/20/04 Page 2 of 5 party and/or its contractors,officials,employees,agents and representatives in performing work under this Agreement;provided,however, that if(and only if)the provisions of RCW 4.24.115 apply and any such damages and injuries to persons or property are caused by or result from the concurrent negligence of both parties to this Agreement,or their contractors,officials,employees, agents and representatives,then in such instance each parry's obligation hereunder applies only to the extent of the negligence of such party or its contractors,officials,employees,agents or representatives Each party specifically assumes potential liability for actions brought by its own employees against the other party and for that purpose only each party specifically waives,as to the other party only, any immunity under the Worker's Compensation Act,RCW Title 51,and the parties recognize that this waiver was the subject of mutual negotiation and specifically entered into pursuant to the provision of RCW 4 24.115. 6.3 The City and the County shall comply and shall ensure that their contractors comply with all federal,state and local laws,regulations,and ordinances applicable to work and services to be performed under this Agreement. 64 In the event any parry incurs attorney's fees,costs or other legal expenses to enforce provisions of this section against another party,all such fees,costs, and expenses shall be recoverable by the prevailing party 6.5 This Agreement shall be interpreted in accordance with the laws of the State of Washington in effect on the date of execution of tlus Agreement. The Superior Court of King County, Washington shall have exclusive jurisdiction and venue over any legal action arising under this Agreement 6.6 The provisions of this Section shall survive any expiration or termination of this Agreement Section 7. Records and Audit 7.1 During the progress of the design and construction of all improvements covered by this Agreement and for a period not less than three(3)years from the date of completion of all improvements,records and accounts pertaining to the work of this Agreement and accounting therefore are to be kept available for inspection and audit by representatives of the parties. Copies of the records shall be furnished upon request and shall be maintained in accordance with a work order accounting procedure prescribed by the State Auditor's Office Section 8.Agreement Duration and Termination 8.1 This Agreement shall take effect upon execution by both parties and shall expire January 31, 2006,unless extended by mutual agreement of the Parties or unless terminated in accordance with the provisions of this Section 8 82 Either party may terminate this Agreement in the event that the other party materially breaches this Agreement Written notice of such termination must be given via certified mail by the party terminating this Agreement to the other party not less than fourteen(14)days prior to the effective date of termination. Metro Transit Pioneer Street Improvements Draft Agreement—Pending Metro Legal Review;City of Kent Review 2/20/04 Page 3 of 5 83 Either party may terminate for its convenience and without cause by providing written notice to the other party not less than thirty(30)days prior to the effective date of termination. 8.4 Failure by either party to require full and timely performance of any provision of the Agreement at any time shall not waive or reduce the right of either party to insist upon complete and timely performance of such provisions or any other provision thereafter. Section 9.Identification of Contacts at City and County 9.1 The City and the County each agree to appoint a Project Manager to represent the interests of their respective agencies The two Project Managers will work collaboratively to implement this Agreement 92 All official communication concerning this Agreement should be directed to the following Project Managers. Mark Madfar David Cantey Project Manager Project Manager City of Kent King County Dept of Transportation 220 4'h Avenue South. 