Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
City Council Meeting - Council - Agenda - 12/09/2008
• JNU G�� I ' �e l�k , �s' ' N a P fir 11 � , 1Q, ' ' p� y`, jl,� �Gi „im,'y�^'�, I� 7li�4;; f,'r't�C ti ���i!r;�r��� � _ �i'� T�r�„ a��� a� q �� ( P� ,�. a n T fli `�'i' i�� j �t^'�=h���e __pl��r ��1.., '�YI Cit. tlyj tJ��,ia IN �� �����'y,1', �ih'.���,L,',ql,'''i �'6tr��i'iil'a�i�i^�'�'y� I�"- 'Coa j" 'I f�qr RICity Coun �"- I'M 7@'ri i� •Utz� � � �`' �.�'�'�� �",-, �y(�'q� x jp ,;jN All -0 $p�i'a��byn4 i"9m.tFtP ly, � AR Dec€mber9I 2008 r . .ri•'�C,`a�,�``�' `fir',,�T r I �F„ Mayor suzette Cooke Debbie Ra leer Council President Counciimembers Elizabeth Albertson Ron Harmon Tim Clark Deborah Rnniger Jamie Danielson Les Thomas ��IKC NT WAS.11I.T011 City Clerk's office 1 KENT CITY COUNCIL AGENDAS KENT December 9, 2008 WA5HING70N Council Chambers MAYOR: Suzette Cooke COUNCILMEMBERS: Debbie Raplee, President Elizabeth Albertson Tim Clark Jamie Danielson Ron Harmon Deborah Ranniger Les Thomas ********************************************************************** NO WORKSHOP WILL BE HELD ********************************************************************** COUNCIL MEETING AGENDA 7:00 p.m. 1. CALL TO ORDER/FLAG SALUTE 2. ROLL CALL 3. CHANGES TO AGENDA A. FROM COUNCIL, ADMINISTRATION, OR STAFF B. FROM THE PUBLIC - Citizens may request that an item be added to the agenda at this time. Please stand or raise your hand to be recognized by the Mayor. 4. PUBLIC COMMUNICATIONS A. Public Recognition B. Community Events C. Introduction of Appointee D. Employee of the Month 5. PUBLIC HEARINGS A. LID 363 - South 224th Street Project/East Valley Highway to SR-515 Formation - Ordinance 6. CONSENT CALENDAR A. Minutes of Previous Meeting - Approve B. Payment of Bills - Approve C. LID 359, 116th Avenue SE Improvements Ordinance - Adopt D. Kent Arts Commission Appointment - Confirm E. Highridge Terrace Bill of Sale - Accept F. Kent Covenant Church Bill of Sale - Accept G. "Comcast Cares Day" Donation - Accept and Amend Budget H. King County 4Culture 2008 Performance Network Grant - Accept and Amend Budget I. Aukeen and Kent Municipal Court Expansion Project Agreement - Authorize J. Avalon Court Final Plat (Quasi-Judicial) - Accept K. Subdivision Code Update, Phase I, Short Plat Expiration Period Extension, Ordinance - Adopt (Continued) COUNCIL MEETING AGENDA CONTINUED L. East Valley Highway Puget Sound Energy Facility Relocation Agreement - Authorize M. 2009 Water Treatment Chemical Contract with Equa-Chlor - Authorize N. 2009 Water Treatment Chemical Contract with Cascade Columbia Distribution - Authorize O. Transit Service Agreement with King County for Route 918 - Authorize P. Washington Traffic Safety Commission "X-52" Grant - Accept Q. Seattle Police Department Cost Reimbursement and Service Agreement - Accept R. Homeland Security Sub Grant - Accept S. Washington Dental Service Contract - Authorize T. 2008 Property Tax Levy Ordinances - Adopt U. Aukeen Court Lease Agreement - Authorize V. 72nd Avenue Left Turn Lane - Accept as Complete 7. OTHER BUSINESS A. Collection Agency Services Agreement B. Utility Rate Adjustments Ordinance C. 2009 Budget Ordinance D. Comprehensive Plan/Capital Facilities Element Amendment and Update to Kent City Code Chapter 12.13 Ordinances E. Comprehensive Plan Amendment to Include 2009-2014 Capital Improvement Plan Ordinance F. ShoWare Food & Beverage Agreement with SMG/Savor 8. BIDS 1 None 9. REPORTS FROM STANDING COMMITTEES, STAFF AND SPECIAL COMMITTEES 10. CONTINUED COMMUNICATIONS 11. EXECUTIVE SESSION AND AFTER EXECUTIVE SESSION A. Labor Negotiations 12. 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 and complete packet are 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. _ _LLJ6J .L L c mt , 7 O — T r v d L p �,.,O H a 0 5,- Q v b c E p O U ° 1,11 v 0 _v L bq a 0 a 4J E me._ E C v N 7 > v a c: O C V - c E p ° v " o � c y C a0 O O v O _ N v T -O�s o o ° y ro a v v v U ()L WD C c v > b0 v 6 L c U v C C 6 y C U ti T v T E: WW OY� O ° EroI ° = s3EcY ° v0v m m U E v v Y .1 � c s CO O L ° ° U a s 7 u 6 a 7 4 = p L L E L O O-O L U C y U L v d O O m y _ O ? C U L p L v > E • .Q c >-.L > T>, v, p v CL o�A V O v n O a 0 O s O C T v v 7 eC Fc w C OJ E C T O L O U v a L O rt C 1— v U N T> v a N 7 b0� V v 0 V p ? __ U p N-p_6 v _ T v w L S L O y w � v m > � v - a2N� YE � 0 ': c ca r U. O > y s ro E�ro b- c S c c v v � v c0 c un v v U u-C c-O N v v E u o u a un E v v > E v • ro Q v L v o v n y c O ° Y v E � p E m E N o o v E x Q Y¢m b°os o0 0 ° p c . �, v o c Ia TUro aomZ: cT _ uu --o �Qm°S V E 121, v v E _ n LJ O ° > - Ems E c L E tOC v u td E N O >, v ro c v C N a C U a C E N'- �J A_ P �" r0 c C ° Y O U C ° ° O D. rd O N Z E N >, V O > O t O E— v 4: rc O V O V U b c, 0 v u E p v v E v ` c �n ccu> � vo ° E avCL � uOs roEv EUNE E vc- - yv � L sE E o vQv _ ca roNb � av ac oacv � o u c >L � E o u v N v y ° �: c a` U ro i u °o� o ° Eo a> �U O - V O E o u a) U � ° a E a u � o f oo s b b Y v > ocu Q vEc vu _ Ev E 3 ° p > mE�._Lcn aji m�s EU °N vL ?sV �,N V �s � 9- E0L � ocCa °a ° - av�U� rooUSv p ° o in O v = L C u p 6! C < U in O C T e C T C J - Lij °u v = v 3 c o s v > E o n- �� c o o ro p T vs� vac _^ c yob c � v ° vcvoroc � E b8` ou �S- � � ro0v� Y > c:: O O� °L o CU C M i W DM SS b oss °� > a V Es v °c°a ro ° v c > ~�� o c� ��� o o ti C-p • p v V c aE~� v z O E �Y a E v v v y aro S -� c -5 v_a Y o c v v � O vL> vi � Eyv y c � �QQ roQ C: O C N E o v U E vs o v v O c �i Off, cLs' oosY b E, a QL OLLA O/� U C s C E O b0 C C `1 C v E E N i U E E rn O s `� C s U `^ '- v +�L W v p p-C O 7 7-p Q 7 CD OU O > N E 06 s v ) N N C N c) L p L C QJ Hn > QL-UnosN� VUUro �UL v �sLUUO0� aCLLa � ,�� aE�°� ace° � 1 0 E D . r z v O a > 3 E E E O Q C C • C tC Q a �,-0 7 OO > 1� U 1n c N Uoo v oo E . Y V U a �-• z CC) w CD 0C: iQ N T • 7 N +- N N cd _ U o 3 V ° z U Y>= �� C C v,� c0 O Y p ro p U 7� r-I Y`1v m�� V U d w � d s kA C a A C O Q L a O L O N tU0 bD U v, T-O U `� in v v v > C c N 3 Y s > Y O s a� -U v o • sdy� a o 04 � `> oN O _vmt u _ uvro � `p rE9 ,C-C C 7 p C E U m cc [41 j a� cv moo > a v EE • mu � >� �E- o c g E > > o a �CCtl T � v o' �a ac E v ro ro v c� m ° �� o q L U U 7 L.. >, ° v 'O U > bA— O C v M • Lij o v E U > � ° m c v m c c o V _ b OT `n v ro Oy s ° t U L Y `^ Q�FN w 'O C b0 b s a > p 7 -6 Q C Y `� v U Q'CO c O � MCCL t3 - a'- T vvoU C - , � ro0r °- ° a °a� 3 To bF-v > `o -x C� v N O o v o E ovn� cU a v versa as v v E 'cz vro v v QEO u af0, °_� o ° cL ro E a o'� y> _c v v o n. ° w a ° '> au c u v a �s-o u v v v v u m c v v n �O m 2 CL 0.ee �n uc m < > C. E t— < Q my s � COUNCIL WORKSHOP t 1 1 1 i 1 1 1 1 1 1 1 1 i 1 t CHANGES TO THE AGENDA Citizens wishing to address the Council will, at this time, make known the subject of interest, so all may be properly heard. A) FROM COUNCIL, ADMINISTRATION, OR STAFF B) FROM THE PUBLIC PUBLIC COMMUNICATIONS A) PUBLIC RECOGNITION B) COMMUNITY EVENTS C) INTRODUCTION OF APPOINTEE D) EMPLOYEE OF THE MONTH _ Kent City Council Meeting Date December 9, 2008 Category Public Hearings - 5A 1. SU137ECT: LID 363 - SOUTH 224TH STREET PROJECT/EAST VALLEY HIGHWAY TO SR-515 FORMATION - ORDINANCE 2. SUMMARY STATEMENT: The 224th Street project has been planned since the mid-80's. The need for this arterial corridor was forecasted as additional growth on the East Hill/Soos Creek plateau required the need for arterial corridors to connect the plateau with the SR 167/I-5 freeways. Since 1986 each develop- ment within the benefit area was required to sign an Environmental Mitigation Agreement (EMA) agreeing to fund a portion of the project cost and not to protest the formation of a Local Improvement District that would provide for payment of the obligation over time. 3. EXHIBITS: Ordinance and Public Works Memo 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 6. CITY COUNCIL ACTION: A. Councilmember moves, Councilmember seconds to close the public hearing. ry1C/ B. Councilmember moves, Councilmember seconds to adopt Ordinance No. 3 l r0, authorizing the formation of Local Improvement District No. 363, So. 224th Street Project, and ordering construction of the project improvements. DISCUSSION: ACTION: i ORDINANCE NO. AN ORDINANCE of the City Council of the City of Kent, Washington, ordering the construction of a roadway beginning at the intersection of East Valley Highway and S. 224th Street via S. 218th/216th Street, terminating at the intersection of Benson Road and S. 216th and the installation of curbs, gutters, sidewalks, a two-way left turn lane, planted center medians where possible, roadside planter strips, street lighting, undergrounding of overhead electrical facilities, storm water management facilities, a bridge over SR 167, a new Garrison Creek bridge, sanitary sewer and water extensions and/or stubs and appurtenances to provide service to properties not currently served by City utilities, all relating to the overall project on East Valley Highway to the west and 1081h Avenue SE (SR 515, Benson Highway) to the east, all in accordance with Resolution No. 1796 of the City Council; establishing Local Improvement District No. 363 and ordering the carrying out of the proposed improvements; providing that payment for the improvements be made in part by special assessments upon the property in the District, payable by the mode of "payment by bonds"; and providing for the issuance and sale of local improvement district warrants redeemable in cash or other short-term financing and local improvement district bonds. RECITALS A. Pursuant to Resolution No. 1796 adopted November 20, 2008, the City Council declared its intention to order the construction of a roadway beginning at the intersection of East Valley Highway and S. 224th Street via S. 218th/216th Street, terminating at the intersection of Benson Road and S. 216th and the installation of curbs, gutters, sidewalks, a two-way 1 LID 363 Formation Ordinance left turn lane, planted center medians where possible, roadside planter strips, street lighting, undergrounding of overhead electrical facilities, storm water management facilities, a bridge over SR 167, a new Garrison Creek bridge, sanitary sewer and water extensions and/or stubs and appurtenances to provide service to properties not currently served by City utilities, all relating to the overall project on East Valley Highway to the west and 108th Avenue SE (SR 515, Benson Highway) to the east, and fixed December 9, 2008, at 7:00 p.m., local time, in the council chambers of City Hall as the time and place for hearing all matters relating to the proposed improvements and all comments thereon and objections thereto and for determining the method of payment for the improvements; and B. The City's Public Works Director caused an estimate to be made of the cost and expense of the proposed improvements and certified that estimate to the City Council, together with all papers and information in his possession touching the proposed improvements, a description of the boundaries of the proposed local improvement district and a statement of what portion of the cost and expense of the improvements should be borne by the property within the proposed district; and C. That estimate is accompanied by a diagram of the proposed improvements showing thereon the lots, tracts, parcels of land, and other property which will be specially benefited by the proposed improvements and the estimated cost and expense thereof to be borne by each lot, tract and parcel of land or other property; and D. Due notice of the above hearing was given in the manner provided by law, and the hearing was held by the City Council on the date and at the time above mentioned, and all persons appearing at such hearing and wishing to be heard were heard; and E. The City Council has determined it to be in the best interests of the City that the improvements as hereinafter described be carried out 2 LID 363 Formation Ordinance and that a local improvement district be created in connection therewith; NOW, THEREFORE, NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. The City Council of the City of Kent, Washington, orders the improvement of the properties within the area described in Exhibit A, attached hereto and by this reference made a part hereof, by the construction of a roadway beginning at the intersection of East Valley Highway and S. 224th Street via S. 218th/216th Street, terminating at the intersection of Benson Road and S. 216th and the installation of curbs, gutters, sidewalks, a two-way left turn lane, planted center medians where possible, roadside planter strips, street lighting, undergrounding of overhead electrical facilities, storm water management facilities, a bridge over SR 167, a new Garrison Creek bridge, sanitary sewer and water extensions and/or stubs and appurtenances to provide service to properties not currently served by City utilities, all relating to the overall project on East Valley Highway to the west and 108th Avenue SE (SR 515, Benson Highway) to the east. All of the foregoing shall be in accordance with the plans and ® specifications therefore prepared by the City's Public Works Director, and 3 may be modified as long as such modification does not affect the purpose of the improvements. SECTION 2. There is created and established a local improvement district to be called Local Improvement District No. 363 of the City of Kent, Washington (the "District"), the boundaries or territorial extent of the District being more particularly described in Exhibit A, attached hereto and by this reference incorporated herein. The improvements are described in Exhibit B. 3 LID 363 Formation Ordinance SECTION 3. The total estimated cost and expense of the improvements is declared to be $35,100,000. Approximately $24,174,096 of which cost and expense shall be paid by the City, and/or by grants and the balance thereof (an estimated $10,925,904) of the cost and expense shall be borne by and assessed against the property specially benefited by such improvements included in the District, which embraces as nearly as practicable all property specially benefited by such improvements. SECTION 4. In accordance with the provisions of RCW 35.44.047, the City may use any method or combination of methods to compute assessments that may be deemed to more fairly reflect the special benefits to the properties being assessed than the statutory method of assessing the properties. SECTION S. No property, any portion of which is outside the District, may connect to those improvements constructed or made a part of such District unless either that property shall have been subject to the special assessments on the assessment roll for that District or the owners of that property shall have paid prior to such connection a charge in lieu of assessment, which shall be at least the equivalent of those assessments that would have been applied to that property had it been included within that District. SECTION 6. Local improvement district warrants may be issued in payment of the cost and expense of the improvements herein ordered to be assessed, such warrants to be paid out of the Local Improvement Fund, District No. 363, hereinafter created and referred to as the Local Improvement Fund, and, until the bonds referred to in this section are issued and delivered to the purchaser thereof, to bear interest from the date thereof at a rate to be established hereafter by the City's Finance Director, as issuing officer, and to be redeemed in cash and/or by local improvement district bonds herein authorized to be issued, such interest- bearing warrants to be hereafter referred to as "revenue warrants." In the 4 LID 363 Formation Ordinance alternative, the City hereafter may provide by ordinance for the issuance of other short-term obligations pursuant to chapter 39.50 RCW, or for interfund loans. If the City shall authorize expenditures to be made for such improvements (other than for any cost or expense expected to be borne by the City) prior to the date that any short-term obligations or local improvement district bonds are issued to finance the improvements, from proceeds of interfund loans or other funds that are not, and are not reasonably expected to be, reserved, allocated on a long-term basis or otherwise set aside to pay the cost of the improvements herein ordered to be assessed against the property specially benefited thereby, the City declares its official intent that those expenditures, to the extent not reimbursed with prepaid special benefit assessments, are to be reimbursed from proceeds of short-term obligations or local improvement district bonds that are expected to be issued for the improvements in a principal amount not exceeding $12,000,000. The City is authorized to issue local improvement district bonds for the District that shall bear interest at a rate and be payable on or before a date to be hereafter fixed by ordinance. The bonds shall be issued in exchange for and/or in redemption of any and all revenue warrants issued hereunder or other short-term obligations hereafter authorized and not redeemed in cash within twenty (20) days after the expiration of the thirty- day period for the cash payment without interest of assessments on the assessment roll for the District. The bonds shall be paid and redeemed by the collection of special assessments to be levied and assessed against the property within the District, payable in annual installments, with interest at a rate to be hereafter fixed by ordinance under the mode of 'payment by bonds," as defined by law and the ordinances of the City. The exact form, amount, date, interest rate, and denominations of such bonds hereafter shall be fixed by ordinance of the City Council. Such bonds shall be sold in such manner as the City Council hereafter shall determine. 5 LID 363 Formation Ordinance SECTION 7. For the purpose of paying all or a part of the costs of carrying out the improvements within the District pending the receipt of the proceeds of the issuance and sale of the bonds, short-term obligations referred to in Section 5, or interfund loans from the General Fund, Street Fund and/or Sewer Fund to the Local Improvement Fund in the maximum aggregate amount of $12,000,000 are authorized and approved, those loans to be repaid on or before the issuance of such bonds or short-term obligations from the proceeds thereof. Any such interfund loans shall bear interest at a variable rate, adjusted the 15th and last day of each month, equal to the interest rate of the State of Washington Local Government Investment Pool on the 151h and last day of each month. The initial interest rate on the date of each interfund loan shall be determined as of the last preceding interest payment adjustment date. SECTION 8. In all cases where the work necessary to be done in connection with the making of such improvements is carried out pursuant to contract upon competitive bids (and the City shall have and reserves the l right to reject any and all bids), the call for bids shall include a statement that payment for such work will be made in cash warrants drawn upon the Local Improvement Fund. SECTION 9. The Local Improvement Fund for the District is created and established in the office of the Finance Director of the City. The proceeds from the sale of revenue warrants or other short-term obligations drawn against the fund which may be issued and sold by the City and the collections of special assessments, interest and penalties thereon shall be deposited in the Local Improvement Fund. Cash warrants to the contractor or contractors in payment for the work to be done by them in connection with the improvements and cash warrants in payment for all other items of expense in connection with the improvements shall be issued against the Local Improvement Fund. 6 LID 363 Formation Ordinance SECTION 10. Within fifteen (15) days of the passage of this 1 ordinance there shall be filed with the Finance Director of the City the title of the improvements and District number, a copy of the diagram or print showing the boundaries of the District and the preliminary assessment roll or abstract of such roll showing thereon the lots, tracts and parcels of land that will be specially benefited thereby and the estimated cost and expense of such improvements to be borne by each lot, tract or parcel of land. The Finance Director of the City immediately shall post the proposed assessment roll upon the index of local improvement assessments against the properties affected by the local improvement. SECTION 11. - Severability. If any one or more section, 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. SECTION 12. - Ratification. Any act consistent with the authority and prior to the effective date of this resolution is hereby ratified and affirmed. SECTION 13. - Effective date. This ordinance shall take effect and be in force five (5) days from and after its passage, approval, and publication as required by law. SUZETTE COOKE, MAYOR ATTEST: BRENDA JACOBER, CITY CLERK 7 LID 363 Formation Ordinance APPROVED AS TO FORM: FOSTER PEPPER PLLC Special Counsel and Bond Counsel j 8 LID 363 Formation Ordinance PASSED: day of December, 2008. APPROVED: day of December, 2008. PUBLISHED: day of December, 2008. 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 9 LID 363 Formation Ordinance Exhibit A L.I.D. Boundary Description L.I.D. 363 South 224th/228th Street Corridor (Easterly Section) East Valley Highway (841h Avenue South) to Benson Road (SR 515) Those properties lying within the City of Kent subject to a recorded South 224th/228th Street Corridor (Easterly Section) Environmental Mitigation Agreement lying within the boundaries or territorial extent of Local Improvement District 363. The boundaries or territorial extent of Local Improvement District 363 are generally lying South of South 208th/212th Street, East of 68th Avenue South, North of Southeast 256th Street and West of 140th Avenue Southeast. A copy of each Environmental Mitigation Agreement has been recorded, and copies of the Environmental Mitigation Agreements and the legal description of each parcel are available for inspection and copying at the offices of the Kent City Clerk, City Hall, 220 41h Avenue South, Kent, Washington and the Public Works Department, Centennial Building, 400 West Gowe Street, Kent, Washington. A - 1 LID 363 Formation Ordinance Exhibit B Description of Improvements L.I.D 363 - 224th Street Project (East Valley Highway to SR 515) The overall project limits are East Valley Highway to the west and 108th Ave SE (SR 515, Benson Highway) to the east. The roadway improvements will be in accordance with the alternative selected by the City Council during the environmental review process under the State Environmental Policy Act (SEPA). The roadway will be in various configurations depending on factors such as environmental constraints, location and traffic capacity: four lanes on the valley floor at the intersection of East Valley Highway and S. 2241h Street; two to four lanes crossing over SR 167; three lanes up the Kent East Hill via S. 218th/216th Street; and, four lanes terminating at the intersection of Benson Road and S. 216th Street. The new roadway will be roughly 1.8 miles long, and will include curbs, gutters and sidewalks, a two-way left turn lane, planted center medians where possible, roadside planter strips, street lighting, undergrounding of overhead electrical facilities, storm water management facilities, a bridge over SR 167, a new Garrison Creek bridge and other appurtenances. Sanitary sewer and water extensions, stubs and other utility appurtenances will be provided where necessary for properties currently without access to the utility systems, to avoid cutting the new road at a later date. B-1 LID 363 Formation Ordinance 1 CERTIFICATION I, the undersigned, City Clerk of the City of Kent, Washington, hereby certify as follows: 1. The attached copy of Ordinance No. is a full, true and correct copy of an ordinance duly passed at a regular meeting of the City Council of the City held at the regular meeting place thereof on , 2008, as that ordinance appears on the minute book of the City; and the ordinance will be in full force and effect five (5) days after the publication of its summary in the City's official newspaper; and 2. A quorum of the members of the City Council was present throughout the meeting and a majority of those members present voted in the proper manner for the passage of the ordinance. IN WITNESS WHEREOF, I have hereunto set my hand this day of , 2008. CITY OF KENT, WASHINGTON BRENDA JACOBER City Clerk i 5 PUBLIC WORKS DEPARTMENT Larry R. Blanchard, Public Works Director • Phone: 253-856-5500 KENT Fax: 253-856-6500 W A S N)N O T O N Address: 220 Fourth Avenue S. Kent, WA 98032-5895 Date: October 15, 2008 To: Chair Debbie Ranniger and Public Works Committee Members PW Committee Meeting Date: October 20, 2008 From: Mark Howlett, Design Engineering Manager Through: Larry Blanchard, Public Works Director Subject: Proposed LID 363: S. 224th Street Project AKA: 228th/224th Corridor East Leg (EVH to SR 515) Resolution of Intent Move to recommend City Council adopt the Resolution of Intent setting a public hearing date for December 9, 2008 on the formation of L.I.D 363 - SUMMARY: The 228th/224th Street Corridor has been planned since the mid-80's. The need for this arterial corridor was forecasted as additional growth on the East Hill/Soos Creek plateau required the need for arterial corridors to connect the plateau with the SR-167/I-5 freeways. The S. 224th Street project is the easterly section of the corridor, the westerly section (S.228th St. extension) was completed in 2007. Environmental review work on the project has now been finalized and approved by the City Council. Previous developments in the area of this road improvement project were allowed assuming the easterly section would be built to accommodate the additional traffic they generated. Since 1986 each development was required to sign an Environmental Mitigation Agreement (EMA) agreeing to fund a portion of the project cost and not to protest the formation of a Local Improvement District that would provide for payment of the obligation over time. Many property owners have already paid their obligation under their EMA, however, a majority have not. In order to complete the needed funding to enable the City to proceed with this project, the City needs to pursue the formation of a Local Improvement District (L.I.D.) to secure the funding. L.I.D.s have helped to fund many arterial improvement projects within the City. Recent L.I.D. projects include L.I.D. 340 - 196th/2001h Street Corridor, L.I.D. 353 - S. 228th Street Corridor and L.I.D. 351/361 - S.272nd/277th Corridor, L.I.D. 359 - 116th Street and L.I.D. 362 - East Valley Highway. A total of 24 street improvement projects with L.I.D. funding of $69,000,000 have been completed in the last 22 years. Also, a number of others L.I.D. funded projects were completed during earlier years dating /'rryurlr r/iNlltf 6 back to 1909. L.I.D.'s have always played an important part of funding street projects throughout the history of the City of Kent. Under the EMA's, the obligation is based on the forecasted vehicle trip generation from the development. However, in accordance with the EMAs, the property owners were given the opportunity to provide a traffic study prior to forming the L.I.D. to reduce the number of trips based on actual operation of the development. A letter was sent May 14, 2008 giving 180 days notice prior to forming the L.I.D. that the owners had 120 days to submit a traffic study should they choose. A public meeting was also held June 4, 2008 to explain the process. The Engineering Section developed an L.I.D. proposal and sent an information packet to all of the property owners. Included was information regarding the project, explanation of the L.I.D. process and proposed preliminary assessments. A property owner meeting is scheduled for October 30. The assessment per peak hour trip is $2,130.48. The L.I.D. assessment total is roughly $10-11 million. We are now ready to proceed with the L.I.D. formation. The next step is the adoption of the Resolution of Intent by the City Council setting the public hearing date for the L.I.D. formation. For additional information and details about the project and proposed L.I.D., see Attachment `A'. 2 LIDA i,roxr—,hm wJnr/nkv /v/r,74 d Pr.. 4 99.3001 7 ATTACHMENT `A' PROPOSED IMPROVEMENTS FOR THE S. 2241h STREET PROJECT: The overall project limits are East Valley Highway to the west and 108th Ave SE (SR 515, Benson Highway) to the east. See the attached project map. The roadway improvements will be built in accordance with the alternative selected by the Kent City Council during the SEPA process. The roadway will be three lanes beginning on the valley floor at the intersection of East Valley Highway and S. 224th Street. It will cross over SR 167 and climb up the Kent East Hill via S. 2181h/216th Street, terminating at the intersection of Benson Road and S. 2161h Street. The new roadway will be roughly 1.8 miles long, and will include curbs, gutters and sidewalks on both sides of the street, a two-way left turn lane, vegetated center medians where possible, roadside planter strips, street lighting, undergrounding of electrical, storm water management facilities, a bridge over SR167, a new Garrison Creek bridge and other appurtenances. NEED FOR THE IMPROVEMENTS: The purpose of the S. 224th Street Project is to reduce existing and forecasted east- west traffic congestion between Kent's East Hill and the Green River valley. The S. 2241h Street project will increase the east-west traffic volume capacity between the East Hill and the valley floor within the area bordered by S. 212th/208th Street and James Street (SE 240th Street), thus reducing travel times. Existing and forecasted traffic congestion in the area adversely impacts travel times, air quality, energy consumption, emergency vehicle response time and the overall quality of life for people living and working in and around Kent. Major intersections on S. 2121h/2081h Street and James Street are near or over capacity. Improvements to either S. 2121h /208th Street or James Street would be difficult to implement due to design and construction restrictions related to existing topography and right-of-way requirements. Improvements on these roadways would not distribute traffic effectively enough to improve traffic congestion. The project will: • Increase east-west traffic in the valley to meet the traffic demands created by existing and future development anticipated in the City's Comprehensive Land Use Plan, in a manner which does not result in a large number of significant environmental impacts. • Implement adopted and proposed land use plans that meet the general transportation concurrency goals of the Growth Management Act (GMA). The S. 224th Street Project is proposed to help meet concurrency requirements, provide additional roadway capacity for improved travel times, and create a new east- west collector roadway for existing and future development on the East Hill. • Reduce travel times on east-west routes connecting Kent's East Hill with the valley. 3 /W,70tpurreoh0um dorhuAr l)h 7oa Pr nµ•r i N 99•100 it 8 • Provide an additional emergency vehicle access route to serve residences and businesses on the East Hill and in the valley. • Replace the existing Garrison Creek Bridge on S. 218th Street to reduce maintenance and meet the Washington State Department of Fish and Wildlife (WSFW) permit requirements. • Improve storm water quality and control runoff volumes to Garrison Creek through construction of new storm water detention and treatment facilities related to the proposal. • Improve safety along the route by installing street lights, constructing sidewalks, and smoothing out sharp turns. • Complete the utility system along the route to provide utility service to currently unserviced properties. This prevents the new road from being cut at a future date to install the utilities. ASSESSMENT METHOD: The property owner or the property's developer entered into an environmental mitigation agreement (EMA) to mitigate, in part, environmental impacts to the City's transportation system. Because the development of the property adversely impacted the City's transportation system, the City required the owner of the property to either construct enough transportation improvements (e.g. adding lanes, signals, street lighting, etc.) to mitigate those adverse impacts or, in the alternative, to enter into the mitigation contract. The City accepted the contact as satisfactory alternative mitigation, because it committed the property to participate in the funding of the City's S. 224th/2281h Street Corridor Easterly Section Project, which will relieve many local traffic congestion areas. Only properties with EMA's are included in this L.I.D. The L.I.D. assessment is the amount of the obligation specified in the EMA for each property adjusted as explained below. Under the EMA's the obligation is based on the forecasted vehicle trip generation from the development. However, property owners were given the opportunity to provide a traffic study prior to forming the L.T.D. to reduce the number of trips based on actual operation of the development. A letter was sent May 14, 2008 giving 180 day notice prior to forming the L.I.D. that owners had 120 days to submit a traffic study should they choose. A public meeting was also held June 4, 2008 to explain the process. The deadline to submit a traffic study was September 18, 2008. Properties with a single family residence have an obligation of 1 trip. As an alternative to a traffic study, home owners were given the opportunity to provide a notarized affidavit showing that members of their household were either retired, did not work outside of the home, did not typically travel during the peak hour period of 3-7 pm, or did not use their car for commuting. If the affidavit was approved, the obligation of one trip was reduced to zero trips. The EMA's specified dollars per trip in 1986 dollars and that this amount would be adjusted using the current CPI factor at the time the L.I.D. is formed. The current factor is 1.98. 4 !d,•7na Vnyr,r n i�-lurhl- 9 SPECIAL BENEFIT TO L.I.D. PROPERTIES: When discussing L.I.D. projects, benefit received is an important issue, since benefit is the basis for the L.I.D. assessment. Benefit is defined as the increase in property value brought about as a direct result of the L.I.D. improvements. L.I.D. assessments can be less than or equal to the benefit received. In the case of the S. 224th Street project, properties included in the L.I.D. signed environmental mitigation agreements as part of the development process. These properties were allowed to develop based on the fact that the corridor would eventually be built to handle the increase in traffic caused by the development - this is a major benefit. If it were not for the corridor project, these properties would not have been permitted to develop. FINAL ASSESSMENTS: In this case, the L.I.D. assessments are equal to the EMA obligation. The L.I.D. is a mechanism for the property owners to pay their obligation. The City is entitled to a presumption of benefit and, unless this presumption is nullified by expert testimony such as an appraisal, the presumption should hold. A final assessment hearing will be held in the future. Property owners will be provided notice of this hearing and will have the opportunity to protest the amount of the assessment by submitting proof that the assessment exceeds the benefit to their property. PAYMENT OF ASSESSMENT: Upon Council passing the Ordinance confirming the Final Assessment Roll, there is a 30- day period in which any portion or all of the assessment can be paid without interest charges. After the 30-day period, the balance is paid over a fifteen-year period wherein each year's payment is one-fifteenth of the principal plus interest on the unpaid balance. The first yearly payment is due approximately one year after the 30 day period. The market determines the interest rate at the time the L.I.D. bonds are sold to the public. The property owner will receive a billing notice from the City each year. The L.I.D. assessment can be paid off during the 15-year payback period without an interest penalty. SUMMARY: There are approximately 900 properties in the area of S. 224th Street that will be included in the L.I.D. The City completed the SEPA process and the City Council selected the alternative to proceed with. Property owners had the opportunity to provide a traffic study in accordance with the EMA to adjust the number of trips associated with their property. The City developed an L.I.D. proposal and informed all of the property owners involved. We are ready to proceed with the L.I.D formation and project design. 5 !lD it 7puuc.uhrium dui/nk, 1 Je 7/l� P.nle.I q J'J-gal il. 10 North co 1 l� L Y S 212TH/208 NOT TO SCALE � n o = i'a� 216TFfs(ST 67 c Z r S 218TH T P R 0 J E C�E-o w u, �� I s � rntC of a z' i� € ! S 24TH 5T E (� T a SE 224TH ST S m f ' S 228T T 5 228TH bT co -41 ` � L.I.D. 363 - t�S. 22� STREET PROJECT PROJECT LOCATION MAP Kent City Council Meeting Date December 9, 2008 ' Item No. 6A - 6B ' CONSENT CALENDAR 6. City Council Action: V 1 �tllV►" Councilmember moves, Councilmember seconds to approve Consent Calendar Items A through V. Discussion ' Action 6A. Au)roval of Minutes. ' Approval of the minutes of the regular Council meeting of November 18, 2008. ' 6B. Aouroval of Bills. Approval of payment of the bills received through October 15 and paid on October 15 after auditing by the Operations Committee on November 4, 2008. Approval of checks issued for vouchers: ' Date Check Numbers Amount 10/15/08 Wire Transfers 3446-3465 $5,786,071.62 10/15/08 Regular Checks 625333-625870 2,826,331.67 Use tax Payable 2,937.25 $8,615,340.54 ' Approval of payment of the bills received through October 31 and paid on October 31 after auditing by the Operations Committee on November 18, 2008. Approval of checks issued for vouchers: Date Check Numbers Amount 10/31/08 Wire Transfers 3466-3486 $1,858,424.52 ' 10/31/08 Regular Checks 625871-626541 4,737,575.31 Void Checks -799.00 Use tax Payable 760.11 ' $6,595,960.94 1 Approval of checks issued for payroll for October 1 through October 15 and paid on October 20, 2008: Date Check Numbers Amount ' 10/20/08 Checks 308063-308336 $ 211,628.36 10/20/08 Advices 238078-238838 1,517,839.82 $1,729,468.18 Approval of checks issued for interim payroll for October 7 and paid on October 7, 2008: Date Check Numbers Amount 10/7/08 Void Check $ -466.25 10/7/08 Reissue Check 308062 466.25 $ 0 Approval of checks issued for payroll for October 16 through October 31 and paid on November 5, 2008: Date Check Numbers Amount 11/5/08 Checks 308337-308605 $ 216,968.52 ' 11/5/08 Advices 238839-239599 1,532,369.89 $1,749,338.41 1 1 1 1 1 440 *"" 1 0 Kent City Council Meeting KENT November 18, 2008 WASMINGTON The regular meeting of the Kent City Council was called to order at 7:00 p.m. by Mayor Cooke. Councilmembers present: Clark, Danielson, Harmon, Ranniger, Raplee, and Thomas. Councilmember Albertson was excused from the meeting. (CFN-198) CHANGES TO THE AGENDA A. From Council, Administration, Staff. (CFN-198) Council President Raplee moved Consent Calendar Item D to Other Business as Item B, and added Consent Calendar Item P. Hodgson added Property Negotiations to the Executive Session. B. From the Public. (CFN-198) Continued Communications Item A was added at the request of Kirt Butler, 21915 95th Place South. PUBLIC COMMUNICATIONS A. Public Recognition. (CFN-198) There was no public recognition. B. Community Events. (CFN-198) Ranniger announced the Morford Family Carousel, Winter Fest, and the Holiday Bazaar. Danielson encouraged citizens to attend FAME, which is being put on by students from Kentridge and Kent Meridian High Schools. C. Introduction of Appointees. (CFN-198) Mayor Cooke introduced Greg Haffner, David Ott, and Roda Barket, appointees to various Boards, Committees and Commissions. D. Public Safety Report. (CFN-122) Police Chief Strachan gave an update on statistics through October, introduced three new Cadets, and noted that Kent's National Night Out program won third place nationwide. Fire Chief Schneider introduced Jon Napier, who was named 2008 Fire Marshall of the Year. E. Green Business of the Year Award. (CFN-155) Conservation Specialist Gina Hungerford announced that REI has been named Green Business of the Year for the second year in a row. She presented representatives of REI with a plaque. F. Michael Mercer Water Conservation Educator Award. (CFN-155) Mike Mactutis, Environmental Engineering Manager, announced that Gina Hungerford has received the Michael Mercer Water Conservation Educator Award, and outlined her many contributions. G. Kent Events Center and Economic Develooment Update. (CFN-825) Economic Development Director Ben Wolters noted that although several businesses in Kent have closed, others are opening, and there are prospects for more in the downtown area. Wolters noted that the Events Center will open in 45 days, and explained the remaining work to be done. 1 Kent City Council Minutes November 18, 2008 PUBLIC HEARINGS A. LID 359, 1161" Avenue SE — Street and Utility Improvements. (CFN-1300) This date has been set to consider confirmation of the final assess- ment roll for LID 359. City Attorney Brubaker introduced outside counsel, James Haney, attorney with the law firm of Ogden Murphy Wallace in Seattle, who will represent the Council during these deliberations. Councilmember Danielson recused herself from this issue because the law firm she is employed by has contact with one of the affected property owners. Danielson left the dais and sat in the audience, and upon Haney's question, no one objected to her presence in the room at that time. There were no further appearance of fairness issues or challenges to any of the Councilmembers. Haney then explained the purpose, issues, and process to be used. Upon a question from the audience, it was clarified that comments in favor of the LID written and submitted at the meeting tonight will not be considered a protest. Clark moved to make letters from Linda Kangas Swanson (Exhibit 1) and Apple Lane LLC (Exhibit 2) a part of the public record. Ranniger seconded and the motion carried. Upon Haney's question, no Councilmember or individual who is intending to protest the assessment came forth with an appearance of fairness issue at this time. Haney noted that three additional protests have just been filed and DiJulio suggested that the exhibits be marked during the procedure. Steve DiJulio of Foster Pepper noted that approximately 20% of this $6,500,000 project was assessed to the properties within the benefited areas, and less than 7.5% of the road costs were spread as assessments against the properties. He explained the project and reminded Council members that a hearing had been set previously for September 16, but that during preparation for the hearing, the Colonial Square parcel had their condominium documents recorded which resulted in going from one parcel to 43 parcels. He then explained the benefits of the project. Design Engineering Manager Mark Howlett was sworn in by Mr. Haney and dis- played and explained photographs of the project. Engineering Design Supervisor Mark Madfai was sworn in and began to explain the history of the project. After seeing the map on the overhead projector, Councilmember Thomas noted that he has spoken with Norma Yonce in the past about the cost of the project. DiJulio noted that a last minute protest has been received with respect to Ms. Yonce's parcel. Thomas then recused himself from the hearing. From the audience, Michael Favors asked that both Councilmembers Thomas and Danielson leave the room, stating that Ms. Danielson made what he considers to be an inappropriate remark to the owner of Parcel No. 8. Councilmembers Danielson and Thomas both left the room at this point. Madfai then continued with the history of the project, showed before and after pictures of the area, and explained the bids, costs, method of payment, and so forth. DiJulio noted that protests or comments have been received relating to Parcel No. 8 (Swanson), No. 2 (Apple Lane), No. 13 (M M R & S, LLC), No. 18 (Yonce) and 2 Kent City Council Minutes November 18, 2008 No. 19 (Konen). He identified the preliminary and final assessment amounts of each of these parcels. The criteria for deferral of payments was clarified. DiJulio noted that the hearing was considered open as soon as the first person was sworn in, and presented copies of a letter of explanation to Colonial Square residents (Exhibit 3). Linda Swanson was sworn in and objected to the assessment for Parcel No. 8. She said the process has dragged on for two and a half years, and that the initial assessment was $357,000 plus the cost of undergrounding the utilities for a development potential of ten parcels and a cul-de-sac. She questioned the ten-lot potential because of the wetland running through the property. She said she has been unable to sell the property because of the wetland and the assessment, and that she has spent thousands of dollars for engineering and wetland studies. Swanson said the City has created an unnecessary hardship on her 85-year-old mother. She opined that this and future LIDs need more scrutiny for realistic assessments. She noted that she requested that the property only be assessed for one lot since two of the three lots are in the wetland or buffer, and two of the three lots could only accessed by building a private road for which an easement would be required from the adjoining property, which is currently owned by the City of Kent. She said City staff has assured her that they will attempt to expedite the sale of the excess property adjoining her mother's property as surplus. Upon questions from DiJulio, Swanson recognized Mr. Blanchard and the efforts of his staff to identify the available lots that could be developed on the property, and said she recognized the diagram of available lots that can be developed on her mother's property. In response to DiJulio's question, Swanson said there is potential for the property as a result of having the additional sewer utility and street access provided by the LID as the lot stands by itself without the road and easement and the buffer, but it's possible, not probable. She said she received correspondence from Mr. Madfai dated November 14, 2008, (Exhibit 4) which documented the City's position that, based upon the City's design standards, three lots are possible, but said they wouldn't guarantee three lots are possible. Mayor Cooke determined that there is no representative of Apple Lane, LLC, in attendance regarding the protest submitted on Parcel No. 2. Harmon requested that rebuttal be heard on the protest, and Deputy Public Works Director/City Engineer Tim LaPorte was sworn in by Mr. Haney. He noted for DiJulio that he has worked on this project for approximately three years and is familiar with the protest from Apple Lane LLC. He then responded to the three reasons for the protest given in the protest letter as follows: 1) The stream feature was taken into account in the calculations for the final assessment roll; 2) Apple Lane submitted a Notice of Application in 2007 to tear down multi-family residential units and build nine residences shown on the diagram (Exhibit 5). The water system improve- ments were unique for each property, in this case an 8" water stub and water meters extended across the street, which was a tremendous benefit in that the roadway improvements paid for the restoration, and they were assessed only for the amount the City incurred as a result of the water line improvement for their property only; 3) Without the LID, the development would have been required to build their portion of the roadway and improve the frontage, and that the LID is paying for only approximately 7.5% of the street assessment. 3 Kent City Council Minutes November 18, 2008 Michael Favors, one of the owners of Parcel No. 13, 26026 116t" Avenue, was sworn in and spoke in favor of the LID, noting that it is a hardship on some and a benefit to others. He said it is a health and safety issue because sewers are needed, and that it is fair. David Konen, owner of Parcel No. 19, was sworn in and said his objection is not about fairness, but about timing. He said he has gone through a tentative short plat for his and adjoining property and quite a bit would have to be surrendered to storm water retention, road connectivity, etc., and that it would be impossible to get four lots out of the subdivision as shown by the City. Konen stated for DiJulio that he is not aware that as a result of the LID all of the storm water issues have been addressed and he will not have to surrender any property for storm water improvements. Norma Yonce, owner of Parcel No. 18, was sworn in and objected to the assess- ment because she has to go a mile and a half out of the way to get into her driveway, has received no improvement to her property, and is on a fixed income. Criteria for deferred payments was displayed for Ms. Yonce and upon a request from her friend Duane, Haney clarified that the state makes the payments to the city and retains a lien against the property and once the property is sold, the state gets paid back with interest. Duane said Ms. Yonce's concern is that there would be no money left after repaying the state. Duane reiterated the inconvenience of getting into her driveway and the fact that she was told that would not occur, as well as the lack of benefit to her. Mayor Cooke called for any final protests; there were none. After Erin Fehringer George was sworn in, she noted for DiJulio that she is currently a planner but before that was a wetland biologist in the Public Works Department Environmental Engineering Section, and that she considered the wetland delinea- tions with respect to the Parcel No. 8 within LID 359 at the start of the project, although it was called the Wetland Inventories. She added that no wetlands were shown at the time on the property referred to, but that it was later determined that there were wetlands on the property. Upon DiJulio's request, LaPorte described the basis for the assessment against the Yonce parcel, noting that it did not have the ability to subdivide, however it was on septic and on a small lot. He said it was felt that bringing sewers to all parcels which were not on sewers was necessary. He said sewers were the exclusive element of the improvements that were the subject for assessment against this parcel. He said LID 359 did not affect access to the property, noting that Kent-Kangley Road is controlled by the state, and that a development to the south resulted in additional turning movements which needed to be controlled with C-curbing, which resulted in restriction of access to the property. LaPorte reiterated for Clark that this LID is completely north of Kent- Kangley Road, and was not the reason C-curbing is needed. He confirmed that when traveling east on Kent-Kangley Road, it is not possible to turn left into Ms. Yonce's property. DiJulio noted that on June 23, 2006, the City's Public Works Department wrote to Ms. Yonce describing the deferral process regarding LID assessments (Exhibit 6). 4 Kent City Council Minutes November 18, 2008 Regarding Parcel No. 19 (Konen), Madfai described for DiJulio that the benefit provided regarding storm water improvements is the extension of catch basins and the sizing of lots to handle storm water retention. Di]ulio stated that there has been no evidence that the properties have not been treated fairly and similarly situated throughout the LID, and reiterated that deferral of payments is possible. He urged the Council to confirm the assessment roll as presented. There was no further testimony and Ranniger moved to close the public hearing. Harmon seconded and the motion carried. Ranniger moved to adjourn to Executive Session. Harmon seconded and the motion carried. The meeting was recessed to Executive Session at 9:38 p.m. and the Council went into the Council Office. At 10:09 p.m., the meeting reconvened and Ranniger moved to approve and con- firm the final assessment roll on Local Improvement District No. 359 concerning street and storm water improvements, sewer improvements, and water improve- ments, with the following adjustments: Parcel No. 8 to $40,708 and Parcel No. 18 to $8,000, and to authorize the City Attorney to prepare the necessary ordinance and findings. Harmon seconded. Clark opined that C-curbing seriously impacted passage into Parcel No. 18 and that it could not have occurred were the state not looking at the improved capacity that occurred on 116th, bringing considerable inconvenience to the property owner. Raplee stated that in regard to Parcel No. 8, three lots would require easement from an adjoining property owner and it is speculative whether or not that ease- ment would be granted, but it is clear that two lots could be provided on the property, so the assessment was lowered based on two lots. The motion to confirm the final assessment roll as amended then carried. B. Six-Year Transportation Improvement Program. (CFN-164) The 2009 Six-Year Transportation Improvement Program contains no substantive changes from last year's Program. All projects have been reviewed for adjustments in scope and budget, but no new projects have been added. Cathy Mooney, Senior Transportation Planner, noted that due to inflation and minor modifications to scope of work, the cost of this year's program is $21,066,600 higher than last year's. She explained that declaring projects on the list allows them to be eligible for grants. She noted that three projects on last year's list have been completed, and one project was dropped, and displayed a map of the projects. Mayor Cooke opened the public hearing. There were no comments from the audience and Clark moved to close the public hearing. Harmon seconded and the motion carried. Ranniger moved to adopt Resolution No. 1797 which adopts the City's 2009-2014 Six-Year Transportation Improvement Program. Raplee seconded and the motion carried. Ranniger moved to make a letter on this subject dated November 16, 2008, from Jack Nixon part of the record. Raplee seconded and the motion carried. 5 Kent City Council Minutes November 18, 2008 C. Skyline Park Apartments Sewer Easement Surplus and Release. (CFN-1038) This date has been set to consider the surplus of a portion of a sanitary sewer easement for the Skyline Park Apartment property, and to release the easement for fair market value and appraisal costs, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. The Public Works Department determined which portion of the easement are not needed by the City, and the proposal is to release all unneeded portions at this time. These portions include the property owner's proposed building site. The City will retain a sufficient easement for the existing and proposed sewer mains and pump station. Engineering Design Manager Mark Howlett explained the project and urged the Council to release the easement. City Attorney Brubaker clarified that State law requires a public hearing prior to the sale of utility property. Mayor Cooke opened the public hearing. There were no comments from the audience, and Clark moved to close the public hearing. Harmon seconded and the motion carried. Ranniger moved to adopt Resolution No. 1798 to surplus a portion of the sanitary sewer easement within the Skyline Park Apartment property. Harmon seconded and the motion carried. CONSENT CALENDAR Raplee moved to approve Consent Calendar Items A through P, with the exception of Item D which was removed from the Consent Calendar. Harmon seconded and the motion carried. A. Approval of Minutes. (CFN-198) Minutes of the regular Council meeting of November 4, 2008, were approved. B. Approval of Bills. (CFN-104) There were no figures for approval. C. Lodging Tax Advisory Committee Appointment. (CFN-1170) The appoint- ment of Aaron Watne to the Lodging Tax Advisory Committee was confirmed. His term will expire on December 31, 2009. E. 2008 Annual Docket Report. (CFN-961) The 2008 Annual Docket Report which lists this year's suggestions for changes to the comprehensive plan text, to the area-wide comprehensive plan land use map, and to certain land use develop- ment regulations according to Chapter 12.02 Kent City Code was approved. F. Highridge Terrace Final Plat. (CFN-1272) The final plat mylar for Highridge Terrace was accepted and the Mayor was authorized to sign the mylar. The property is located at 26610 116th Avenue SE. G. Street Sweeping Change Order. (CFN-136) The Mayor was authorized to sign Change Order No. 1, increasing the current contract with McDonough & Sons, Inc., for additional curb footage in the amount of an additional $183.24 per month, subject to the terms and conditions acceptable to the City Attorney and the Public Works Director. 6 Kent City Council Minutes November 18, 2008 H. Residential Parking Zone, North Park Neighborhood Ordinance. (CFN-171) Ordinance No. 3894 recognizing North Park Neighborhood as a Residential Parking Zone, was adopted. The Final Supplemental Environmental Impact Statement issued for the Kent Events Center project provided that as part of its development approval, the City must create a Residential Parking Zone (RPZ) within the North Park Neighborhood. Through its administration of an RPZ program, the City will be able to regulate parking within the neighborhood ensuring that surface street parking is reserved for neighborhood residents. I. Bill of Sale, Benchmark (Heritage Lakeland). (CFN-484) The Bill of Sale for Benchmark for 2031 linear feet of watermain, 15 gate valves, 5 hydrants, 2999 linear feet of sanitary sewer, 20 sanitary sewer manholes, 2026 centerline linear feet of streets, 3106 linear feet of storm sewer line, 1 manhole, 32 catch basins, and 92,000 cubic feet of detention pond storage was accepted. The project is located at 10624 SE 272nd Street. J. Bill of Sale. Chateau Meridian. (CFN-484) The Bill of Sale for the Chateau Meridian subdivision for 1290 centerline linear feet of streets, 1290 linear feet of storm sewer line, 20 manholes, 19 catch basins, 450 linear feet of swales/ditches, 34,184 cubic feet of detention pond storage was accepted. The project is located at 262nd Street and 132nd Avenue. K. Bill of Sale, Medallion of Kent. (CFN-484) The Bill of Sale for the Medallion of Kent subdivision for 440 linear feet of watermain, 4 gate valves, 3 hydrants, 1274 linear feet of sanitary sewer, 8 sanitary sewer manholes, 521 centerline linear feet of streets, 1140 linear feet of storm sewer line, 2 manholes, 15 catch basins, and 47,360 cubic feet of detention pond storage was accepted. The project is located at 26615 - 106th Avenue SE. L. Bill of Sale. Watertree Place. (CFN-484) The Bill of Sale for the Watertree Place Subdivision for 1360 linear feet of watermain, 9 gate valves, 4 hydrants, and 1087 linear feet of sanitary sewer, 6 sanitary sewer manholes was accepted. The project is located at 23708 - 64th Avenue South. M. Human Services Commission Appointments. (CFN-873) The Mayor's re- appointment of Roda Barket and new appointment of David Ott to Kent's Human Services Commission was confirmed. Ms. Barket's term will expire on January 1, 2010. Mr. Ott's term will expire January 1, 2012. N. Public Facilities District Board Reappointment. (CFN-1305) The Mayor's appointment of Greg Haffner to the Kent Events Center Public Facilities District for an additional four-year term was confirmed and all acts consistent with this motion were ratified. 7 Kent City Council Minutes November 18, 2008 0. Security Systems Update. (CFN-120) The security card access system and software update at the Fire/Police Training Building and Fire Station 74 was accepted as complete. The project was approved by the Project Manager on November 6, 2008. P. Council Absence. (CFN-198) An excused absence from tonight's meeting for Elizabeth Albertson was approved. OTHER BUSINESS A. Kent Events Center Naming Rights Agreement. (CFN-1305) Economic Development Director Wolters explained the proposed naming rights agreement between the City of Kent and Vision One, Inc., who provides a ticketing service product called ShoWare. The ShoWare system will be used to manage ticket sales for the Center and the Seattle Thunderbirds through a separate five-year plus five- year renewal contract between SMG, the Center operator, and Vision One. In return, Vision One, Inc., agrees to pay the City $3,175,000 over 10.5 years through equal quarterly installments of $75,000. Wolters explained the process by which the agreement was reached, outlined the terms and conditions of the agree- ment, explained Vision One's background and experience, and described the ShoWare system. He stated that the name of the Center would be the ShoWare Center at Kent. He noted they have requested a performance standard on the part of the facility, in that the Center would sell at least 230,000 tickets per year in the first five years and 200,000 tickets per year in the five years after that. He said the purpose of this performance standard is to ensure that the building achieves a performance that will serve as a good reference for Vision One and the ShoWare product in their marketing efforts. Councilmember Clark left the meeting at this point, 10:40 p.m. Wolters noted for Harmon that he expects to achieve at least 250,000 tickets the first year, and Tim Higgins, General Manager of the Events Center, agreed. Wolters added that the agreement will allow the city to make up the difference if there is a year with a deficit. Raplee moved to authorize the Mayor to sign the Kent Events Center Naming Rights Agreement with Vision One, subject to final terms and conditions acceptable to the City Attorney and the Economic Development Director, and ratify all acts consistent with the terms of the Agreement and this motion. Thomas seconded and the motion carried. (REMOVED FROM THE CONSENT CALENDAR) B. Cottage Housina Demonstration Ordinance. (CFN-131) The proposed ordinance would authorize an application process for development of up to two (2) cottage housing projects that demonstrate a housing choice not currently available in Kent's single family neighborhoods. Erin George of Planning Services explained the changes proposed after concerns were brought up by the Council, regarding the ability to include storm water vaults in the development, reducing the allowable density bonus, and requiring a community meeting. There was discussion about 8 Kent City Council Minutes November 18, 2008 increasing the maximum square footage on carriage housing from 800 sq. ft. to 968 sq. ft. Raplee voiced concern that everyone on the Cottage Housing Committee is a City employee, and suggested having two additional members outside the City for transparency reasons. Harmon agreed with Raplee and said he would like two more people to be appointed to the committee by the Planning and Economic Development Committee Chair. Danielson concurred. Raplee moved to adopt Ordinance No. 3895 authorizing an application process for development of up to two (2) cottage housing projects that demonstrate a housing choice not currently available in Kent's single family neighborhoods, with two amendments: that carriage units not exceed 968 sq. ft. rather than 800 sq. ft., and that the Planning and Economic Development Committee Chair appoint two Kent citizens to the Cottage Housing Committee. Upon a roll call vote, the motion carried 4-0, with Albertson excused from the meeting, Clark having left the meeting, and Ranniger out of the room at the time of the vote. REPORTS A. Council President. (CFN-198) Raplee noted that a third Town Hall Meeting will be held early in 2009. B. Mayor. (CFN-198) The Mayor noted that she recently signed a proclamation in support of buying and celebrating locally and encouraged citizens to help Kent businesses. C. Operations Committee. (CFN-198) No report was given. D. Parks and Human Services Committee. (CFN-198) No report was given. E. Planninci and Economic Development Committee. (CFN-198) No report was given. F. Public Safety Committee. (CFN-198) No report was given. G. Public Works Committee. (CFN-198) No report was given. H. Administration. (CFN-198) Hodgson noted that there will be only one Council meeting in December and that it will be held on December 9th. He added that the Council Operations Committee will meet on December 2nd. He announced an Executive Session consisting of union negotiations and three items of property negotiations, and said it should take approximately fifteen minutes with no action afterward. CONTINUED COMMUNICATIONS A. Red Light Cameras. (CFN-122) Hodgson relayed a message from Kirt Butler, who was going to speak about red light cameras but has left the meeting. He said Butler has spoken with Chief Strachan and will be providing the Chief an email supporting red light cameras. 9 Kent City Council Minutes November 18, 2008 EXECUTIVE SESSION The meeting recessed to Executive Session at 11:05 p.m. and reconvened at 11:22 p.m. (CFN-198) ADJOURNMENT The meeting adjourned at 11:22 p.m. (CFN-198) Brenda Jacober, CMC City Clerk 10 Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6C ' 1. SUBJECT: LID 359, 116TH AVENUE SE IMPROVEMENTS ORDINANCE - ADOPT ' 2. SUMMARY STATEMENT: Adopt Ordinance No. confirming the final assessment roll for LID 359, 116th Avenue SE Improvements and adopting the City Council's findings and conclusions regarding that roll. An assessment roll hearing on the proposed final assessment roll for LID 359 was conducted before Council at its November 18, 2008 meeting. This ordinance confirms the assessment roll as revised by Council at that hearing. 1 I3. EXHIBITS: Ordinance and Public Works Memorandum and map 4. RECOMMENDED BY: (Committee, Staff, Examiner, Commission, etc.) i5. FISCAL IMPACT Expenditure? N/A Revenue? N/A 1 Currently in the Budget? Yes No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: ORDINANCE NO. AN ORDINANCE of the City Council of the ' City of Kent, Washington, approving and confirming the assessments and assessment roll of Local Improvement District No. 359 for the construction of roadway improvements, sanitary sewer improvements, water main improvements and a storm water detention pond, as provided by Ordinance No. 3808, and levying and assessing a part of the cost and expense thereof against the several lots, tracts, parcels of land, and other property as shown on the assessment roll. RECITALS A. The assessment roll levying the special assessments against the property located in Local Improvement District No. 359 in the City of Kent, Washington, has been filed with the City Clerk as provided by law. B. Notice of the time and place of the hearing to make objections and protests to the roll was published in the manner provided by law fixing the initial time and place of the hearing for September 16, 2008, at 7:00 ' p.m., local time, in the Council Chambers in the City Hall, Kent, Washington, and further notice of the hearing was mailed by the City Clerk to each ' property owner shown on the roll. Prior to commencement of the hearing on September 16, 2008, the City determined that changes in the names and addresses of certain taxpayers of records within LID No. 359 had been changed on the rolls of the King County Assessor. As a result, the City -1- LID 359 - Final Assessment Roil Ordinance 509300032 Council continued the hearing from September 16, 2008 to November 18, 2008. Further notice of the time and place of the hearing to make objections , and protests to the roll was published at and for the time and in the manner provided by law fixing the further time and place of the hearing for November 18, 2008, at 7:00 p.m. local time in the Council Chambers in the City Hall, Kent, Washington, and further notice of the hearing was mailed by ' the City Clerk to each property shown on the roll. C. At the time and place fixed and designated in the further notice, , the hearing was held, all written protests received were considered, and all persons appearing at the hearing who wished to be heard were heard; r testimony was given under oath; and, testimony was subject to cross examination. The City Council, sitting and acting as a Board of Equalization for the purpose of considering the roll and the special benefits to be received by each lot, parcel, and tract of land shown upon that roll, including the increase and enhancement of the fair market value of each parcel of land by reason of the improvement, considered all such protests. , D. Following its consideration of all such protests, the City Council entered its preliminary ruling and its Special Counsel, James Haney, Ogden Murphy Wallace, prepared Findings, Conclusions, and Decision Regarding LID 359 which are attached hereto as Appendix A, and incorporated herein by this reference. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES ORDAIN as follows: ' ORDINANCE , SECTION 1. - Roll Confirmation. The assessments and assessment , roll of Local Improvement District ("LID") No. 359, which has been created and established for the purpose of constructing roadway improvements, , sanitary sewer improvements, water main improvements and a storm water -2- LID 359 - Final Assessment Roll Ordinance 509300032 , detention pond, as provided by Ordinance No. 3808, as the same now ' stands, is approved and confirmed in all things and respects in the total amount of $1,307,177.40. SECTION 2. - Findings. ' 2.1 Recitals A through D, above, are incorporated herein by this reference. ' 2.2 Findings, Conclusions and Decision Regarding LID 359, attached hereto as Appendix A ("Decision"), is incorporated herein by this reference as the decision of the Council, sitting and acting as a Board of Equalization, on the protests received by the Council regarding the ' assessment roll for LID 359. 2.3 Each of the lots, tracts, parcels of land, and other property shown upon the assessment roll as determined in the Decision are declared to be specially benefited by the LID No. 359 improvements in at least the amount charged against those properties, and the assessment appearing against them is in proportion to the several assessments appearing upon the roll. There is levied and assessed against the property ■ appearing upon the roll the total amount of $1,307,177.40. SECTION 3. - Notice of Roll. The assessment roll as approved and confirmed shall be filed with the Finance Department Director of the City for collection, and the Finance Department Director is authorized and directed to publish notice as required by law stating that the roll is in the Director's hands for collection and that payment of any assessment or any portion of that assessment can be made at any time within thirty (30) days from the date of first publication of that notice without penalty, interest or ' cost, and that thereafter the sum remaining unpaid may be paid in fifteen (15) equal annual installments of principal and interest. The estimated interest rate is six (6)% per annum. The first installment of assessments on the assessment roll shall become due and payable during the thirty (30) -3- LID 359 - Final Assessment Roll Ordinance ' 509300032 day period commencing one year after the date of first publication by the ' Finance Department Director of notice that the assessment roll is in his hands for collection, and annually thereafter each succeeding installment shall become due and payable in like manner. If the whole or any portion of the assessment remains unpaid after the first thirty (30) day period, interest upon the whole unpaid sum shall be charged at the rate as determined above, and each year thereafter one of the installments, , together with interest due on the unpaid balance, shall be collected. Any installment not paid prior to expiration of the thirty (30) day period during , which that installment is due and payable shall become delinquent. Each delinquent installment shall be subject, at the time of delinquency, to a ' charge under Kent City Code Section 3.22.030 of a penalty levied on both principal and interest due upon that installment equal to the rate fixed in , the ordinance authorizing the issuance and sale of the local improvement bonds for Local Improvement District No. 359, plus five (5) percent. All ' delinquent installments also shall be charged interest at the rate as determined above. The collection of delinquent installments shall be ' enforced in the manner provided by law. 1 SECTION 4. - Charge in Lieu of Assessment. Consistent with Ordinance No. 3808 creating LID No. 359, no property, any portion of which is outside the District may connect to the utility improvements constructed or made a part of such District unless either that property shall have been subject to the special assessments on the assessment roll for the District or the owners of the property shall have paid prior to such , connection a charge in lieu of assessment which shall be at least the equivalent of those assessments which would have been applied to that ' property had it been included within that District. Further, nothing in this ordinance shall preclude charges, including charges in lieu of assessment, for additional connections or services provided by utility improvements constructed by the District and not otherwise accounted for in the assessments set forth in this ordinance. -4- LID 359 - Final Assessment Roll Ordinance 509300032 SECTION S. -Severability. If any one or more section, 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. ' SECTION 6. - Effective Date. This ordinance shall take effect and be in force five (5) days from and after its publication as required by law. SUZETTE COOKE, MAYOR ATTEST: BRENDA JACOBER, CITY CLERK APPROVED AS TO FORM: FOSTER PEPPER PLLC Special Counsel and Bond Counsel Passed the day of December, 2008. ' Approved the day of December, 2008. Published the day of December, 2008. -5- LID 359 - Final Assessment Roil Ordinance 509300032 CERTIFICATION I, the undersigned, City Clerk of the City of Kent, Washington, hereby certify as follows: 1. The attached copy of Ordinance No. is a full, true, and ' correct copy of an ordinance duly passed at a regular meeting of the City Council of the City of Kent held at the regular meeting place thereof on December 9, 2008, as that ordinance appears on the minute book of the , City; and the ordinance will be in full force and effect five (5) days after the publication of its summary in the city's official newspaper; and 2. A quorum of the members of the City Council was present , throughout the meeting and a majority of those members present voted in the proper manner for the passage of the ordinance. ' IN WITNESS WHEREOF, I have hereunto set my hand this day of December, 2008. CITY OF KENT, WASHINGTON BRENDA JACOBER, City Clerk ' -6- LID 359 - Final Assessment Roll Ordinance 509300032 1 i i i APPENDIX A 1 1 1 1 FINDINGS, CONCLUSIONS, AND DECISION REGARDING LID 359 Pursuant to notice, the final assessment roll hearing on LID 359 was held before the Kent City Council on November 18, 2008. The hearing was held in the council chambers at the Kent City Hall, 220 4th Avenue South, Kent, Washington. Four council members participated in the hearing: Council ' President Raplee, Council member Clark, Council member Harmon, and Council member Ranniger. From the testimony provided, the Council makes the following Findings of Fact, Conclusions of Law, and Decision. I. FINDINGS OF FACT A. GENERAL FINDINGS 1. LID 359 was formed pursuant to Ordinance No. 3808, passed by the City Council on September 5, 2006. The LID was created to construct street and utility improvements to 116th Ave. S.E. between Kent Kangley Road and S.E. 256th Street. 2. The street improvement widened 116th Ave. S.E. from two lanes to five lanes and included curb, gutters, sidewalk, a new ' storm water system, a new street illumination system, and the undergrounding of power and telephone wires. Also included was widening on S.E. Kent-Kangley Road near the intersection of 116th Ave. S.E. 3. An eight-inch diameter sanitary sewer collection system with associated manholes was also installed. Six-inch diameter side sewer stubs from the main line to the property lines at the street were also included. For properties with development potential, stubs were installed in the appropriate number to serve the proposed development. 4. In order to avoid future cutting of the new street improvements, water services and stubs were provided from the existing water main in 116th in order to provide for future development of the ' individual parcels in the LID. 5. The street improvement project was on the City's Six Year Transportation Improvement Program and was known as the 277th Corridor Extension. 1 6. The total project cost was $7,078,755.41. LID assessments are proposed to pay $1,331,231.69 of this cost. The remainder of the project has been paid for with a state grant and other funds. Page 1 of 7 {JEH711369 DOC,1/00085 090003/} r 7. The preliminary assessment roll for LID 359 proposed assessments in the total amount of $2,015,197.59. The proposed final assessment roll total of $1,331,231.69 represents a decrease from the preliminary assessment roll of $683,965.90. 8. The method of assessment used to prepare the proposed final assessment roll is a modified zone and termini method. For street and sanitary sewer improvement costs, instead of the five zones used in the statutory zone and termini method, the method proposed by the City uses seven zones back from the street frontage. For single-family zoned properties, the total street and sanitary sewer cost from the zone and termini distribution is then distributed on a per potential lot basis. For water stubs, each property was assessed for actual stub costs attributable to that property. The cost of the storm water detention pond is not assessed against the LID parcels. 9. Any finding set forth below that is more properly deemed a conclusion is hereby adopted and incorporated as such. B. FINDINGS AS TO SPECIFIC PROPERTIES ' 1. Michael Favors of M, M, R & S, LLC (Assessment Parcel 13) , spoke in support of the final assessment roll. Mr. Favors testified that while no one likes paying assessments, he believed that the assessment roll was fair. ' 2. Four written protests were received at or prior to the final assessment roll hearing: Assessment Parcel 2 (Apple Lane, LLC), Assessment Parcel 8 (Kangas), Assessment Parcel 18 (Yonce), and Assessment Parcel 19 (Ackerson/Konen). 3. No oral testimony was presented on behalf of Apple Lane, LLC j (Assessment Parcel 2). Apple Lane's protest letter provided three reasons for its protest: a. Apple Lane stated that a stream buffer on its property was wider than anticipated, thereby reducing the value of its property; b. Apple Lane stated that it would only be able to expand from its current seven residential units to nine and that it therefore received a disproportionately low "per future residential unit" benefit from the water system improvements; and r Page 2 of 7 (JEH711369 DOC;1/00085.090003/} ' C. Apple Lane could locate only one lot on 116th Street and the rest of its lots will require an internal roadway and other improvements similar to those provided by the LID, resulting in a disproportionately low "per future lot" benefit. 4. The increased stream buffer was taken into account in formulating the final assessment roll. In formulating the roll, ' the City assumed that nine residential lots could be developed on the site. This nine lot scenario was taken from a short plat application submitted by Apple Lane on April 2, 2008. A copy of the Notice of Application for the Apple Short Plat was received in evidence. The application indicates that the nine lot scenario is viable with the stream buffers. 5. The Apple Short Plat application also indicates that the existing multifamily units on the site would be removed and nine single- family lots created. This will result in the need for additional water connections, which the LID provides. 6. If Apple Lane were to develop its property in the absence of the LID, Apple Lane would be required to construct street and utility improvements on 116th Avenue S.E. similar to those provided by the LID. With the LID, Apple Lane will not be required to provide those improvements in order to develop. 7. Linda Kangas Swanson spoke on behalf of her mother, Elizabeth Kangas (Assessment Parcel 8). Ms. Swanson expressed concern about the length of time the LID had taken and the amount of money she had had to spend on wetland delineations and engineering studies in order to convince the City that the property could not be developed with ten lots, as assumed at the time of LID formation. Ms. Swanson questioned the City's assumption in the final assessment roll that the property could be divided into three lots, since an easement across adjacent property would be required in order for a third lot to be created. Ms. Swanson said she and her mother have tried to sell the property and have been unable to do so. 8. City staff responded that the City's Design Section, Development Engineering Section, Environmental Engineering Section, Planning Department, and Fire Department had evaluated the property and determined that three lots could be developed on the property under current development codes. The adjacent property is owned by the City of Kent and staff assumed that the City would be willing to give an access easement for development of the Kangas property. Pap 3 of 7 (JEH711369 DOC,1/00085 090003/) 9. Ms. Norma Yonce (Assessment Parcel 18) and her representative testified that she objects to the final assessment for two reasons: (1) because she is on a fixed income and will be unable to pay the assessments and (2) because construction of a "c" curb barrier on the centerline of S.E. Kent-Kangley Road has made it more difficult to get in and out of her driveway and devalued her property. 10. City staff responded that the LID did not improve the section of ' S.E. Kent-Kangley Road in front of Ms. Yonce's property. The "c" curbing in front of the parcel was installed as the result of construction of a Chevron gas station and convenience store that was built on the corner of 116th Avenue S.E. and S.E. Kent-Kangley Road. The curbing was intended to restrict turning movements to and from the convenience store. The staff position was that because the LID did not install the curbing it was not relevant to the LID assessment. 11. City staff also responded that Ms. Yonce may qualify for deferral of her assessment based on age and income if she is unable to pay. 12. Finally, City staff responded that Asessment Parcel No. 18 was not assessed for the street improvements to 116th Ave. S.E. because the parcel does not front on the street. 13. Mr. David Konen (Assessment Parcel 19) testified that he did not object to the amount of the assessment as much as its timing. He stated that the assessment of $46,800.59 for his parcel was significant in these difficult economic times. Mr. Konen also questioned his ability to achieve four lots on his parcel given the City's stormwater detention requirements. 14. City staff responded that the detention requirements had been taken into account when the potential development of Assessment Parcel 19 was considered for purposes of the assessment roll. Staff concluded that four parcels could be achieved while meeting the City's detention requirements. 15. Other than those filed by the owners of Assessment Parcels 2 (Apple Lane, LLC) 8 (Kangas), 18 (Yonce), and 19 (Ackerson/Konen), no written assessment protests were received. i Page 4 of 7 {JEH711369 DOC,1/00085 090003/} ' II. CONCLUSIONS OF LAW A. GENERAL CONCLUSIONS 1. Any conclusion set forth below that is more properly deemed a finding is hereby adopted and incorporated as such. 2. There are two questions before the City Council in a final assessment roll hearing: a. Whether the properties within the LID are specially benefited by the improvements and if so, whether the amount of the special benefits to each property equal or exceed the amount of the assessment; and b. Whether each property in the LID is proportionately assessed when compared with the other properties in the LID. 3. Special benefits are measurable increases in the fair market value of real properties in the LID as the result of the LID improvements. The special benefit received by an individual parcel is measured as the difference between the fair market value of the property with the LID improvements and the fair market value of the property without the LID improvements. 4. Initially, the law favors the proposed assessment roll with certain presumptions: (a) that the improvements are a benefit to the property within the LID; (b) that the assessment imposed on each property is no greater than the special benefits received by that property; and (c) that the assessment on each property is proportional to the assessments on other properties. The property owners must present evidence to overcome these presumptions. 5. The method of assessment used by the City staff to prepare the final assessment roll more fairly reflects the special benefits to properties within the LID than does the statutory zone and termini method. The use of potential lots, the assessment of individual water stub costs, and the exclusion of the storm water detention pond costs better recognizes special benefits than would a straight zone and termini method. B. CONCLUSIONS AS TO INDIVIDUAL PARCELS 1. The protest filed by Apple Lane, LLC (Assessment Parcel 2) should be denied on the basis that the property owner did not Page 5 of 7 {JEH711369.DOC;1/00085.090003/1 meet its burden of overcoming the presumptions described in Conclusion of Law A(4) above. Staff adequately responded to each of the points raised in the written protest letter and no testimony or other evidence was submitted by Apple Lane. 2. Mr. Favor's comments on behalf of M, M, R & S, LLC (Assessment Parcel 13) supported the LID assessments and were not a protest. No change should be made to the proposed assessment for Assessment Parcel 13. 3. The protest filed by Mr. Konen (Assessment Parcel 19) should be denied on the basis that the property owner did not meet his burden of overcoming the presumptions described in Conclusion of Law A(4) above. It appears that it is possible to develop four lots on Assessment Parcel 19 while meeting the City's stormwater detention requirements and no specific evidence to the contrary was offered. 4. With respect to the Kangas property (Assessment Parcel 8), the Council has considered the evidence and concludes that the assessment should be reduced by one-third, from $61,062.86 to $40,708.57. The proposed assessment on the final assessment roll was based on a three-lot development scenario for the Kangas parcel. Achieving three lots on the site is dependent upon obtaining an easement across the adjacent parcel owned by the City. While it is possible that the City would agree to give an easement to a developer of the Kangas property, that is not a certainty. Accordingly, the three-lot scenario is speculative and a two-lot development scenario should have been used. The assessment should therefore be reduced by one-third. 5. With respect to the Yonce property (Assessment Parcel 18), the Council has considered the evidence and concludes that the assessment should be reduced by $3,700, from $11,700 to $8,000. While the "c" curbing was not installed as part of the LID improvements, increased traffic flow made possible by the LID improvements to 116th Ave. SE contributed to the "c" curbing requirement. The resulting change in access to the Yonce property offsets some of the special benefits the property would otherwise receive from the LID improvements. The proposed assessment should be reduced by $3,700 in recognition of this offset. III. DECISION Based on the foregoing Findings and Conclusions, the City Council makes the following decisions: Page 6 of 7 {JEH711369 DOC,1/00085.090003/) ' 1. The assessment of the Kangas property (Assessment Parcel 8) is reduced from $61,062.86 to $40,708.57. 2. The assessment of the Yonce property (Assessment Parcel 18) is reduced from $11,700 to $8,000. 3. All other protests are denied and the Final Assessment Roll is confirmed as provided in the ordinance to which these Findings, Conclusions, and Decision are attached. Page 7 of 7 {JEH711369 DOC,1/00085 090003/} PUBLIC WORKS DEPARTMENT Larry R. Blanchard, Public Works Director KA�1 Phone: 253-856-5500 E`w T W A 9 H I N O T O N Fax: 253-856-6500 Address: 220 Fourth Avenue S. Kent, WA 98032-5895 Date: July 1, 2008 To: Chair Debbie Ranniger and Public Works Committee Members PW Committee Meeting Date: July 21, 2008 From: Mark Howlett, Design Engineering Manager Through: Larry Blanchard, Public Works Director Subject: L.I.D. 359 — 1161h Ave S. E. Street and Utility Improvements (Kent Kangley Road to S. E. 256th Street) Move to recommend Council authorize the Mayor to set November 18, 2008 for the Public Hearing on the confirmation of the Final Assessment Roll for L.I.D. 359 Summary: This project was on the City's Six Year Transportation Improvement Program and was known as the S. 277th Corridor Extension. This section of 116th Avenue was part of the 277th Corridor which had not yet been fully improved to City standards. City Engineering staff competed for a state grant to help pay for the costs and were ultimately successful in obtaining a $1.945 million dollar grant for the project. During the process of negotiation with the property owners in this area to acquire right of way, it became evident that nearly all of the property owners wanted to have sewer service installed, and again nearly all of the property owners wanted to either sell their property to a developer or redevelop the property themselves. To develop individual properties a developer would have to install the necessary sanitary sewers, storm sewers, water lines, storm water detention and build typical street frontage improvements similar to what you would see in other private residential developments throughout the City. The grant the City obtained could not be used for the utility extensions that would benefit individual private properties, but only for the general roadway. Because the properties requested these utility extensions to their private property to allow development to occur, the City investigated the best way for the property owners to finance the added cost and recommended a local improvement district. One of the property owners circulated a L.I.D. petition and collected signatures from a number of property owners. The Resolution of Intent #1728 was passed by City Council on August 1, 2006 which set the hearing date for September 5, 2006. Only six property owner spoke in opposition of the L.I.D. formation and nobody submitted a protest. Various P 111oblu L Id SapV7r rh IPI P(auaruu-L4,1 unPage Jar others spoke in favor, therefore, City Council passed Ordinance No. 3808 forming the L.I.D. and ordering the construction of the improvements. The project construction was done with two construction contracts both awarded to Rodarte Construction, Inc. The first was for the joint utility trench for the undergrounding work and the second was for the remainder of the road and utility work. Summary: The construction is near completion and we are ready to finalize the L.I.D. The total final assessment of $1,331,231.69 is less than the preliminary assessment of $2,015,197.59. For additional information and details about this 7 ro'ect and L.I.D. p , see Attachment "A'. 1 1 i l 1 l4 opumd!lD III'b.h eIPIV(oruaunecUUmnPuya dor ATTACHMENT "A" BACKGROUND / HISTORY OF LID 359: For sometime the City planned to widen 116th Avenue SE between Kent Kangley Road and S. 256th Street. The project was on the City's Six Year Transportation Improvement Program and was known as the S. 277th Corridor Extension. This section of 116th Avenue was part of the 2771h Corridor which had not yet been fully improved to City standards. Traffic studies show that traffic demand will continue to increase on this section of 116th Avenue. The roadway facilitates traffic from SE 256th Street to the previously improved portion of the 272"d Street Corridor south of Kent Kangley Road. The project widened the street from two lanes to five and included curb, gutters, sidewalk, a new storm water system, a new street illumination system, and undergrounding of the overhead power and telephone wires. Also included was widening on Kent Kangley Road near the intersection with 116th Street. City Engineering staff competed for a state grant to help pay for the costs and were ultimately successful in obtaining a $1.945 million dollar grant for the project. To complete the project the City needed to widen the right-of-way to accommodate the wider roadway. Following a typical process the City hired an outside appraiser and property negotiator to acquire the strips of private property needed adjacent to the roadway. During the process of negotiation with the property owners in this area to acquire these property strips, it became evident that nearly all of the property owners wanted to have sewer service installed, and again nearly all of the property owners wanted to either sell their property to a developer or redevelop the property themselves. To develop individual properties a developer would have to install the necessary sanitary sewers, storm sewers, water lines, storm water detention and build typical street frontage improvements similar to what you would see in other private i' residential developments throughout the City. ! The grant the City obtained cannot be used for the utility extensions that would benefit individual private properties, but only for the general roadway. Because the properties have requested these utility extensions to their private property to allow development to occur, the City investigated the best way for the property owners to finance the added cost and recommended a local improvement district. One of the property owners circulated an L.I.D. petition and collected signatures from a number of property owners. In addition, there were two other parcels which have signed L.I.D. no protest covenants for street improvements. The cost of adding the utilities and extending the sewer, water lines, and street frontage improvements was estimated. Information was sent to all of the property owners within the proposed L.I.D including the project description, L.I.D. information and the proposed assessment. Subsequently, we met individually with all but three of the property owners which declined the invitation. Nearly all of the property owners expressed interest in developing their property or eventually selling to a developer. During these meetings we discussed the potential for development of each property owners i Hop-M[lD 116"AwIP II('un.nuUri U,i Pag,drn property and the need for street and utility improvements to allow development to occur. An individual property owner could extend the sanitary sewer to their property and pay the full cost up front; however, for most cases this would not be economically feasible. With the L.I.D. everybody serviced shares in the cost. It also made sense to install the utilities prior to the street construction to avoid cutting the new street and the associated extra costs at a later date. The City obtained grant funding and had other funds to reduce the cost of the street improvements. Including the L.I.D. improvements in the City project increased the economy of scale as larger projects usually receive better prices which also reduces the cost. Also, the L.I.D. provides a 15 year payment plan at a low rate of interest. The response to the proposal was very positive and subsequently the L.I.D. was formed. The Resolution of Intent #1728 was passed by City Council on August 1, 2006 which set the hearing date for September 5, 2006. Only six property owner spoke in opposition of the L.I.D. formation and nobody submitted a protest. Various others spoke in favor, therefore, City Council passed Ordinance No. 3808 forming the L.I.D. and ordering the construction of the improvements. L.I.D. IMPROVEMENTS FOR 116T" AVE SE Roadway: The roadway improvements included widening to 5 lanes (2 lanes each direction with a center turn lane), bike lanes, curb and gutter, sidewalk, channelization, signing, storm drainage and detention, street lighting, street trees and undergrounding of overhead power and telephone wires. These improvements include the roadway frontage improvements typically required for development. A small share of the total project cost is assessed to the frontage properties. Sanitary Sewer: j The project consisted of installing an eight-inch diameter sanitary sewer collection system complete with manholes. Six-inch diameter side sewer stubs from the main line to the property lines at the street were also included. For properties where future multiple connections were anticipated, the appropriate number of stubs are included. Where there was anticipated significant future development, an eight inch stub was included. The sanitary sewer is 100% L.I.D. funded. Water: A City water main is already located within 116t" Ave SE and the existing houses were already connected, however, for future development of the properties, additional connections to the water main will be required. To avoid cutting the new street, stubs and services to accommodate future development were installed to the edge of the right of way. This work included one inch service lines with meter box and setter for anticipated future lots or where required, an eight inch stub for a future main extension. The new stubs and services are 100% L.I.D. funded. NEED FOR THE IMPROVEMENTS: The L.I.D. improvements are needed for development as discussed above. In addition, sanitary sewer is needed for other reasons. P,,,l lLID 116'helPllY nale,W,lowNged The project area is an older residential area with septic systems. All residential lots except one have homes. It is not known how many existing septic systems were technically in a state of failure if any. However, we did receive input regarding septic problems. Due to the age of the septic systems and the potential for problems, the sewer is a desirable improvement, particularly with the adjacent creek. Usually it-is difficult and expensive to repair septic problems, especially with today's stricter standards. Sanitary sewers are usually the only feasible, economical and long term method for addressing these potential problems, especially when numerous property owners in a neighborhood support sewer installation as was the case with this project. The Department of Public health has told us that the life expectancy of a septic system is twenty to thirty years depending on use and maintenance and that they are a short term disposal method until public sewers become available. These homes were built in the 1950's and 1960's, with some being older, therefore the project area has exceeded this time frame. These systems are at or are near the end of their useful life. The cost of septic repairs may also be as high as converting to public sewers. The latest state codes make septic repairs more difficult and expensive than in the past. The soil type within the project area is rated poor for septic system use. According to the Soil Conservation Service (US Dept. of Agriculture) soil survey for King County, the soil type as mapped is rated 'severe limitation" (worst case) for septic drain fields. The soil series is designated as Alderwood gravelly sandy loam. This soil exhibits very low permeability below a depth of 24 to 40 inches and has a seasonal high water table less than 4 foot depth. Effluent and drainage move laterally over the shallow imperious layers. Effluent may come to the surface resulting in odor. In addition to the need for sewers in this area to replace the old septic systems, there are environmental concerns. Septic systems are a threat to water quality, fish and wildlife and public health within the drainage basin for this area. A stream tributary to Soosette Creek runs through the project area. There is also a wetland along one portion of the stream and another wetland on the other side of 116th. Septic seepage and runoff can degrade water quality in the stream and wetlands. TOTAL PROJECT COST: Preliminary Estimate dated 5/11/06 $7,159,642.98 Final Cost Estimate $7,078,755.41 L.I.D. FUNDING: L.I.D. ASSESSMENT PRELIMINARY FINAL COMPONENT ASSESSMENT ASSESSMENT Street 410 391.97 $446,013.18 Sanitary Sewer $1 266 911.13 $751,318.89 Water Services & Stubs 163 726.04 $133,899.62 Storm Detention $ 174 168.45 0 TOTAL $2 015 197.59 1 331,231.69 NuqunoJ L/D llK°,hx•IYIP('uurnuurrUuuurPoge d.x There is one City property (#9) within this L.I,D. with a final assessment of $39,710.22. METHOD OF ASSESSMENT: ,The assessment for each component of the L.I.D. was distributed to the benefiting properties as follows: Street: These costs were distributed by square footage using a modified zone and termini method. The assessment rate decreases with each 100 foot zones back from the street frontage to the rear of the property. For this project there are up to 7 zones. The zone rate for the first 100 foot strip of each parcel is seven times the rate of the seventh zone from the frontage, the second zone from the frontage is six time the rate of the seventh zone and so on. Parcels #17, 18 and 19 are located on Kent Kangley and were not assessed for the widening of 116tn Most of the property within this L.I.D. is zoned single family (SR6 and SR8). Due to the different densities of single family and the fact that the benefit relates to the number of developable lots that can be obtained, the single family property assessments were calculated based on the number of developable lots. Each parcel was reviewed to determine the minimum number of lots that could be obtained through a short plat or full plat. The total cost from the zone and termini distribution for all of the single family zoned properties was distributed on a per potential lot basis. The assessment for three other parcels zoned multiple family (MRM) and office-mixed use (O-MU) are per the zone and termini calculation. Sanitary Sewer: These assessments were calculated in the same manner as the street assessments described above. One property (#7) already had sewer service and was not assessed. Water Stubs: Each property is assessed for the actual cost for the number of new one inch or two inch water services or for an eight inch stub from the existing water main to the property as required to fully develop the parcel. Parcels #7, 10, 18 and 19 were not assessed for water as they already have access and service for the potential number of lots. Storm Detention: Originally assessment numbers 8 and 9 were assessed a share of the cost to build the projects detention pond. The pond was sized to handle the additional water. This would eliminate the need for on site ponds on these properties. No other properties can gravity into the City pond, therefore, they were not assessed. Due to wetlands on numbers 8 and 9, the number of potential lots has been reduced. For the smaller number of lots, detention will not be needed, therefore the detention assessment was eliminated for the final assessment roll. PAYMENT OF ASSESSMENTS: Following Council passing the Ordinance confirming the Final Assessment Roll, there is a 30-day period in which any portion or all of the assessment can be paid without interest charges. After the 30-day period, the balance is paid over a fifteen-year period wherein each year's payment is one-fifteenth of the principal plus interest on the unpaid balance. The market determines the interest rate at the time the L.I.D. bonds are sold to the public. Mopo dUL)116"AMPIK uui alveU.Iw.Pagv Ju. 1 CHANGES SINCE PRELIMINARY ROLL: Several changes have been implemented since the L.I.D. was formed. These changes affect the amount or distribution of the assessments. 