201 S Jackson Street,MS KSC-TR-0411 Kent,WA 98032 Seattle,WA 98104 Any changes in agency contacts from those noted above must be confirmed in writing to the other ply Section 10.Entire Agreement 101 This document contains all terms, conditions and provisions agreed upon by the parties thereto, and shall not be modified except by written amendment, Such amendments may be made to this Agreement within the previously approved budget or other applicable authority for and on behalf of the City by its Mayor or designee,and for and on behalf of the County by its General Manager of the Transit Division or designee The written provisions and terms of this Agreement, together with any attached Exhibits, shall supercede all prior verbal statements of any officer or other representative of either party, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner this Agreement. This document, including all Exhibits, is the entire agreement between the parties Should any language in any of the Exhibits to the Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. Section 11. Assignment 11.1 Any assignment of this Agreement by either party without the written consent of the non- assigning party shall be void Section 12.Modification 12.1 No waiver,alteration,or modification of any of the provisions for the Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and the County Metro Transit Pioneer Street Improvements Draft Agreement—Pending Metro Legal Review, City of Kent Review 2/20/04 Page 4 of 5 Section 13.Severability 13.1 If any provision of this Agreement is held invalid by a court of competent jurisdiction,the remainder of the Agreement shall not be affected thereby if such remainder would then continue to serve the purposes and objectives originally contemplated by the parties IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date first written above. The City of Kent By Jim White,Mayor Date Approved as to Form By Tom Brubaker,City Attorney Date King County By Darwin Campbell Date Acting General Manager King County Metro Transit Division Approved as to Form By Jessica Hardung Date Deputy Prosecuting Attorney Metro Transit Pioneer Street Improvements Draft Agreement—Pending Metro Legal Review;City of Kent Review 2/20/04 Page 5 of 5 Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: 1 ST AVENUE NORTH/4TH AVENUE NORTH WIDENING & UTILITY TRENCHING PROJECT—ACCEPT AS COMPLETE 2. SUMMARY STATEMENT: Accept as complete the 1 s`Avenue North/4t' Avenue North Widening and Utility Trenching project and release the retainage to Pivetta Brothers upon receipt of standard releases from the state and release of any liens. The original contract amount was $642,941.17. The final contract amount was $688,899.85. 3. EXHIBITS• None 4. RECOMMENDED BY: Public Works Director (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: • ACTION: Council Agenda Item No. 60 • Kent City Council Meeting Date March 16, 2004 Category Consent Calendar 1. SUBJECT: DRINKING DRIVER TASK FORCE APPOINTMENT —CONFIRM 2. SUMMARY STATEMENT: Confirmation of the Mayor's appointment of Ms. Jennifer Hooper to serve as a member of the Kent Drinking Driver Task Force. She is employed as an Officer with the Washington State Liquor Control Board (WSLCB). She attended the University of Washington and received her degrees from Central Washington University. She plans to pursue her Master's next fall. Ms. Hooper is a member of the local chapter of the National Law and Justice Association and enjoys using any free time to volunteer with children. She and her husband have two young children and when time allows, they like to fly fish—catch and release. She is also very interested in conservation. Ms. Hooper will replace Rich Manoli, who resigned due to a transfer, and will represent the WSLCB. Her term will continue until 1/1/05. 