1. Assessment #3 (Lawyer) was reduced from 3 lots to 2 lots. 2. Assessment #8 (Kangas) submitted a wetland delineation which was approved. Due to the wetland and buffer, only 3 lots can be developed instead of the 10 used for the original assessment. The final assessment is based on 3 lots. With only two potential additional houses, detention is not required. The detention assessment was deleted for the final assessment. The preliminary assessment for water was not based on lots. It was based on the actually cost of the stubs received. For assessment #8 an 8 inch water stub was originally planned to service the 10 lots. However, with the reduction in lots, this stub isn't needed, although it was constructed. The assessment was revised to reflect the cost for 2 standard 1" services as installed elsewhere on the project. With the 2 new services in addition to the existing service for the original house, 3 houses can now be serviced. 3. Assessment #9 (City of Kent, originally Myers) also contains a wetland which was delineated. The number of lots was revised from 5 to 2. The water stub was changed prior to construction and the final assessment is based on 1 new standard 1" service. With only one potential additional house, detention is not required. 1 The detention assessment was deleted for the final assessment. 4. Assessment #11 (Lam) submitted a proposed development plan which showed 4 lots instead of 3. We agreed that 4 lots could be developed. Additional stubs were added to accommodate 4 lots. The final assessment was calculated based on 4 lots. S. Assessment #12 (Duma) received a sanitary sewer connection. Prior to repaving the driveway, the sewer connection from the existing house to the side sewer stub was installed as part of the project. This cost is in addition to the basic sewer assessment and the cost was added to the assessment for #12. 6. Assessments #15 and #16 (Hurley and Basmajian) executed a lot line adjustment. The final assessments were revised to reflect this change. The originally planned 8" water stub to service both of these lots now only services #16. A 2" service was added to service #15. 7. Assessment #7 (Colonial Square) converted to a condominium with an new owner for each of 43 units. Assessment numbers #20 to #62 were added to the assessment roll. Pr,1 I10!16" M 11111'(uuruudr¢LIapoePuge Jur L I I SE 258TH ST) I I I �c 7, 20-61 IT w UiEj > O iQ i PREPAID MITIGATION FEES I I I ' I II O I y I �I I DETENTION POND SE 259TH PL 10 I I 1 I 3O ; 12 I 1 I \\ I R\S ' 4,y j N. /!CENT CITY 6 KENT ENOiNEERiNO OEPARTMENT 220 ITN AVE.5 KENT, WA 99032 LID 359 ASSESSMENT MAP I �� 116TH AVENUE SE 1D= LID ASSESSMENT NUMBER �c = LID COVENANT Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6D 1. SUBJECT: KENT ARTS COMMISSION APPOINTMENT - CONFIRM 2. SUMMARY STATEMENT: Confirm the Mayor's appointment of Jacqeline (Jackie) Argueta to the City of Kent's Arts Commission. Ms. Argueta will serve a one-year term as the youth member on the Arts Commission from October 21, 2008, through October 31, 2009. 3. EXHIBITS: Memorandum 4. RECOMMENDED BY: Mayor Cooke (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? N/A Revenue? N/A Currently in the Budget? Yes No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: KEN* TT WASHINGTON MEMORANDUM To: Debbie Raplee, City Council President City Council Members From: Mayor Suzette Cooke,�i Date: November 26, 2008 Subject: Appointment to the Kent Arts Commission 1 I seek your approval of my appointment of Jacqeline (Jackie) Argueta to the Kent Arts Commission's for a one-year-term. Jacqeline Argueta is a senior at Kentwood High School. She is a visual artist herself and has experience exhibiting her work in school and community shows in the region. She has also organized an art auction at Kentwood. In addition to art classes and activities, Jackie is active as an ASB officer and enjoys participating in speech debate and business law classes. Jackie hopes to continue studying visual art after high school and perhaps pursue a career in graphic design. Jackie's goal is to bring a youth perspective to the Arts Commission. I am pleased to submit this candidate for your confirmation. Artscommappt-November 2008 Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6E 1. SUBJECT: HIGHRIDGE TERRACE BILL OF SALE - ACCEPT 2. SUMMARY STATEMENT: Accept the Bill of Sale for Highridge Terrace for 293 linear feet of watermain, 1 hydrant, 287 linear feet of sanitary sewer, 2 manholes, 17 linear feet of storm sewer, and 1 catch basin. The project is located at 116 SE 266th Place. 3. EXHIBITS: Bill of Sale �i 4. RECOMMENDED BY: Public Works Director (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? N/A Revenue? N/A Currently in the Budget? Yes No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: KEN TT WAS Hi N r T O N MAIL TO: ENGINEERING DEPARTMENT ATTN: 220 4 AVENUE SOUTH KENT,WASHINGTON 98032 PROJECT: Hiahridge Terrace LOCATION: 11610 SE 266th PL TAX ACCT NO: 283305-9019 BILL OF SALE CITY OF KENT KING COUNTY,WASHINGTON THIS INSTRUMENT made this day of 20 ,by and between , hereinafter called"Grantors",and City of Kent,a municipal corporation of King County,State of Washington,hereinafter called"Grantee": WITNESSETH: That the said Grantors for a valuable consideration,does hereby grant,bargain,sell to Grantee the following described improvements: A. WATERMAINS: together with a total of 0 gate valves at$ each, 1 hydrants at$ 2500 each and/or any other appurtenances thereto. ON Tract B FROM TO (street,esmt,etc) Including 293 linear feet at$ 40 per LF of 8" (size& type) DI waterline. B. SANITARY S .WF.R : Together with a total of 2 manholes at $ 2500 each and/or any other appurtenances thereto. 1 of 4 Bill of Sale ON Tract B FROM TO (street,esmt,etc) Including 287 linear feet at$ 45 per LF of 8" (size& type) PVC sewer line. C. STRF T-S: Together with curbs,gutters,sidewalks,and/or any other appurtenances thereto. ON FROM TO (street,esmt,etc) Including centerline LF at$ per LF of (type)streets, Feet asphalt roadway. D. STORM SEWERS: Together with a total of 0 manholes at$ each or a total of 1 catch basins at$ 850 each, LF of biofiltration swale or drainage ditch with a total cost of$ , CF of detention pond storage with a total cost of$ ,and(or any other appurtenances thereto. ON 116th Ave SE FROM TO (street,esmt,etc) Including 17 linear feet at$ 35 per LF of 12" (size& type) PVC sewer line. To have and to hold the same to the said Grantee,its successors and assigns forever. The undersigned hereby covenants that it is the lawful owner of said property; and that the same is free from all encumbrances;that all bills for labor and material have been paid; that it has the right to sell the same aforesaid; that it will warrant and defend the same against the lawful claims and demand of all person. The Bill of Sale is given on consideration of the agreement of the Grantee for itself,its successors and assigns to incorporate said utilities in its utility system and to maintain them as provided in the applicable City Ordinances. IN WITNESS WHEREOF,the undersi ued has caused this instrument to be executed on this IS 'L' day of y ds ,20 y lan 2 ve,- lh,,,YAaZ, j 2 of 4 Bill of Sale 1 l STATE OF WASHINGTON ) )SS COUNTY OF KING ) On this 5th day of August ,2008 ,before me, the undersigned,a Notary Public in and for the State of Washington,duly commissioned and sworn,personally appeared Kevin Wyman to me known to be the President respectively of Mackenzie River Homes Inc. the Person that executed the foregoing instrument,and acknowledged the said instrument to be the free and voluntary act and deed of said Person for the uses and purposes therein mentioned,and on oath stated that they are authorized to execute the said instrument. Witness my hand and official seal hereto affix the day and year first above written. 014@E M. BADCOCOrN Notary Public in and for the NOTARY PU@1JC State of Washington,residing at STATE OF WASHNG1 014 SEATER 22,2 My Commission Expires: The Bill of Sale is given and accepted pursuant to a motion duly made,seconded,and passed by the City Council of the City of Kent,King County,Washington,on the day of ,20 Page 3 of 3 Bill of Sale ADDENDUM TO BILL OF SALE CITY OF KENT The figures used on the Bill of Sale for Highridge Terrace project dated ,were based on the "As-Built" Engineering Plans dated 7/30/08 ,for the same said Highridge Terrace project. Shupe Holmberg the undersigned P.E. or land surveyor is the person responsible for the preparation of the Bill of Sale and is an employee of Baima& Holmberg, Inc. , the firm responsible for the preparation of the"As-Built" Engineering Drawings. i Signatu i �ah t"•d i e/ .t 4 of 4 Bill of Sale - Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6F 1. SUBJECT: KENT COVENANT CHURCH BILL OF SALE - ACCEPT 2. SUMMARY STATEMENT: Accept the Bill of Sale for Kent Covenant Church for 268 linear feet of sanitary sewer and 2 manholes. The project is located at 12010 SE 240th. . EXHIBITS: Bill f 3 Bl o Sae 4. RECOMMENDED BY: Public Works Director (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? N/A Revenue? N/A Currently in the Budget? Yes No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: 40 so ENT W A S H I N G T O N MAIL TO: ENGINEERING DEPARTMENT ATTN: 2204 TA AVENUE SOUTH KENT,WASHINGTON 98032 PROJECT:Kent Covanant Church LOCATION: 12 01 0 SE 2 4 0 th TAX ACCTNO: 1 62205-9031 BILL OF SALE -910 5 CITY OF KENT KING COUNTY,WASHINGTON THIS INSTRUMENT made this 1 6th dap of October 2008 by and between Evangelical Covenant Church of Kent hereinafter called"Grantors",and City of Kent,a municipal corporation of King County,State of Washington,hereinafter caUed"Grantee": WITNESSETH: That the said Grantors for a valuable consideration,does hereby grant,bargain,sell to Grantee the following described improvements: A. WATERMAINS: together with a total of 0 gate valves at$ 0 each, 0 hydrants at$ each and/or any other appurtenances thereto. ON FROM TO (street, esmt,etc) Including 0 linear feet at$ 0 per LF of 0 (size&type) 0 waterline. B. SANITARY SEWERS: Together with a total of 2 manholes at $ 4; 0 0 0 each and/or any other appurtenances thereto. 1 of 4 Bill of Sale ON FROM TO (street,esmt,etc) Public Sewer Easement Including 268 linear feet at$ 25 per LF of 8 PVC (size&type) sewer line. C. STREETS: Together with curbs,gutters,sidewalks,and/or any other appurtenances thereto. ON FROM TO (street,esmt,etc) Including 0 centerline LF at$ 0 per LF of 0 (type)streets, t Feet asphalt roadway. A STORM SEWERS: Together with a total of 0 manholes at$ j each or a total of 0 catch basins at$ 0 each, LF of biofdtration swale or drainage ditch with a total cost of S , CF of detention pond storage with a total cost of$ 0 ,and/or any other appurtenances thereto. ON FROM TO (street,esmt,etc) Including 0 linear feet at$ 0 per LF of 0 (size&type) 0 — sewer line. To have and to hold the same to the said Grantee,its successors and assigns forever. The undersigned hereby covenants that it is the lawful owner of said property; and that the same is free from all encumbrances; that all bills for labor and material have been paid; that it has the right to sell the same aforesaid;that it will warrant and defend the same against the lawful claims and demand of all person. The Bill of Sale is given on consideration of the agreement of the Grantee for itself,its successors and assigns to incorporate said utilities in its utility system and to maintain them as provided in the applicable City Ordinances:: - IN WITNESS WHEREO ,the undersigned has caused this instru t to be executed on this day of �� ( ,� ,20 . 2 of 4 Bill of Sale STATE OF WASHINGTON ) )SS COUNTY OF KING ) On this OnA day of b 20 _,before me,the undersigned A Notary Public inland o he Statq of Washington,duly commissioned and sworn,Personally appeared t to me known to be the individ escribed in and who executed the foregoin instrument,and acknowledged to me thatuahe signed and sealed this instrument asier free and voluntary act and deed for the uses and purposes therein mentioned. GIVEN under my hand and official seal this day of 20 ���� ota ub c' ;and for the Sue oP Stat of Was n,residing at LAUREL K HA' Y %W COMMMSM ExF RM ust 31,2010 My Commission Expires: The Bill of Sale is given and accepted pursuant to a motion duly made,seconded,and passed by the City Council of the City of Kent,King County,Washington,on the day of ,20 I - 3 of 4 Bill of Sale ADDENDUM TO BILL OF SALE CITY OF KENT The figures used on the Bill of Sale for Kent Covanent Church project dated 0 7/19/0 7 ,were based on the"As-Built"Engineering Plans dated 10/15/0 8 ,for the same said Kent Covanent Church project. Jerry Waldron the undersigned P.E. or land surveyor is the person responsible for the preparation of the Bill of Sale and is an employee of BASELINE Engineering, Inc. ,the firm responsible for the preparation of the"As-Built" Engineering Drawings. rIlPIZI//& I i nature g i 1 i 4 of 4 Bill of Sale Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6G 1. SUBJECT: "COMCAST CARES DAY" DONATION - ACCEPT AND AMEND BUDGET 2. SUMMARY STATEMENT: Accept $5,050.50 from the Kent Parks Foundation toward the purchase of playground equipment at Lake Meridian Park, and approve the expenditure of funds in the Lake Meridian Playground Equipment budget. On May 3, 2008, Comcast employees and their families worked on numerous improvement projects at Lake Meridian Park as part of their "Comcast Cares Day." In addition to volunteering their time, Comcast donated over $5,000 and requested the funds be used toward the purchase of play equipment at Lake Meridian Park. 3 EXHIBITS: None BIT S 4. RECOMMENDED BY: Parks and Human Services Committee (Committee, Staff, Examiner, Commission, etc.) j5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes No X 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6H 1. SUBJECT: KING COUNTY 4CULTURE 2008 PERFORMANCE NETWORK GRANT - ACCEPT AND AMEND BUDGET 2. SUMMARY STATEMENT: Accept $9,250 from King County 4Culture to reimburse the Kent Arts Commission for three site specific performance network pieces and approve the expenditure of these funds in the Arts Commission budget. 4Culture has awarded the Kent Arts Commission $9,250 to present three new works as part of the 2008 Site Specific King County Performance Network. The Phffft Theater Dance Company presented 'Mass Movement" at Kent Station as part of Cornucopia Days. "The Snow Queen" was presented by theater simple at Lake Meridian Park in August. Brazilian musician Eduardo Mendonca performed as part of the 1st Avenue Block Party on September 12th. 3. EXHIBITS: King County Agreement 91-6001254 4. RECOMMENDED BY: Parks and Human Services Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes No X 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: 1 ACTION: Agreement No. 108038A Contractor's Federal Taxpayer ID No. Contractor City of Kent Arts Commission Project Title: 2008 Site Specific King County Performance Network Contract Amount: $9,250.00 Fund Source: CP - KC Performance Network Contract Period From: 04/01/08 To: 12/30/08 AGENCY SERVICES CONTRACT 2008 THIS CONTRACT is entered into by the CULTURAL DEVELOPMENT AUTHORITY OF KING COUNTY ("4Culture"), whose address is 101 Preforitaine Place South, Seattle, WA 98104-2672 and telephone number is (206) 296-7580 and the City of Kent Arts Commission (the "Contractor"), whose address is 220 4th Avenue S, Kent WA 98032 and telephone number is (253) 856-5055. Contractor is an art, cultural or historical organization or specialist qualified to receive funds pursuant to King County Code Sections 2.48 and 4.42 and RCW 67.28.180 and as hereinafter may be amended. The 4Culture Board of Directors approved providing funds for this project by Motion No. 2008-07. 4Culture desires to provide funds with which the Contractor shall render certain services to King County citizens. Such services are for the benefit of art museums, cultural museums, heritage museums, the arts, and/or the performing arts and are consistant with those defined in RCW 67.28.180 ("Public Benefit Services"). 4Culture is organized pursuant to King County Ordinance 14482 and RCW 35.21.730, et seg. RCW 35.21.750 provides as follows: "[All] liabilities incurred by such public corporation, commission, or authority shall be satisfied exclusively from the assets and properties of such public corporation, commission or authority and no creditor or other person shall have any right of action against the city, town, or county creating such corporation, commission, or authority on account of any debts, obligations, or liabilities of such public corporation, commission, or authority." The legislative authority of 4Culture has found and declared that providing funds to Contractor to reimburse Project costs in consideration of services provided hereunder constitutes a public purpose with the meaning of Article VI I, Section 1 of the Washington State Constitution for which public funds may properly be expended or advanced. NOW, THEREFORE, in consideration of payments, covenants, and agreements hereinafter mentioned, to be made and performed by the parties hereto, the parties covenant and do mutually agree as follows: AG SVC 08 Page 1 of 7 - -� - - Page 13 B. To the full extent provided by applicable law, the Contractor shall protect, defend, indemnify, and save harmless 4Culture its officers, employees, and agents from any and all costs, claims, judgments, and/or awards of damages, arising out of or in any way resulting from the acts or omissions of the Contractor, its officers, employees, and/or agents, except to the extent resulting from 4Culture's sole negligence. If this Agreement is a "a covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate"within the meaning of RCW 4.24.225, the Contractor shall so protect, defend, indemnify, and save harmless 4Culture, its officers, employees, and agents only to the extent of the Contractor's, its officers', employees', and/or agents' negligence. The Contractor agrees that its obligations under this subparagraph extend to any claim, demand, and/or cause of action brought by or on behalf of any employees, or agents. In the event 4Culture incurs any judgment, award and/or cost arising there from including attorneys' fees to enforce the provisions of this article, all such fees, expenses, and costs shall be recoverable from the Contractor. Claims shall include, but are not limited to, assertions that the use or transfer of any software, book, document, report, film, tape or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright. X. INSURANCE REQUIREMENTS The Contractor shall procure and maintain for the duration of this Agreement insurance as described on the Exhibit labeled as Insurance Requirements attached here to. XI. CONFLICT OF INTEREST , Chapter 42.23 RCW (Code Of Ethics For Municipal Officers--Contract Interests) is incorporated by reference as if fully set forth herein and the Contractor agrees to abide by all the conditions of said Chapter. Failure by the Contractor to comply with any requirements of such Chapter shall be a material breach of contract. In addition, Contractor represents, warrants and covenants that no officer, employee, or agent of 4Culture who exercises any functions or responsibilities in connection with the planning and implementation of the Specific Scope of Contract Services funded herein, has or shall have any beneficial interest, directly or indirectly, in this contract. The Contractor further represents, warrants and covenants neither it nor any other person beneficially interested in this Agreement has offered to give or given any such officer, employee, or agent of 4Culture, directly or indirectly, any compensation, gratuity or reward in connection with this Agreement. The Contractor shall take all appropriate steps to assure compliance with this provision. i AG SVC 08 Page 5 of 7 age XVI. SURVIVAL The terms and conditions of Sections III, V, VI, VII, Vill, IX, XI, XII, XIII, XIV and XV shall survive the termination of this Agreement and shall be continuing obligations of the parties. 4CULTURE: CONTRACTOR: 4Culture-CDA Executive Director Signa ure Date Name (Please type or print) cry-c,A—or Title (Please type or print) 0 cJ-- 2-7 Date AG SVC 08 Page 7 of 7 B. Contractor may apply to 4Culture for reimbursement upon completion of specified phases as detailed in the Specific Scope of Services and Reimbursement Schedule attached to this contract. C. Contractor shall submit an invoice and all accompanying reports in the forms attached hereto as "EXHIBITS", not more than 30 days after the completion of each specified phase identified in the Specific Scope of Services and Reimbursement Schedule. 4Culture will initiate authorization for payment after approval of corrected invoices and reports. 4Culture shall make payment to the Agency not more than 60 days after the appropriate invoice is received. D. Contractor shall submit its final invoice and all outstanding reports within 30 days of the date this Agreement terminates. If the Agency's final invoice and reports are not submitted by the day specified in this subsection, 4Culture will be relieved of all liability for payment to the Agency of the amounts set forth in said invoice or any subsequent invoice E. Accompanying the final invoice for the project, the Contractor shall also submit: 1. A project evaluation report upon the form provided by 4Culture. 2. If 4Culture requests, at least two images (prints, slides, or digital images accompanied by a high-quality print-out) of publishable quality for use by 4Culture to publicize its funding programs. Photos shall have credits, caption information, and permission to publish. F. If the Contractor fails to comply with any terms or conditions of this contract or to provide in any manner the work or services agreed to herein, 4Culture may withhold any payment to the Contractor until 4Culture is satisfied that corrective action, as specified by 4Culture, has been completed. This right is in addition to and not in lieu of 4Culture's right to terminate this contract as provided in Section IV, any other rights of4Culture under this Agreement and any other right or remedy available to4Culture at law or in equity. IV. TERMINATION OF AGREEMENT A. If, through any cause, the Contractor shall fail to fulfill in a timely and proper manner its obligations under this Agreement or if the Contractor shall violate any of its covenants, agreements or stipulations of this Agreement, 4Culture may terminate this Agreement and withhold the remaining allocation. Prior to so terminating this Agreement, 4Culture shall submit written notice to the Contractor describing such default or violation. 4Culture shall not so terminate this Agreement if 4Culture determines that Contractor has, within twenty(20) days of the date of such notice, fully corrected such default or violation. V. MAINTENANCE OF RECORDS A. The Contractor shall maintain accounts and records, including personnel, property, financial, and programmatic records and other such records as may be deemed necessary by 4Culture to ensure proper accounting for all contract funds and compliance with this Agreement. All such records shall sufficiently and properly reflect all direct and indirect costs of any nature expended and services provided in the performance of this Agreement. B. These records shall be maintained for a period of six(6) years after termination of this Agreement unless a longer retention period is required by law. AG SVC 08 Page 3 of 7 EXHIBIT A SCOPE OF SERVICE City of Kent Arts Commission and 4Culture mutually agree that the following services be provided in accordance with the proposal submitted to and approved by 4Culture. Partial support for the development and presentation of a three new works for the 2008 Site Specific King County Performance Network.The City of Kent Arts Commission will present three performances in cooperation with 4Culture and selected project proposals from the participating artists;Theater Simple,Phhht Dance Theatre and Eduardo Mendonca. City of Kent will provide$3,750 in matching funds for total artist fees of$13,000. City of Kent will contract and pay total artist fees,to be reimbursed by 4Culture at the conclusion of the three performances. All performances will be open and free to the community. Amount: $9.250 Payable upon submission of • Invoice e Organization Evaluation form PUBLIC BENEFIT Performances will be open,accessible,publicized to the community and provided free of charge. PUBLICITY/PROMOTION POLICY Prominent acknowledgment of 4Culture King County Performance Network is required of all recipients for use in all publicity and promotional materials, including,but not limited to brochures,press releases,programs,posters, public service announcements,flyers and advertisements. Please contact your Project Coordinator for an electronic logo file. SITE SPECIFIC ARTS .ORG Exhibit B CULTURE KIN$COUNTY 40001140 TAX 2008 Site-Specific King County Performance Network Application 4Cuiture 206 296.7580 101 Prefontaine Place South, Seattle,WA 98104 TTY 711 www.4Culture.org Deadline: Applications must be received in the office by 4:30 p.m.on January 14, Monday, January 14,2008 or postmarked by January 14,2008. 2008 INSTRUCTIONS Read the King County Performance Network guidelines before filling out this form. • Submit one original of the application and artist resume.DO NOT STAPLE_ r Submit one set of required work sample and optional support materials. 1.Applicant Artist/Ensemble/Organization Name: theater simple Contact Name: Mr.❑ Ms.❑ Titie: artistic instigator First Name: Llysa Last Name: Holland Address:4017 W Emerson Street City: Seattle Zlp. 98199 Area Code:206 Phone:7848647 e-mail: thsimple@gmail.com Area Code: Fax: http:/twww.theatersimple.org County Council District Number:4 THIS IS REQUIRED INFORMATION Call King Co.Records and Elections at(206)296.1681 to verify your Council District or visit http://www.metm-kc.govlmkccldlstmap.htm 2.Project Please attach one to three Ideas or concepts for a site-specific performance or exhibition; Concept(s) Please Include a one-page description and a preliminary expense budget for each concept. Additional Information such as technical requirements,site availability, and a final project budget will be developed after the review and selection by the sponsoring agencies. For the purpose of this application, please just describe your idea(s)and estimated expenses. 3.Project If your proposal has special requirements(which might include technical needs,venue { Requirements: restrictions,or the need and/or desire to be paired with a specific community, please explain 1 within your attached one-page project concept.) j I 4.Application ❑ Signed application page I, Checklist: ❑ One page concept narrative and preliminary budget(1-3 projects)one per page ❑ Artist Resume,to include your work in the proposed discipline as well as a concise history of collaborative and site-specific projects if available ❑ Work Sample. A high quality work sample of the artist/organization's work Is strongly encouraged. Work samples may be submitted In a variety of standard formats. Please Include a separate page detailing title,date,description,participating artists, and applicant role in selected sample(s). ❑ Support Materials,to include articles reviews, sample publicity materials, etc. 5.Applicant Signature: Signature: Date: 1/14/08 ML theater simple Proposal #2: THE SNOW QUEEN: Gerda's Journey A spectacular journey through the world and a park Our vision:With a starting point of theater simple's award-winning adaptation of Hans Christian Andersens' THE SNOW QUEEN,we want to explore three particular parks in the King County area through a spectacular storytelling journey. in the story, Gerda must leave home to find her best friend, and discovers the world,a different understanding of herself, and the meaning of love in her travels. We intend to literally take the audience on Gerda's journey as the play moves through the park. With several performance'areas',there will be'pass-by'spectacle,furthering the storylines, and framing the park itself in new visual and emotional ways for the audience.An immersive experience, it is our hope it will transform how they view THAT particular park, Our target parks are Dottie Harper Park in Burien, Earthworks Park in Kent,and The Carl S. English,Jr. Botanical Garden next to the Hiram Chittenden Locks in Ballard(very exciting,due to Ballard's Scandinavian roots). We have received enthusiastic responses from Ronda Bilierbeck of the Kent Arts Commission, Debbie Zemke, Recreation Manager of the Park and Recreation Department in Buren,and have made preliminary contact with the US Army Corps of Engineers at the botanical gardens via the artist liaison Kathy Hsieh at the Seattle Arts Commission. In the story The Snow Queen, Gerda encounters different cultures,different family groupings,dodges devils, talks to animals,and follows the north wind.There is VAST opportunity for various styles of performance—puppetry,dance, music... our minds are bursting with plans and ideas. The creative team includes many of the original Snow Queen team: director, Rachel Katz Carey, composer Jeff Kunins,costumer and sculptor Doris Landolt Black,and the core theater simple ensemble, We are anticipating using up to 8 additional performers(some from the host community)for a variety of populations to help create the world of the play. Technical requirements:Several characters will be working with wireless macs. (That is a new skill set for theater simple, both in acquiring and manipulating the technology.)Our intent is to perform the piece with sunset in mind,so that in the final moments of the play,we are able to use luminadestinternally lit sculptures in some capacity,and they need some twilight to be seen.This piece will require at least two j stage managers. ' TARGET AUDIENCES&MARKETING:While this is a family-friendly show,it shouldn't be viewed as a 'kids-only show".Andersens'stories were actually not written for children, but for adults.Those familiar with theater simple shows understand that our scripts are multi-layered, sophisticated and emotionally 1 available to a broad spectrum of viewer. f We believe the familiarity of the story will be a draw, as well as the free aspect of the performance.(We love freel)Additionally,in Kent and Burien,we have already established a relationship with the libraries, so there could be publicity generated through the summer reading programs.theater simple is planning on being very active in the publicity and marketing and will provide as much assistance as our community partner will allow. WHEN: July-August 2008. Budget: Development, rehearsal, building,construction, transportation&set-up, permitting and additional insurance,if necessary,for 3 site Installations:$17,000-22,000(depending on technology and design elements.) +nn n�co es...._• ., I i CULTURE VINO COUNTY LOOOINO TAX 2008 Site-Specific King County Performance Network Application 4Cuiture 101 Prefontalne Place South, Seattle,WA 98104 206 296.7580 TTY 711 www.4CUlture.org Deadline: Applications must be received in the office by 4:30 p.m.on January 14, Monday,January 14,2008 or postmarked by January 14, 2008. 2008 INSTRUCTIONS 0 Read the King County Performance Network guidelines before filling out this form. • Submit one original of the application and artist resume.DO NOT STAPLE;. • Submit one set of required work sample and optional support materials. 1.Applicant Artist/ Ensemble/Organization Name: Contact Name: Mr. N Ms. ❑ Title:President/Art. Dir. First Name:Cyrus Last Name:Khambatta Address: City: - Zip: �1 5609 34th Ave*SW Seattle 98126• Area Code: 206 Phone:935-0459 a-mail:Cyrus@PHFFFT.org Area Code: Fax: http://www.PHFFFT.org County Council District Number: 10 THIS IS REQUIRED INFORMATION Call King Co.Records and Elections at(206)2964581 to verify your Council District or visit htta://www.Metrokc:gztd gc distmam:htm - — — — 2. Project Please attach one to three ideas or concepts for a site-specific performance or exhibition; I►oncept(s) Please Include a one-page description and a preliminary expense budget for each concept. Additional information such as technical requirements, site availability,and a final project budget will be developed after the review and selection by the sponsoring agencies. For the purpose of this application, please just describe your idea(s)and estimated expenses. 6. Project If your proposal has'special requirements(which might include technical needs,venue i Requirements: restrictions,or the need and/or desire to be paired with a specific community, please explain within your attached one-page project concept.) 4.Application Signed application page Checklist: � One page concept narrative and preliminary budget(1-3 projects)one per page e/Artist Resume, to Include your work in the proposed discipline as well as a concise history of collaborative and site-specific projects if available i/Work Sample. A high quality work sample of the artistforganization's work is strongly encouraged. Work samples may be submitted in a variety of standard formats. Please include a separ pa ng title, date,description,participating artists,and applicant role in selecte p e(s . r?f"Support M rials, Jude ictes, reviews,sample publicitymaterials, etc. Z 6.Applicant Signature: Signature: Date: ''.++.x -- .--_...� ... �__�CL�atet1RGYVr•..«.,.mw,.s�•.9Rao S1�Ot`?9"..w.......�..a�i 'W4bwtiQrt+srf_ -.s:..' '.t..Jy�,y•._..._._..mm.__... _ __,. - _ _ _ -r;-'q=..:rr=__.tr_;i;Fm.'}r.z.y.+y.^.^x^"`:_ —. ,__ .. ^^Cr^^.w.q�i,.:.•�.� v_r-.—..F '° _ _ __ _ The Phffft Dance Theatre Company Proposal for Site Specific Project: Mass Movement Budget Projection Earned Income $2000 Unearned Income (4 Culture) $8000 Individuals $ 685 ' Total Income $1.0.,686 a cx� EXPENSES: Choreographer/Conceptual Fee Flat fee $1000 Graphic Designer ,CCX!:> 1 Grfc Dsnr. Fee @ $500 $ 500 Dancers 20 dncrs. @ $10/hr. x 30 hrs. rehrse. $6000 ;f 20 dncrs. Performance fee @ $100/ea. $2000 r Equipment Rental I! @$150/day 3 Porto-Lite + battery paks $ 450 �I Publicity 100 Posters @ $1/ea. $ 100 1200 cards @ $.25/ea. $ 300 Postal Ccaa.u.i.�T SP '� 'Maih 1000 cards Q $.26/ea. $ 260 " Copying Programs printing (leaflet type)@ $-.25 x 300 $ 75 Total Expenses $10,686 f CULTURE KINO COUNTY IOOGINO TAX 2008 Site-Specific King County Performance Network Application 4Culture 206 296.7580 101 Prefontaine Place South,Seattle,WA 98104 TTY 711 www.4Culture.org Deadline: Applications must be received in the office by 4:30 p.m.on January 14, Monday, January 14,2008 or postmarked by January 14,2008. 2008 INSTRUCTIONS Read the King County Performance Network guidelines before filling out this form. • Submit one original of the application and artist resume.DO NOT STAPLE;. Submit one set of required work sample and optional support materials. 1.Applicant Artist!Ensemble/Organization Name: ,Cj)�ffi72�,Q /1/�CW—I)VA1 GR Contact Name:Mr.ffMs. ❑ Title: First Name: ,(;1),f lfth Q Last Name: W'lijl�i✓f- Address: S, V't'd fok City: Zip: WAI gf4�S Area Code: gZSPhone:P5Q-/d e-mail: d�v�lf aCOW Area Code: Fax: http://bUWW- S'ON1644Z Go County Council District Number. THIS IS REQUIRED INFORMATION Call King Co.Records and Elections at(206)2964581 to verify your Council District or visit htta://www.metrokc.gov/mkcc/distmap.htm 2. Project Please attach one to three ideas or concepts for a site-specific performance or exhibition; Concept(s) Please include a one-page description and a preliminary expense budget for each concept. Additional information such as technical requirements,site availability,and a final project budget will be developed after the review and selection by the sponsoring agencies. � For the purpose of this application,please just describe your idea(s)and estimated expenses. 3.Project If your proposal has special requirements(which might include technical needs,venue Requirements: restrictions,or the need and/or desire to be paired with a specific community,please explain within your attached one-page project concept.) 4.Application Signed application page . Checklist: q�One page concept narrative and preliminary budget(1-3 projects)one per page Ir Artist Resume,to include your work In the proposed discipline as well as a concise history of collaborative and site-specific projects if available Work Sample. A high quality work sample of the artist/organization's work is strongly encouraged. Work samples may be submitted in a variety of standard formats.Please include a separate page detailing title,date,description,participating artists,and applicant role in selected sampie(s). llama support Materials,to include articles,reviews,sample ublici materials,etc. S.Applicant �- Signature: Signature: Date: �/�' 622 South 53i°PL-Renton,WA 98055-7994—USA-Phone(425)793-7683-Website:www.showbrazii.com eduardo@showbrazil.com Background Eduardo Mendonga, multitalented Brazilian-American recording artist, producer, vocalist, composer, and musical arranger, was born in Salvador, Bahia, Brazil. Mendon4a traces his lineage to a royal African family bearing the hereditary title of Mama-Beka, prophet of the royal court. His grandfather, ' Jose Maria de Mendonga, who secretly maintained the Mama-Beka title, is pictured in a rare book, property of the Instituto Geografico a Historico da Bahia, which shows the elder Mendonga taking part in a crucial meeting discussing the need for freedom and established social rights for Afro-Brazilian ' former slaves. Education ' Master in Arts Education at the instituto de M6sica da Universidade Catolica do Salvador (Music Institute of the Catholic University of Salvador). (1980-1984) Collaborations ' • WOMAD Festival. Performance with Jovino Santos Neto. Redmond, WA (2001) • Seattle City Cantabile Choir. A tribute to Brazil (Villa-Lobos) 2000, Musica do Brasil 2001. 2000- present • Urban Rhythm Choir. Christmas Samba (Christmas Concert), pan-Africa Concert. 1995- 2003 • Arranged and conducted, and recorded Brazilian songs to the Pacific Children's Choir for the performances of Circle the World) in 2000. • Music and included in Janis Mann CD - A Little Moonlight "1997". Janis Mann is a jazz musician, ? Bellevue resident. ' . Recorded music and included in Kofi Anang's CD "1995". Musician Kofi Anang is an African musician, born in Ghana. ' + Percussionist for a series of workshops in Elementary schools by dancers from Alvin Ailey American Dance Theater sponsored by Meany Hall for Performing Arts of University of Washington. Seattle, WA 1995 ' 2elected Performances * Opening for All-Star 2001 Pre-Game Ceremony at Safeco Field. Seattle, WA (2001) * Performed as feature musician in command performance for Brazilian President Joao Baptista Figueiredo. Bahia Brazil (1989) ' I� ' * Performance for the former South Africa President Nelson Mandela. Seattle, WA- USA (1999) * Performed as feature musician in command performance for Pope John Paul II. Bahia Brazil (1991) * Performed in trios eldtricos (brightly lit mobile soundstages for festivals and public dancing) with artists such as Dengo da Bahia, Papa Leguas, and Marcos Medrado (1980-1990) • Toured in Brazil, United States, and Canada as vocalist and percussionist with the folkloric troupe, Exaltagao a Bahia. (1979-1992) • Was featured in Paul Simon's documentary music video, "Born at the Right Time", which took place in Salvador, Bahia - Brazil (1991) f EXHIBIT C ' INSURANCE REQUIREMENTS Contractor shall procure, at its sole cost and expense, insurance against claims for injuries to persons or ' damages to property which may arise from, or in connection with the performance of work hereunder by the Contractor, his agents, representatives, employees, and/or subcontractors. The costs of such insurance shall be paid by the Contractor or subcontractors. For All Coverages: Each insurance policy shall be written on an "Occurrence"form. The Minimum Scope of 1 Insurance needed for this contract is as follows: ® Commercial General Liability Insurance Services Office form number(CG 00 01 Ed. 11-88)—Minimum , Combined Single Limit of$1,000,000 BI &PD with a General Aggregate per project 1. Deductibles and Self Insured Retentions. Any deductibles or self-insured retentions must be declared to, and approved by 4Culture. The deductible ' and/or self-insured retention of the policies shall not apply to the Contractor's liability to 4Culture and shall be the sole responsibility of the Contractor. 2. Other Insurance Provisions ' A. The insurance policies are to contain, or be endorsed to contain, the following provisions: (a) General Liability Policies ' (1)4Culture, its officers, employees and agents are to be covered as primary additional insured as respects liability arising out of activities performed by or on behalf of the Contractor in connection with this Agreement. (2)To the extent of the Contractor's negligence, the Contractor's insurance coverage shall be primary ' insurance as respects 4Culture, its officers, employees, and agents. Any insurance and/or self-insurance maintained by 4Culture, its officers, employees, or agents shall not contribute with the Contractor's insurance or benefit the Contractor in any way. (3)The Contractor's insurance shall apply separately to each insured against whom claim is made and/or lawsuit is brought, except with respect to the limits of the insurer's liability. (b)All Policies (1) Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits, except as reduced in aggregate by paid claims, at any point during the life of this contract. ' 3. Acceptability of Insurers Unless otherwise approved in writing by 4Culture, insurance is to be placed with insurers with a Bests rating of no less than A: VIII, or, if not rated with Bests, with minimum surpluses the equivalent of Bests'surplus size VIII. 4.Verification of Coverage Unless otherwise approved in writing by 4Culture, Contractor shall furnish 4Culture with certificate(s) of insurance evidencing compliance with requirements set forth above, which certificate(s) shall provide that no material , change, or cancellation or nonrenewal of policies referred to herein shall occur without thirty(30)days' prior written notice to 4Culture. 1 WA Insurance Authority P.O. Box 88030 Tukwila, WA 98138 19-Jun-08 Cert#: 5687 Phone: 206-575-6046 _ 4Culture ' Attn: Bret Fetzer Fax: 206-575-7426 101 Prefontaine PL South Seattle,WA 98104 RE: City of Kent Grant awarded to Cultural Programs Division for 2008 arts programming. Evidence of Coverage The above captioned entity is a member of the Washington Cities Insurance Authority (WCIA),which is a self insured pool of over 123 municipal corporations in the State of Washington. WCIA has at least$1 million per occurrence combined single limit of liability coverage 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. WCIA is an Interlocal Agreement among municipalities and liability is completely 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, Eric B. Larson Deputy Director cc: Christopher Hills Ronda Billerbeck, City of Kent ' cletter r rKent City Council Meeting Date December 9, 2008 ' Category Consent Calendar - 6I r 1. SUBJECT: AUKEEN AND KENT MUNICIPAL COURT EXPANSION PROJECT AGREEMENT - AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign an agreement with David Clark Architects PLLC, in the amount of $669,227, for design, bidding, and construction services relative to the expansion of the Aukeen and Kent Municipal Court facilities, subject to final terms and conditions acceptable to the City Attorney. As designated in the first agreement with David Clark Architects, the initial stages of the Aukeen and Kent Municipal Court Expansion Project are complete, specifically schematic design and budget development. This agreement completes the design, bidding, and construction segment of the project. r r 3. EXHIBITS: AIA Contract r4. RECOMMENDED BY: Parks and Human Services Committee (Committee, Staff, Examiner, Commission, etc.) r5. FISCAL IMPACT Expenditure? X Revenue? N/A ' Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds r ' DISCUSSION: ACTION: 1 r � m0t, A Document B101Tat - 2007 iStandard Form of Agreement Between Owner and Architect AGREEMENT made as of the day of in the year 2008 (In words, indicate day, month and year) ' BETWEEN the Architect's client identified as the Owner: (Name, address and other information) City of Kent 220 Fourth Avenue South This document has important Kent,WA 98032 legal consequences. Consultation with an attorney is encouraged with respect to Its completion or modification. and the Architect: ' (Name, address and other information) David A.Clark Architects,PLLC 33017 134`I'Ave SE ' Auburn,WA 98092-8519 253 351-8877 office 253 804-6566 fax for the following Project: (Name, location and detailed description) ' Kent District Court Addition&Renovation, 1210 South Central,Kent,WA 98032. The project consists of the addition of 3 courtrooms,office space and general renovation of existing office space and lobby areas as shown on the preliminga plans dated 5/22/08 and a new 71 car parking lot, The Owner and Architect agree as follows. AIA Document BMW—2007(rformerly B151 TM—1997).Copyright @ 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIAt Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 1 this AIA' Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:11 on 11/0,12008 under Order No.1000362467_1 which expires on 7/24/20119,and Is not ' for resale, User Notes: (3549898206) TABLE OF ARTICLES , 1 INITIAL INFORMATION 2 ARCHITECT'S RESPONSIBILITIES 3 SCOPE OF ARCHITECT'S BASIC SERVICES ' 4 ADDITIONAL SERVICES 5 OWNER'S RESPONSIBILITIES , 6 COST OF THE WORK 7 COPYRIGHTS AND LICENSES 8 CLAIMS AND DISPUTES 9 TERMINATION OR SUSPENSION 10 MISCELLANEOUS PROVISIONS ' 11 COMPENSATION 12 SPECIAL TERMS AND CONDITIONS 13 SCOPE OF THE AGREEMENT EXHIBIT A INITIAL INFORMATION ARTICLE 1 INITIAL INFORMATION §1.1 This Agreement is based on the Initial Information set forth in this Article 1 and in optional Exhibit A,Initial Information: (Complete Exhibit A,Initial Information, and incorporate it into the Agreement at Section 13.Z or state below Initial Information such as details of the Project's site and program, Owner's contractors and consultants, Architect's consultants, Owner's budget for the Cost of the Work,authorized representatives,anticipated procurement method,and other information relevant to the Project.) As indicated in Exhibit A , §1.2 The Owner's antieipated dates far-eemmeneeffient of eeaWuefien and Substanda4 Complefieff of die Work ar set F rL.be4ew- .1 Eemmeneement of eonstmetien-date: .2 Substantial Cempletion date; 1.3 The Owner and Architect may rely on the Initial § Y Y >he > seheduleinfefmatien may matefially ehange and,in that event,the OvmeF 11191d the A I " ' I — .pr-epdately adjust the the ' Information.. ' AIA Document BMW—2007 Irtormerly B181 W—1997).Copyright @ 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA iD Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIO Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No 1000362467_1 which expires on 7/24/2009,and Is not for resale. , User Notes: (3549988206) ARTICLE 2 ARCHITECT'S RESPONSIBILITIES §2.1 The Architect shall provide the professional services as set forth in this Agreement. §2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances.The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of ' the Project. §2.3 The Architect shall identify a representative authorized to act on behalf of the Architect with respect to the Project. §2.4 Except with the Owner's knowledge and consent,the Architect shall not engage in any activity,or accept any employment,interest or contribution that would reasonably appear to compromise the Architect's professional judgment with respect to this Project. §2.5 The Architect shall maintain the follewing insur-anee for-the dtwatien of tPAs Agreement.If any o :etocure and maintain for the duration of the Agreement,insurance of the types and in the amounts described in Exhibit E attached and incorporated by this reference. Certificates and endorsements shall be provided as set out in Exhibit E, (Identify types and limits of insurance coverage,and other insurance requirements applicable to the Agreement, if any.) �1 E'rer�e�all=iabintT .2 Auteffiebile Liability `x—.wm' Eempensatien .4 P efessienal Liability S ARTICLE 3 SCOPE OF ARCHITECT'S BASIC SERVICES §3.1 The Architect's Basic Services consist of those described in Article 3 and include usual and customary structural, mechanical,and electrical engineering sef%4ees.services,including an ASCE 31 Tier 1 and 2 structural seismic analysis of the original structure.Services not set forth in Article 3 are Additional Services. §3.1.1 The Architect shall manage the Architect's services,consult with the Owner,research applicable design criteria,attend Project meetings,communicate with members of the Project team and report progress to the Owner. §3.1.2 The MAAteet shall eeefidinate its mviees with these 4ded by the Owner- and the Owner's eensultants. The MeWteet shall be entitled to My dh1�0-Ree-1-1-mey afid eefnpleteness ,ion or Owner, on its own or through other consultants or agents, will 2etform design or other preconstitiction work outside the scope of Architect's services on this project. A description of the scope of work to be performed by these other consultants, contractors or agents (collectively, the "listed consultants"), together with contact information for those listed consultants known at the time of draftingthis his Agreement, is attached as Exhibit F. The Owner will supplement this list with specific contact information as it hires other listed consultants. t Init. AIA Document 8101 Tu—2007 formerly 81 61 TM—1997).Copyright 0 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document Is protected by U.S.Copyright Law and Intern ationat Treaties.Unauthorized reproduction or dlstrlbutton of this AIO Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467_i which expires on 7124/2009,and Is not for resale. User Notes: (3549998206) The Architect shall cooperate with and coordinate the Architect's work with all other listed consultants. The Architect represents, and the Owner relies upon the Architect's representation, that it will communicate and coordinate with the listed consultants throughout project design to assure that the Architect's work comprises part of an integrated design that will function correctly and as planned when constructed by the Owner. The Architect is not a guarantor of the other listed consultant's work, but the Architect does have a duty to inform itself fully of the other listed consultant's designs in order to create a successfully integrated project. If the Architect , determines that the work of any other listed consultant will not coordinate with the Architect's design or work or that the other listed consultant's design or work will obstruct or interfere with a final, integrated and successful project design, the Architect will immediately inform the Owner of this conflict. The Owner will resolve any disagreements that may arise among the Architect and listed consultants over the method,design, or order of doing , project work. The Owner's decision on these matters will be final. The coordination of the work shall be taken into account by the Architect and any resulting costs shall be incidental and included within this Agreement. §3.1.3 As soon as practicable after the date of this Agreement,the Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services.The schedule initially shall include anticipated dates for the commencement of construction and for Substantial Completion of the Work as set forth in the Initial Information. The schedule shall include allowances for periods of time required for the Owner's review,for the performance of , the Owner's consultants,and for approval of submissions by authorities having jurisdiction over the Project.Once approved by the Owner,time limits established by the schedule shall not,except for reasonable cause,be exceeded by the Architect or Owner.With the Owner's approval, the Architect shall adjust the schedule,if necessary as the Project proceeds until the commencement of construction. §3.1.4 The Architect shall not be responsible for an Owner's directive or substitution made without the Architect's approval. §3.1.5 The Architect shall,at appropriate times,contact the governmental authorities required to approve the 1 Construction Documents and the entities providing utility services to the Project.In designing the Project,the Architect shall respond to applicable design requirements imposed by such governmental authorities and by such entities providing utility services. §3.1.6 The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 3.2.1 The Mehiteet shall mview the pr-egFam and other-infomadon f"nished by the Owner-,and shall review laws, reasenably needed for-the"eet. §3.2.3 The Arehifeet shall present its pr-eliminafy twaluafien to the Owftef and shall diseuss with the Qwflef §3.2.4 Based on the"eet's requirements agfeed upon w4h the Owner-,the AF04teet shall prepare and pFeaeat fe AIA Document B101 TM—20071rformerly BMW—1997).Copyright 01974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIAV Document Is protected by U,S.Copyright Law and International Treaties.Unauthorized reproduction or distributlon of 4 this Ale Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No,1000362467 f which expires on 712412009,and Is not for resale. User Notes; (3549998206) §3.2.5 Based an the Owner's appFeval of the preliminary design,ffie Ar-ehiteet shall pr-epam Sehematie De Deetiments for-the Ownef's appFeval.The Sehematie Design Doeuments shall eensist of drawings and ethe inelade some eembinatien of study models,per-speellive sketehes,or digital medefifig.Pmhlaiflar-y se4eetions 0 majef building systems and eenstmetion matertials shall be neted on the drawings er deser-ibed in vMkFig-. building efientation,together v*h other-eensider-a6ees based an pr-egmm and aesthaties,in developing a design t is eansistent with the Owner's pr-egfafn,sehedule and budget fer the Cost of the Work.The Owner-may ebtain eth §3.2.5-2 The Arehiteet shall eensider-the value of aftemative materia4s,building systems and equipment,tegether-- with other-eensideFations based oft program and aestheties in developing a design for-the Pr-ejeet that is eonsistent with the Owaar-'s pr-egr-afn,sehe"and budget for-the rest of the We& Seetion §3.2.7 The Arehiteet shall submit the Sehematie Design Doeuments to the Owner-,and request the Owner-!* approval: §3.3 DESIGN DEVELOPMENT PHASE SERVICES §3.3.1 Based on the Owner's approval of the Schematic Design Documents,and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cost of the Work,the Architect shall prepare Design Development Documents for the Owner's approval.The Design Development Documents shall illustrate and describe the development of the approved Schematic Design Documents and shall consist of drawings and other documents including plans, sections,elevations,typical construction details,and diagrammatic layouts of building systems to fix and describe the size and character of the Project as to architectural,structural,mechanical and ' electrical systems,and such other elements as may be appropriate.The Design Development Documents shall also include outline specifications that identify major materials and systems and establish in general their quality levels. §3.3.2 The Architect shall update the estimate of the Cost of the Work. §3.3.3 The Architect shall submit the Design Development documents to the Owner,advise the Owner of any adjustments to the estimate of the Cost of the Work,and request the Owner's approval. §3.4 CONSTRUCTION DOCUMENTS PHASE SERVICES §3.4.1 Based on the Owner's approval of the Design Development Documents,and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cost of the Work,the Architect shall prepare Construction Documents for the Owner's approval.The Construction Documents shall illustrate and describe the further development of the approved Design Development Documents and shall consist of Drawings and Specifications setting forth in detail the quality levels of materials and systems and other requirements for the construction of the Work.The Owner and Architect acknowledge that in order to construct the Work the Contractor will provide additional information,including Shop Drawings,Product Data,Samples and other similar submittals, which the Architect shall review in accordance with Section 3.6.4. §3.4.2 The Architect shall incorporate into the Construction Documents the design requirements of governmental authorities having jurisdiction over the Project. §3.4.3 During the development of the Construction Documents,the Architect shall assist the Owner in the development and preparation of(1)bidding and procurement information that describes the time,place and conditions of bidding,including bidding or proposal forms; (2)the form of agreement between the Owner and Contractor;and(3)the Conditions of the Contract for Construction(General,Supplementary and other Conditions). The Architect shall also compile a project manual that includes the Conditions of the Contract for Construction and Specifications and may include bidding requirements and sample forms. §3.4.4 The Architect shall update the estimate for the Cost of the Work. AIA Document B101 TM—2007 formerly B161 TM-1997).Copyright 0 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 5 this AIA"Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467_1 which expires on 7/24/2009,and is not for resale. User Notes: (3549998206) §3.4.5 The Architect shall submit the Construction Documents to the Owner,advise the Owner of any adjustments to the estimate of the Cost of the Work,take any action required under Section 6.5,and request the Owner's approval. §3.5 BIDDING OR NEGOTIATION PHASE SERVICES §3.5.1 GENERAL .Following the Owner's approval of the Construction Documents,the Architect shall assist the Owner in(1)obtaining bids or negatiated proposals,-competitive bids:(2)confirming responsiveness of bids or proposals; (3)determining the successful bid or proposal,if any;and,(4)awarding and preparing contracts for construction. , §3.5.2 COMPETITIVE BIDDING §3.5.2.1 Bidding Documents shall consist of bidding requirements and proposed Contract Documents. §3.5.2.2 The Architect shall assist the Owner in bidding the Project by .1 procuring the reproduction of Bidding Documents for distribution to prospective bidders; .2 distributing the Bidding Documents to prospective bidders,requesting their return upon completion of the bidding process,and maintaining a log of distribution and retrieval and of the amounts of deposits,if any,received from and returned to prospective bidders; .3 organizing and conducting a pre-bid conference for prospective bidders; .4 preparing responses to questions from prospective bidders and providing clarifications and interpretations of the Bidding Documents to all prospective bidders in the form of addenda;and .5 organizing and conducting the opening of the bids,and subsequently documenting and distributing the bidding results,as directed by the Owner. §3.5.2.3 The Architect shall consider requests for substitutions,if the Bidding Documents permit substitutions,and shall prepare and distribute addenda identifying approved substitutions to all prospective bidders. §4 C 3 NEGOTIATE-0 DDADAQAI C v and and substitutions,rep&A of the negotiation results,as dir-ec4ed by the Ownen §3.6.3.3 Tho Ar-ePAteet shall eensideF requests fff substitutions,if the Weposal Doeuments per-fait and shall-pr-epam and disWbute addenda identifying approved substiPations to ag pr-espeetive eefgFaetor-s. §3.6 CONSTRUCTION PHASE SERVICES §3.6.1 GENERAL §3.6.1.1 The Architect shall provide administration of the Contract between the Owner and the Contractor as set forth below and in AIA Document A201TM-2007,General Conditions of the Contract for Construction.If the Owner ' and Contractor modify AIA Document A201-2007,those modifications shall not affect the Architect's services under this Agreement unless the Owner and the Architect amend this Agreement. §3.6.1.2 The Architect shall advise and consult with the Owner during the Construction Phase Services.The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement.The Architect shall not have control over,charge of,or responsibility for the construction means,methods,techniques, sequences or procedures,or for safety precautions and programs in connection with the Work,nor shall the Architect be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents.The Architect shall be responsible for the Architect's negligent acts or omissions,but shall not AIA Document 8101 TM—2007 formerly B151 TM-1997).Copyright @ 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights , Init. reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of s this AIAO Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:68:17 on 11/05/2008 under Order No.1000362467_1 which expires on 7/24/2009,and Is not for resale. User Notes: (3549998206) have control over or charge of,and shall not be responsible for,acts or omissions of the Contractor or of any other persons or entities performing portions of the Work. §3.6.1.3 Subject to Section 4.3, the Architect's responsibility to provide Construction Phase Services commences with the award of the Contract for Construction and terminates on the date the Architect issues the final Certificate for Payment. §3.6.2 EVALUATIONS OF THE WORK §3.6.2.1 The Architect shall visit the site at intervals appropriate to the stage of construction,or as otherwise required in Section 4.3.3,to become generally familiar with the progress and quality of the portion of the Work completed,and to determine,in general,if the Work observed is being performed in a manner indicating that the Work,when fully completed,will be in accordance with the Contract Documents.However,the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.On the basis of the site visits,the Architect shall keep the Owner reasonably informed about the progress and quality of the portion of the Work completed,and report to the Owner(1)known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor,and(2)defects and deficiencies observed in the Work. i §3.6.2.2 The Architect has the authority to reject Work that does not conform to the Contract Documents.Whenever the Architect considers it necessary or advisable,the Architect shall have the authority to require inspection or testing of the Work to accordance with the provisions of the Contract Documents,whether or not such Work is fabricated,installed or completed.However,neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor,Subcontractors,material and equipment suppliers,their agents or employees or other persons or entities performing portions of the Work. §3.6.2.3 The Architect shall interpret and decide matters concerning performance under,and requirements of,the Contract Documents on written request of either the Owner or Contractor.The Architect's response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness. §3.6.2.4 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings.When making such interpretations and decisions,the Architect shall endeavor to secure faithful performance by both Owner and Contractor,shall not show partiality to either, and shall not be liable for results of interpretations or decisions rendered in good faith.The Architect's decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents. §3.6.2.5 Unless the Owner and Contractor designate another person to serve as an Initial Decision Maker,as that term is defined in AIA Document A201-2007,the Architect shall render initial decisions on Claims between the Owner and Contractor as provided in the Contract Documents. §3.6.3 CERTIFICATES FOR PAYMENT TO CONTRACTOR §3.6.3.1 The Architect shall review and certify the amounts due the Contractor and shall issue certificates in such amounts.The Architect's certification for payment shall constitute a representation to the Owner,based on the Architect's evaluation of the Work as provided in Section 3.6.2 and on the data comprising the Contractor's Application for Payment,that,to the best of the Architect's knowledge,information and belief,the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject(1)to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion,(2)to results of subsequent tests and inspections,(3)to correction of minor deviations from the Contract Documents prior to completion,and(4)to specific qualifications expressed by the Architect. §3.6.3.2 The issuance of a Certificate for Payment shall not be a representation that the Architect has(1)made exhaustive or continuous on-site inspections to check the quality or quantity of the Work,(2)reviewed construction means,methods,techniques,sequences or procedures,(3)reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to ' Init. AIA Document B101 TM—2007 Iformerly 8151 TM-1997).Copyright 01974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 7 this AIO Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467 1 which expires on 7/24/2009,and Is not for resale. User Notes: (3549998206) payment,or(4)ascertained how or for what purpose the Contractor has used money previously paid on account of , the Contract Sum. §3.6.3.3 The Architect shall maintain a record of the Applications and Certificates for Payment. §3.6.4 SUBMITTALS §3.6.4.1 The Architect shall review the Contractor's submittal schedule and shall not unreasonably delay or withhold approval.The Architect's action in reviewing submittals shall be taken in accordance with the approved submittal schedule or,in the absence of an approved submittal schedule,with reasonable promptness while allowing sufficient time in the Architect's professional judgment to permit adequate review. §3.6.4.2 In accordance with the Architect-approved submittal schedule,the Architect shall review and approve or , take other appropriate action upon the Contractor's submittals such as Shop Drawings,Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents.Review of such submittals is not for the purpose of determining the accuracy and completeness of other information such as dimensions,quantities,and installation or performance of equipment or systems,which are the Contractor's responsibility.The Architect's review shall not constitute approval of safety precautions or,unless otherwise specifically stated by the Architect,of any construction means,methods, techniques,sequences or procedures.The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. §3.6.4.3 If the Contract Documents specifically require the Contractor to provide professional design services or certifications by a design professional related to systems,materials or equipment,the Architect shall specify the appropriate performance and design criteria that such services must satisfy.The Architect shall review shop drawings and other submittals related to the Work designed or certified by the design professional retained by the Contractor that bear such professional's seal and signature when submitted to the Architect.The Architect shall be entitled to rely upon the adequacy,accuracy and completeness of the services,certifications and approvals performed or provided by such design professionals. §3.6.4.4 Subject to the provisions of Section 4.3,the Architect shall review and respond to requests for information about the Contract Documents.The Architect shall set forth in the Contract Documents the requirements for requests for information.Requests for information shall include,at a minimum,a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested.The Architect's response to such requests shall be made in writing within any time limits agreed upon,or otherwise with reasonable promptness,If appropriate,the Architect shall prepare and issue supplemental Drawings and Specifications in response to requests for information. §3.6.4.5 The Architect shall maintain a record of submittals and copies of submittals supplied by the Contractor in accordance with the requirements of the Contract Documents. §3.6.5 CHANGES IN THE WORK §3.6.6.1 The Architect may authorize minor changes in the Work that are consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract Time.Subject to the provisions of Section 4.3,the Architect shall prepare Change Orders and Construction Change Directives for the Owner's approval and execution in accordance with the Contract Documents. §3.6.5.2 The Architect shall maintain records relative to changes in the Work. §3.6.6 PROJECT COMPLETION §3.6.6.1 The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion;issue Certificates of Substantial Completion;receive from the Contractor and forward to the Owner,for the Owner's review and records,written warranties and related documents required by the Contract Documents and assembled by the Contractor;and issue a final Certificate for Payment based upon a final inspection indicating the Work complies with the requirements of the Contract Documents. AIA Document 8101 TM—2007 formerly B151 TM-1997).Copyright 0 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIAO Document,or any portion of It,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467_1 which expires on 7/24/2009,and Is not for resale. , User Notes: (3549998206) §3.6.6.2 The Architect's inspections shall be conducted with the Owner to check conformance of the Work with the requirements of the Contract Documents and to verify the accuracy and completeness of the list submitted by the Contractor of Work to be completed or corrected. §3.6.6.3 When the Work is found to be substantially complete,the Architect shall inform the Owner about the balance of the Contract Sum remaining to be paid the Contractor,including the amount to be retained from the Contract Sum,if any,for final completion or correction of the Work. §3.6.6.4 The Architect shall forward to the Owner the following information received from the Contractor: (1) consent of surety or sureties,if any,to reduction in or partial release of retainage or the making of final payment;(2) affidavits,receipts,releases and waivers of liens or bonds indemnifying the Owner against liens;and(3)any other documentation required of the Contractor under the Contract Documents. §3.6.6.5 Upon request of the Owner,and prior to the expiration of one year from the date of Substantial Completion, the Architect shall,without additional compensation,conduct a meeting with the Owner to review the facility operations and performance. ARTICLE 4 ADDITIONAL SERVICES §4.1 Additional Services listed below are not included in Basic Services but may be required for the Project.The Architect shall provide the listed Additional Services only if specifically designated in the table below as the Architect's i ' ' .responsibility. (Designate the Additional Services the Architect shall provide in the second column of the table below. In the third column indicate whether the service description is located in Section 4.2 or in an attached exhibit.If in an exhibit, identify the exhibit.) Additional Services Responsibility Location of Service Description (Architect, Owner (Section 4.2 below or in an exhibit or attached to this document and Not Provided) identified below) 4.1.1 Programming Not Provided 4.1.2 Multiple preliminary designs Not Provided 4.1.3 Measured drawings Not Provided 4.1.4 Existing facilities surveys Not Provided 4.1.5 Site Evaluation and Planning(B203"m-2007) Not Provided ' §4.1.6 Building information modeling Not Provided 4.1.7 Civil engineering Architect 4.1.8 Landscape design Architect 4.1.9 Architectural Interior Design(B252TM-2007) Architect 4.1.10 Value Analysis(B204TM-2007) Not Provided 4.1.11 Detailed cost estimating Not Provided 4.1.12 On-site project representation Not Provided 4.1.13 Conformed construction documents Not Provided 4.1.14 As-designed record drawings Architect 4.1.15 As-constructed record drawings Not Provided 4.1.16 Post occupancy evaluation Not Provided 4.1.17 Facility Support Services B2I OT"-2007 Not Provided 4.1.18 Tenant-related services Owner 4.1.19 Coordination of Owner's consultants Architect §4.1.20 Telecommunications/data design Architect §4.1.21 Security Evaluation and Planning(B206TM— Not Provided 2007) §4.1.22 Commissioning(B211TM-2007) Owner 4.1.23 Extensive environmentally responsible design Not Provided §4.1.24 LEED Certification(B214TM-2007) Not Provided 4.1.25 Fast-track design services Not Provided 4.1,26 Historic Preservation(B205TM-2007) Not Provided AIA Document 13101 TM—2007 formerly Bi 61 TM-1997).Copyright 0 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIAL,Document Is protected by U.S.Copyright Law and Internatlonal Treaties.Unauthorized reproduction or distribution of 9 this AIAe Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible 1 under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467_l which expires on 7/24/2009,and Is not for resale. User Notes: (3549998206) §4.1.27 Furniture,Finishings,and Equipment Design Owner (B253TM-2007) 4.1.28 Survey Owner 4.1.29 Soils Engineering Owner 4.1.30 Evaluation of existing RVAC Owner 4.1.31 Commissioning Owner 4.1.32 Construction Security Owner 4.1.33 ASCE 31 Tier 1 and 2 structural evaluation Architect 4.1.34 Traffic Study Owner §4.2Insert a description of each Additional Service designated in Section 4.1 as the Architect's responsibility,if not further described in an exhibit attached to this document. Architect shall provide Civil,landscape,interiors,data design in the base fee and shall coordinate the Owner's consultants as required at no additional charge. §4.3 Additional Services may be provided after execution of this Agreement,without invalidating the Agreement. Except for services required due to the fault of the Architect,any Additional Services provided in accordance with this Section 4.3 shall entitle the Architect to compensation pursuant to Section 11.3 and an appropriate adjustment in the Architect's schedule. §4.3.1 Upon recognizing the need to perform the following Additional Services,the Architect shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need.The Architect shall not proceed to provide the following services until the Architect receives the Owner's written authorization: .1 Services necessitated by a change in the Initial Information,previous instructions or approvals given by the Owner,or a material change in the Project including,but not limited to,size,quality, complexity,the Owner's schedule or budget for Cost of the Work,or procurement or delivery method; .2 Services necessitated by the Owner's request for extensive environmentally responsible design ' alternatives,such as unique system designs,in-depth material research,energy modeling,or LEED® certification; .3 Changing or editing previously prepared Instruments of Service necessitated by the enactment or revision of codes,laws or regulations or official interpretations; .4 Services necessitated by decisions of the Owner not rendered in a timely manner or any other failure of performance on the part of the Owner or the Owner's consultants or contractors; .5 Preparing digital data for transmission to the Owner's consultants and contractors,or to other Owner authorized recipients; .6 Preparation of design and documentation for alternate bid or proposal requests proposed by the Owner; .7 Preparation for,and attendance at,a public presentation,meeting or hearing; .8 Preparation for,and attendance at a dispute resolution proceeding or legal proceeding,except where the Architect is party thereto; .9 Evaluation of the qualifications of bidders or persons providing proposals; .10 Consultation concerning replacement of Work resulting from fire or other cause during construction; or .11 Assistance to the Initial Decision Maker,if other than the Architect. §4.3.2 To avoid delay in the Construction Phase,the Architect shall provide the following Additional Services, notify the Owner with reasonable promptness,and explain the facts and circumstances giving rise to the need.If the Owner subsequently determines that all or parts of those services are not required,the Owner shall give prompt written notice to the Architect,and the Owner shall have no further obligation to compensate the Architect for those services: 1 Reviewing a Contractor's submittal out of sequence from the submittal schedule agreed to by the Architect; .2 Responding to the Contractor's requests for information that are not prepared in accordance with the Contract Documents or where such information is available to the Contractor from a careful study AIA Document 8101 TM—2007 formerly 6151 TM-1997).Copyright®1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document Is protected by U.S.Copyright Law and International Trestles.Unauthorized reproduction or distribution of 1 01 this A10 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 1 1/0 512 00 8 under Order No.1000362467_1 which expires on 7/24/2009,and Is not for resale. ' User Notes: (3549898206) and comparison of the Contract Documents,field conditions,other Owner-provided information, Contractor-prepared coordination drawings,or prior Project correspondence or documentation; .3 Preparing Change Orders and Construction Change Directives that require evaluation of Contractor's proposals and supporting data,or the preparation or revision of Instruments of Service; .4 Evaluating an extensive number of Claims as the Initial Decision Maker; .5 Evaluating substitutions proposed by the Owner or Contractor and making subsequent revisions to Instruments of Service resulting therefrom;or .6 To the extent the Architect's Basic Services are affected,providing Construction Phase Services 60 days after(1)the date of Substantial Completion of the Work or(2)the anticipated date of Substantial Completion identified in Initial Information,whichever is earlier, §4.3.3 The Ar-ehiteet shall provide Genstmetion Phase SeFyiees exeeeding the hwAts set for-th below as Additional Ser-yiee.. When the limits below a ne6.eA the_A.-ehire..t shall notify the Owner--. Centfaetor- .4 ( )irnspeettiee"s fef any pellien of the W04 to(lowmincfinal eerHsc*ti9H §4.3.4 If the services covered by this Agreement have not been completed within Thir ( 30 )months of the date of this Agreement,through no fault of the Architect,extension of the Architect's services beyond that time shall be compensated as Additional Services. ARTICLE 5 OWNER'S RESPONSIBILITIES §5.1 Unless otherwise provided for under this Agreement,the Owner shall provide information in a timely manner regarding requirements for and limitations on the Project,including a written program which shall set forth the Owner's objectives,schedule,constraints and criteria,including space requirements and relationships,flexibility, expandability,special equipment,systems and site requirements. evaluate,give netiee of or-eaf-efee lien rights.- §5.2 The Owner shall establish and periodically update the Owner's budget for the Project,including(1)the budget for the Cost of the Work as defined in Section 6.1;(2)the Owner's other costs;and,(3)reasonable contingencies related to all of these costs.If the Owner significantly increases or decreases the Owner's budget for the Cost of the Work, the Owner shall notify the Architect.The Owner and the Architect shall thereafter agree to a corresponding change in the Project's scope and quality. §5.3 The Owner shall identify a representative authorized to act on the Owner's behalf with respect to the Project. The Owner shall render decisions and approve the Architect's submittals in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. §5.4 The Owner shall furnish surveys to describe physical characteristics,legal limitations and utility locations for the site of the Project,and a written legal description of the site.The surveys and legal information shall include,as applicable,grades and lines of streets,alleys,pavements and adjoining property and structures;designated wetlands; adjacent drainage;rights-of-way,restrictions,easements,encroachments,zoning,deed restrictions,boundaries and contours of the site;locations,dimensions and necessary data with respect to existing buildings,other improvements and trees;and information concerning available utility services and lines,both public and private,above and below grade,including inverts and depths.depths where known.All the information on the survey shall be referenced to a Project benchmark. § 5.5 The Owner shall furnish services of geotechnical engineers,which may include but are not limited to test borings,test pits,determinations of soil bearing values,percolation tests,evaluations of hazardous materials,seismic evaluation,ground corrosion tests and resistivity tests,including necessary operations for anticipating subsoil conditions,with written reports and appropriate recommendations. AIA Document 8101 TM—2007 formerly 6151 Tu—1997).Copyright @ 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA�Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 11 this AIAe Document,or any portion of It,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.Thls document was produced by AIA software at 08:51:17 on I V05/2008 under Order No.1000362467_1 which expires on 7/2412009,and is not for resale. User Notes: (3549998206) §5.6 The Owner shall coordinate the services of its own consultants with those services provided by the Architect. Upon the Architect's request,the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner's consultants.The Owner shall furnish the services of consultants other than those designated in this Agreement,or authorize the Architect to furnish them as an Additional Service,when the Architect requests such services and demonstrates that they are reasonably required by the scope of the Wejeet-Project and approved by the Owner.The Owner shall require that its consultants maintain professional liability insurance as appropriate to the services provided. §5.7 The Owner shall furnish tests,inspections and reports required by law or the Contract Documents,such as structural,mechanical,and chemical tests,tests for air and water pollution,and tests for hazardous materials. §5.8 The Owner shall furnish all legal,insurance and accounting services,including auditing services,that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. §5.9 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project,including errors,omissions or inconsistencies in the Architect's Instruments of Service. §5.10 Except as otherwise provided in this Agreement,or when direct communications have been specially authorized,the Owner shall endeavor to communicate with the Contractor and the Architect's consultants through the Architect about matters arising out of or relating to the Contract Documents.The Owner shall promptly notify the Architect of any direct communications that may affect the Architect's services. §5.11 Before executing the Contract for Construction,the Owner shall coordinate the Architect's duties and responsibilities set forth in the Contract for Construction with the Architect's services set forth in this Agreement. The Owner shall provide the Architect a copy of the executed agreement between the Owner and Contractor, including the General Conditions of the Contract for Construction. §5.12 The Owner shall provide the Architect access to the Project site prior to commencement of the Work and shall obligate the Contractor to provide the Architect access to the Work wherever it is in preparation or progress. ARTICLE 6 COST OF THE WORK §6.1 For purposes of this Agreement,the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed or specified by the Architect and shall include contractors' general conditions costs, overhead and profit.The Cost of the Work does not include the compensation of the Architect,the costs of the land, rights-of-way,financing,contingencies for changes in the Work or other costs that are the responsibility of the Owner. §6.2 The Owner's budget for the Cost of the Work is provided in Initial Information,and may be adjusted throughout the Project as required under Sections 5.2,6.4 and 6.5.Evaluations of the Owner's budget for the Cost of the Work,the preliminary estimate of the Cost of the Work and updated estimates of the Cost of the Work prepared by the Architect,represent the Architect's judgment as a design professional.It is recognized,however,that neither the Architect nor the Owner has control over the cost of labor,materials or equipment;the Contractor's methods of determining bid prices;or competitive bidding,market or negotiating conditions.Accordingly,the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's budget for the Cost of the Work or from any estimate of the Cost of the Work or evaluation prepared or agreed to by the Architect. §6.3 In preparing estimates of the Cost of Work,the Architect shall be permitted to include contingencies for ' design,bidding and price escalation;to determine what materials,equipment,component systems and types of construction are to be included in the Contract Documents;to make reasonable adjustments in the program and scope of the Project;and to include in the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the Owner's budget for the Cost of the Work.The Architect's estimate of the Cost of the Work shall be based on current area,volume or similar conceptual estimating techniques.If the Owner requests detailed cost estimating services,the Architect shall provide such services as an Additional Service under Article 4. §6.4 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner,through no fault of the Architect,the Owner's budget for the Cost of the AIA Document 8101M—2007 formerly B1517"—1997).Copyright 0 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 1 this AIA"Document,or any portion of It,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the taw.This document was produced by AIA software at 09:58:17 on 11105/2008 under Order No.1000362467_i which expires on 7/24/2009,and Is not for resale. , User Notes: (3549998206) Work shall be adjusted to reflect changes in the general level of prices in the applicable construction market.indusgy,if any, §6.5 If at any time the Architect's estimate of the Cost of the Work exceeds the Owner's budget for the Cost of the Work,the Architect shall make appropriate recommendations to the Owner to adjust the Project's size,quality or budget for the Cost of the Work,and the Owner shall cooperate with the Architect in making such adjustments. §6.6 If the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services is exceeded by the lowest bona fide bid or negotiated proposal,the Owner shall .1 give written approval of an increase in the budget for the Cost of the Work; .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Section 9.5; .4 in consultation with the Architect,revise the Project program,scope,or quality as required to reduce the Cost of the Work;or .5 implement any other mutually acceptable alternative. §6.7 If the Owner chooses to proceed under Section 6.6.4,the Architect,without additional compensation,shall modify the Construction Documents as necessary to comply with the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services,or the budget as adjusted under Section 6.6.1.The Architect's modification of the Construction Documents shall be the limit of the Architect's responsibility under this Article 6. ARTICLE 7 COPYRIGHTS AND LICENSES §7.1 The Architect and the Owner warrant that in transmitting Instruments of Service,or any other information,the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project.If the Owner and Architect intend to transmit Instruments of Service or any other information or documentation in digital form,they shall endeavor to establish necessary protocols governing such transmissions. §7.2AmWteet's eensultants shall be deemed the authors emd evmem of their mspoetive ,. tatutery and other-r-eserved rights,inaluding eepyr-ights.Submission or-distribution of lastfuments ef.Sefviee to meet offlaial Drawings_specifications and other documents,including those in electronic form,prepared by the Architect and the Architect's consultants ate Instruments of Service for use with respect to this Project. Orignal documents, drawings,designs,reports,or any other records developed or created under this Agreement shall belongto o and become the proner!y of the Owner. All records submitted by the Owner to the Architect will be safeguarded by the Architect. Architect shall make such data,documents,and files available to the Owner upon the Owner's request. The Owner's use or reuse of any of the documents,data,and files created by Architect for this project by anyone other than Architect on any otherproiect shall be without liability or legal exposure to Architect. Architect further acknowledges that Owner is a public agency,subject to the public disclosure laws of the State of Washington Should a public records request be received requesting a copy of the Architect's Instruments of Service,Owner must make these records available to that reguestingparty ARTICLE 8 CLAIMS AND DISPUTES Ar-ehiteet's fnsWments of SerMee solely and exelusively foF purposes of eanstfued",using,mitintaining,altering and adding to the Pfejeet,provided that the Ownef substantially per-for-ma its obligations,ineluding prempt paym of all sums whm due,undef this AgFeement.The Arehiteet shaI4 ehWn sifWlar-fione*elasive fieenses from the 1 ,and matefial of equipment supplier-s,as well as the this AgFeemem feF eause as provided in Seefien 9.4,the liesase granted in this Seefien 7.3 shall tefrpAna AIA Document 6101 T"—2007 formerly Bi 61 TM-1997).Copyright 01974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 13 this AIA"Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467 1 which expires on 7/24/2009,and Is not for resale. User Notes: (3549998206) §7.3.1 In the event the Gwiter uses the Instmments of Ser-v4ee without r-otaining the author of the inswuments e fmm sueh uses.The Ovmer-,te the wiitent peFfrAtted by law,ftmthef agrees te indeffinify and held haEfl-Aess the of aetion asserted by any th4d per-son or-entivy to the extent sueh eosts and expenses arise ffom the Owner-'s use a §7.4 Emeept for-the heenses granted in this Ar-tiele 7,lie other lieense or-fight shall be deemed gfanted or-implied undeF this Agr-eement.The Owner shall Flet assign,delegate,sublieense,pledge or other-wise tranafff afty lieense ARTIPI C 8 CLAIMS AND DISPUTES §8.1 GENERAL §8.1.1 The Owner and Architect shall commence all claims and causes of action,whether in contract,tort,or otherwise, against the other arising out of or related to this Agreement in accordance with the requirements of the method of binding dispute resolution selected in this Agreement within the period specified by applicable law,but in any case not more than 1019years after the date of Substantial Completion of the Work.The Owner and Architect waive all claims and causes of action not commenced in accordance with this Section 9.1.1. §8.1.2 To the eoeat damages are eaeh ethef and against the ' , AgMs as they may have to the prueeeds of suah insuFmee as set for-th in AIA Deetiment A201 .2007,General Conditions ef the Centraef for Construetion.The Owner-or the Ar-ehiteet,as appmpr-iate,shall require ef 6011tFa6tOM,eansultants,agents and employees of aay of them siwAlaf waivers in ftwer-of tho athef paf enumer-aled herein. . . 