3. EXHIBITS: Memo 4. RECOMMENDED BY: Mayor White (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? No Revenue? No Currently in the Budget? Yes No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Council Agenda Item No. 6P OFFICE OF THE MAYOR Jim White, Mayor Phone 253-856-5700 Fax 253-856-6700 Address 220 Fourth Avenue S KEN T Kent,WA 98032-5895 WASHINGTON MEMORANDUM TO: JULIE PETERSON, COUNCIL PRESIDENT CITY COUNCIL MEM RS FROM: JIM WHITE, MAYOR DATE- MARCH 3, 2004 RE: APPOINTMENT TO KENT DRINKING DRIVER TASK FORCE I have appointed Ms. Jennifer Hooper to serve as a member of the Kent Drinking Driver Task Force She is employed as an Officer with the Washington State Liquor Control Board (WSLCB). She attended the University of Washington and received her degrees from Central Washington University. She plans to pursue her Master's next fall Ms. Hooper is a member of the local chapter of the National Law and Justice Association and enjoys using any free time volunteering with children She and her husband have two young children and when time allows, the like to fly fish—catch and release She is also very Y Y Y interested in conservation Ms H ooper will r eplace R ich M anoli, w ho r esigned d ue t o a t ransfer, and w ill r epresent t he WSLCB Her term will continue until 111105. I submit this for your confirmation. Ib Kent City Council Meeting Date March 16 2004 Category Bids 1. SUBJECT: S. 228TH STREET CORRIDOR STONE COLUMNS 2. SUMMARY STATEMENT: The bid opening for this project was held on March 3, 2004 with three bids received. The low bid was submitted by Scarsella Brothers, Inc. in the amount of$617,875.00. The Engineer's estimate was $596,000.00. 3. EXHIBITS: Public Works Director's memoran m 4. RECOMMENDED BY: Public Works Direct (Committee, Staff, Examiner, Comm/ission .) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL AC', IT�IOpi. Councilmember W `' moves, Councilmember 44k seconds that the South 228th Street Corridor— Stone Columns contract be awarded to Scarsella Brothers, Inc. for the low bid amount of$617,875.00. DISCUSSION: in is-�Q' ate, P U�i x ACTION: VYVL. Council Agenda Item No. 8A PUBLIC WORKS DEPARTMENT Don E Wickstrom, RE Public Works Director Phone 253-856-5500 Fax 253-856-6500 KEN T Address 220 Fourth Avenue S WASHINGTON Kent,WA.98032-5695 Memorandum DATE: March 16, 2004 TO: Mayor White and Kent City Council FROM- Don Wickstrom, Public Works Director RE South 228`h Street Corridor—Stone Columns Bid opening for this project was held on March 3, 2004 with three bids received. The low bid was subirutted by Scarsella Brothers, Inc in the amount of$617,875.00 The Engineer's estimate was $596,000 00 The Public Works Director recommends awarding this contract to Scarsella Brothers, Inc. Bid Summary Scarsella Brothers, Inc $617,875 00 MidMountam Contractors, Inc $648,066 00 Condon-Johnson&Assoc., Inc $671,400.00 Engineer's Estimate $596,000 00 Kent City Council Meeting Date March 16, 2004 Category Bids 1. SUBJECT: S. 228TH STREET CORRIDOR SOUND BARRIER 2. SUMMARY STATEMENT: The bid opening for this project was held on March 9, 2004 with four bids received. The low bid was submitted by Harlow Construction Company Inc. in the amount of$364,570.00. The Engineer's estimate was $438,850.00. • 3. EXHIBITS: Public Works Director's memorandum 4. RECOMMENDED BY: Public Works Director (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: Councilmember (Alk Q moves, Councilmember seconds that the South 228th Street Sound Bamer contract be awarded to Harlow Construction Company Inc. in the amount of$364,570.00. DISCUSSION: ACTION: G Council Agenda Item No. 8B PUBLIC WORKS DEPARTMENT Don E Wickstrom, P E Public Works Director 4400 Phone 253-856-5500 Fax 253-856-6500 KEN T Address 220 Fourth Avenue S WASHINGTON Kent,WA 98032-5895 Memorandum DATE: March 16, 2004 TO. Mayor White and Kent City Council FROM: Don Wickstrom,Public Works Director RE: South 228`h Street Sound Barrier Bid opemng for this project was held on March 9, 2004 with four bids received The low bid was submitted by Harlow Construction Co, Inc. in the amount of$364,570.00. The Engineer's estimate was S438,850 The Public Works Director recommends awarding this contract to Harlow Construction Co , Inc Bid Summary Harlow Construction Co., Inc $364,570.00 Tye Miller Inc. $369,270.00 Diamaco,Inc $369,593 00 Standard Construction $404,134 00 Engineer's Estimate $438,850.00 Kent City Council Meeting Date March 16, 2004 Category Bids 1. SUBJECT: RIVERBEND GOLF COURSE CARTS 2. SUMMARY STATEMENT: The Parks Director recommends rejection of the E-Z-Go golf cart bid due to concerns of reliability and authorization for the Mayor to enter into a four year agreement with Northwest Yamaha to lease forty-eight (48) Yamaha G-Max golf carts at a cost of$37,178.88 annually. 