3 The Ar-ehiteet and Ovmef waive eensequential damages fef e4aims,disputes of ether.fnatter-s in questien aFising eut of er-r-elating to this Agreement.This nuitual waivw is applieable,without litnitation,to a4l roonsequential. §8.2 M€DIATlONDISPUTE RESOLUTION , §8.2.1 Afty e1ahn, the lien notiee or filing deadlines Oer-to roselution of the fnauer-by mediation or by b4iding dispute r-eselutieff. Should any dispute,misunderstanding,or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the Owner,and the Owner shall determine the term or provision's true intent or meaning. The Owner shall also decide all questions which may arise between the parties relative to the actual services provided or to the sufficiency of the performance hereunder. If the parties are unable to settle any dispute, difference,or claim arising from the parties' performance of this Agreement,the exclusive means of resolving that dispute,difference,or claim,shall only be filing suit exclusively under the venue,rules,and jurisdiction of the King County Superior Court,at the Regional Justice Center located in King County,Washington,unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement,each sty shall pay all its legal costs and attorneys fees incurred in defendant or bringing such claim or lawsuit,in addition to any other recovery or award provided by law;provided,however, nothingin n this paragraph shall be construed to limit the Owner's right to indemnification under Section 10.11 of this Agreement. ARTICLE 9 TERMINATION OR SUSPENSION §8.2.2 The Ownef and Mehiteet shail endeaver to reselve elaims,disputes and other mattefs in question between AIA Document B101 Ts—2007 formerly 6151 TM—1997).Copyright®1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 14 this AIA" Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible i under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467_l which expires on 7/2412009,and Is not for resale. User Notes: (3549998206) filed m4th the pemen er-entity ftdaiWster-ing the mediation.The Faquest my be made eeneamady with the filing of a eomplaint or-other appropriate demand for-binding dispute r-asoluden but,in sueh e3vent,med-iat-ioff 8111-11-1 PFeeeed in a&anee of binding dispute fasolution pr-eeeedings,wWeb shaU be stayed pending Mediation for-a period of 60 days fr-efn the date of filing,affless stayed lof a jongef peried by agr-eefnefit of the parties er-aeur4 or-def.if an ar-bitr-atio pr-eeeediag is stayed pursuant to"s seetion,the par-ties may nonetheless pr-eeeed to the seleation of the ar-bilfater-(s) §8.2.3 The p"es shaR Am the mediator's fee and my filing fees equally.The mediation AaH be held in the p! whefe the Pr-ojeet is leeated,unless another-leeatien is ffmituaRy agfeed open.Agfeements r-seeked in mediation shall §8.2.4 if the paFfies do not resolve a dispute thFough Mediation Pursuant to this seetio"8.2,the method of binding the Agreetnent.A fequest for-fnediaden shall be mde in writing,de4ivered to"othef party to the Agreement,and —Arbitfatieft gurst ant ta.SeeE;on 8.3 of•'ma's Agreement Litigatieftinaeourtefeeflipetefttjtmisdietion r (Specify) §8.3.1 if the par-ties have seleeted fir-bit-ratiefi as the method for binding dispute r-esolation in this Agreement-,any elaim,dispute 9F other-matter-iii questieft aFising out of or-related to this AgFeemant s*eet to,but not resolved by; mediation shalt be subjeet to ar-bitFation whieh,unless the parties mutually agFee ethefwise,shall be adffgaister-ed-by date of tMs Agreement.A demand tof afbiwation s1mg be made in wfiting,delivered to the odw party to"s Ageement,and filed with the per-son of entity adwAnistefifig the arbit+afiou. §9.3.1.1 A demand feF afbitmfion shafl be fmade no eaffier-than eoneuffeady YAth"filing of a request for- fnediation,but in no event shall it be made aftef the date whefi the iftstkuden of legal of equitaMe proeeedings based on the elaiin,dispute er eflier-inaaw in question would be bamd by the appheable stawte of HatitWons.For-sta of 4mitieitieaa purposes,meeipt of a wr4mm dememd for-afbitwien by d4o per-son oF entity adff&dsteiring Ie wation shal!roonsfittite the institution of legal of equitable pr-eeeedings based on the 018iffl, dispute or-e duty eensented to by par-ties to(Ws Agreement shall be speeifieally eftferveable in weer-dimee%ith -fieah-le la.in 8.3.4.1 EitheF pafty, at its sale diseretion,atay eonsolidate an afbitmfion eondeeted under-616ja Agreement with any other-arbitFation to whieh it is a pofty provided that(1)the afbitfation agreement govefaing the other-afbitration and(3)the arbilimfions employ materially similair pr-oeedtwal rules and methods for-soleefing"itFator(s-)-. . . , AIA Document 8101 Tu—2007 formerly 8151 Tu-1997).Copyright 0 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 15 this AIO Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467 1 which expires on 7/2412009,and Is not for resale. User Notes: (3549998206) additional per-son or-entity shall not eenstittite 0ORSOfit tO aTNI]IF116011 Of afly Glaiffi,di8plite OF Othef ffiattff ift qUeS68" §8.3.4.3 The Owner-and Affhkeet grant te afty pefsen eT-entity made a paAy te an arybitfatien eendueted undef di At-ehiteet under-this Agfeemew. ADTIr' C-g TERMINATION OR SUSPENSION §9.1 If the Owner fails to make payments to the Architect in accordance with this Agreement,such failure shall be considered substantial nonperformance and cause for termination or,at the Architect's option,cause for suspension of performance of services under this Agreement.If the Architect elects to suspend services,the Architect shall give seven days'prior written notice to the Owner before suspending services.In the event of a suspension of services, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services.Before resuming services,the Architect shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the Architect's serviiees-services,excluding termination expenses deleted in Section 9.7.The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. §9.2 If the Owner suspends the Project,the Architect shall be compensated for services performed prior to notice of such suspension.When the Project is resumed,the Architect shall be compensated for expenses incurred in the interruption and resumption of the Architect's serwiees-services,excluding termination expenses deleted in Section 9.7.The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. §9.3 If the Owner suspends the Project for more than 90 cumulative days for reasons other than the fault of the Architect,the Architect may terminate this Agreement by giving not less than seven days' prior written notice. §9.4 Either party may terminate this Agreement upon not less than seven days' prior written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. §9.5 The Owner may terminate this Agreement upon not less than seven days'pyLor written notice to the Architect for the Owner's convenience and without cause. §9.6 In the event of termination not the fault of the Architect,the Architect shall be compensated for services performed prior to termination,together with Reimbursable Expenses then defined in Se t: 9.4.due. §9.8 The Owner's rights to use the Architect's Instruments of Service in the event of a termination of this Agreement are set forth in Article 7 and Section 11,9. ARTICLE 10 MISCELLANEOUS PROVISIONS §10.1 This Agreement shall be governed by the law of the plitee..hffe the PT-9je t is 1eeated axeept that:f the par-fies have seleeted arbitFation as the method of binding dispute reseltifien, the FederM Arbitfation Aet shag govem Seefien :and construed in accordance with the laws of the State of Washington. §10.2 Terms in this Agreement shall have the same meaning as those in AIA Document A201-2007,General Conditions of the Contract for Construction. §10.3 The Owner and Architect,respectively,bind themselves,their agents,successors, assigns and legal representatives to this Agreement.Neither the Owner nor the Architect shall assign this Agreement without the written consent of the , Owner'sthe Projeet if the lender-agrees to assufne the ther. AIA Document 8101 Tu—2007 formerly t3161 TM-1997).Copyright @ 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA" Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible 161 1 under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467_i which expires on 7/24/2009,and Is not for resale. User Notes: (3549998206) §10.4 If the Owner-requests the A.-ehiteet to&xeeute reer-tifieates,the proposed language of such eer-tifieates shall be submitted to the Ar-ehiteet for-rwkew a4 least 14 days prior-to the requested dates of e*eeutiem If the OW41of feque a4l sueh eensents that are eensistent with this Agreement,pf;avided the prepesed eonsent is submAtted to the Ar-ehiteet for-feview at least 14 days prior-to exaeuden.The Ar-ohiteet shall net be required te exiaeute cer-tifleates or- eensents that wauld faquire kmawlodge, set- beyond the seepe of this Agreement.. §10.5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect. §10.6 Unless otherwise required in this Agreement,the Architect shall have no responsibility for the discovery, presence,handling,removal or disposal of,or exposure of persons to,hazardous materials or toxic substances in any form at the Project site. §10.7 The Architect shall have the right to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials.The Architect shall be given reasonable access to the completed Project to make such representations.However,the Architect's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Architect in writing of the specific information considered by the Owner to be confidential or proprietary.The Owner shall provide professional credit for the Architect in the Owner's promotional materials for the Project. 10.8 This Agreement and any reference documents or exhibits represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations,representations or agreements,either written or oral.All of the documents referenced and incorporated herein are made a part of this Agreement. However,should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement,the terms of this Agreement shall prevail.This Agreement may be amended only by written instrument signed by both Owner and Architect. §10.9 The parties intend that an Independent Contractor-Employer Relationship be created by this Agreement and that the Architect has the ability to control and direct the performance and details of its work,the Owner being interested only in the results obtained under this Agreement. §10.10 In the hiringof f employees for the performance of work under this Agreement or any subcontract,the Architect or any person acting on behalf of the Architect shall not,by reason of race,religion,color,sex, age,sexual orientation,national origin,or the presence of any sensory,mental,or physical disability,discriminate against any person who is qualified and available to perform the work to which the employment relates. Architect shall execute the attached City of Kent Equal Opportunity Policy Declaration(Exhibit E),Comply with City Administration Policy 1.2.and upon completion of the contract work,file the attached Compliance Statement(Exhibit F). §10.11 Architect shall indemnify,and hold the Owner,its officers,officials,employees,agents,and volunteers harmless from any and all claims,injuries,damages,losses or suits,including all legal costs and attorney fees, arising out of or in connection with the Architect's negligent performance of this Agreement,except for that portion of the injuries and damages caused by the Owner's negligence. The Owner's inspection or acceptance of any of Architect's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115.then,in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Architect and the Owner,its officers,officials,employees,agents,and volunteers.the Architect's liability hereunder shall be only to the extent of the Architect's negli eg_nce. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE ARCHITECT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE,TITLE 51 RCW,SOLELY FOR THE PURPOSES OF THIS INDEMNIRACTION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. AIA Document 6101 TM—2007(rformerly B151 TM-1997).Copyright 01974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights (lilt. reserved.WARNING:This AIA tO Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 17 this AIA"Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467 1 which expires on 7/24/2009,and is not for resale. User Notes: (3549998206) I §10.12 The failure of the Owner to insist upon strict performance of any of the covenants and agreements contained in this Agreement or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants,agreements,or options,and the same shall be and remain in full force and effect. to 10.13 All communications regardingthis his Agreement shall be sent to the parries at the addresses listed on the cover passe of the Agreement,unless notified to the contrary. Any written notice hereunder shall become effective three (3)business days after the date of mailing by registered or certified mail,and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writin ARTICLE 11 COMPENSATION , "the rveeiviftg par-�y shall keep sueh infematieft stfietly eenfidenfivA and shall not diselese it ARTIC R 11 CM AI ADCQATIAN §11.1 For the Architect's Basic Services described under Article 3,the Owner shall compensate the Architect as follows: (Insert amount of, or basis for, compensation.) Six Hundred Sixty Nine Thousand,Two Hundred Twenty Seven Dollars($669,227.00) §11.2 For Additional Services designated in Section 4.1,the Owner shall compensate the Architect as follows: (Insert amount of, or basis for, compensation.If necessary, list specific services to which particular methods of compensation apply.) Hourly as indicated in Exhibit B or as agreed upon by both parties. No additional services shall be provided without written authorization from the Owner. Architect's hourly or flat rage charged by it for its services contracted for herein shall remain locked at the negotiated rate(s)for 2009. §11.3 For Additional Services that may arise during the course of the Project,including those under Section 4.3,the Owner shall compensate the Architect as follows: (Insert amount of, or basis for, compensation.) Hourly as indicated in Exhibit B or as agreed upon by both parties. No additional services shall be provided without written authorization from the Owner. Architect's hourly or flat rage charged by it for its services contracted for herein shall remain locked at the negotiated rate(s)for 2009. §11.4 Compensation for Additional Services of the Architect's consultants when not included in Section 11.2 or 11.3,shall be the amount invoiced to the Architect plus One point one ( 1.10 ),or as otherwise stated below: Hourly as indicated in Exhibit B or as a eed upon by both parties. No additional services shall be provided without written authorization from the Owner. Consultants'hourly or flat rage charged by it for its services contracted for herein shall remain locked at the negotiated rate(s)for 2009. §11.5 Where compensation for Basic Services is based on a stipulated sum or percentage of the Cost of the Work, the compensation for each phase of services shall be as follows: Schematic Design Phase percent ( %) Design Development Phase Twenty Four percent ( 24 %) Construction Documents Forty Five percent ( 45 %) AIA Document B101 TM—2007 formerly B151 TM—1997).Copyright 01974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 18 this AIAO Document,or any portion of It,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467_1 which expires on 7/24/2009,and Is not for resale. User Notes: (3549998206) Phase Bidding or Negotiation Phase Eight percent ( 8 %) 1 Construction Phase Twenty Three percent ( 23 %) Total Basic Compensation one hundred percent ( 100 %) §11.6 When compensation is based on a percentage of the Cost of the Work and any portions of the Project are deleted or otherwise not constructed,compensation for those portions of the Project shall be payable to the extent services are performed on those portions,in accordance with the schedule set forth in Section 11.5 based on(1)the lowest bona fide bid or negotiated proposal,or(2)if no such bid or proposal is received,the most recent estimate of the Cost of the Work for such portions of the Project.The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. §11.7 The hourly billing rates for services of the Architect and the Architect's consultants,if any,are set forth below.The rates shall be adjusted in accordance with the Architect's and Architect's consultants'normal review practices. (If applicable,attach an exhibit of hourly billing rates or insert thern below.) Hourly billing`ates are as indicated in Exhibit B or as agreed upon by both parties. No additional services shall be provided without written authorization from the Owner. Architect's and Consultant's hourly or flat rage charged by it for its services contracted for herein shall remain locked at the negotiated rate(s)for 2009. Employee or Category Rate §1 SA 1.8 COMPENSATION FOR REIMBURSABLE EXPENSES §11.8.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and the Architect's consultants directly related to the Project,as follows: 1 Transportation and authorized out-of-town travel and subsistence- sites,ead ;subsistence if greater than 100 miles round trip from the project site and only if approved by the Owner in advance; .3 Fees paid for securing approval of authorities having jurisdiction over the Project; .4 Printing,reproductions,plots,standard form documents; .5 Postage,handling and delivery; ' .6 E*Pense of eveffifne work I-equir4ng higher-than mgulaF rates,if auther4zed in adwmee by the .7 Renderings,models,mock-ups,professional photography,and presentation materials requested by the Owner; Projeet,of the expense of additional insur-aHeo eever-age ef limits if the QwFier-requests sueh .9 All taxes levied on professional services and on reimbursable expenses; .19 Site omee e"enses-and .11 Other similar Project-related expenditures. §11.8.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Architect and the Architect's consultants plus One point one ( 1.10 )of the expenses incurred. §11.9 COMPENSATION FOR USE OF ARCHITECT'S INSTRUMENTS OF SERVICE If dhe Owner terminates the Arehiteet for its eenvenienee under-Seetion 9.5,or-the Ar-ehiteet tafminates this follows! AIA Document 8101 TM—2007 formerly 8151 n"—1997).Copyright @ 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 19 this AIAe Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible l under the law.This document was produced by AIA software at 09:58:17 on 11/0,12,08 under Order No.1000362467 1 which expires on 7/24/21,09,and Is not for resale. User Notes: (3549998206) §11.10 PAYMENTS TO THE ARCHITECT §11.10.1 An initial payment of Zero ($ 0_)shall be made upon execution of this Agreement and is the minimum payment under this Agreement.It shall be credited to the Owner's account in the final invoice. §11.10.2 Unless otherwise agreed,payments for services shall be made monthly in proportion to services performed. Payments are due and payable upon presentation of the Architect's invoice.Amounts unpaid Sixty ( 60 ) days after the invoice date shall bear interest at the rate entered below,or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. (Insert rate of monthly or annual interest agreed upon.) 12% per annum §11.10.3 The Owner shall not withhold amounts from the Architect's compensation to impose a penalty or liquidated damages on the Architect,or to offset sums requested by or paid to contractors for the cost of changes in the Work unless the Architect agrees or has been found liable for the amounts in a binding dispute resolution proceeding. §11.10.4 Records of Reimbursable Expenses,expenses pertaining to Additional Services,and services performed on the basis of hourly rates shall be available to the Owner at mutually convenient times. ARTICLE 12 SPECIAL TERMS AND CONDITIONS Special terms and conditions that modify this Agreement are as follows: ARTICLE 13 SCOPE OF THE AGREEMENT §13.1 This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations,representations or agreements,either written or oral,This Agreement may be amended only by written instrument signed by both Owner and Architect. §13.2 This Agreement is comprised of the following documents listed below: .1 AIA Document B lO1TM--2007,Standard Form Agreement Between Owner and Architect •2 .3 Other documents: (List other documents, if any, including Exhibit A,Initial Information,and additional scopes of service, if a,forming part of the Agreement.) Exhibit A.Initial Information Exhibit B.Hourly Billing Rates Exhibit C. City of Kent Administrative Policy Exhibit D.City of Kent Equal Employment Opportunity Compliance Statement Exhibit E.Insurance Requirements for Consultant Services Agreements Exhibit F,List of Owner's Consultants for Coordination This Agreement entered into as of the day and year first written above. OWNER City of Kent C //IT CT David A./Clark hitects PLLC L 'v67,G (Signature) ( ignature) Suzette Cooke.Mayor David A.Clark,Operating Member (Printed name and title) (Printed name and title) AIA Document 8101 TN—2007 formerly 0151 TM—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA�Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 2 this AIAa Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Order No.1000362467_1 which expires on 7/24/2009,and Is not for resale. User Notes: (3549998206) t Certification of Documents Authenticity AIA®Document D401 TM — 2003 I,David A.Clark, hereby certify,to the best of my knowledge,information and belief,that I created the attached final document simultaneously with this certification at 09:58:17 on 11/05/2008 under Order No. 1000362467_1 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA®Document B 101TM—2007-Standard Form of Agreement Between Owner and Architect,as published by the AIA in its software,other than changes shown in the attached final document by underscoring added text and striking over deleted text, (Sign id) (Title) �( v �J (Dated AIA Document D401lu—2003.Copyright'O IM end 2003 by The American Instltute of Architects.All rights resented.WARNING:This AIAA Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA®Document,or any portion of It, 1 may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 09:58:17 on 11/05/2008 under Omer No.1000382487_1 which expires on 7/24/2009,and Is not for resale. User Notes: (3549998206) �I A,ra Document B101 — 2007 Exhibit A Initial Information for the following PROJECT: (Name and location or address) Kent District Court Addition&Renovation, 1210 South Central,Kent,WA 98032. The project consists of the addition of 3 courtrooms,office space and general renovation of existing office space and lobby areas as shown on the preliminary plans dated 5/22/08 and a new 71 car parking lot. This document has important legal consequences. THE OWNER: Consultation with an attorney (Name and address) is encouraged with respect to Its comptetfon or modification. City of Kent 220 Fourth Avenue South Kent,WA 98032 THE ARCHITECT: (Name and address) David A.Clark Architects,PLLC 33017 134`I'Ave SE Auburn,WA 98092-8519 This Agreement is based on the following information. (Note the disposition for the following items by inserting the requested information or a statement such as "not applicable,""unknown at time of execution"or"to be determined later by mutual agreement.") ARTICLE A.1 PROJECT INFORMATION §AAA The Owner's program for the Project: (Identify documentation or state the manner in which the program will be developed.) Project Scope: Project scope and preliminary design shall be as indicated in the drawing titled"Attachment Al—preliminary approved design,30percent development stage 5/22/08"in the Owner's lease with the County, attached as"Exhibit B":and a new 71 car parking lot. §A.1.2 The Project's physical characteristics: (Identify or describe, if appropriate, size, location,dimensions, or other pertinent information,such as geotechnical reports,site, boundary and topographic surveys,traffic and utility studies;availability of public and private utilities and services,legal description of the site;etc.) Project location: 1210 South Central,Kent WA AIA Document B101 Tm—2007 Exhibit A.Copyright 01974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights reserved. Init. WARNING:This AIA' Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° 1 Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 09:59:57 on 11/05/2008 under Order No.1000362467_1 which expires on 7/24/2009,and is not for resale. User Notes: (4057285555) §A.1.3 The Owner's budget for the Cost of the Work,as defined in Section 6.1: (Provide total,and if known, a line item break down.) Project Budget: The construction budget is$5,302,367.00,As indicated in"Statement of Probable Costs at preliminary design stage"dated 7/23/08,attached as"Exhibit C". §A.1.4 The Owners other anticipated scheduling information,if any,not provided in Section 1.2: Project Schedule: Commencement Date is the date of the lease signing with the County. Commencement date plus six (6)months: 100%drawings Commencement date plus eleven(11)months,begin construction Commencement date plus twenty-two(22)months:substantial completion. §A.1.5 The Owner intends the following procurement or delivery method for the Project: (Identify method such as competitive bid,negotiated contract,or construction management.) Design Bid Build in accordance with state bidding laws. §A.1.6 Other Project information: (Identify special characteristics or needs of the Project not provided elsewhere, such as environmentally responsible design or historic preservation requirements.) ARTICLE A.2 PROJECT TEAM §A.2.1 The Owner identifies the following representative in accordance with Section 53: (List name, address and other information.) City of Kent Facilities department designated project manager. §A.2.2 The persons or entities,in addition to the Owner's representative,who are required to review the Architect's submittals to the Owner are as follows: (List name, address and other information.) City of Kent Facilities department designated project manager. §A.2.3 The Owner will retain the following consultants and contractors: (List discipline and, if known, identify them by name and address.) Soils Engineer,Surveyor,Traffic,Commissioning,Survey of existing HVAC Systems. §A.2.4 The Architect identifies the following representative in accordance with Section 23: (List name,address and other information.) David A.Clark AIA 33017 134"Ave SE Auburn WA 98092-8519 253 351-8877 office 253 332-8877 cell 253 804-6566 fax dclark(hchirkarchitects corn §A.2.5 The Architect will retain the consultants identified in Sections A.2.5.1 and A.2.5.2. (List discipline and, if known, identify them by name and address.) AIA Document B101 TM—20D7 Exhibit A.Copyright 01974,1978,1987,1997 and 2007 by The American Institute of Architects.AN rights reserved. Init. WARNING:This Al a Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° 2 Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 09:59:57 on 11/05/2008 under Order No.1000362467_1 which expires on 7/2412009,and Is not for resale. User Notes: (4057285555) i§A.2.5.1 Consultants retained under Basis Services: .1 Structural Engineer MLA Engineering,PLLC .2 Mechanical Engineer CeGG Engineering.Inc. .3 Electrical Engineer AWA Electrical Consultants.Inc §A.2.5.2 Consultants retained under Additional Services: §A.2.6 Other Initial Information on which the Agreement is based: (Provide other Initial Information.) AIA Document B101 tM—2007 Exhibit A.Copyright @ 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights reserved. Init. WARNING:This AIA® Document is protected by U.S.Copyright Law and international Treaties.Unauthorized reproduction or distribution of this Ale Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 09:59:57 on 11/05/2008 under Order No.1000362467 1 which expires on 7/24/2009,and Is not for resale. User Notes: (4057285555) Exhibit B City Of Kent District Court Expansion Prepared 15-Sep-08 Hourly Rates 2008-09 2010 David A. Clark Architects,PLLC Principal $ 173.81 $ 181.63 Architect $ 115.54 $ 120.74 Designer/Drafting $ 105.73 $ 110.49 Clerical $ 57.94 $ 60.54 MLA Consulting Engineers Principal $ 131.00 $ 137.55 Project Engineer $ 108.00 $ 113.40 Engineer $ 95.00 $ 99.75 CAD Drafting $ 78.00 $ 81.90 Clerical $ 54.00 $ 56.70 Intern $ 52.00 $ 54.60 CeGG Engineering Project Engineer $ 115.00 $ 120.75 CAD Drafting $ 75.00 $ 78.75 AWA Electrical Consultants,Inc. Senior Engineer $ 130.00 $ 136.50 Design Engineer $ 115.00 $ 120.75 Data/Low Voltage Designer $ 130.00 $ 136.50 AutoCAD drafting $ 80.00 $ 84.00 Clerical $ 60.00 $ 63.00 Sound Consultants LLC Principal $ 110.00 $ 115.50 Civil Engineer/CAD Drafter $ 100.00 $ 105.00 GM2 Systems Principal $ 175.00 $ 183.75 CAD Drafting $ 105.00 $ 110.25 Alexa Milton Interior Design Principal $ 95.75 $ 100.54 CAD Drafting $ 75.00 $ 78.75 Clerical $ 55.00 $ 57.75 David A. Clark Architects,PLLC Exhibit B Hourly Rates 091508 Printed 911512008, 4:07 PM i Exhibit C CITY OF KENT ADMINISTRATIVE POLICY f NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 f f SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Suzette Cooke,Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City s nondiscrimination and f equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City's equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws,policies and guidelines. f f f EEO COMPLIANCE DOCUMENTS- I DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City's sole determination regarding suspension or termination for all or part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin,age,or the presence of all sensory,mental or physical disability. 3. Duringthe time of this Agreement the rime contractor will provide a written statement to all new �' p employees and subcontractors indicating commitment as an equal opportunity employer. 4. Duringthe time of the Agreement I,the rime contractor,will actively consider hiring and promotion of g p Y women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed b me, the Prime p g � Y Contractor,that the Prime Contractor complied with the requirements as set forth above. By signing below,I agree to fulfill the five requirements referenced above. Dated this day of , 2008 By: For: Title: Date: EEO COMPLIANCE DOCUMENTS-2 Exhibit D CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. I,the undersigned, a duly represented agent of David A. Clark Architects, PLLC Company, hereby acknowledge and declare that the before-mentioned company was the prime contractor for the Agreement known as Kent Courthouse Addition Project that was entered into on the (date, between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. Dated this day of 2008 By: For: Title: Date: EEO COMPLIANCE DOCUMENTS-3 EXHIBIT E INSURANCE REQUIREMENTS FOR CONSULTANT SERVICES AGREEMENTS Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor,their agents, representatives,employees or subcontractors. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned,non-owned,hired and leased vehicles. Coverage shall be written on Insurance Services Office(ISO)form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary,the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises,operations, independent contractors,products-completed operations,personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 1185. There shall be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion,collapse or underground property damage. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 1185 or a substitute endorsement providing equivalent coverage. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Professional Liability insurance appropriate to the Consultant's profession. B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than$1,000,000 each occurrence, $2,000,000 general aggregate and a$1,000,000 products-completed operations aggregate limit. EXHIBIT E (Continued ) 3. Professional Liability insurance shall be written with limits no less than$1,000,000 per claim and$1,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain,the following provisions for Automobile Liability and Commercial General Liability insurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party,except after thirty (30) days prior written notice by certified mail,return receipt requested,has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies(except Professional Liability)as respects work performed by or on behalf of the contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Contractor's Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M.Best rating of not less than ANII. E. Verification of Coverage g Contractor shall furnish the City with on*.inal certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. F. Subcontractors Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Contractor. Exhibit F Owner's Consultants The following is a list of the Owner's consultants as indicated in article 3.1.2: Soils Engineer: URS Corporation Martin McCabe, Project Manager 1501 Fourth Avenue, Suite 1400 Seattle, WA 98101-1616 (206)438-2700 Surveyor: CHS Engineers, LLC Bud Condrey, Project Manager 12507 Bel-Red Road, Suite 101 Bellevue, WA 98005-2500 (425) 637-3693 ACORD� CERTIFICATE OF LIABILITY INSURANCE 11/5i2o 8 PRODUCER (503)226-1422 FAX: (503)226-2488 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Keelson Partners ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 707 SW Washington, Suite 625 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, Portland OR 97205-3536 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURERA-Hartford Casualty Ins CO David A. Clark Architects, PLLC INSURERB 33017 134th Ave SE INSURER INSURER 0 Auburn WA 98092-8519 INSURERE. OVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES AGGREG,kTE LIMITS SHOWN MAY HAVE BEE q REDUCED BY PAID CLAIMS. INSR ADD'L TYPE OF INSURANCE POLICY NUMBER DATEYMMIDDITYIYVE PDATE MLICY M/DD EXPIRATION LIMITS GENERAL LIABILITY 1,000,000 EACHOCCURRENCE $ DAMAGE TO RENTED ncom MERCIAL GENERAL LIABILITY PR S Ea occurrence) $ A CLAIMS MADE �OCCUR 52SBALL5662 10/27/2008 10/27/2009 MEDEXP one person) $ PE SO D INJURY $ E LAGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ FX1 POLICY PRO LOC AUTOMOBILE LIABILITY 52SRALL5662 10/27/2008 10/27/2009 COMBINED SINGLE LIMIT ANY AUTO (Ea accident) $ 1,000,000 A ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) X HIREDAUTOS BODILY INJURY $ X NON-OWNEDAUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY, AGG $ EXCESS/UMBRELLA LIABILITY EACH CCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND STA U- O R EMPLOYERS'LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE$ If yes,describe under SPECIAL PROVISIONS below E.L.DISEASE-POLICY LIMIT $ OTHER DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLESIEXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Certificate Holder is added as an Additional Insured as their interests may appear subject to policy terms, conditions, & exclusions. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City of Kent EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL Facilities Department 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT Mike Hattrup FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE 220 Fourth Ave. S. Kent, WA 98032-5895 INSURER,ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Mike Coppedge/MIKEC �j h ACORD 25(2001/08) ©ACORD CORPORATION 1988 INS025(olo9).oea Page 1 of2 ACORD CERTIFICATE OF LIABILITY INSURANCE 11/5i2o 8' PRODUCER (503)226-1422 FAX: (503)226-2488 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Keelson Partners ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 707 SW Washington, Suite 625 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Portland OR 97205-3536 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURERA'St Paul Fire & Marine Ins David A. Clark Architects, PLLC INSURERB: 33017 134th Ave SE INSURER INSURER D Auburn WA 98092-8519 INSURERE OVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. R GATE LIMITS SHOWN MAY HAVE BEE 4 REDUCED BY PAID CLAIMS. INSR INSRM ADD'L TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE V DIYYE POLICY MWDD EXPIRATION LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED n e $ CLAIMS MADE MOCCUR MED EXP(Any one son $ ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS- $ POLICY PRO LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea acddeni) $ ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY NON-OWNED AUTOS (Per accident) $ PROPERTY DAMAGE $ (Per aCddenl) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY AGG $ EXCESSIUMBRELLA LIABILITY EACH 0 URRENCE $ OCCUR CLAIMS MADE AGGREGATE $ a DEDUCTIBLE $ RETENTION WORKERS COMPENSATION AND VUC TATU- OTH- EMPLOYERS'LIABILITY ANY PROPRIET081PARTNEPJEXECUTIVE E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE$ If yes,describe under SPECIAL PROVISIONS below E L DISEASE-POLICY LIMIT $ A OTHER Professional QP03810597 6/15/2008 6/15/2010 Each Occurrence $2,000,000 Liability Aggregate $2,000,000 DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS Project: Kent District Court Expansion CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City of Kent EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL Facilities Department 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT Mike Hattrup FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE 220 Fourth Ave. S. Kent, WA 98032-5895 INSURER,ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Mike Coppedge/MIKEC ACORD 25(2001/08) eACORD CORPORATION 1988 INS025(oiw)oea Page 1 of 2 POLICY NUMBER: 52SBALL5662 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE j Name of Person or Organization: City of Kent Project: Kent District Court Expansion Facilities Department 220 Fourth Ave. S. Kent, WA 98032-5895 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section ll) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of"your work"for that insured by or for you. CG 20 1011 86 Copyright, Insurance Services Office, Inc., 1984 Page 1 of 1 ❑ Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 63 1. SUBJECT: ORME (A/K/A) AVALON COURT FINAL PLAT (QUASI-JUDICIAL) - ACCEPT 2. SUMMARY STATEMENT: Approve the final plat mylar for Avalon Court and authorize the Mayor to sign the mylar. The Hearing Examiner recommended approval for Charter Homes, Inc. to subdivide approximately 5.67 acres into 26 single-family residential lots. The property is located at 25410 132nd Avenue SE. 3. EXHIBITS: Map and Memo with conditions 4. RECOMMENDED BY: Community Development and Public Works Dept. Staff (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? No Revenue? No Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: AVALON COURT wwl awe A PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 22, TOWNSHIP 22 NORTH, RANGE 5 EAST, WILLAMETTE MERIDIAN CITY OF KENT, KING COUNTY, WASHINGTON I I I I I I ---------- II % SE 253RD PLACE _1 �s r�,'��� lenii�'aa1 MA1 1 1 I I I 1 I ' 1 '" e I A Fr--------, 1 2 0 4 e e r e 0 10 n ---------- c W - S.E. 255TH ST. '"a`Tg ' I I I to I I 12 I I j ze zs u rr n m zo m >a I I 17 Z �41171 ,Trrin- VIYI LI11 ILV 1 Q I TRACT I 1 -- IO LIJ 1 aranNBCzman FJ 1 __--�_—_ N n 1pi n rT r-1� I Q_ I L'1 npr "REEK � �' I VIv� L.n 1 1 LV I JVIJC VIICCLCI� j I I VEIVIETI ER`I 6. 1 LOT e LOT I I 1 I 1 I I --• I �� � � xEa r�Mo�000s mOtxt I '� j I 1 I I °° - SE 256TH STREET 1 - - - - -- r— u, 1 d w - co N w`� 'E FSU-2006-3 KNA #RPP5-2082929 mexo.lna Barghausen Consulting Engineers, Inc. S 162 FigM1umLq,lad Ptonnhp,4 Wk FiMronmenid Swim 0 50 1OD 200 TaP1S 7Lu1 k,21) Saah KmiO eA OS251 (a 751-Bn2 FOR N75)241-0782 SCALE: 1• a 100' AVALON COURT SHEET 1 OF 1 COMMUNITY DEVELOPMENT Fred N. Satterstrom, AICP, Director • PLANNING SERVICES KENT Charlene Anderson, AICP, Manager WASH INOTON Phone: 253-856-5454 Fax: 253-856-6454 Address: 220 Fourth Avenue S. Kent, WA 98032-5895 December 8, 2008 TO: MAYOR SUZETTE COOKE, COUNCIL PRESIDENT DEBBIE RAPLEE AND CITY COUNCIL MEMBERS FROM: CHARLENE ANDERSON, AICP, PLANNING MANAGER THROUGH: MAYOR SUZETTE COOKE SUBJECT: ORME n/k/a AVALON COURT FINAL PLAT (#FSU-2006-3/KIVA #2082929) MOTION: Approve the final plat mylar for Orme n/k/a/ Avalon Court and authorize the Mayor to sign the mylar. SUMMARY: The Hearing Examiner recommended approval for Charter Homes, Inc. to subdivide approximately 5.67 acres into 26 single-family residential lots. The property is located at 25410 132nd Avenue SE. BUDGET IMPACT: None BACKGROUND: On October 9, 2006, the Kent Hearing Examiner issued Findings, Conclusions and a Decision granting approval of a preliminary plat, with 18 conditions. The applicant has complied with the conditions required prior to recording. S:\Permit\Plan\LONGPLATS\2008\2082929_PSU-2006-3.dac Enclosure: Conditions of approval Hearin Examiner PP - 9 ORME / AVALON COURT PLAT #SU-2006-3 (RPP3-2062013) Matt Gilbert, Planner ON OCTOBER 9, 2006, THE KENT HEARING EXAMINER APPROVED THE ORME SUBDIVSION WITH THE FOLLOWING CONDITIONS: A. PRIOR TO RECORDING THE PLAT FOR THIS SUBDIVISION: 1. The Owner / Subdivider shall pay all Charges in Lieu of Assessments and/or Latecomer Fees, if any, prior to scheduling the Pre-Construction Conference and/or prior to recording this plat, whichever comes first. 2. The Owner / Subdivider shall provide Public Works with a digital plat map prepared with a CAD program. The digital information can be formatted in either *.DWG (AutoCad) or *.DXF (Drawing Exchange File), but must be based upon State Plane coordinates: an assumed coordinate system is not aermitted. The State Plane Coordinates shall be on the NAD 83/91 datum and must relate to at least two City of Kent reference points within one half mile of the subdivision. In addition, the project shall be tied into at least two City of Kent NAD 88 vertical benchmarks and two additional permanent benchmarks shall be established within the project. The locations, descriptions and elevations of these benchmarks will be reported at the time as-built drawings are submitted along with field notes sufficient to verify the required precision. 3. The Owner / Subdivider shall measure a 25-foot buffer from the surveyed wetland boundary located on the property to the east, and the buffer boundary shall be surveyed by a Licensed Land Surveyor. This buffer and the required 15-foot Building Setback Line (BSBL) shall be shown on all site plans. 4. The Owner / Subdivider shall submit and receive City approval of a Wetland Buffer Restoration Plan prior to issuance of permits. An existing driveway along the eastern property boundary is located within the wetland buffer. The driveway will no longer serve as an access to the existing house, but is proposed to be used as a storm pond maintenance access. Pavement in a buffer meets the definition of "Degraded Buffer," according to KCC 11.06.227. Pursuant to KCC 11.06.600.13, degraded buffers shall be restored during development pursuant to an approved restoration plan, that will involve removal of the driveway and planting with native plants. A storm pond maintenance access shall be located in an alternative location outside the wetland buffer, unless an alternate location cannot be found. Consideration will be given for wetland buffer reduction and averaging per City Code. 5. The Owner / Subdivider shall submit and receive City approval of engineering drawings from the Department of Public Works, and shall ' then either construct or bond for the following: Orme/Avalon Court Subdivision Page 1 of 9 FSU-2006-3/2082929 Conditions of Approval a. A public gravity sanitary sewer system to serve all lots. This development will be served by the Soos Creek Water & Sewer District and will be constructed to Soos Creek Water & Sewer District standards and specifications. The septic system serving the existing home(s) within the proposed subdivision - if any - shall be abandoned in accordance with King County Health Department Regulations. b. A public water system meeting domestic and fire flow requirements for all lots. This development will be served by Water District #111 and will be constructed to Water District #111 standards and specifications. Existing wells — if any - shall be decommissioned in accordance with the requirements of the Department of Ecology. C. A stormwater system. The Engineering Plans must meet the minimum requirements of the City of Kent Construction Standards and 2002 City of Kent Surface Water Design Manual (KSWDM). Initial guidance for the Engineering Plans is given below (See Chapter 2 of KSWDM for detailed submittal requirements): (1) The Engineering Plans will include at a minimum: Site improvement plans which include all plans, details, notes and specifications necessary to construct road, drainage, and other related improvements. The engineering plans shall include a technical information report (TIR) which contains all the technical information and analysis to develop the site improvement plans. (2) An erosion and sedimentation control (ESC) plan shall be included in the engineering plans. The ESC shall meet the requirements of the City of Kent Construction Standards, and the 2002 City of Kent Surface Water Design Manual. These plans must reflect the Detailed Grading Plan discussed below, and the Planning Services approved Detailed Tree Plan. (3) The retention / detention and release standard that will be met by the subdivision is Level Two. The water quality menu that will be met by the subdivision is the Resource Stream Protection Menu. The portion of the plat marked "Tract C" located south of Lot 14 and the property directly east and adjacent to Lot 14 shall be Orme/Avalon Court Subdivision Page 2 of 9 FSU-2006-3/2082929 Conditions of Approval t included in the sizing of the proposed stormwater facility for pre and post developed area. The new catch basin and new storm drain pipe shall be placed in a 15-foot wide drainage easement located east of Lot 14 and Tract C. To maintain hydrology to the existing wetland located east of Tract D, stormwater flows from the pond and from the above described open drainage feature shall be conveyed east across Tract D at the location of the existing culvert and into the wetland area. (4) The site improvement plans and technical information report will contain drainage calculations and a drawing of the retention / detention pond tract at an appropriate engineering scale to show that the proposed on-site or off-site retention / detention tract is large enough to contain the required minimum stormwater storage volume and water quality facility. The site improvement plans will also show that all required stormwater management facilities will be outside of delineated wetlands and their buffers, as well as outside of creeks and rivers and their buffers. (5) A downstream analysis is required for this development, and it will include an analysis for capacity, erosion potential, and water quality. Refer to the requirements of Technical Information Reports in Section 3: "Offsite Analysis", of the 2002 City of Kent Surface Water Design Manual for the specific information required for downstream analyses. (6) Roof downspouts for each roofed structure (house, garage, carport, etc.) shall be diverted to a Roof Downspout Infiltration System meeting the requirements of section 5.4.5, Infiltration Trenches, of the 1998 Surface Water Design Manual. These roof downspout conveyance and infiltration systems shall include overflow pipes connected to an approved dispersion system. The drainage plans shall include an approved detail for the roof downspout infiltration system. The face of the recorded plat shall contain the following restriction: AS A CONDITION OF BUILDING PERMIT ISSUANCE, RESIDENCES CONSTRUCTED ON LOTS OF THIS SUBDIVISION MUST PROVIDE ROOF DOWNSPOUT INFILTRATION SYSTEMS PER DETAILS SHOWN ON THE APPROVED PLANS. I (7) If determined necessary by the Public Works Department following review and approval of the required downstream analysis, the Owner / Subdivider shall provide public drainage ' Orme/ Avalon Court Subdivision Page 3 of 9 FSU-2006-3/2082929 Conditions of Approval easements meeting the requirements of the City of Kent Construction Standards for the specified downstream reach where adequate public drainage easements do not currently exist. (8) The Owner / Subdivider shall submit Landscape Plans for within and surrounding the retention / detention facility to the Planning Department and to the Department of Public Works for concurrent review and approval prior to, or in conjunction with, the approval of the Engineering Plans. These Landscape Plans shall meet the minimum requirements of the City of Kent Construction Standards, and the stormwater management landscaping , requirements contained within the 1998 King County Surface Water Design Manual. Landscape Plans are required to show adjacent Street Trees so that the City arborist can assess potential adverse stress upon all types of vegetation. (9) The Owner / Subdivider shall execute Declaration of Stormwater Facility Maintenance Covenants for the private portions of the drainage system prepared by the Property Management Section of the Department of Public Works. See Reference 8-F, Declaration of Stormwater Facility Maintenance Covenant, to the 2002 City of Kent Surface Water Design Manual for information on what is contained within this document. d. A Detailed Grading Plan for the entire subdivision meeting the requirements of the City of Kent Construction Standards, and City of Kent Development Assistance Brochure #1-3, Excavation and Grading Permits & Grading Plans. Initial guidance for these plans is given below: (1) These plans will include provisions for utilities, roadways, retention / detention ponds, stormwater treatment facilities, and a building footpad for every lot. (2) These plans shall be designed to eliminate the need for t processing several individual Grading Permits upon application for Building Permits: phasing of grading on a lot-by-lot basis will not be considered. (3) These plans will use a 2-foot maximum contour interval, and every fifth contour line will be darker and wider in conformance to standard drafting practice. e. A Final Buffer Restoration Plan meeting the requirements of Kent City Code Chapter 11.06. If grading is a part of the Final Buffer Restoration Plan, all grading shall be included on the grading plan for the entire site, including buffers and appropriate Building Setback Lines. Orme/Avalon Court Subdivision Page 4 of 9 , FSU-2006-3/2082929 Conditions of Approval f. Interim Street Improvement Plans for 132"d Avenue Southeast. These Interim Street Improvement Plans shall meet the requirements of the City of Kent Construction Standards, and City of Kent Development Assistance Brochures#6-2, Private and Public Street Improvements, and # 6-8, Street Improvement Plans, for a street designated as a Minor Arterial Street with Bike Lanes within the City of Kent Comprehensive Plan. Initial guidance for the necessary interim street improvements is given below: (1) Combined vertical concrete curbs & gutters, and a 10-foot cement concrete sidewalk along the east side of the street. (2) A minimum of 33-feet of Hot Mix Asphalt (HMA) pavement as measured from the face of curb on the east side of the street to the approved roadway centerline, plus an additional 12-feet of HMA pavement as measured from the approved centerline to the west side of the street, plus a City approved shoulder on the west side of the street. The entire HMA pavement width shall be provided with the pavement section required for a Minor Arterial Street having 20-year service life as determined by the process identified in the City of Kent Development Assistance Brochure #6-2, Private and Public Street Requirements. Channelization Plans will be required with the Street Improvement Plans for this development. The required pavement tapers necessary to provide the left turn lane on 132"d Avenue Southeast will require off-site street improvements necessary to provide a minimum 50 foot long left turn storage pocket and a 100-foot opening at the entrance to the development, together with necessary transition tapers back to the existing two lane roadway. (3) A City-owned street lighting system. (4) Public stormwater conveyance, detention and treatment facilities as applicable. (5) Street Trees installed within tree wells with grates in the cement concrete sidewalk. These Street Trees will be located as approved by the Public Works Department, and the species shall be selected from the Approved Street Tree List contained within City of Kent Development Assistance Brochure #14, City of Kent Street Trees. (6) Additional right-of-way as necessary to provide a total of 47 feet from the centerline shall be dedicated to the City g. Street Improvement Plans for the new public Residential Street connected to 132"d Avenue Southeast. The Street Improvement Plans I Orme/ Avalon Court Subdivision Page 5 of 9 FSU-2006-3/2082929 Conditions of Approval for this street shall be designed in conformance to the requirements for a Residential Street as required by City of Kent Construction Standards, and City of Kent Development Assistance Brochure #6-2, Private and Public Street Improvements and City of Kent Development Assistance Brochure # 6-8, Street Improvement Plans for a street 28- feet wide. Initial guidance for these street improvements is given below: 1 Combined vertical curb & utter, a 5-foot wide planting strip � ) 9 P 9 P constructed between the back of curb and the front of the sidewalk, and then a 5-foot wide cement concrete sidewalk along both sides of the street. (2) A minimum of 28-feet of Hot Mix Asphalt (HMA) pavement, as measured from face of vertical curb to face of vertical curb. Parking will be restricted to one side only. (3) A street lighting system designed to the City's standards, constructed and maintained by the IntoLight Division of Puget Sound Energy; all electrical and maintenance bills shall be paid for by the Home Owner's Association created for this subdivision. public stormwater drainage system, including (4) A p g y g provisions for collection, conveyance, detention, and treatment facilities. (5) Curb return radii of 25-feet at the intersection of the subdivision street with 132"d Avenue Southeast; and a 45-foot radius to the face of vertical curb for the cul-de-sac bulb. (6) Street Trees installed within the 5-foot wide planting strips. These Street Trees will be located as approved by the Public Works Department, and the species shall be selected from the Approved Street Tree List contained within City of Kent Development Assistance Brochure #14, City of Kent Street Trees. h. Street Lighting Plans for all public streets meeting the requirements of the City of Kent Construction Standards, and City of Kent Development Assistance Brochure #6-1, Street Lighting Requirements. 6. The Owner / Subdivider shall create a Homeowner's Association for this subdivision to ensure that the property owners within this subdivision are advised of their obligation to pay for the energy and maintenance required for the street lighting system installed in their development. Those sections of the required document written to govern that association as they relate to any IntoLight Division of Puget Sound Energy street lighting systems, shall be reviewed and approved by the Department of Public Works, prior to the recording these documents. Orme/Avalon Court Subdivision Page 6 of 9 I� FSU-2006-3/2082929 Conditions of Approval 7. Direct vehicular access to and from lots having frontage along 132"d Avenue Southeast is prohibited, and the face of the final plat will carry the following restriction: DIRECT VEHICULAR ACCESS TO AND FROM LOTS HAVING FRONTAGE ALONG 132No AVENUE SOUTHEAST IS PROHIBITED. ACCESS FOR THESE LOTS IS RESTRICTED TO THE NEW RESIDENTIAL STREET SHOWN ON THE FACE OF THE PLAT. 8. The Owner / Subdivider shall deed all public rights-of-way, and otherwise convey all private and public easements necessary for the construction and maintenance of the required improvements for this subdivision development. 9. The Owner / Subdivider shall permanently protect the approved and preserved, and/or enhanced, or created sensitive area(s) and the associated buffer(s) by creating a separate Sensitive Area Tract and deeding the tract in fee simple to the City, OR by granting a Sensitive Area Easement to the City for the entire sensitive area, pursuant to Kent City Code Chapter 11.06. This Sensitive Area Tract or Easement shall be consistent with.the wetland and wetland buffer map contained within the approved Wetland Delineation Report and/or approved Wetland Mitigation Plan as appropriate. The Owner / Subdivider shall provide a legal description of said easement or tract prepared by a licensed land surveyor, prior to issuance of any Construction Permits. The Sensitive Area Tract and the following language shall be included on the face of the recorded plat: SENSITIVE AREA TRACTS / EASEMENTS DEDICATION OF A SENSITIVE AREA TRACT / EASEMENT CONVEYS TO THE PUBLIC A BENEFICIAL INTEREST IN THE LAND WITHIN THE TRACT. THIS INTEREST INCLUDES THE PRESERVATION OF NATIVE VEGETATION FOR ALL PURPOSES THAT BENEFIT THE PUBLIC HEALTH, SAFETY AND WELFARE, INCLUDING CONTROL OF SURFACE WATER AND EROSION, MAINTENANCE OF SLOPE STABILITY, VISUAL AND AURAL BUFFERING, AND PROTECTION OF WATER QUALITY, PLANT ECOLOGY AND WILDLIFE HABITAT. THE SENSITIVE AREA TRACT / EASEMENT IMPOSES UPON ALL PRESENT AND FUTURE ' OWNERS AND OCCUPIERS OF THE LAND SUBJECT TO THE TRACT / EASEMENT THE OBLIGATION, ENFORCEABLE ON BEHALF OF THE PUBLIC BY THE CITY OF KENT, TO LEAVE UNDISTURBED ALL TREES AND OTHER VEGETATION WITHIN THE TRACT. THE VEGETATION WITHIN THE TRACT MAY NOT BE CUT, PRUNED, COVERED BY FILL, REMOVED OR DAMAGED WITHOUT APPROVAL IN WRITING FROM THE CITY OF KENT. THE COMMON BOUNDARY BETWEEN THE TRACT / EASEMENT AND THE AREA OF DEVELOPMENT ACTIVITY MUST BE MARKED OR OTHERWISE FLAGGED TO THE SATISFACTION OF THE CITY OF KENT PRIOR TO ANY CLEARING, GRADING, BUILDING CONSTRUCTION OR OTHER DEVELOPMENT ACTIVITY. THE REQUIRED MARKING OR FLAGGING SHALL REMAIN IN PLACE UNTIL ALL Orme/ Avalon Court Subdivision Page 7 of 9 FSU-2006-3/2082929 Conditions of Approval DEVELOPMENT ACTIVITIES IN THE VICINITY OF THE SENSITIVE AREA TRACT ARE COMPLETED. NO BUILDING FOUNDATIONS, STRUCTURES, FILL OR OBSTRUCTIONS (INCLUDING, BUT NOT LIMITED TO OUTBUILDINGS AND OVERHANGS) ARE ALLOWED WITHIN 15 FEET OF THE SENSITIVE AREA TRACT / EASEMENT BOUNDARY, UNLESS OTHERWISE APPROVED BY THE CITY. THE CITY OF KENT RESERVES THE RIGHT TO INSTALL PUBLIC UNDERGROUND UTILITIES WITHIN THIS SENSITIVE AREA TRACT, AND TO ENTER AND PERFORM DRAINAGE SYSTEM MAINTENANCE, BUT IS REQUIRED TO RESTORE OR ENHANCE THE SENSITIVE AREAS DISTURBED UPON THE COMPLETION OF THE UNDERGROUND CONSTRUCTION, AND/OR DRAINAGE SYSTEM MAINTENANCE. THE CITY OF KENT ALSO RESERVES THE RIGHT TO ENHANCE THE SENSITIVE AREA TRACT OR EASEMENT VIA PLANTING NATIVE VEGETATION AND REMOVING NON-NATIVE OR INVASIVE VEGETATION. 10. After construction, the wetland and /or streams and their associated buffer areas shall be isolated from intrusion by installing a permanent wildlife- passable fence (split-rail cedar). In addition, wetland/sensitive area information signs approved by the Department of Public Works shall be placed at the buffer edge to inform and educate owners and nearby residents about the value of wetlands/sensitive areas. 11 Prior to release of any construction bonds, and prior to the approval of any Building Permits within the subject subdivision, the Department of Public Works must receive and approve As-Built Drawings meeting the requirements of the City of Kent Construction Standards, and City of Kent Development Assistance Brochure #E-1, As-Build Drawings, for: Streets; Street Lighting System; Water; Sewer; Stormwater Drainage Facilities; and all off-site improvements where the locations and/or elevations are deemed critical by the Department of Public Works. 12 The applicant/owner shall provide mailbox clusters as approved by the Public Works Department and the U.S. Postmaster. 13. The applicant/owner shall record a lot line adjustment to incorporate the northern 110 feet of parcel number 2222059099 (Chaffeur property), as ' shown on the preliminary plat map into either parcel number 222205-9098 or 222205-9058. 14. Approval of this subdivision is contingent upon City Council approval of the Applicant's related request for rezone, in RZ-2006-6, KIVA 2062017. B. PRIOR TO THE ISSUANCE OF A BUILDING PERMIT ON ANY LOT IN THIS SUBDIVISION. THE OWNER / SUBDIVIDER SHALL: 1. Record the final plat. Orme/ Avalon Court Subdivision Page 8 of 9 FSU-2006-3/2082929 Conditions of Approval 2. Construct all of the improvements required in Section A, above, and pay the respective fees-in-lieu-of including any mitigation (EMA or EMF) charges. 3. Receive approval of the required As-Built Drawings for Street, Street Lighting, Water, Sewer, and Stormwater Management Facilities as deemed appropriate by the Department of Public Works. 4. Construct all wetland mitigation plans, wetland and stream buffer plans, install all required wildlife passable fences and any other conditions to protect or enhance critical areas unless otherwise approved by the Public Works Department. bjb\S:\Permit\Plan\LONGPLATS\FINAL PLATS\2008\2082929-2006-3 CONDITIONS.doc L 1 Orme/Avalon Court Subdivision Page 9 of 9 FSU-2006-3/2082929 Conditions of Approval Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6K 1. SUBJECT: SUBDIVISION CODE UPDATE, PHASE I, SHORT PLAT EXPIRATION PERIOD EXTENSION, ORDINANCE - ADOPT ' 2. SUMMARY STATEMENT: Adopt Ordinance No. amending Sections 12.04.215 and 12.04.525 of the Kent City Code, both entitled "Short subdivision plat expiration," to extend the preliminary plat approval period from two (2) years to four (4) years, and extending the approval period for currently pending short plats by an additional two (2) years. 3. EXHIBITS: Ordinance; minutes of 12/1/08 PEDC Meeting, Minutes, Memos and Exhibits from PEDC Agenda Packet for 12/1/08; Master Builders Association 12/1/08 article regarding housing stimulus effort; Kent Housing Market Snapshot dated November 2008 4. RECOMMENDED BY: Planning & Economic Development Committee (Committee, Staff, Examiner, Commission, etc.) ' 5. FISCAL IMPACT Expenditure? No Revenue? No Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: ' Councilmember moves, Councilmember seconds ' DISCUSSION: ACTION: ORDINANCE NO. AN ORDINANCE of the City Council of the City of Kent, Washington, amending sections 12.04.215 and 12.04.525 of the Kent City Code, both entitled "Short subdivision plat expiration," to extend the preliminary plat approval period from two (2) years to four (4) years. RECITALS ' A. Under the current subdivision code, applicants have two (2) years (one year plus a one year extension) to record a short plat which has been granted preliminary short subdivision approval. In many cases, two years has not been an adequate timeframe for applicants to obtain the ' required approval of engineering plans, construct or bond for required improvements, complete the final plat process, and record the short plat ' with the King County Assessor's Office. The current economic down turn appears to have exacerbated the need for additional time to record a final short plat. The City Council desires to expeditiously assist those who have made significant investments in their property and desire to complete ' current land use projects that have previously received approval. B. This amendment extends the expiration period for complete short subdivision applications filed after the effective date of this 1 Short Plat Approval Expiration— KCC 12.04.215 ordinance. It also extends the expiration period for those short subdivision applications that received preliminary short plat approval, but have not expired as of the passage date of this ordinance. The City Council believes it is reasonable to protect the land use approvals that would expire between the passage date and the effective date of this ordinance. C. On October 3, 2008, the City requested and was granted expedited review from the State of Washington under RCW 36.70A.106 of ' the City's intent to adopt the short plat expiration ordinance. D. The City's SEPA responsible official has determined that the proposed code amendments are procedural in nature and further SEPA ' analysis is not required. E. The development and public involvement process for the short plat expiration ordinance included the City's Land Use and Planning Board ' who held workshops during its meetings on August 11, 2008, October 13, 2008, and November 10, 2008. The Land Use and Planning Board also held public hearings on October 27, 2008 and November 24, 2008. The City's Planning and Economic Development Committee reviewed and , discussed the short plat expiration ordinance at its meetings on October 13, 2008 and December 1, 2008. The City Council voted to adopt the ' short plat expiration ordinance on December 9, 2008. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: 2 Short Plat Approval Expiration— KCC 12.04.215 ORDINANCE SECTION 1. - Amendment. Section 12.04.215 of the Kent City Code, entitled "Short subdivision plat expiration," is amended as follows: ' Sec. 12.04.215. Short subdivision preliminary plat expiration. Short subdivision preliminary plat approval shall lapse four (4) years from the date of preliminary plat approval unless a final plat based on the preliminary plat has been reviewed and approved by the city and recorded with King County. In addition, for those preliminary short subdivision approvals that have not expired as of the passage date of this ' ordinance, their expiration period shall be extended two (2) additional years, for a total of a four (4) year expiration period from the time of preliminary approval. if the S1964 subdivislen fina plat is net Ned withlfq te the ene " I SECTION 2. - Amendment. Section 12.04.525 of the Kent City Code, entitled "Short subdivision plat expiration," is amended as follows: Sec. 12.04.525. Short subdivision preliminary plat expiration. Short subdivision preliminary plat approval shall lapse four (4) years from the date of preliminary plat approval unless a final plat ' based on the preliminary plat has been reviewed and approved by the city and recorded with King County. In addition for those preliminary short 3 Short Plat Approval Expiration— KCC 12.04.215 subdivision approvals that have not expired as of the passage date of this ordinance, their expiration period shall be extended two (2) additional ' years for a total of a four (4) year expiration period from the time of preliminary approval. if the short subdivisien final plat is net file"a V-V,:I' 11 SECTION 3. - Savings. The existing sections 12.04.215 and 12.04.525 of the Kent City Code, which are amended by this ordinance, shall remain in full force and effect until the effective date of this , ordinance. SECTION 4. - Severability. If any one or more section, 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. SECTION S. - Effective Date. This ordinance shall take effect and t be in force thirty (30) days from and after its passage as provided by law. SUZETTE COOKE, MAYOR ' ATTEST: BRENDA JACOBER, CITY CLERK , 4 Short Plat Approval Expiration— KCC 12.04.215 APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY PASSED: day of December, 2008. APPROVED: day of December, 2008. ' PUBLISHED: day of December, 2008. ' 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 5 Short Plat Approval Expiration— KCC 12.04.21 S ' PLANNING & ECONOMIC DEVELOPMENT COMMITTEE MINUTES t DECEMBER 1, 2008 ' Committee Members Chair Elizabeth Albertson, Ron Harmon, Tim Clark Albertson called the meeting to order. Auuroval of Minutes Clark MOVED and Harmon SECONDED to approve the minutes of November 10, 2008. Motion PASSES 3-0. SCA-2007-1 Subdivision Code Amendment (Phase 1) Planner Sharon Clamp stated that staff is proposing to amend the Subdivision Code to extend expiration time periods for preliminary short plat approvals. Current code allows for one year with a one year extension to complete the short plat and record with King County. Staff has been hearing from applicants that two years is not enough time to get to recordation. After approval, an applicant must submit and gain approval of an engineering plan. Applicants have to coordinate with a variety of agencies and sometime adjacent property owners. After civil construction permit approval, applicants must construct improvements or provide a bond in lieu of construction. Clamp added that with the current economy, financing and bonding are presenting issues to developers. Clamp stated that State law allows cities to adopt their own rules and regulations in regards to short plats. However, State law governs the processes for full subdivisions which are plats 10 lots or greater. Other jurisdictions provide three to five years for short plat expiration. At the October 21, 2008 Land Use and Planning Board meeting applicants noted that short plats are not that different from a subdivision which is allowed five years with a one year extension. Clamp went over some statistics from 2007 and 2008 showing the average time period for short plats to record. Clamp noted that small builders do not have the resources that larger builders do. Staff presented three options to the Land Use and Planning Board. The Board is recommending Option B to extend approvals to 4 years and extend by two years all preliminary short plats that have not yet expired. SCA-2007-1 Subdivision Code Amendment (Phase II) Clamp stated that staff is proposing to reduce wording in the Subdivision Code by approximately 50%. There is a lot of duplication and redundancy that staff proposes to eliminate. This document is consistent with State Code. Staff is recommending removing a section that has specific construction standards and 11DC Minutes December 1, 2008 Page 1 of 5 instead just referencing them, e.g. in the City of Kent Construction and Fire t Standards. If these standards subsequently changed, the subdivision code would remain current. The application process for final approval would also be updated. , Albertson asked for clarification on how many years current short plats would receive. Clamp stated that short plats with current approvals that have not expired would gain an additional two years. Garrett Huffman, Master Builders Association (MBA), 3351 116th SE Bellevue, WA ' Huffman voiced his full support for extensions. MBA is working on an economic stimulus package and will be bringing it to King and Snohomish counties. Huffman noted that financing is currently the biggest obstacle for builders. Huffman expressed interest in Option C, with hopes of capturing projects that have been put on hold in the last 18 months to do financing. Huffman noted that these projects could be completed when financing is available. If not given an extension, Huffman , questioned if applicants would re-submit under the new development standards, which can add significant costs. Gary Gill, DMP, 726 Auburn Way North, Auburn, WA Gill voiced support for option C. DMP has three clients whose plats recently expired. Their plans have been approved but they have not been able to obtain financing. Gill noted that 2007 statistics provided by the City were generated during a housing boom; now the market has changed. Gill stated that specific and valid criteria could be created to reinstate plats that have met preliminary approval, adding that cost is significant if the developer has to re-apply. Jason Cole,850 Orbitz Road SE, Auburn, WA 98092 Cole stated that he has a six lot short plat in the City and that he supports Option C. Cole questioned what happens if you do not go back and make the extension retroactive. He estimated his cost to be between $60,000 -$70,000 to go through ' the process again. Cole mentioned that not many properties fit the criteria for retroactivity, believes between 20-30 lots. These have been approved under the old standards. He stated that by not going retroactive, he feels the City is hurting the local economy by letting these projects just sit there. Hans Korve, DMP 726 Auburn Way North Auburn, WA Korve voiced support for Option C. Korve provided a partial printout of the MBA's stimulus package, from the MBA web site. Korve noted that Ron Simms with King County supports this stimulus package. Korve spoke to the economic impact of plats failing. Korve mentioned that many of these plats are small mom and pop ' operations that do not have the resources larger builders do. Korve stated that the cost to redesign is significant and that the new standards are totally different. He stated that a Housing Presentation by the MBA predicted a spike in housing prices ' in a few years. Korve stated that currently there is more housing than demand and not many people are building which creates a hole in the market. As the economy improves there will be a spike in costs due to the lack of inventory. ' PEDC Minutes December 1, 2008 , Page 2 of 5 1 Korve stated that only 20 lots will be affected under Option C. He stated he hopes these projects are saved because applicants did everything right. Korve predicts that if these projects come back under different owners, the lots will likely be divided into smaller lots to recap costs. Colin Thorpe, 1226 SE 178th Street, Renton, WA Thorpe stated that he represents the Devlin short plat on East Hill, slated to expire ' in eight days. Thorpe stated that he filed his short plat in 2006. Thorpe stated that the goal of his project is to add two residences for family members. Thorpe stated that the City tied access to his plats to the adjacent subdivision. Thorpe did not realize that the neighboring parcel was given five years to complete and he only had one year. Thorpe stated that he has spent over $30,000 dollars on his development and feels it unfair that only certain lots are being considered for an extension. He stated that it has been determined the US has been in a recession since December 2007. Thorpe noted that 13 plats have expired in 2008 and only two have been recorded. Thorpe noted that his project would not be covered under Option C. He asked the committee members to consider not adding the extra 30 day waiting period and open the extension up to the 13 plats that expired in 2008. ' Sam Pace, Housing Specialist, Seattle King County Association of Realtors Pace stated that many applicants face financing issues. Applicants are falling victim to banks' internal loan portfolio issues. Applicants are losing automatic rollovers; ' banks are not willing to roll over loans. Projects are affected by bank consolidation and takeovers. A new bank might not give loans that the prior bank gave. Pace gave an example of a plat on Kent Kangley that previously had a loan to value ratio ' of 50% and currently the loan to value ratio is over 100%. He stated the market has turned. Pace provided a copy of information on the Kent housing market. Pace stated this issue does not just affect the builders and developers; it also affects Kent families that need a place to live. Pace stated that he supports option C. Clamp added that during the time staff was preparing the extension they began to receive calls from applicants who were close to recording but were unable to obtain bonds. Based on public response regarding bonding, staff created Option C. The Land Use and Planning Board asked planning staff to propose criteria to be used to reinstate expired short plat approvals. Clamp stated that Law expressed that such ' an ordinance could be created if there were a clear reason and specific criteria such as: approved civil construction permit, final short plat application reviewed and approved, signed mylars received by the City and all City fees paid. In addition, written documentation must be provided showing that the applicant is unable to secure a bond and a letter sent to the City requesting the extension within 30 days of the Ordinance passing. Clamp noted that three applications fall under Option C. Clamp added that Thorpe's short plat did not fall under these criteria. ' PEDC Minutes December 1, 2008 Page 3 of 5 Harmon questioned why the LUPB went for Option B and not Option C. , Clamp noted that there was a question about granting special privileges and that , not many applicants would meet the specific criteria. Albertson asked for clarification that Option B would bring 45 lots back in to play and that option C only brings an additional 20 lots back into play. Clamp noted that Option B captures plats that have not yet expired. Planning Services Director Fred Satterstrom clarified that Option C would add , additional lots to Option B. Harmon asked Satterstrom about the process to resubmit if the permits expire and if any type of relief is being developed for these applicants. Satterstrom stated that applicants will have to start the process over again, including incurring the cost of the application fee. Satterstrom added these properties would have to conform to the new standards. He added that staff is not working on changing the re-application process. Harmon MOVED to approve SCA-2007-1 Subdivision Code Amendment (Phase I) and to modify the recommendation of the LUPB of Option B to extend the expiration periods for preliminary short plat subdivision approvals to four years and extend by two years all preliminary short plat approvals which have not expired upon the passing of this Ordinance, and to approve SCA-2007-1 Subdivision Code t Amendment (Phase II) as presented by staff. Harmon stated that his motion would take effect immediately at the passing of this , Ordinance and that current plats would be allowed to be completed. Clark asked for the city attorney. In response to Mr. Clark, Assistant City Attorney Kim Adams Pratt clarified that Mr. ' Harmon's amendment is needed. Pratt added that some applicants would be affected by the dates. Pratt clarified that Option C would include those lots in ' Option B. Clark SECONDED the motion. Motion PASSED 3-0. ZCA-200E-1 Hazardous Substance Land Use Facilities Zoning Code Amendment Principal Planner Matt Gilbert stated that staff is proposing an amendment to the current zoning code, related to the permit process for siting accessory hazardous substance land use facilities Since 1988 there have been many advances in the ' Fire, Building and Environmental Codes that augment the zoning code. Gilbert stated that staff is proposing amending the Conditional Use Permit process in regards to accessory uses. Gilbert stated the Conditional Use permit process typically adds 5 months to the project and rarely results in substantive conditions. Staff is proposing that if a hazardous substance land use is an accessory use, it could go through the building permit process. Gilbert noted that staff is not PEDC Minutes December 1, 2008 , Page 4 of 5 proposing any changes to siting criteria, just changes to the process. Gilbert added that projects where the hazardous substance land use is the principal use of the site would still require a Conditional Use Permit. Clark MOVED to adopt ZCA-2008-1 Hazardous Substance Land Use Facilities as ' recommended by the LUPB. Harmon SECONDED the motion. Motion PASSED 3-0. Adjournment ' Seeing no further business, Chair Albertson adjourned the meeting at 7:00 p.m. Molly Bartlemay Planning Services Secretary S:\Permit\Plan\PEDC\2008\Minutes\12-1-08_PEDCmin.doc PEDC Minutes December 1, 2008 Page 5 of 5 t LAND USE & PLANNING BOARD MINUTES NOVEMBER 24, 2008 BOARD MEMBERS PRESENT/ABSENT: ' Chair Jon Johnson, Vice Chair Dana Ralph Absent/Excused, Barbara Phillips Absent/Excused, Steve Dowell, Alan Gray, Aleanna Kondelis Absent/Excused, Jack Otti n i STAFF MEMBERS PRESENT: Charlene Anderson, Matt Gilbert, Sharon Clamp, Mike Gillespie, Molly Bartlemay APPROVAL OF MINUTES: Gray MOVED and Dowell SECONDED a motion to APPROVE the Minutes of October 27, 2008. Motion PASSED 4-0. Added Items, Communication, Notice of URcoming Meetings Planning Manager Charlene Anderson stated that Kent City Council had approved Cottage Housing with a few revisions from the recommendation of the Land Use and Planning Board. These revisions include the density bonus being decreased from two times down to one and a half times, a requirement for a community meeting, an increase in size of carriage.units from 800 to 968 square feet and a provision to allow detention vaults. The committee to review cottage housing was also increased by two people. Anderson stated that no LUPB meetings are currently scheduled in December. SCA-2007-1 Subdivision Code Amendment (Phase I) Planner Sharon Clamp stated that staff is proposing to extend the expiration period for short plats. This was originally brought up at the October 13, 2008 workshop. Clamp stated that the current code allows for one year with an additional one year extension from time of preliminary approval to recordation. Clamp stated the two year time frame can be hard to meet with applicants coordinating all the tasks required to obtain short plat recordation. As a side note, Clamp stated that there was a previous proposal to eliminate the option to bond. This proposal has been withdrawn. Clamp gave statistics on the average recording time for short plats and subdivisions in 2007 and 2008. This information showed a trend in short plats taking longer to record. Clamp stated that staff feels that adding one year to the current two years would be a fair option. Clamp pointed out that small developers are working with fewer resources than larger builders. Clamp stated that in April of 2007 there were changes in the code including setbacks, architectural design, and tree plans. Land Use and Planning Board Minutes November 24, 2008 Page 1 of 4 j Clamp stated of the three options proposed for extending short plat expiration times, staff recommends option B with 3 years. , SCA-2007-1 Subdivision Code Amendment (Phase II) Clamp stated that staff is proposing to make changes to the current subdivision , code. This update would be an administrative clean up in an effort to reduce redundancy. This includes consolidating the three different types of subdivisions into one section. In addition, the proposal considers consistency with state code. , Instead of listing out various construction standards, the proposal references other relevant Kent City Code and ordinances. This would ensure that even if codes changed the Subdivision Code would stay current. In addition, staff proposes simplifying requirements for final plats. Chair Johnson opened the Public Hearing Colin Thorpe, 12226 SE 178th St. Renton, WA 98058 stated that he was here regarding the Devlin Short Plat which is due to expire in three weeks. The plat went through the preliminary process and is now stalled due to a neighbor not completing their subdivision. He stated that he was unaware that the neighboring property would have five years to record vs. his one year. He felt that fundamentally it is not fair to only let the short plats that have completed mylars fall under any new extension that is provided. Lee Rousso, 901 S 3rd St., Renton, WA 98057 stated that he was here to back up , Mr. Thorpe on the Devlin short plat. He stated it would be tragic to make this family go back to step one because the process was slowed down by an adjoining property. Jason Cole, 850 Oravatz Rd. SE stated that he would like clarification on Clamp's statistics in regards to which plats used bonding, and what plats were constructed , and finished at the time of recordation. Cole stated that bonding is currently hard to get. Hans Korve, 726 Auburn Way North, Auburn, WA stated that many short plats use bonding and then sell lots to a builder. Korve stated that he supports Option C. Seeing no further speakers, Ottini MOVED and Dowell SECONDED to close the public hearing. Motion carried 4-0. Clamp stated that she did not have the information requested by Hans Korve. , Clamp clarified that of the 36 plats recorded in 2007 and 2008, the longest period for a plat to record was 40 months, five took between 30 and 40 months and the remainder took less than 30 months. Clamp stated that staff had been considering changing the Subdivision Code to allow a longer time for a short plat to record, and the economic crisis further Land Use and Planning Board, Minutes November 24, 2008 Page 2 of 4 emphasized the importance of looking at the time frame. Sharon stated that she has spoken with Law about Options B & C and was advised by Assistant City Attorney Kim Adams Pratt that Council can pass a retroactive ordinance. This must have very clear and specific criteria. Current economic conditions could warrant such an ordinance. Public Works Development Manager Mike Gillespie noted that very little typically needs to be changed to meet the new subdivision code in regards to a public works permit. Jack Ottini clarified that the Devlin Short Plat was due to expire in three weeks. Ottini pointed out that even if the Devlin Short Plat was extended, the adjacent property owner still may not follow through with his subdivision. Ottini stated that he likes Option B. Steve Dowell spoke in favor of option B with four years. Gray stated he liked option C with 4 years. Thorpe inquired again why mylars have to be ready to be granted an extension. Clamp clarified that the original intent was to simply extend the timeline for short plats. Clamp noted that recent economic issues and public concerns were reasons option C was developed. Dowell asked for clarification on the differences between Options B and C. Anderson clarified that under Option B, plats that are not yet expired would be given the benefit of the extra time. Under Option C specific criteria would be used to reinstate some of the expired applications. Anderson clarified that Mr. Thorpe's application would expire under Option B. Clamp stated that Option C, would not help Mr. Thorpe either. Clamp gave examples of other short plats that have expired for similar situations and noted that there is a variety of reasons a short plat can expire. Anderson suggested the Board consider why they would desire to reinstate expired permits and what criteria would be used to determine which ones were reinstated. She asked if the desire to reinstate s based merely on the economic situation or are there other reasons. Dowell stated his concerns with allowing special privileges. Thorpe noted that the adjacent property is still an active subdivision. Gillespie stated that there is no current activity on the adjoining property. The owner still has roughly two and a half years to complete the project. Gillespie noted that the owner could bond and delay the project an additional year. Ottini stated that even with additional time plats could still expire and wished the process was more cut and dry. Ottini stated to Thorpe that despite valid reasoning, Land Use and Planning Board Minutes November 24, 2008 Page 3 of 4 1 his situation does not fall under this territory; he gave an option to speak to City Council. Dowell MOVED and Ottini SECONDED a motion to adopt SCA-2007-1 Subdivision Code Amendment (Phase I) Option B with a four year extension. Motion carried 3- 1 with Gray opposed. Ottini MOVED and Dowell SECONDED a motion to adopt SCA-2007-1 Subdivision Code Amendment (Phases II) as presented by staff. Motion carried 4-0 ZCA-2008-1 Hazardous Substance Land Use Facilities Zoning Code Amendment Principal Planner, Matt Gilbert stated that staff recommends amending the current Hazardous Substance Code pertaining to accessory uses. Gilbert read the definition of accessory uses. Gilbert noted that a lot of products are considered hazardous. Currently a Conditional Use Permit is required for all hazardous uses that reach a specific quantity of material. This entails extensive meetings, notices, and mailings. Staff review is generally a duplicate of other codes and ordinances that are applicable. Logistically this adds approximately five months to the permit process. Gilbert stated that staff is proposing to allow permits to move forward without a Conditional Use Permit if the hazardous use is an accessory use. The proposal does not change the other code criteria regarding where such uses may be located. Seeing no public speakers, Ottini MOVED and Dowell SECONDED a motion to close the public hearing. Motion passed 4-0. Ottini MOVED and Dowell SECONDED a motion to adopt ZCA-2008-1 Hazardous Substance Land Use Facilities Zoning Code as presented by staff. Motion carried 4-0. ADJOURNMENT , Ottini MOVED and Gray SECONDED a motion to adjourn the Meeting. Motion carried 4-0. Johnson adjourned the meeting at 8:35p.m. Charlene Anderson, AICP, Planning Manager Secretary of the Board S:\Permlt\Plan\LUPB\2008\MINUTES\112508_LUPB_Mln Land Use and Planning Board Minutes November 24, 2008 Page 4 of 4 ' COMMUNITY DEVELOPMENT Fred N. Satterstrom, AICP, Director PLANNING SERVICES ® Charlene Anderson, AICP, Manager KENT WASHINGTON Phone: 253-856-5454 Fax: 253-856-6454 Address: 220 Fourth Avenue S. Kent, WA 98032-5895 November 26, 2008 TO: Chair Elizabeth Albertson and Planning & Economic Development Committee Members FROM. Sharon Clamp, Planner RE: Subdivision Code Amendment (Phase I) Consideration for extending the expiration time periods for short plats Subdivision Code Amendment (Phase II) Consideration of updates to Kent's subdivision code. SCA-2007-1/KIVA #RPP6-2084360 For the meeting of December 1, 2008 MOTION: I move to approve/deny/modify the recommendations of the Land Use & Planning Board of (1) Option B to extend expiration time periods for preliminary short plat approvals to four years and extend by two years all current preliminary short subdivision approvals which have not yet reached the end of the two year time limit for recordation, and (2) update the full text of the Kent subdivision code as presented by staff. SUMMARY: The proposed update to the subdivision code generally includes consolidation of sections/reduction of redundancy, removal of standards that are contained in other adopted regulatory documents, update of application submittal requirements, consistency with State regulations, and extension of the expiration period for short plats. The Board considered changing expiration periods for preliminary short subdivision approvals at workshops on October 13 and November 10, 2008 and at public hearings on October 27 and November 24, 2008. The Board also considered an administrative update to the full subdivision code at workshops on October 27 and November 10, 2008 and a public hearing on November 24, 2005. Following the November 24t' public hearing, the Board recommended approval of Option B extending timelines for short plat expiration to four years and extending by two years those approvals which have not yet reached the end of the two year time limit for recordation. The Board also recommended approval of the full subdivision code update as recommended by staff. BUDGET IMPACT: None. MEMORANDUM: Planning & Economic Development Committee November 26, 2008 Page 2 BACKGROUND: Subdivision Code Amendment Phase I An update to the city's subdivision code is part of the Planning Services 2008 work program and was initially included in order to examine the time periods for short plat expiration. Under the current subdivision code, applicants have two years (one year plus a one year extension) to record a short plat which has been granted preliminary short subdivision approval. In many cases, two years has not been an adequate time frame for applicants to obtain the required approval of engineering plans, coordinate with neighboring property owners and outside agencies such as water and sewer districts and PSE, deal with environmental requirements such as wetland mitigation plan approval, construct required improvements, complete the final plat process and record the short plat with King county. As a result, preliminary short plat approvals often expire. In recent months, staff is also hearing from applicants that given the current economic climate, obtaining financing and required bonds are also presenting huge time constraints. Subdivision Code Amendment Phase II The City's subdivision code provides rules, regulations, requirements, standards and procedures for subdividing land, for obtaining binding site plan approval, and for adjustments of lot lines in the City. The following is a general description of the areas proposed to be revised as shown in the attached draft: , 1. Consolidation - The subdivision code addresses three different types of subdivisions; a Type I short plat (2-4 lots), Type II short plat (5-9 lots), and Subdivisions (10 lots or greater). The subdivision code includes regulations, standards and procedures for each type of subdivision in three separate sections, repeating much of the same information. In order to reduce redundancy the three sections have been consolidated. 2. Consistency with State Law - The subdivision of land in Washington State is governed by the procedures within Chapter 58.17 RCW. No process is set out in State law for short plats; therefore cities and countles are required to adopt,their own regulations and procedures for short plats. The City's regulations for short plats follow a very similar process to formal subdivision applications, except that for preliminary approval, a short plat goes before the Short Subdivision Committee rather than the Hearing Examiner. The procedures for short plats remain largely the same except where submittal requirements have been revised as discussed in item #4 of this report. Staff has reviewed the subdivision standards for consistency with Chapter 58.17 RCW. The draft document notes that staff had thought they would bring forward additional amendments regarding bonding; however staff did MEMORANDUM: Planning & Economic Development Committee November 26, 2008 Page 3 not bring forward any additional amendments that were not already included in the draft document. 3. Standards from Adopted Documents - The subdivision code contains development standards related to the design, construction and dedication of streets, intersections, sidewalks and storm drainage facilities. These standards are also addressed in the City of Kent Public Works Construction Standards, Kent City Code Titles 6, 7, 11, 12, 13 and 15 and other state and county regulations. It would be more appropriate to reference the adopted Public Works Construction Standards and other codes and regulations rather than list specific standards and regulations within the subdivision code. This ensures that future changes to the construction standards and other codes will not result in the need to also update the subdivision code. 4. Final Plat Submittal Requirements - The final plat submittal requirements have been updated in order to simplify the list of items applicants must submit to the City for review, and to ensure that the final short plat map complies with State Survey requirements. The SEPA Responsible Official has determined that the proposed code amendments are procedural in nature and further SEPA analysis is not required. ' :S:\Permit\Plan\SubdivisionCodeAmendments\2007\SCA-2007-1_Subdivision_Code\PEDC\120108_PEDCMemo.doc Attach: Draft Subdivision Code cc: Fred Satterstrom,AICP,CD Director Charlene Anderson,AICP,Planning Manager Project File COMMUNITY DEVELOPMENT Fred N. Satterstrom, AICP, Director PLANNING SERVICES ® Charlene Anderson, AICP, Manager KENT WASHINGTON Phone: 253-856-5454 Fax: 253-856-6454 Address: 220 Fourth Avenue S. Kent, WA 98032-5895 November 17, 2008 TO: Chair Jon Johnson and Land Use and Planning Board Members FROM: Sharon Clamp, Planner RE: Subdivision Code Update - Phases I and II SCA-2007-1/KIVA #RPP6-2074360 Staff Report for the November 24, 2008 LUPB Hearing SUMMARY: The proposed update to the subdivision code generally includes consolidation of sections/reduction of redundancy, removal of standards that are contained in other adopted regulatory documents, update of application submittal requirements, consistency with State regulations, and extension of the expiration period for short plats. The Board considered changing expiration periods for preliminary short subdivision approvals at a workshop on October 13, 2008, a public hearing on October 27, 2008 and a second workshop on November 10, 2008. The Board also considered an administrative update to the full subdivision code at the October 27, 2008 workshop. Public comment during the October 27th public hearing questioned the required percentage of the bond for improvements, and staff included discussion of the bonding issue at the November 10th workshop. At the November 24th public hearing, staff may propose amendment of the subdivision code sections related to bonding for improvements. BACKGROUND: 1. Expiration Periods for Preliminary Short Subdivision Approvals Under the current subdivision code, applicants have two years (one year plus a one year extension) to record a short plat which has been granted preliminary short subdivision approval. In many cases, two years has not been an adequate timeframe for applicants to obtain the required approval of engineering plans, construct required improvements or obtain a bond for the improvements, complete the final plat process and record the short plat with King County. As a result, preliminary short plat approvals may expire. The average length of time to complete the civil construction permit process is 9.6 months, and the final plat process,, typically takes 4.5 months. To meet City development requirements, applicants also typically must coordinate with outside entities such as sewer and water districts, Puget Sound Energy and neighboring property owners. This coordination further challenges the feasibility of meeting the City's two-year time limitation. Most recently with the current economic climate, owners are having difficulty obtaining the financing and bonding that are part of every short plat. While establishing deadlines ensures that projects are completed within a reasonable amount of time, it has become clear that the two years provided by code is difficult for many short-plat owners to meet. It is also important that the established deadlines provide adequate balancing of the time required to complete vested projects and the public's interest in implementing the most up-to-date codes and standards. Washington State law does not include a process for the approval of short plats or set timeframes for expiration; therefore, cities and counties are required to adopt their own regulations and procedures. Expiration periods for other jurisdictions within the area range in length from two to five years or indefinitely if sufficient progress is being made on the application. At the October 27, 2008 public hearing the Board received testimony stating that short subdivisions and subdivisions can be equally complex and should be granted equal time. Washington State law allows five years with a one year extension to record a subdivision (10 or more lots). Following the hearing, Planning staff gathered statistics for short subdivisions and subdivisions recorded during 2007 and 2008 and found the following: Average recording time Median recording time Type and number of preliminary approval to preliminary approval applications recorded recordation. to recordation. 2007 short plats 13 19 months 18 months 2007 subdivisions 12 21 months 21 months 2008 short plats 12 24 months 24 months r 2008 subdivisions 2 27 months 27 months In addition, staff found that 36 subdivisions have been recorded from 2000-2008 with an average time from preliminary subdivision approval to recordation of 23 months. The shortest time period was 13 months and the longest was 44 months. There were only six subdivisions that took 30 months-or more to record: These numbers indicate that the majority of subdivisions are completed within 23 months rather than the 60 months plus a 12 month extension that they are allowed by code. In many cases, three years would have been enough time for the majority of subdivisions to record. Taking the above into consideration, staff feels that granting short subdivisions one additional year to record (three years from preliminary short subdivision approval) is reasonable considering that small developers do not have the same resources that larger builders have. i Another item to consider is how this change would affect applications that have already received preliminary approval but have not yet recorded, as well as applications that have recently expired. The City's Law Department has provided guidance for those two scenarios: 1. The City Council has the authority to pass retroactive ordinances as long as the ordinance is clear that it intends to be retroactive and for what reasons and the ordinance does not impact a substantive or vested right. Short subdivision applications vest to land use regulations in place at the time a complete application is filed and the extension of the expiration date is not a negative impact on the vested right. 2. The second issue deals with short subdivision preliminary approvals that have already expired when the ordinance is passed. The city's Law Department has advised that if the City Council wishes to renew/reinstate a preliminary approval that has expired, the ordinance must list specific criteria which caused the application to expire, i.e. all applications (civil and final) had been filed, reviewed, and approved by city staff; however, the current banking crisis in the U.S. prevented the applicant from obtaining necessary bonding in order to record. When considering a code amendment to include a retroactive extension or reinstatement, the Board should consider that a retroactive extension would allow non-conforming developments to be constructed farther into the future. This extension would create more development which is contrary to what the City Council wishes to take place in the City as is evidenced by the adoption of new residential development standards which took effect in April of 2007. These new development standards require landscape buffers, additional tree retention and architectural features such as building and roof modulation, window trim and diminished garages. The short subdivision applications which would benefit from a retroactive extension or reinstatement are vested to standards which do not require the aforementioned development standards. At the November 10, 2008 workshop Planning staff presented the Board with the following: 1. Between December 2008 and June 2009, ten short subdivisions representing 45 total lots are due to reach their two year expiration. These applicants would benefit from Option B. 2. Three short subdivisions representing 20 total lots expired since August 2008 and may qualify for a retroactive reinstatement and extension if approved by the Council. These applicants may benefit from Option C. 2. Background on Full Subdivision Code Update The City's subdivision code provides rules, regulations, requirements, standards and procedures for subdividing land, for obtaining binding site plans, and for adjustments of lot lines in the City. Drafts of the subdivision code update were distributed to the Survey and Development Review sections of the Public Works Department for comment.. Departmental comments have been incorporated into the attached draft. The following list provides a general description of the areas which are proposed to be revised, as shown in the attached draft. 