3. EXHIBITS: Bid specifications and bid tab • 4. RECOMMENDED BY: Staff (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No If no: Unbudgeted Expense: Fund Amount $ Unbudgeted Revenue: Fund Amount $ 6. CITY COUNCIL ACTION: //���� Councilmember moves, Councilmember O'Al - seconds authorize the Mayor to reject E-Z-Go's golf cart bid due to concerns of reliability and to enter into a four year agreement with Northwest Yamaha to lease forty-eight (48) Yamaha G-Max golf carts at a cost of$37,178.88 annually. DISCUSSION: ACTION: iYtC Council Agenda Item No. 8C RLVerbewd Clot.f a0VV'P,ex City of Kent— Parks Department 220 4'"Avenue South Kent,WA 98032 253.854.3673 Golf Cart Leasing Comparison and Analysis Contact: R. D. Pete Petersen, Jr. Supt. of Golf Operations 253.856.5190 Comparing: Club Car Precedent E-Z-Go TXT Yamaha G-Max Number of Carts: 48; 46 cart fleet and 2 marshal carts Terms of Lease: 48 months lease—32 payments, no payments for the months of November, December, January and February, residual amount and warranty Basic Specifications: • Gasoline engine • Roof Front Windshield (one piece) • Rear enclosure • Club Cover • Message Holder Options: • Extended warranty • Service contract • Rental /Leasing additional carts for tournaments 1 Riverbend Golf Complex Golf Cart Leasing Comparison and Analysis Club Car EZ-Go* Yamaha Precedent TXT G-Max Fleet of 46 carts and 2 marshal carts 32 Payments over 48 Months (No payments November,December,January and February) per cart/month $110.06 $87.78 $96.82 per cart/year $880.48 $702.24 $774.56 per cart/lease $3,521.92 $2,808.96 $3,098.24 Monthly Cost of Lease $5,282.88 $4,037.88 $4,647.36 Annual Cost of Lease $42,263.04 $32,303.04 $37,178.86 Total Cost of Lease $169,052.16 $129,212.16 $148,715.52 * E-Z-Go/ Farwest Golf will provide 2 (two) E-Z-GO workhorse turf vehicles for marshal carts free of charge for the length of the lease. • REPORTS FROM STANDING COMMITTEES AND STAFF A. COUNCIL PRESIDENT B. OPERATIONS COMMITTEE C. PUBLIC SAFETY COMMITTEE ZZ D. PUBLIC WORKS Ltb E. PLANNING COMMITTEE F. PARKS COMMITTEE G. ADMINISTRATIVE REPORTS AOQ '► LV jMhJ On 0p.e0 pb,� REPORTS FROM SPECIAL COMMITTEES Operations Committee Minutes February 17, 2004 Committee Members Present. Acting Chair Julie Peterson, Bruce White, Ron Harmon Agenda item No 3, Salary Commission Abolition-Ordinance, was removed from the agenda prior to the meeting by Julie Peterson The meeting was called to order by Julie Peterson, Acting Chair at 4-02 P M APPROVAL OF MINUTES OF JANUARY 20, 2004 Bruce White moved to approve the minutes of the January 20, 2003, Operations Committee meeting. The motion was seconded by Ron Harmon and passed 3-0. APPROVAL OF VOUCHERS DATED JANUARY 30, 2004 AND FEBRUARY 13, 2004 Finance Director Bob Nachlinger presented the vouchers for January 30, 2004, and February 13, 2004, for approval. Bruce White moved to approve the vouchers dated January 30, 2004, and February 13, 2004. Ron Harmon seconded the motion, which passed 3-0. VISION SERVICE PLAN (VSP) HEALTH CONTRACT FOR 2004 The City's Benefits Manager, Becky Fowler, presented the Vision Service Plan (VSP) Health Contract for 2004, which is effective January 1, 2004. Ms. Fowler explained that the City self- insures the employees' vision program through Vision Service Plan (VSP). Administration fees and claims costs are wired each month to VSP for payment of employees' vision services. The annual administration fees for 2004 are approximately $19,594 Premera Blue Cross administered the program through the VSP network prior to December 31, 2003 Ms Fowler stated that VSP is no longer contracting with Premera Blue Cross and therefore the City is allowed to contract directly with VSP saving the City $ 45 per employee for a total savings of$4,100 per year Bruce White moved to recommend that the Vision Service Plan (VSP) Contract be placed on the Consent Calendar for the March 2, 2004, City Council Meeting approving the contract and recommending it for the Mayor's signature. The motion was seconded by Ron Harmon and passed 3-0. 