1. Consolidation - The subdivision code addresses three different types of subdivisions; a Type I short plat (2-4 lots), Type II short plat (5-9 lots), and Subdivisions (10 lots or greater). The subdivision code includes regulations, standards and procedures for each type of subdivision in three separate sections, repeating much of the same information. In order to reduce redundancy the three sections have been consolidated. 2. Consistency with State Law - The subdivision of land in Washington State is governed by the procedures within Chapter 58.17 RCW. No process is set -out in State law for short plats; therefore cities and counties are required to adopt their own regulations and procedures- for short plats. The City's regulations for short plats follow a very similar process to formal subdivision applications, except that for preliminary approval, a short plat goes before the Short Subdivision Committee rather than the Hearing Examiner. The procedures for short plats remain largely the same except where submittal requirements have been revised as discussed in item #4 of this report. Staff has reviewed the subdivision standards for consistency with Chapter 58.17 RCW. 3. Standards from Adopted Documents - The subdivision code contains development standards related to the design, construction and dedication of streets, intersections, sidewalks and storm drainage facilities. These standards are also addressed in the City of Kent Public Works Construction Standards, Kent City Code Titles 6, 7, 11, 12, 13 and 15 and other state and county regulations. It would be more appropriate to reference the adopted Public Works Construction Standards and other codes and regulations rather than list specific standards and regulations within the subdivision code. This ensures that future changes to the construction standards and other codes will not result in the need to also update the subdivision code. 4. Final Plat Submittal Requirements - The final plat submittal requirements have been updated in order to simplify the list of items applicants must submit to the City for review, and to ensure that the final short plat map complies with State Survey requirements. 5. Requirements for installation of improvements or bonding in lieu of improvements - Sections 12.04.205.13, 12.04.515.13, and 12.04.715.D KCC state that no plat or short plat shall be recorded until all improvements are constructed in a satisfactory manner and approved by responsible departments or a bond approved by the city has been posted for deferred improvements. At the November 10, 2008 workshop staff introduced a proposal to eliminate the option to bond for deferred improvements. Public Works Development Manager Mike Gillespie explained to the Board that often applicants get part way through the plat construction process then want to defer completion by posting a bond for 150% of the estimated cost of the remaining required improvements. It is difficult for the 1 City to obtain full compliance once a bond is posted, and a tremendous amount of staff time is expended getting applicants to complete required construction improvements. Furthermore, the City may become engaged in difficult negotiations with applicants (who may be an unrelated and innocent third party) to release permits for construction of the individual homes before final construction improvements have been made and accepted by the City. The City experiences these difficulties in both good and bad economic times. The bonding option is allowed by some neighboring cities and not others. For example, King County allows bonding but Federal Way requires substantial completion of construction prior to recordation. At the public hearing staff may provide proposals to amend the subdivision code to address the City's concerns regarding completion of construction after a project has bonded and recorded. The SEPA Responsible Official has determined that the proposed code amendments are procedural in nature and further SEPA analysis is not required. OPTIONS AND RECOMMENDATION: Staff has developed three options regarding extending short subdivision timelines for recordation: Option A - Short subdivision preliminary plat approval shall lapse three, four or five years from the date of approval unless a final plat based on the preliminary plat has been reviewed and approved by the city and recorded with King County. NOTE: The five-year option would be dissimilar from preliminary plats in that it would not allow the one-year extension. Option B - Short subdivision preliminary plat approval shall lapse three, four or five years from the date of approval unless a final plat based on the preliminary plat has been reviewed and approved by the. city and recorded with King County. In addition, as of the effective date of this ordinance) all current preliminary short subdivision approvals which have not yet reached the end of the two year time limit for recordation shall be extended one, two or three year(s). NOTE: The five-year option for lapsing would be dissimilar from preliminary plats in that it would not allow the one-year extension. Option C - Short subdivision preliminary plat approval shall lapse three, four or five years from the date of approval unless a final plat based on the preliminary plat has been reviewed and approved by the city and recorded with King County. As of (the effective date of this ordinance) all current preliminary short subdivision approvals which have not yet reached the end of the two year time limit for recordation shall be extended one, two or three year(s). Applicants of short subdivision preliminary approvals which expired no earlier than (insert date that would provide for the authorized expiration time from date of the short subdivision preliminary approval) may request to be reinstated and the preliminary short subdivision approval extended one, two or three additional year(s) from the date of the original expiration if all of the following criteria are met: 1. A civil construction permit application for the project has been reviewed and approved by the city. 1 2. A final short plat application has been reviewed and approved by the city, signed mylars and an Autocad disk have been received by the city, and all fees, including the parks fee-in-lieu of dedication have been paid the city. 3. The applicant has provided the city documentation from a bonding company that demonstrates that the company was unable to issue a bond. 4. A written request is received by the city within 30 days from the effective date of the ordinance. NOTE: The five-year option for lapsing would be dissimilar from preliminary plats in that it would not allow the one-year extension. RECOMMENDATIONS , 1. Expiration Periods for Preliminary Short Subdivision Approvals - staff recommends Option B. Due to ongoing difficulties applicants experience to record short plats within the two year (one year plus one year extension) timeframe and given the number of preliminary short subdivision approvals that expire, it is reasonable and fair to extend the recording timeline to three years without extensions and furthermore to apply that timeline extension to those applicants currently holding an unexpired preliminary short subdivision approval. 2. Update of the subdivision code as presented by staff, including bonding option that may be presented at the public hearing. Staff will be available at the public hearing to answer any questions. S:\Permit\Plan\SubdivisionCodeAmdments\2007\SCA-2007-1 Subdivision Code Revision\W PB\112408Hrg_SubdivisionCodeU pdateStaffRpt.doc cc: Fred Satterstrom,AICP, CD Director Charlene Anderson,AICP, Planning Manager Project File 1 1 1 1 ' COMMUNITY DEVELOPMENT T Fred N. Satterstrom, AICP, Director PLANNING SERVICES KENT Charlene Anderson,AICP, Manager WAs Fit N6rOH Phone: 253-856-5454 Fax: 253-856-6454 Address: 220 Fourth Avenue S. Kent, WA 98032-5895 - November 4, 2008 To: Chair Jon Johnson and Land Use & Planning Board Members From: Sharon Clamp, Planner Subject: #SCA 2007-1 Subdivision Code Update - Short Plat Expirations For Workshop of November 10, 2008 SUMMARY: The Board considered changing expiration periods for short plats at a workshop on October 13, 2008 and a public hearing on October 27, 2008. After the public hearing, the Board requested additional information regarding the options for extending the expiration periods. BACKGROUND: At the October 13,,2008 workshop, staff presented information regarding the need to look at current short plat expiration periods. Staff explored possible alternatives with the City's Public Works and Law Departments and prepared options for the Board's consideration. On October 27, 2008, staff presented three options for extending short plat expiration periods and the Board held a public hearing. The Board requested that staff bring forward additional information for the next workshop. Based on the Board's discussion, staff developed the following options. These options give the Board an opportunity to select the length of the extension and offer criteria for the reinstatement of short plats that have expired due to the applicant's Inability to acquire a bond. Also included are some of the implications associated with each option. Option A - Short subdivision preliminary plat approval shall lapse three, four or five years from the date of approval unless a final plat based on the preliminary plat has been reviewed and approved by the city and recorded with King County. Pro: Extending the expiration period will give the applicant additional time to complete the short platting process. City data indicate the process which sometimes can .include coordination with outside agencies, resolution of critical ' area issues, and extended financial arrangements takes an average of 14 months to complete. Three years is consistent with the amount of time allowed In several other jurisdictions. Con: The city updated residential development standards in April of 2007 and a five year extension would allow development to occur under outdated codes for a much longer period of time. During the hearing, the Board received testimony stating that short plats and plats can be equally complex and should be granted equal time. Staff looked at 36 full subdivisions (10 or more lots) from 2000-2008 and found that the average time period from preliminary plat approval to recordation was 23 months. The shortest time period was 13 months and the longest was 44 months. There were only six full subdivisions that took 30 months or more. These numbers indicate that the majority of full subdivisions are completed within 23 months rather than the 60 months plus a 12 month extension that they are allowed by code. Three years in many cases would have been enough time for the majority of plats and should be adequate for short plats as well. Option B - As of (the effective date of this ordinance) all current preliminary short subdivision approvals which have not yet reached the end of the two year time limit for recordation shall be extended one, two or three year(s). Pro: This option gives all active applications the benefit of the change in p 9 expiration periods. Con: The city updated residential development standards in April of 2007 and a five year extension will allow development to occur under outdated codes for a much longer period of time. Staff believes a three-year expiration timeline balances the time needed to complete the short plat and achieves development that reflects current standards; a five-year expiration timeline allows a much longer time for nonconforming development to occur. Option C - Short subdivision approvals which have expired may be reinstated and the preliminary short subdivision approval extended one, two or three additional year(s) if the following criteria are met. 1. A civil construction permit application for the project has been reviewed and approved by the city. 2. A final short plat application has been reviewed and approved by the city, signed mylars and an Autocad disk have been received by the city, and all fees have been paid to the city. 3. The applicant has provided documentation from a bonding company that demonstrates that the company was unable to,issue a bond. Pro: This option grants relief to applicants directly impacted by the current restricted credit markets in the U.S. Con: Private project financing and speculative investments might not be an appropriate component of the City's decision making. Independent verification of bonding difficulties may be hard to obtain. LUPB Workshop November 10,2008 #SCA-2007-1 The city updated residential development standards in April of 2007 and a retroactive extension will allow development to occur under outdated codes for a much longer period of time. We anticipate additional discussion and examples regarding these options at the workshop. CVLN1SC1pm S.%PermltIPlan%SubdWlslonCode4mdmentsl2007%SC4-2007-1 Subdivision Code RevlslonJLUP0%1110DULUPSNOM.doc cc: Charlene Anderson,AICP,Planning Manager Fred N.Satterstrom,AICP,CD Director Parties of Record Project File L WPB Workshop November 10,2008 #SCA-2007-1 t . COMMUNITY DEVELOPMENT Fred N. Satterstrom,AICP, Director PLANNING SERVICES ® Charlene Anderson, AICP, Manager ��NT WAS HIN 6TON Phone: 253-856-5454 Fax: 253-856-6454 Address: 220 Fourth Avenue S. Dent, WA 98032-5895 October 20, 2008 TO: Chair Jon Johnson and Land Use and Planning Board Members FROM: Sharon Clamp, Planner; Lydia Moorehead, Planner RE: Subdivision Code Update — Short Plat Expirations SCA-2007-1/KIVA #RPP6-2074360 Staff Report for the October 27, 2008 LUPB Hearing SUMMARY: On October 13, 2008 staff met with the Land Use and Planning Board (LUPB) to discuss extensions to the expiration time period for preliminary short plat approvals. Since that meeting, staff has explored possible alternatives with the City's Public Works and Law Departments and prepared three options for the Board's consideration. BACKGROUND: Under the current subdivision code, applicants have two years (one year plus a one year extension) to record a short plat which has been granted preliminary short subdivision approval. In many cases, two years has not been an adequate time frame for applicants to obtain the required approval of engineering plans, construct required improvements, complete the-final plat process and record the short plat with King County. As a result, preliminary short plat approvals often expire. The average length of time to complete the civil construction permit process is 9.6 months and the final plat process typically takes 4.5 months. To meet City development requirements, applicants also typically must coordinate with outside entities such as sewer and water districts, Puget Sound Energy and neighboring property owners. This coordination further challenges the feasibility of meeting the City's two-year time limitation. In addition, staff has heard from owners that given the current economic climate, required financing and bonding that are part of every short plat present huge time constraints, as both have become very difficult to obtain. While it is important to set deadlines in order to ensure that projects are completed within a reasonable amount of time,•it has become clear that the two years provided by code is difficult for many short-plat owners to meet. It is also important to balance the time required to complete vested projects and the public's interest in implementing the most up-to-date codes and standards. Washington state law does not include a process for the approval of short plats or set time frames for expiration; therefore, cities and counties are required to adopt 1 their- own regulations and procedures: Expiration periods for other jurisdictions within the area range in length from *two to five years or indefinitely if sufficient progress is being made on the application. Another item to consider is how this change would affect applications that have already received preliminary approval but have not yet recorded, as well as applications that have recently expired. The City's Law Department has provided guidance for those two scenarios: 1. The City Council has the authority to pass retroactive ordinances as long as the ordinance is clear that it intends to be retroactive and the ordinance does not impact a substantive or vested right. Short plat applications vest to land use regulations in place at the time a complete application is filed and the extension of the expiration date is not a negative impact on the vested right. - 2. The second issue deals with short plat applications that have already expired when the ordinance is passed. If the City Council wishes to renew a short plat application that has expired, the ordinance must list specific criteria which caused the application to expire, i.e. all applications (civil and final) had been filed, reviewed, and approved by city staff; however, the current banking crisis in the U.S. prevented the applicant from obtaining necessary bonding in order to record. OPTIONS AND RECOMMENDATION: Staff has developed three options for the Board's consideration: Option A — Provide a three year period to record a short plat with no opportunity for an extension that will apply to all preliminary short subdivisions which obtain preliminary approval on or after the effective date of the ordinance. It is reasonable, based on feedback from applicants and the number of short plats that expire, to grant three full years without requiring applicants to qualify why they need that amount of time. This option provides a clear, objective standard for expirations. Option B — Provide a three year period to record a short plat with no opportunity for an extension, and extend the time period by one year to those preliminary short plats which are currently valid so that they have the benefit of an additional year to meet conditions of approval and record. It is reasonable to provide the additional time to currently vested short plats_based on the, the average, 14 month timeframe which it takes applicants to obtain civil construction approval, time required to coordinate with other entities and complete construction, obtain final short subdivision approval from the City, as well as address challenges associated''with the current banking crisis in the United States. Option C — Provide a thred year period to record a short plat with no opportunity for an extension. Also, extend the time period by one year to those preliminary approvals which are currently valid and reinstate the preliminary approvals to total three year period of validity for applications that expired because they were unable to obtain financing or bonds due to the current banking crisis in the U.S. The expired applications which are reinstated shall also be those approved after January 1, 2006 which filed civil and final short subdivision applications which were reviewed and approved by City staff prior to the expiration date. RECOMMENDATION Staff recommends Option A. To retroactively grant extensions and reinstate expired applications may be construed as a grant of special privileges inconsistent with a limitation placed upon other applicants prior to the effective date of the ordinance. Staff will be available at the public hearing to further discuss these options and answer any questions. B7/MG/pm 5:\Permlt\Plan\SubdlvlslonCodeAmdments\2007\SCA-2007-1 Subdivislon Code Pavklon\WPB\10270BHrp_SubdlvlslonCodeUpdoteStdRIpkdoe cc: Fred Satterstrom,AICP,CD Director Charlene Anderson,AICP,Planning Manager Project File LAND USE & PLANNING BOARD MINUTES OCTOBER 27, 2008 BOARD MEMBERS PRESENT: Chair Jon Johnson, Vice-Chair Dana Ralph, Steve Dowell, Alan Gray, Aleanna Kondelis, Jack Ottini, Barbara Phillips STAFF MEMBERS PRESENT: .Charlene Anderson, Matt Gilbert, Sharon Clamp, Lydia Moorehead, Pamela Mottram Approval of Minutes Ottini MOVED and Gray SECONDED a Motion to APPROVE the Minutes of September 22, 2008. Motion PASSED 7-0. Added Items, Communications, Notice of Upcoming Meetings None #SCA-2007-1 Short Plat Expirations-Subdivision Code Amendment Planner Sharon Clamp stated that staff discussed a proposal to extend the expiration period for preliminary short plat approvals at the October 13t' Land Use and Planning Board (LUPB) workshop. Clamp stated that Kent City Code allows an applicant one year for completion and recording of final short plat approvals, with an additional one year extension as needed. Clamp stated that staff has found that in the majority of cases, two years are sufficient to submit and obtain approval of Civil Construction Permits (CCP) while coordinating with outside agencies such as other water and sewer districts; and Puget Sound Energy. Clamp stated once CCP approval has been granted, the applicant must complete site improvements, complete the final short plat application and submit it for review and approval. Clamp stated that staff has concluded that the average timeline for these processes is fourteen months. Clamp stated that applicants are Indicating to staff that their financing and bonding requirements present huge time constraints due to the current economic climate. Clamp stated that State law requires cities and counties to adopt their own regulations and procedures regarding short plats. Other jurisdictions' timelines run from two to five years. Kent staff proposes a three-year timeline with no extensions; each application would then not have to be evaluated on an individual basis in order to obtain an extension. Clamp stated that based on Law's advisement the following scenarios could be considered. 1) Retroactively extend the application timelines for those applications with valid preliminary approval, which have not reached their expiration date. Clamp stated that the ordinance shall be clearly written as to intent. As long as a substantive or vested right is not impacted, Council can adopt that option. A short Land Use and Planning Board 1 of 5 Minutes October 27, 2008 1 plat is vested at the time a complete application is accepted by the City. To extend the timeline to finalize and record the short plat would not impact that vested right. Clamp stated that the second issue deals with those applications that have recently expired because of the applicant's inability to obtain bonds and financing due to the current economic climate. In order to reinstate those expired applications, Law has advised staff that an ordinance would need to be written that includes specific criteria such as; "the applicant has received construction permit approval, his final plat permit has been submitted, reviewed and approved by the city, fees have been paid': Staff found that this was the case with some applications, whereby, after having gone through the processes, recording did not occur due to the current bonding issues. Referring to the staff report, Clamp stated that the first option (A) for consideration would extend the timeline to three years and would be implemented from the effective date of -the ordinance. Clamp stated that everyone who received preliminary short plat approval on or after that date would have three years to record. Clamp stated that the second option (B) would extend the timeline to three years in addition to retroactively granting that extension to those that still have valid preliminary approvals. The third option (C) would consist of Option 1 and 2 plus the development of specific criteria for reinstating some of the expired applications. Clamp stated that staff recommends Option A as it is concise with a clear transition from the old to the new rule. Kondelis recused herself from further discussion due to conflict of interest. Clamp submitted comments received from Paul Morrow with DMP Inc. for the record, documented as Exhibit 1, indicating support for extending short plat timelines. Assistant City Attorney Kim Adams Pratt stated that Council may adopt a retroactive ordinance. However, staff would have to clearly indicate why this is being done and the type of applications staff is trying to affect after the fact. Pratt stated-that though unusual, an application could be reinstated. An ordinance would need to be drafted, whereby the language clearly states why extraordinary measures needed to be taken to reinstate an application. Pratt stated that you have two competing interests; the rights of the developers who applied and vested, then found themselves unable to finish in two years. Then you have some short plats (for example) that have vested to old residential standards and if reinstated would have to vest to the new standards. Clamp stated that approximately 13 applications have expired since January 1, 2008, with three of those due to bonding issues. Land Use and Planning Board 2 of 5 Minutes October 27, 2008 Chair Johnson opened the Public Hearing. Tom Sharp, Post Office Box 918, Maple Valley, 98038 stated that this is an opportunity to consider a standardized timeline for both short and long plats. He stated that the same ordinances would apply to both short or long plats and feels that an expiration time period of 60 months is appropriate. Sharp stated that Option A or C would be acceptable to him with some wordsmithing. Jason Cole, 850 Orbitz Road, Auburn, WA 98092 stated that people are finding that without the bond process in play, that time will run out before all the improvements can be completed. The entire process is difficult to accomplish within a two-year time frame. He stated that his plat expired after having completed the process due to bonding issues. Cole stated that the city needs to extend the timelines which will benefit the city and developers that are in play. He urged the city to consider retroactivity as a viable option as well. Garrett Huffman, 3351 116th Avenue SE, Bellevue, WA 98004 stated that he represents the Master Builders Association (MBA) who prefers Option C as it best captures all the issues that need to be addressed. He stated that it is likely a bank would be more receptive to extending loans, if the city were to provide more flexibility by extending the timelines and by considering retroactivity. Huffman stated that he doesn't see the market picking up until 2010, estimating that between 25 to 50 percent of the builders and developers will be gone before the market improves. ,Huffman stated that he would prefer a longer extension time period beyond the 3 years such as 48 to 60 months. However, he urged the Board to vote on Option C, so as to capture all the projects rather than just the "3" projects expired due to bonding issues. He stated that the MBA will appreciate whatever the city can do to help them. Garry Gill, Project Manager, DMP Engineering, 726 Auburn Way N, Auburn, WA 98002 stated that several of their clients' projects have expired within the last several months with several due to expire early next year. All these projects have been faced with the inability to acquire bonding. Gill stated that many of these projects are by small individual property owners,who have poured much of their life savings into these projects and are devastated by the fact now that everything is going to collapse and they will lose all that investment that they put into the projects over the last several years. Gill stated that project development is more complicated today, as many of them involve permits from the Department of Ecology or the Corp of Engineers, the need to coordinate with adjacent property owners for easements, mitigating wetlands, and sensitive areas. Gill stated that DMP favors Option 3. Land Use and Planning Board 3 of 5 Minutes October 27, 2008 l dill concurred with Mr. Sharp in that there should not be any differentiation between short and long plats time expiration timelines. Gill stated that an extension period of 48 or 60 months would be preferred. Gill stated that the city should develop some reasonable criteria for those cases that met all the City's requirements with the exception of the final financing package, to allow them to be retroactive. Gill opined that the 150% bonding requirement should be reduced to 100% given the current financial situation and difficulty in obtaining bonds. He stated that a 100% bond should be adequate to protect the public and the city, and to ensure that the conditions of approval are completed. Hans Korve, DMP Engineering, 726 Auburn Way N, Auburn. WA stated that part.of the city's responsibility, aside from public safety, is protection of businesses; paying taxes, and keeping local businesses alive such as DMP. Korve stated that DMP is faced with projects where people were pulling equity from their homes, and then the banks froze the equity in their properties. Korve asked the Board to consider Option 3, to include retroactivity with strict controls. He stated that he agrees with the City Attorney that limitations need to be in place. Seeing no further speakers, Ralph MOVED and Gray SECONDED a Motion to Close the Public Hearing. Motion Carried 7-0. After deliberations, the Board members concurred on extending the expiration time periods. They asked that this item be tabled and brought back to the WPB at another workshop. Dowell requested staff to obtain further information concerning correct wording for the exceptions; bonding, finance, and what Legal would consider as good reasoning. The Board asked that staff provide them with information concerning retroactivity, renewal of expired applications, applying the same expiration extensions for both short and long plats, implementing a longer expiration extension from 36 to 60 months, and where the rationale originated from for the 150% bonding requirements. Planning Manager Charlene Anderson stated that the''Washington Administrative Code (WAC), has a provision for expiration of long plats (10 plats or greater) but j not for short plats. The long plats expire after five years and can be granted a one- year extension as well. Ottini MOVED and Gray SECONDED. a Motion to accept*the comment letter from Paul Morrow with DMP and submitted by Sharon Clamp for the record. Motion Carried 7-0. Land Use and Planning Board 4 of 5 Minutes October 27, 2008 Anderson stated that the bonding issue might be more appropriate to discuss during the General Subdivision Code Update. Dowell MOVED and Ralph SECONDED a Motion to Table this item and bring it back for discussion to workshop in November. Motion Carried 7-0. Adiournment Ralph MOVED and Gray SECONDED a Motion to Adjourn the Meeting. Motion CARRIED 7-0. Johnson adjourned the meeting at 8:00 p.m. Charlene Anderson, AICP, Planning Manager Secretary of the Board 5:\PermMPlan\LUPB\Z088\MIMI7FS\I0270B_LUPB ln.doc Land Use and Planning Board 5 of 5 Minutes October 27, 2008 COMMUNITY DEVELOPMENT Fred N. Satterstrom, AICP, Director ® PLANNING SERVICES I ENT Charlene Anderson,AICP, Manager WAS HIN6TON Phone: 253-856-5454 Fax: 253-856-6454 Address: 220 Fourth Avenue S. Kent,WA 98032-5895 October 6, 2008 TO: Chair Jon Johnson and Land Use & Planning Board Members FROM: Lydia Moorehead, Planner Sharon Clamp, Planner RE: *SCA 2007-1 Subdivision Code Update — Short Plat Expirations For Workshop of October 13, 2008 SUMMARY: Staff has been working to refresh the subdivision code and update it according to current State Law. In-the process we also are looking at extensions to the expiration time period for short plats. While additional changes to the subdivision code will be brought to the Board at a later date, we are bringing forward the time periods for short plat expiration at this time. BACKGROUND: Under current code, applicants have two years to complete a final short plat (one year, plus a one year extension). In many cases, two years has not been an adequate time frame for applicants to complete the civil permit review, construction and final short plat process, resulting in a number of short plats expiring. In addition, the recent credit crisis has prevented applicants from obtaining necessary bonds, also resulting in several short plat expirations. While it is important to set deadlines in order to ensure that projects continue to make progress and are completed within a_reasonable amount of time, it has become clear that the two years provided by code is difficult to meet. Furthermore it is important to balance moving forward with new codes and standards and completing vested projects. State law does not include a process for the approval of short plats or set time frames for expiration, therefore cities and counties are required to adopt their own regulations and procedures. Expiration periods for other jurisdictions within the area range in length from two to five years or indefinitely if progress is being made on the application. Cities Expiration Extension Renton 2 years 1 year Bellevue 1 year 6 months not to exceed two years Redmond 1 year Available on yearly basis, If action has commenced and remains In progress. Seattle 3 years 2 years Staff recommends that a process similar to the City of Renton be used, providing three years to complete a short' plat. While Renton provides two years with a one year extension,' it is our recommendation that a total of three years with no extensions be used. In practice, Planning Services has issued short plat extensions automatically because there are no criteria in code for issuing extensions. Because extensions are issued automatically, it makes sense to give the applicant the extra year without making a request for an extension. If an extension is used, criteria for when to grant an extension would be needed. ' Staff believes that three years will provide adequate time for an applicant to complete the civil and final short plat process if they make a reasonable effort to do so, while at the same time limiting how long preliminary short plats may be viable considering changing codes and regulations. Another item to consider is how this change would affect applications that have already received preliminary approval but have not been finalized as well as applications that have recently expired. While 'changes to the expiration period for short plats would apply to any short plat currently underway and not yet finalized, it is unclear how new regulations would affect short plats that have recently expired. We anticipate providing at your meeting additional information from the Law Department regarding how these regulations may affect applications that have recently expired. C4/LMISC1pm S:lPermlt►PfankSubdlvlslonCode4mdmenLs12007lsc4-2007-1 Subdivision code Revlslon�LUPBl10130BLUPBMemo.doe cc: Charlene Anderson,AICP,Planning Manager Fred N.Satterstrom,AICP,CD Director Parties of Record Project File LUPB Workshop October 13,2008 #SCA-2007-1 Page 2 of 2 raga i vi i Clamp, Sharon From: Greweil, Frank Sent: Wednesday, October 15, 2008 9:02 AM lb t itlof To: Clamp, Sharon Abe Read Subject: FW: KCC 12.04.21071,14 Land Use&.Planning FYI Clty.of'KiA^ Frank Grewell City of Kent/Development Review/Property Services Ph: 253-856-5582 Email: Fgrewell@ci.kentwa.us From: Paul Morrow[mailto:pauidmp@seanet.com] Sent:Wednesday, October 15, 2008 9:01 AM To: Grewell, Frank Subject: KCC 12.04.210 Frank, It has come to my attention that you are interested in revising KCC 12.04.210 to require only one original short plat document be submitted for filing. Bravo. Given the current economic climate,you may also want to visit 12.04.215 Short subdivision plat expiration. Preparation and approval of engineering plans, construction of the improvements, preparation of as-builts and final platting within one year, under the best of conditions is marginal.A one year extension is a band-aid. Financing and unrealistic 150% bonding are huge considerations that affect time constraints these days. Most jurisdictions have a 60 morith approval period. Also, when do you expect the Lee Short Plat to record? Thanks, D.M.P.,Ina Paul Morrow,P.L.S. 253 333 2200 253 333 2206 fax pau1&np&eanet.com 10/15/2008 u. November 24,2008 Land Use and Planning Board Ver. SO City of Kent Go `�4 V0 to p1NG'aawtp 220 Fourth Avenue S to Kent,WA 98032 Re:DEVLIN SHORT PLAT SP-2006-17 KIVA#RPSS-2061681 Ladies and Gentlemen: I am writing on behalf of my family's short subdivision as our designated representative. We strongly support the proposed revision for more time to record Final Short Plats. Three, five or Nine-lot short plats in many ways are not significantly different than a Ten-lot subdivision We believe this position is supported by surrounding municipal&county jurisdictions,many of which provide short plats with a five year time line or alternatively have no shorter specified time line for recording Type I final short plats(such as the city of Auburn). After speaking with Kent Planner,Sharon Clamp,last weep we understand and support the Staffs desire to assist those short plat applicants that have made it to the "finish line", so to speak. These applicants have worked hard to meet all of the development requirements,conditions and documents required to obtain their Preliminary approval, and have then spent even more time and money preparing the rest of the paperwork needed to record their plat, only to be stopped by something outside of their ability to control. Our four generation family is being similarly harmed by the same current time limit for final plat recording. My youngest daughter first met with Kent Planner, Chris Hankin,in August of 2005. She inquired if she would be able to build a second home on the back half of her sister's half acre lot, if we could gain access via the neighbors' driveway. Mr. Hanlon advised her that a 20 lot subdivision application, adjacent to our 1 southern property line, was currently being reviewed and could provide the needed access. He father advised that Kent would require that developer to provide access to our parcel on a rule prohibiting land locking adjacent parcels. He also suggested dividing our fi property into three lots. Before deciding to proceed with our short plat, over the next six months we had many meetings and phone conversations with Kent's planning staff as we investigated the process, the requirements and the associated costs, before filing our application in early 2006. Later in the application process we learned that the City also wanted similar utility easements and a road across our lot to provide development potential for additional parcels north of our property. We obliged the city and released 35% of our available property to meet this requirement,had to locate new smaller house plans to fit the much smaller lots that remained. Based on the information provided by Kent, we began the short plat process with the intention of now adding two homes, as this solved eldercare issues and childcare issues that would benefit our entire family by all of us living next to each other. We had never done something like this and so far have had to invest much personal time and money just to obtain our preliminary approval. To date,my wife and I have spent over $30,000.00 trying to achieve our family's goal. We also used our retirement money of$225,000.00 in paying off the existing mortgage on the property to facilitate the short plat. Once we obtained approval of our short plat in December 2006, we immediately hired a Civil Engineer, only to learn from Kent that the developer of the adjacent approved 20 lot subdivision plat had not yet submitted his civil engineering documents. Our engineer needed these documents to establish valid calculations and drawings, as we had to tie into those improvements and run them across our parcel for possible future developments to the north. It was only at that time that we also found out that the 20 lot subdivision had five years to record compared to the one year (plus one year extension) for our short plat. We have been waiting all of 2007 and now 2008 for this developer to proceed, but of course, he has more of his five year time left than our remaining three weeks. He also has since purchased land adjacent to our northern property line and made offers on other parcels to the north as well indicating an intention to eventually complete his current subdivision. We strongly believe that Kent should not treat a portion of the 'class' of Approved Preliminary Short Subdivisions differently by granting some more time and others like our family no similar extension. By expanding the retroactive extension option without restrictions,the broader inclusion of a few more Approved Short Plats would not create a great impact on Kenf s Planning Staff. In my discussion with Ms. Clamp, she confirmed that once a Short Plat applicant obtains their approved status,the vast majority of those applicants always carry forward and get their plats recorded. Based on the data Kent Staff has provided this board in their November 17, 2008 Staff Report, there was an average recording time of 19 months in 2007. Based upon this average time to record most of the 2006 applications that were able and elected to record were therefore recorded in 2007 or 2008. There 2 should be very few eligible 2006 files remaining and certainly no 2005 'Approved' short plats, unless the Board adopts one of the longer time line options. In such an event, the number of eligible applicants, even interested in filing for reactivation, would be statistically quite small. Further,Ms. Clamp told me that applications for short plats this year number only twelve, barely one a month so far, compared to the 45 applications during 2007. We believe that the City should provide a simple, fair and non-discriminatory retroactive extension to all eligible Approved Preliminary Short Plats, with the 30 day application period remaining as proposed by Kent City staff. We,obviously would like to see at least 4 years or the full 5 years available to subdivisions be seriously considered by this Board. We believe we have demonstrated that there will be a very limited number of applications involved and that current staff workload would not be unduly burdened, given the 75% reduction in the number of current filings being received this calendar year. In addition, the City's previous investment of staff resources and the benefit to the community in providing buildable lots would not be wasted,plus the city would benefit from the subdivision of these small parcels in meeting its goals for density management. Sincerely r� Colin R Thorpe Designated Agent C.C. Green&Rousso PLLC. 901 S 3rd St.Renton,WA 98057-2735 3 1 ClamP, Sharon From: Colin Thorpe[colint@C[.NORMANDY-PARK.WA.US] Sent: Tuesday, November 25,2008 8:27 AM To: Mottram, Pamela Cc: Clamp, Sharon; Bartlemay, Molly Subject: RE: Land Use and Planning Board (LUPB)Hearing-Monday, November 24, 2008 Sharon: I was awake all night dealing with the reality of what this decision means to us. I believe I failed to address one point with sufficient clarity. You indicated that this retro extension proposal was very special because of the current economic situation and would ndt have been considered otherwise. I also learned last night that 13 plat applicants had simply walked away from their already preliminary approvals. This is because of the housing crisis that began last year and all the developed lots sitting around growing weeds. These folks obviously felt they could not find buyers for your lots within the timeline then available, so why spend more money. I believe that Legal, crafted the Option C with the focus to cover just the three applicants that could not get bonding. This was Planning's primary focus at that time. In reality all Applicants are victims of the current economy. A Board Member encouraged me to speak at the Council Meeting;Mike also suggested a 'one on one'with one of the Council Members. Before asking the Council to consider back dating the new time line to include calendar year 2008, 1 understand Kim Pratt would need to review this issue. Your argument that the Mylar processing was time consuming was certainly valid when it involved the proposed one year extension. The two year extension adopted by the LUPA provides more time for the economy and housing market situation to improve. Whether all or only a few of the 13 expired plats in 2008 will use the 30 day application opportunity, remains to be seen. The additional time would enable some applicants to make a commercial decision on whether the lots they want to develop will be sellable to a builder during the additional time being granted.. The Board Members that voted for the 4 year time line, certainly expressed there concerns that this current economic crisis could extend far enough into the future to make 4 years a better timeline. The plats that expired in 2008 would have the 30 day window to decide if they wanted to maintain the projects to see if our market bottoms out in 2009 and building homes again returns to a more normal pace. The above is exactly the same "legal logic"that Kim Pratt used in crafting Option C, so I would like to see if you &1 can discuss this with Kim, before 1 attempt to meet with a Council Member, as Mike suggested. Thank you Colin Thorpe 425 235 0546 Home 206 248 7600 Office Welcome to the Master Builders Association web site. Page 1 of 2 Master Builders Association Monday Dec 01,2008 Phone:(425)451-79201 Fax(425)646-5985 1 Toll Free:(800)522-2209 09:27:51 PST Ideas needed for local housing stimulus effort Our association is working to develop and implement a series of local housing stimulus proposals in King and Snohomish counties. Our focus will be to encourage local jurisdictions to adopt certain measures aimed at promoting the economic engine of our local economy—housing. We are looking for viable ideas from members to include in our King County proposal. Please forward your suggestions to King County Manager David Hoffman,whether they are for the county or individual cities, so that we may include them. King County Executive Ron Sims has already voiced his support for pursuing such a plan, and we would like to move on this as soon as possible. We are marching forward on a local economic stimulus package in Snohomish County as well. Mirroring a similar successful initiative in 2002,we will focus on working with Snohomish County and some cities on adoption of measures aimed at promoting housing. We are meeting with the County Executive's office and members of the County Council. We are creating partnerships with local business leaders and organizations and most importantly working with association members to create a strong, effective plan.The effort catapulted into action at our recent annual retreat with participants offering suggestions,which we continue to solicit. Thus far the following topics have been offered for consideration and adoption,with the intent of winnowing down the package at our Dec. 2 Developer-Builder Issues Committee meeting: • Bonding reform 1 • Preliminary plat vesting extension • SEPA exemption threshold changes • Impact fee changes—later payment :2 M • Changes to level of service standards n • Require a land use regulation cost impact statement o's• • Open space credit towards fees •+ • EDDS changes m mi. • Boeing retention d 0 c • Interlocal agreements to require maintaining planned density o • Transportation needs-ultimate capacity designations, project funding �• • Multifamily property tax exemption for urban areas o • Streamline county latecomer agreement process • Streamline process for changes to approved preliminary plats o • Defer county portion of property taxes on approved preliminary CD subdivisions c) 1 For more information, please contact is North Snohomish County Manager MikeCP Pattison at(425)460-8203.. JQA 'iVT �+F�•��irtsn�r.-n�.n�rn nr.w.�.•..++ ....7...r ..1� nO....i /�...+..---TT—O/�O_C•--1.___T __—TT\ I Annr. ...1. 1---- '4J � �sl`'�,'T 0 co tn CA e-) O fix"INS 69 C +•' •"UJ' ? rkt1'•f,)-`c} rn y'x„ N l� 01 ``'<'L``i,i�'''' vl i"1., O to O1 .rty'.?•;.? is Cd o0 Lr% c*1 itv cd v CO � G yt 1,It U lt5':µ'E is t7!t Nt �v ?' ,�++/i�rnz O O .•' O P� =1•„s O �r'1 C CIL l O M pa en I'D "'?f "fit rj en enp�,� °-•� N o. C9 fA i�l�•�>ti 69 69 N +.• r y to o v ;;,t�;-_. u v� to to Cs, ���J `• �• to en ",' " u o. tT E bO.p l rr3�"lh _ ra M M t!�'1 .a�;`a"4rLi'f' ,,,� �" ^•r N C • m m m a N N N pp VLuu 00 O (ON .Ir C y a) cyO� W A7 vl N O ;H1�'A'„^ .•i O O �C t3 cv •V y �.t„�t.� N N N U1.4 �R ram. ' ,:' c7F >. 00 .14 cn `Y41.;y�rgt en rn cd 69 69 o 5-4 o 00 O: N COJ tT OIL b 00 m •�, �D tr) to N m N ran, 7x, ° ui El •{�t�Jap+~~ cc w aN enO ,, .,il. A a N N dN. O U CCS n'd `5tf.•, C O N .+ -r 4{ t!n' p 7� N N cn3 to N N CV4-4 3 �% J tip'''*;�;:Sa:•, tdy � r C tow � z '0^1 •^•r O cr, ri 'Al N � +� �ik"f 00 00 W0r1�1�F--t N �bk�C.I.�� '1d r•� t��.• A O.-r O.r O.•N .r N;y��_ +� 79mcts U ! � Oa OrC�r O� 0 C.) O ^ cl a O;rO.l C Prr•-+ &0 .-r .