2 Operations Committee, 2/17/2004 10 REFUNDING AND RESTRUCTURING OF ANNUAL DEBT SERVICE COSTS Finance Director Bob Nachlinger presented the Refunding and Restructuring of Annual Debt Service Costs Power Point presentation for informational purposes only. Mr. Nachlinger stated that the refunding and restructuring of the 1996 LTGO bonds can reduce current costs and shorten the final maturity of our outstanding debt. Mr. Nachlinger stated that it would provide the City savings of over $800,000 for both this year and next year. The 1996 LTGO bonds were issued for three purposes. the Centennial Budding, park improvements; and sewer improvements. The parks and sewer portion of the bonds were issued for a 20 year period and the Centennial Building portion was issued for 30 years. By refunding and restructuring these issues we can reduce current costs, smooth annual costs, and shorten the final maturity of our debt by four (4) years. Mr Nachlinger stated that the overall savings to be achieved from this refunding is$1,279,787 over the life of the bonds. No motion was necessary as Mr. Nachlinger provided the Refunding and Restructuring of Annual Debt Service Costs Power Point presentation for informational purposes only. Acting Chair Julie Peterson invited Mr. Nachlinger to attend a Council Workshop to allow all council members the opportunity to review and comment on this proposed refunding and restructuring. Mr. Nachlinger accepted the invitation. The meeting was adjourned at 4.20 P M. Renee Cameron Operations Committee Secretary 2 PUBLIC WORKS COMMITTEE MINUTES February 2, 2004 COMMITTEE MEMBERS PRESENT- Chair Bruce White , Ron Harmon, Debbie Raplee The meeting was called to order by Committee Chair Bruce White at 5.02 P M. Approval of Minutes of December 1,2003 Committee Member Ron Harmon moved to approve the minutes of December 1, 2003. The motion was seconded by Committee member Debbie Raplee and passed 3-0 King County Waste Reduction & Recycling Program Grant Public Works Director Don Wickstrom said this is a program that has been going on for the past 11 years,paid for by county solid waste This is a 2 year agreement the first of these years is for the amount of$84,000 Don introduced Robyn Bartelt, Conservation Specialist with the City of Kent. Robyn passed out brochures and information on the events. The grants fund recycling events as well as helping businesses set up recycling programs The events are advertised in several ways, City staff members go to both business and multi-family locations to explain the events. There is information in several different languages available and notices are mailed to all City residents 3 weeks prior to the events Rain pails and compost bins will be available for purchase at the events Ron Harmon moved to recommend the Council authorize the Mayor to sign the Waste Reduction and Recycling Program Grant in the amount of$84,241, direct staff to accept the grant and establish a budget for the funds to be spent within said project. The motion was seconded by Debbie Raplee and passed 3-0. Local Hazardous Waste Management Program Amendment#1 Robyn Bartelt, Conservation Specialist said this was the 2° year of this 2 year contract to collect the hazardous side of the recycling items such as freon, scrap metal,propane tanks, oil, anti-freeze etc The grant money is used to pay vendors to come in and dispose of materials collected Part of the money also funds the King County Hazardous Waste Mobile, the Kent site is one of the most heavily used sites in King County so there are four or five events scheduled this year Debbie Raplee moved to recommend the Council authorize the Mayor to sign the Local Hazardous Waste Management Program Amendment#1 in the amount of $39,075.35,direct staff to accept the grant and establish a budget for funds to be spent within said project. The motion was seconded by Ron Harmon and passed 3- 0. S. 212`h St Pavement Rehab Proiect Fund Authorization Agreement Public Works Director Don Wickstrom said the project is to overlay South 2121h from West Valley Hwy to the Green River Washington State Department of Transportation Highways and Local Programs has authorized$388,828 in construction funds for the restoration and rehabilitation funding for the S 212`h St Pavement Rehab Project The funds are now available,Public Works needs authorization from the Mayor to accept the CONTINUED COMMUNICATIONS A. EXECUTIVE SESSION A) 0 ACTION AFTER EXECUTIVE SESSION A)