•. rj) f/1 O •-'•t rA Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6L 1. SUBJECT: EAST VALLEY HIGHWAY PUGET SOUND ENERGY FACILITY RELOCATION AGREEMENT - AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign an agreement with Puget Sound Energy (PSE) to relocate existing PSE facilities located on easements along East Valley Highway to new locations in order to make way for roadway widening, upon agreement of terms and conditions acceptable to the Public Works Director and City Attorney. East Valley Highway will be widened to 7-lanes from South 2121h Street to South 224th Street. Work is anticipated to start in 2009. 3. EXHIBITS: Public Works Committee Memo 11/17/08 and 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 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: 3 PUBLIC WORKS DEPARTMENT Larry R. Blanchard, Public Works Director Phone, 253-856-5500 KEN T Fax: 253-856-6500 WASHINGTON Address: 220 Fourth Avenue S. Kent, WA 98032-5895 Date: November 13, 2008 To: Chair Debbie Ranniger and Public Works Committee Members PW Committee Meeting Date: November 17, 2008 From: Chad Bieren and Nick Horn _ Through: Larry Blanchard, Public Works Director Subject: East Valley Highway Improvements PSE Relocation Agreement Motion: Move to authorize the Mayor to sign an agreement with Puget Sound Energy to relocate existing PSE facilities located on easements along East Valley Highway to new locations in order to make way for roadway widening upon concurrence with the language therein by the Public Works Director and City Attorney. Summary: East Valley Highway will be widened to 7-lanes from South 212th Street to South 224th Street. Public Works anticipates completing this work in 2009. Widening of the street will require relocation of existing Puget Sound Energy (PSE) electrical facilities. A number of PSE's facilities are located on easements and the City is required to pay for replacement easements and relocation of related PSE equipment pursuant to existing operating agreements with PSE. The attached relocation agreement between PSE and the City will reimburse PSE for the relocation costs associated with replacing existing easements and relocate its facilities that must be moved due to the City's roadway improvements. U\PWCommnleeWedonPage\2008\EVH PSE Facility Relocation doc 5 FACILITY RELOCATION AGREEMENT This Agreement, dated as of , 200_, is made and entered into by and between Puget Sound Energy, Inc., a Washington corporation("PSE"), and City of Kent, ("Government Entity"). PSE and the Government Entity are sometimes referred to herein individually as a "Party" and collectively as the"Parties." RECITALS A. PSE owns and operates certain utility systems and facilities necessary and convenient to the distribution of electricity("Facilities") that are located on or in relation to certain operating rights ("Existing Operating Rights"). The Facilities and Existing Operating Rights are more particularly described on Exhibit A attached hereto and incorporated herein by this reference. B. The Government Entity plans to construct improvements to East Valley Highway between SR 167 and S. 212`" Street ("Improvements"). C. In connection with the Improvements,the Government Entity has requested that PSE perform certain engineering design work and certain construction work relating to modification or relocation of its Facilities (the "Relocation Work"), all in accordance with and subject to the terns and conditions of this Agreement, and any applicable tariff on file with the Washington Utilities and Transportation Commission(the"WUTC"). D. The Government Entity has provided to PSE a written plan for the Improvements (the"Improvement Plan") which includes, among other things, (a)plans and specifications sufficient in detail, as reasonably determined by PSE, for PSE to design and perform the Relocation Work, including reasonably detailed drawings showing the planned Improvements, (b) a list of the key milestone dates for the Improvements, and(c)information concerning possible conflicts between PSE's Facilities and other utilities or facilities. The Parties, therefore, agree as follows: AGREEMENT Section 1. Relocation Work 2.1 Relocation Work. The Relocation Work is described in Exhibit B attached to r. this Agreement. 2.2 Performance of Relocation Work. Subject to the tenors and conditions of this Agreement and any applicable tariffs on file with the WUTC, PSE shall use reasonable efforts to perform the Relocation Work. PSE shall perform the Relocation Work in accordance with the schedule provided in Exhibit B (the"Relocation Schedule") with -1- 1 • 6 reasonable diligence in the ordinary course of its business and in light of any operational issues as to the remainder of its utility systems that may be influenced by the Relocation Work. PSE shall have no liability to the Government Entity or any third party, nor shall the Government Entity be relieved or released from its obligations hereunder, in the event of any delay in the performance of the Relocation Work due to any(a) repair, maintenance, improvement, renewal or replacement work on PSE's utility systems, which work is necessary or prudent as determined by PSE in its sole discretion; or(b) actions taken by PSE which are necessary or consistent with prudent utility practices to protect the performance, integrity, reliability or stability of PSE's utility systems or any systems to which such systems are comlected. 2.3 Adjustments to the Relocation Work. PSE shall notify the Government Entity in writing of any reasonably anticipated adjustments to the Relocation Work (including the Relocation Schedule and/or Relocation Cost Estimate) that result from (a) the revision or modification of any Improvements in a manner that requires PSE to revise its plans and specifications for the Relocation Work; (b) delays in PSE's perfonnance of the Relocation Work caused by the Government Entity(or its agents, servants, employees, contractors, subcontractors, or representatives); or(c) conditions or circumstances otherwise beyond the control of PSE. The Parties acknowledge that additional requirements not contemplated by the Parties may arise during the performance of the Relocation Work. In the event such additional requirements arise, the Parties shall provide written notice thereof and shall use good faith reasonable efforts to appropriately respond to such requirements in a prompt and efficient manner, including appropriate adjustments to the Relocation Schedule and/or the Relocation Cost Estimate. 2.4 Performance by Government Entity. In the event the Government Entity is unable to perform its obligations under Sections 3 and 4 below to PSE's reasonable satisfaction, and absent written waiver by PSE of such obligations, the Parties shall use reasonable efforts to adjust the Relocation Schedule to allow additional time for the Government Entity to perform such obligations; provided, that if the Parties cannot reasonably agree upon such schedule adjustment, PSE may, at its option, thereafter terminate this Agreement by giving written notice to the Government Entity, and the Government Entity shall promptly pay PSE the amounts payable to PSE in connection with such termination under Section 6.5. PSE's determination as to the satisfaction or waiver of any such-condition under- this Agreement shall not be deemed to be a determination of satisfaction or waiver of any other condition arising under this Agreement. 2.5 Notice to Proceed with Construction Work. At least 10 days prior to the date specified in the Relocation Schedule for commencement of construction for the Relocation Work, the Government Entity shall either(a)provide to PSE a written notice to proceed with such construction work, or(b) terminate this Agreement by written notice to PSE. In the event of such termination, the Government Entity shall promptly pay PSE the amounts payable to PSE in connection with termination under Section 6.5. -2- 7 Section 3. Operating Rights. Unless otherwise provided for in Exhibit B, the Government Entity shall be solely responsible for any costs related to acquisition of any and all operating rights for the Facilities that are necessary or appropriate, in addition to or as replacement for the Existing Operating Rights, for completion of the Relocation Work ("New Operating Rights"). Such New Operating Rights shall be in PSE's naive, shall be of equivalent quality and kind as the Existing Operating Rights and shall be provided in a form acceptable to PSE, all as determined by PSE in its sole discretion. The New Operating Rights shall be provided with sufficient title information demonstrating to PSE's satisfaction that PSE shall obtain clear, good and sufficient title to such rights, if applicable. PSE shall not be obligated to commence the RelocationWork, or otherwise in any way change, limit, curtail, impair or otherwise affect the nonnal and reliable operation of the Facilities as located upon or relative to the Existing Operating Rights, unless and until PSE is in possession of the New Operating Rights. Section 4. Permits. The Government Entity shall be solely responsible for any costs related to acquisition of any and all permits, licenses, certificates, inspections,reviews, impact statements, determinations, authorizations, exemptions or any other form of review or approval given, made, done, issued or provided by any one or more governmental authorities with jurisdiction necessary or convenient for the Relocation Work(collectively, "Permits"). The Permits shall be on such terms and conditions as PSE shall, in its sole discretion, determine to be appropriate to its needs. PSE shall not be obligated to commence construction for the Relocation Work, or otherwise in any way change, limit, curtail, impair or otherwise affect the normal and reliable operation of the Facilities, unless and until PSE is in possession of all Permits necessary for the Relocation Work and all rights of appeal with respect to the Permits shall have been exhausted. The Government Entity shall be responsible for performance of and any costs associated with any mitigation required by the Permits. Section S. Materials and Ownership Unless specifically agreed otherwise in writing by the Parties, PSE shall provide all necessary materials, equipment and labor required to perform the Relocation Work. All materials, information,property and other items provided for, used or incorporated into the _ Relocation Work(including but not limited to the Facilities)shall be and remain the property of PSE. Section 6. Relocation Costs 6.1 Estimate. PSE's good faith estimate of the costs to perform the Relocation Work (the "Relocation Cost Estimate", Exhibit C attached hereto) is $50,884.57. -3- 8 The Parties agree that the Relocation Cost Estimate is an estimate only and PSE shall be entitled to reimbursement of all actual costs incurred in or allocable to the performance of the Relocation Work. 6.2 Costs in Excess of Estimate. PSE shall use reasonable efforts to monitor its actual costs incurred during the performance of the Relocation Work, and in the event PSE determines that such costs are likely to exceed the Relocation Cost Estimate by more than twenty percent(20%), PSE shall so notify the Government Entity in writing. In such event PSE may, at its discretion, suspend performance the Relocation Work and PSE shall not be obligated to continue with performance of any Relocation Work unless and until PSE receives the Govenunent Entity's written acceptance of PSE's revised Relocation Cost Estimate and written notice to proceed with the Relocation Work. In the event PSE does not receive such acceptance and notice from the Government Entity within ten (10) working days from the date of PSE's notice, then PSE may, at its discretion, terminate this Agreement. In the event of such termination, the Govenunent Entity shall promptly pay PSE the amounts payable to PSE in connection with tennination under Section 6.5. 6.3 Relocation Costs. The Government Entity shall be responsible for, and shall reimburse PSE for, all costs and expenses incurred by PSE in connection with the performance the Relocation Work(the"Relocation Costs"). For purposes of this Agreement, the Relocation Costs shall include, without limitation, any and all direct and indirect costs incurred by PSE in connection with the performance of the Relocation Work, including, but not limited to, labor, personnel, supplies, materials, overheads, contractors, consultants, attorneys and other professionals, administration and general expenses and taxes. 6.4 Statement of Costs -Invoice. Within sixty(60) days of the completion of the Relocation Work,PSE shall provide the Government Entity with a statement and invoice of the actual Relocation Costs incurred by PSE. PSE shall provide, within a reasonable period after receipt of any written request from the Government Entity, such documentation and information as the Govenunent Entity may reasonably request to verify any such invoice. 6.5 Costs Upon Termination of Agreement. In the event either Party terminates this Agreement, the Govenunent Entity shall promptly pay PSE, the following: (a) all costs and expenses incurred by PSE in connection with the Relocation Work(including, without limitation, all Relocation Costs incurred through the date of tennination and such additional costs as PSE may incur in connection with its suspension or curtailment of the Relocation Work and the orderly tennination of the Relocation Work); and (b) all costs and expenses incurred by PSE in returning and restoring the Facilities to normal and reliable conunercial operations. -4- 9 6.6 Payment. The Govenunent Entity shall, within thirty(30) days after the receipt of an invoice for costs payable under this Agreement, remit to PSE payment for the full amount of the invoice. Section 7. Indemnification 7.1 Indemnification. The Govenunent Entity releases and shall defend, indemnify and hold harmless PSE from all claims, losses, hann, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees) caused by or arising out of any negligent act or omission or willful misconduct of the Government Entity in its perfom7ance under this Agreement. PSE releases and shall defend, indemnify and hold harmless the Govenunent Entity from all claims, losses, harm, liabilities, damages, costs and expenses (including, but not limited to,reasonable attorneys' fees) caused by or arising out of any negligent act or omission or willful misconduct of PSE in its performance under this Agreement. During the performance of such activities employees or contractors of each Party shall at all times remain employees or contractors, respectively, that Party and shall not be, or be construed to be, employees or contractors, respectively, of the other Party. 7.2 Title 51 Waiver. Solely for purposes of enforcing the indemnification obligations of a Party under tlus Section 8, each Party expressly waives its immunity under Title 51 of the Revised Code of Washington, 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 any way preclude the indemnifying Party from raising such immunity as a defense against any claim brought against the indemnifying Party by any of its employees. Section 8. Disclaimers and Limitation of Liability 8.1 Disclaimer. PSE makes no representations or warranties of any kind, express or implied, with respect to the Relocation Work or other items or services provided under this Agreement including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose or implied warranty arising out of course of performance, course of dealing or usage of trade. 8.2 Limitation of Liability. In no event shall PSE be liable, whether in contract, warranty, tort or otherwise, to any other party or to any other person for any indirect, incidental, special or consequential damages arising out of the performance or nonperformance of the Relocation Work or this Agreement. Section 9. Miscellaneous 9.1 Tariffs Control. This Agreement is in all respects subject to all applicable tariffs of PSE now or hereafter in effect and on file with the WUTC. In the event of any -5- io conflict or inconsistency any provision of this Agreement and any such tariff, the teens of the tariff shall govern and control. 9.2 Survival. Sections 3, and 5 through 9 shall survive any termination of this Agreement. Subject to the foregoing, and except as otherwise provided herein, upon and following termination of this Agreement neither Party shall have any further obligations arising under this Agreement and this Agreement shall be of no further force or effect. 9.3 Waiver. The failure of any Party to enforce or insist upon strict performance of any provision of this Agreement shall not be construed to be a waiver or relinquislument of any such provision or any other provision in that or any other instance; rather, the same shall be and remain in full force and effect. 9.4 Entire Agreement. This Agreement, including any exhibits hereto, sets forth the complete and integrated agreement of the Parties. This Agreement cannot be amended or changed except by written instrument signed by the Party to be bound thereby. 9.5 Force Majeure. In the event that either Party is prevented or delayed in the performance of any of its obligations under this Agreement by reason beyond its reasonable control (a "Force Majeure Event"), then that Parry's performance shall be excused during the Force Majeure Event. Force Majeure Events shall include, without limitation, war; civil disturbance; storm, 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 Party, or a third party who is not an employee, agent or contractor of the Party claiming a force Majeure Event, in confection with the Relocation Work or this Agreement. Upon removal or termination of the Force Majeure Event, the Party claiming a Force Majeure Event shall promptly perform the affected obligation in an orderly and expedited manner under this Agreement or procure a substitute for such obligation. The Parties shall use all commercially reasonable efforts to eliminate or minimize any delay cause by a Force Majeure Event. 9.6 Enforceability. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. 9.7 Notice. Any notice, request, approval, consent, order, instruction, direction or other communication under this Agreement given by either Party to the other Party shall be in writing and shall be delivered in person to an authorized representative or mailed, properly addressed and stamped with the required postage, to the intended recipient at the address and to the attention of the person specified below the Parties'respective signatures on this Agreement. Either Party may from time to time change such address by giving the other Party notice of such change in accordance with this section. ' 11 9.8 Governing Law. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington. This Agreement shall be fully binding upon the Parties and their respective successors, assigns and legal representatives. In witness whereof, the Parties have executed this Agreement as of the date set forth above. PSE: Government Entity: Puget Sound Energy,Inc. By By Its Its Address: Address: ' Attn: Attn: 12 EXHIBIT A FACILITIES AND EXISTING OPERATING RIGHTS Location #1 Tax Parcel# 775780-0091 Existing switch cabinet and vaults located on a PSE easement. Location #2 Tax parcel# 122204-9040 Existing vault located on a PSE easement , Location #3 Tax Parcel#122204-9095 t Existing vault located on a PSE easement -8- 13 EXHIBIT B RELOCATION WORK Construction Schedule: November/December 2008 Location #1 Tax Parcel# 775780-0091 The City, at the time of this Facility Relocation Agreement, has a Possession and Use Agreement for City right-of-way for this entire parcel. PSE will locate a new switch cabinet and vaults to the new right-of-way based on the City's Possession and Use Agreement with the property owner. The City agrees to provide PSE, at no cost to PSE, an easement in a forni acceptable to PSE covering the north 20 feet of the westl0 feet of tax parcel #775780-0091 ' once the City has taken final possession in fee of the property. Location # 2 Tax parcel # 122204-9040 PSE will locate a vault within a 10 foot X 10 foot easement in the northeast coiner of tax parcel # 122204-9040. ' Location #3 Tax Parcel#122204-9095 PSE will locate a vault within an easement located at the north 5 feet of the east 12 feet of tax parcel#122204-9095. 14 0 00LO w o � d9 Q Lq N 00 00 00 0000 o oc 00 O O O LO LO O 69 b4 1-4 ui Q o F, o O rn M ' o Z O Z c c O N Y N O m m d+ m d, N ,? ' Q � � � 00Iq OR V C a N N N -4 CID U a' �. rti .1 d r 06 Lj— C \ 69 69 69 69 69 E'' 0 + o � O 4 N N i N a UU U O T' ti N O _ '-i N L- O t G) O0- w '� o coi_ c`13 N vw 000 W m bU Ei co cr J bD 00V o Q3 00 � b�1D Cd to to w ' cc x > t t y o ; o M' a 5 cd W P .on Lei co cfl 0 CO' 1-4 > r d SOi C L". o 6~9 69 6 w +' cd d 0 --i C p EnW � A -+ 00 - d N M G C 0 O 0 7b CI m ' 3 O O C N O 00 W o o o N o' w cn J ., E E o o c Pa o `u rn W �+ q A w r oz v o o 'L cn o. n. c >. F O O Q '—^ U O U N,W 2 N O C t N t7 0 O c 01 > 0 [n :E U w iR O i— a r Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6M 1. SUBJECT: 2009 WATER TREATMENT CHEMICAL CONTRACT WITH EQUA-CHLOR - AUTHORIZE ' 2. SUMMARY STATEMENT: Authorize the Mayor to sign the 2009 Water Treatment Chemical Supply Agreement with Equa-Chlor, in the amount of $114,000, for 25% Sodium Hydroxide, subject to agreement of terms and conditions acceptable to the City Attorney and the Public Works Director. There will be no unbudgeted fiscal/personnel impact as the funding ($114,000.00) will come from the 2009 operating budget. 3. EXHIBITS: Public Works Memorandum 11/18/08 and Contract t 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: ' Councilmember moves, Councilmember seconds ' DISCUSSION: ACTION: 3 PUBLIC WORKS DEPARTMENT Larry R. Blanchard, Public Works Director ' Phone: 253-856-5500 KEN T Fax: 253-856-6500 WASHINGTON Address: 220 Fourth Avenue S. tKent, WA. 98032-5895 ' DATE: November 18 2008 1 TO: Chair Debbie Ranniger and Public Works Committee Members PW Committee Meeting Date: December 1, 2008 FROM: Larry Blanchard, Public Works Director THROUGH: Brad Lake, Water Superintendent SUBJECT: 2009 Water Treatment Chemical Contract with Equa-Chlor ' MOTION: Move to recommend Council authorize the Mayor to sign the 2009 Water Treatment Chemical Supply Agreement between the City of Kent and Equa- Chlor for 25% Sodium Hydroxide subject to terms and conditions acceptable to the City Attorney and the Public Works Director. Summar Background : 9 / Y The City annually advertises for water treatment supply chemicals to ensure a consistent cost for budgetary constraints. The use of these chemicals is required to obtain drinking water quality that meets State and Federal Regulations for drinking water standards. The treatment chemical is required to supply potable drinking water to the City's water customers. Sodium Hydroxide is used in the water system as a pH adjustment for corrosion control. Budget Impact: 1 No Unbudgeted Fiscal/Personnel Impact as the funding ($114,000.00) would come from the 2009 operating budget. 1 P Wdmm\P WCommutce\2008\l2 02 08TRTMNTEqua-Chlor Chemicals doe 5 • KEN T WASH$N O T O N 1 GOODS & SERVICES AGREEMENT between the City of Kent and Equa-Chlor LLC THIS AGREEMENT is made by and between the City of Kent, a Washington municipal corporation (hereinafter the "City"), and Equa-Chlor LLC organized under the laws of the State of Washington, located and doing business at 3541 Industrial Way/PO Box 865, Longview, 1 Washington 98632, Phone: (800) 225-6422/Fax: (360) 636-2522, Contact: Darren Hergert (hereinafter the "Vendor"). ' AGREEMENT I. DESCRIPTION OF WORK. Vendor shall provide the following goods and materials and/or perform the following services for the City: The Vendor shall supply the City of Kent Water Department with a water treatment chemicals (bid items 10 and 11) according to the bid proposal submitted November 7, 2008, which is attached as Exhibit A and incorporated by this reference. Vendor acknowledges and understands that it is not the City's exclusive provider of these goods, materials, or services and that the City maintains its unqualified right to obtain these goods, materials, and services through other sources. Vendor also acknowledges that the estimated annual usage for each chemical included on the bid proposal form is based on the City's current estimated requirements. The City may, at its sole option, revise the amount of the chemicals it will purchase to a lesser amount based on actual requirements. If the City's actual requirements exceed the estimated amount, the City may purchase greater amounts at the unit prices listed in the bid. This Contract is not intended to guarantee purchase of the estimated amounts. II. TIME OF COMPLETION. Upon the effective date of this Agreement, Vendor shall complete the work and provide all goods, materials, and services by December 31, 2009, III. COMPENSATION. The City shall pay the Vendor an amount not to exceed One Hundred Twenty Six Thousand Dollars ($126,000.00), including applicable Washington State Sales Tax, for the goods, materials, and services contemplated in this Agreement. The City shall pay the Vendor the following amounts according to the following schedule: GOODS &SERVICES AGREEMENT - 1 (Over$10,000.00, including WSST) 6 ' Delivery will be scheduled upon execution of this agreement. Vendor shall be paid ' after submittal of invoice. If the City objects to all or any portion of an invoice, it shall notify Vendor and reserves the option to only pay that portion of the invoice not in dispute. In that event, the parties will , immediately make every effort to settle the disputed portion. A. Defective or Unauthorized Work. The City reserves its right to withhold payment , from Vendor for any defective or unauthorized goods, materials or services. If Vendor is unable, for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services from other sources, and Vendor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Agreement price specified above. The City further reserves its right to deduct these additional costs incurred to complete this Agreement with other sources, from any and all amounts due or to become due the Vendor. ' B. Final Payment: Waiver of Claims. VENDOR'S ACCEPTANCE OF FINAL PAYMENT SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY VENDOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent , Contractor-Employer Relationship will be created,by this Agreement and that the Vendor has the ability to control and direct the performance and details of its work, the City being interested ' only in the results obtained under this Agreement. V. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party thirty (30) days written notice at its address set forth on , the signature block of this Agreement. VI. CHANGES. The City may issue a written amendment for any change in the goods, materials or services to be provided during the performance of this Agreement. If the Vendor determines, for .any reason, that an amendment is necessary, Vendor must submit a written amendment request to the person listed in the notice provision section of this Agreement, section XIV(D), within fourteen (14) calendar days of the date Vendor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Vendor's costs or time for performance, the City will t make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Vendor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Vendor shall proceed with the amended work upon receiving either a written amendment from the City or an oral order from the City before actually receiving the written amendment. If the Vendor fails to require an amendment within the time allowed, the Vendor waives its right to make any claim or submit , subsequent amendment requests for that portion of the contract work. If the Vendor disagrees GOODS & SERVICES AGREEMENT - 2 , (Over$10,000,00, including WSST) 7 with the equitable adjustment, the Vendor must complete the amended work; however, the Vendor may elect to protest the adjustment as provided in subsections A through E of Section VII, Claims, below. The Vendor accepts all requirements of an amendment by: (1) endorsing it, (2) writing a ' separate acceptance, or (3) not protesting in the way this section provides. An amendment that is accepted by Vendor as provided in this section shall constitute full payment and final 1 settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. VII. CLAIMS. If the Vendor disagrees with anything required by an amendment, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Vendor may file a claim as provided in this section. The Vendor shall give written notice to the City of all claims within fourteen (14) calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14) calendar days of the date the Vendor knew or should have known of the facts or events giving 1 rise to the claim, whichever occurs first . Any claim for damages, additional payment for any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Vendor unless a timely written claim is made in strict accordance with the applicable provisions of this Agreement. At a minimum, a Vendor's written claim shall include the information set forth in ' subsections A, items 1 through 5'below. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. A. Notice of Claim. Provide a signed written notice of claim that provides the following information: ' 1. The date of the Vendor's claim; 2. The nature and circumstances that caused the claim; 3. The provisions in this Agreement that support the claim; 4. The estimated dollar cost, if any, of the claimed work and how that estimate was determined; and 5. An analysis of the progress schedule showing the schedule change or disruption if the Vendor is asserting a schedule change or disruption. B. Records. The Vendor shall keep complete records of extra costs and time incurred as a result of the asserted events giving rise to the claim. The City shall have access to any of the Vendor's records needed for evaluating the protest. The City will evaluate all claims, provided the procedures in this section are followed. If the City determines that a claim is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. C. Vendor's Duty to Complete Protested Work. In spite of any claim, the Vendor shall proceed promptly to provide the goods, materials and services required. by the City under this Agreement. GOODS & SERVICES AGREEMENT - 3 (Over$10,000.00, including WSST) 8 1 D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, ' the Vendor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). , E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Vendor completely waives any claims for protested work and ' accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). VIII. LIMITATION OF ACTIONS. VENDOR MUST, IN ANY EVENT, FILE ANY LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM THE DATE THE CONTRACT WORK IS COMPLETE OR VENDOR'S ABILITY TO FILE THAT SUIT SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY LIMITATIONS PERIOD. IX. WARRANTY. This Agreement is subject to all warranty provisions established under the Uniform Commercial Code, Title 62A, Revised Code of Washington. Vendor warrants goods are merchantable, are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and Vendor's representations to City. The Vendor shall correct all defects in workmanship and materials within one (1) year from the date of the City's acceptance of the Contract work. In the event any part of the goods are repaired, only original replacement parts shall be used—rebuilt or used parts will not be acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) year from the date such correction is completed and accepted by the City. The Vendor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Vendor does not accomplish the corrections within a reasonable time as determined by the City, the City may complete the corrections and the Vendor shall pay all costs incurred by the City in order to accomplish the correction. X. DISCRIMINATION. In the hiring of employees for the performance of work under this Agreement or any sub-contract, the Vendor, its sub-contractors, or any person acting on , behalf of the Vendor or sub-contractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the , employment relates. Vendor shall execute the- attached City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance Statement. XI. INDEMNIFICATION. Vendor shall defend, indemnify and hold the City, its , officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the Vendor's performance of this Agreement, except for that portion of the injuries and damages caused by the City's negligence. The City's inspection or acceptance of any of Vendor's work when completed shall not be grounds to avoid any of these covenants of indemnification. GOODS & SERVICES AGREEMENT - 4 ' (Over$10,000.00, including WSST) r9 IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. XII. INSURANCE. The Vendor shall procure and maintain for the duration of the Agreement, insurance of the types and in the amounts described in Exhibit B attached and incorporated by this reference. XIII. WORK PERFORM15D AT VENDOR'S RISK. Vendor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary for that purpose. All work shall be done at Vendor's own risk, and Vendor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. XIV. MISCELLANEOUS PROVISIONS. A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City trequires its contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties' performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be,by filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award ' provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section XI of this Agreement. D. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. r GOODS & SERVICES AGREEMENT - 5 (Over$10,000.00, including WSST) 10 E. Assignment. Any assignment of this Agreement by either party without the written consent of the non-assigning party shall be void. If the non-assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. F. Modification. No waiver, alteration, or modification of any of the provisions of this , Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Vendor. , G. Entire Agreement. The written provisions and terms of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City,,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. All of the above documents are hereby made a part of this Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. H. Compliance with Laws. The Vendor agrees to comply with all federal, state, and i municipal laws, rules, and regulations that are now effective or in the future become applicable to Vendor's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the-performance of those operations. I. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one , Agreement. IN WITNESS, the parties below execute this Agreement, which shall become , effective on the last date entered below. VENDOR: CITY OF KENT: By: By: , (signature) (signature) Print Name: Print Name: Suzette Cooke Its Its Mayor (title) DATE: DATE: NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: VENDOR: CITY OF KENT: Darren Hergert Larry R. Blanchard Equa-Chlor LLC City of Kent PO Box 865 220 Fourth Avenue South Longview, WA 98632 Kent, WA 98032 (800) 225-6422 (telephone) (253) 856-5500 (telephone) (360) 636-2522 (facsimile) (253) 856-6500 (facsimile) GOODS & SERVICES AGREEMENT - 6 ' (Over$10,000.00, including WSST) li APPROVED AS TO FORM: Kent Law Department Equa-Chlor-2009 Water Chemicals/Bauer t 1 1 GOODS & SERVICES AGREEMENT - 7 (Over$10,000,00, including WSST) 12 DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor'or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City's sole determination regarding suspension or termination for all or part of the Agreement; ' The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. Duringthe time of the Agreement I the rime contractor, will active) consider hiring and 9 p Y 9 promotion of women and minorities. S. Before acceptance of this Agreement, an adherence statement will be signed by me, the p 9 9 Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. By signing below, I agree to fulfill the five requirements referenced above. Dated this day of , 200_. By: For: Title: Date: 1 EEO COMPLIANCE DOCUMENTS - 1 of 3 13 CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City's nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City's equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. EEO COMPLIANCE DOCUMENTS - 2 of 3 14 CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. ' I, the undersigned, a duly represented agent of Company, hereby acknowledge and declare that the before-mentioned company was the prime contractor for the Agreement known as that was entered into on the (date) , between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. Dated this day of , 200_ By: For: Title: Date: EEO COMPLIANCE DOCUMENTS - 3 of 3 t t � Exhibit A 1 i 1 1 1 1 1 I 1 1 1 1 1 i 1 1 WATER TREATMENT CHEMICAL SUPPLY FOR 2009 16 PROPOSALFORM The undersigned hereby proposes to provide all equipment, labor, materials and supplies to perform the service as specified in this contract (see special provisions 1.5 & 1.6) for the following fees: Bidder' Name: — G LLG- Item Estimated Description Bid Unit Total Annual Unit Prices Usage z� 10 95,000 25% Sodium Hydroxide in $ � �" ' $ ow GALS 4,000 Gal. Deliveries BULK GAL. FOB Pump Station #5 Total $ l Company Submitting Proposal jo�k J& I fi �y ee Aut rued ' n ure Note; Contractor must submit a firm proposal for the contract terms), WATER TREATMENT CHEMICAL SUPPLY FOR 2009 17 PROPOSALFORM 1 . The undersigned hereby proposes to provide all equipment, labor, materials and supplies to perform the service as specified in this contract (see special provisions 1.5 & 1.6) for the following fees: Bidder` Name: Item Estimated Description Bid Unit Total Annual Unit Prices Usage 11 10,000 25% Sodium Hydroxide in $ l $ t Z vw a� GALS 4,000 Gal. Deliveries BULK GAL. 1 FOB East Hill Well d� Total /)Ua -0-l4L- LL-C Company Submitting Proposal Au ; orizecoigWature Note: Contractor must submit a firm proposal for the contract term(s). is EXHIBIT B INSURANCE REQUIREMENTS FOR SERVICE CONTRACTS Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products-completed operations aggregate limit. 19 EXHIBIT B (Continued) C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Contractor's Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. F. Subcontractors Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Contractor. j Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6N 1. SUBJECT: 2009 WATER TREATMENT CHEMICAL CONTRACT WITH CASCADE COLUMBIA DISTRIBUTION - AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the 2009 Water Treatment Chemical Supply Agreement with Cascade Columbia Distribution, in the amount of $36,810.80, for Sodium Fluoride and Potassium Permanganate, subject to agreement of terms and conditions acceptable to the City Attorney and the Public Works Director. There will be no unbudgeted fiscal/personnel impact as the funding ($36,810.80) will come from the 2009 operating budget. 3. EXHIBITS: Public Works Memorandum 11 18 08 and Contract / I 4. RECOMMENDED BY: Public Works Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: 21 PUBLIC WORKS DEPARTMENT Larry R. Blanchard, Public Works Director Phone: 253-856-5500 KENT Fax: 253-856-6500 WAS HI N O T O N Address: 220 Fourth Avenue S. Kent, WA. 98032-5895 DATE: November 18, 2008 TO: Chair Debbie Ranniger and Public Works Committee Members Public Works Committee Date: December 1, 2008 FROM: Larry Blanchard, Public Works Director THROUGH: Brad Lake, Water Superintendent SUBJECT: 2009 Water Treatment Chemical Contract with Cascade Columbia Distribution MOTION: Move to recommend Council authorize the Mayor to sign the 2009 Water Treatment Chemical Supply Agreement between the City of Kent and Cascade Columbia Distribution for Sodium Fluoride and Potassium Permanganate subject to terms and conditions acceptable to the City Attorney and Public Works Director. Background/Summary: The City annually advertises for water treatment supply chemicals to ensure a consistent cost for budgetary constraints. The use of these chemicals is required to obtain drinking water quality that meets State and Federal Regulations for drinking water standards. Sodium Fluoride is used to fluoridate the drinking water in an effort to help prevent dental caries in young children. Potassium Permanganate is used as an oxidizer in the removal of iron and manganese. Budget Impact: No Unbudgeted Fiscal/Personnel Impact as the funding ($36,810.80) would come from the 2009 operating budget. P/Admtn/PWCommttee/2008/12 01 08 Chemical Contract Cascade Columbia 2009 doe 23 • KENT W A S H I N O T O N GOODS & SERVICES AGREEMENT between the City of Kent and Newco, Inc., d/b/a Cascade Columbia Distribution THIS AGREEMENT is made by and between the City of Kent, a Washington municipal corporation (hereinafter the "City"), and Newco, Inc., d/b/a Cascade Columbia Distribution organized under the laws of the State of Washington, located and doing business at 6900 Fox Avenue S., Seattle, Washington 98108, Phone: (206) 763-2350/Fax: (206) 762-5995, Contact: Keith Weisenburg (hereinafter the "Vendor"). AGREEMENT I. DESCRIPTION OF WORK. Vendor shall provide the following goods and materials and/or perform the following services for the City: The Vendor shall supply the City of Kent Water Department with water treatment chemicals (bid items 6 and 9) according to the bid proposal submitted November 7, 2008, which is attached as Exhibit A and incorporated by this reference. I a r i t h iv provider of s Vendor acknowledges and understands that it s no the City's exclusive p ovide these goods, materials, or services and that the City maintains its unqualified right to obtain these goods, materials, and services through other sources. Vendor also acknowledges that the estimated annual usage for each chemical included on the bid proposal form is based on the City's current estimated requirements. The City may, at its sole option, revise the amount of the chemicals it will purchase to a lesser amount based on actual requirements. If the City's actual requirements exceed the estimated amount, the City may purchase greater amounts at the unit prices listed in the bid. This Contract is not intended to guarantee purchase of the estimated amounts. II. TIME OF COMPLETION. Upon the effective date of this Agreement, Vendor shall complete the work and provide all goods, materials, and services by December 31, 2009. III. COMPENSATION. The City shall pay the Vendor an amount not to exceed Thirty Six Thousand, Eight Hundred Ten Dollars and eighty cents ($36,810.80), including applicable Washington State Sales Tax, for the goods, materials, and services contemplated in this lAgreement. The City shall pay the Vendor the following amounts according to the following schedule: GOODS & SERVICES AGREEMENT - 1 (Over$10,000.00, including WSST) 24 Delivery will be scheduled ,upon execution of this agreement. Vendor shall be paid after submittal of invoice. If the City objects to all or any portion of an invoice, it shall notify Vendor and reserves the option to only pay that portion of the invoice not in dispute. In that event, the parties will immediately make every effort to settle the disputed portion. A. Defective or Unauthorized Work. The City reserves its right to withhold payment from Vendor for any defective or unauthorized goods, materials or services. If Vendor is unable, for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services from other sources, and Vendor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Agreement price specified above. The City further reserves its right to deduct these additional costs incurred to complete this Agreement with other sources, from any and all amounts due or to become due the Vendor. B. Final Payment: Waiver of Claims. VENDOR'S ACCEPTANCE OF FINAL PAYMENT SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY VENDOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent p P Contractor-Employer Relationship will be created by this Agreement and that the Vendor has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. V. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party thirty (30) days written notice at its address set forth on the signature block of this Agreement. VI. CHANGES. The City may issue a written amendment for any change in the goods, materials or services to be provided during the performance of this Agreement. If the Vendor determines, for any reason, that an amendment is necessary, Vendor must submit a written amendment request to the person listed in the notice provision section of this Agreement, section XIV(D), within fourteen (14) calendar days of the date Vendor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Vendor's costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Vendor on all equitable adjustments. However, if the parties are unable to agree, the City will f determine the equitable adjustment as it deems appropriate. The Vendor shall proceed with the amended work upon receiving either a written amendment from the City or an oral order from the City before actually receiving the written amendment. If the Vendor fails to require an amendment within the time allowed, the Vendor waives its right to make any claim or submit GOODS & SERVICES AGREEMENT - Z (Over$10,000.00, including WSST) 25 subsequent amendment requests for that portion of the contract work. If the Vendor disagrees with the equitable adjustment, the Vendor must complete the amended work; however, the Vendor may elect to protest the adjustment as provided in subsections A through E of Section VII, Claims, below. The Vendor accepts all requirements of an amendment by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. An amendment that is accepted by Vendor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. VII. CLAIMS. If the Vendor disagrees with anything required by an amendment, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Vendor may file a claim as provided in this section. The Vendor shall give written notice to the City of all claims within fourteen (14) calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14) calendar days of the date the Vendor knew or should have known of the facts or events giving rise to the claim, whichever occurs first . Any claim for damages, additional payment for any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Vendor unless a timely written claim is made in strict taccordance with the applicable provisions of this Agreement. At a minimum, a Vendor's written claim shall include the information set forth in subsections A, items 1 through 5 below. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. A. Notice of Claim. Provide a signed written notice of claim that provides the following 9 p 9 information: 1. The date of the Vendor's claim; 2. The nature and circumstances that caused the claim; 3. The provisions in this Agreement that support the claim; 4. The estimated dollar cost, if any, of the claimed work and how that estimate was determined; and 5. An analysis of the progress schedule showing the schedule change or disruption if the Vendor is asserting a schedule change or disruption. B. Records. The Vendor shall keep complete records of extra costs and time incurred as a result of the asserted events giving rise to the claim. The City shall have access to any of the Vendor's records needed for evaluating the protest. The City will evaluate all claims, provided the procedures in this section are followed. If the City determines that a claim is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. GOODS & SERVICES AGREEMENT - 3 (Over$10,000,00, including WSST) 26 C. Vendor's Duty to Complete Protested Work. In spite of any claim, the Vendor shall proceed promptly to provide the goods, materials and services required by the City under this Agreement. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Vendor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). E. Failure to Follow Pro ed r s C nstitutes Waiver. B failing to follow the procedures c ue y g of this section, the Vendor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). VIII. LIMITATION OF ACTIONS. VENDOR MUST, IN ANY EVENT, FILE ANY LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM THE DATE THE CONTRACT WORK IS COMPLETE OR VENDOR'S ABILITY TO FILE THAT SUIT SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY j LIMITATIONS PERIOD. IX. WARRANTY. This Agreement is subject to all warranty provisions established under the Uniform Commercial Code, Title 62A, Revised Code of Washington. Vendor warrants goods are merchantable, are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and Vendor's representations to City. The Vendor shall correct all defects in workmanship and materials within one (1) year from the date of the City's acceptance of the Contract work. In the event any part of the goods are repaired, only original replacement parts shall be used—rebuilt or used parts will not be acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) year from the date such correction is completed and accepted by the City. The Vendor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Vendor does not accomplish the corrections within a reasonable time as determined by the City, the City may complete the corrections and the Vendor shall pay all costs incurred by the City in order to accomplish the correction. X. DISCRIMINATION. In the hiring of employees for the performance of work under this Agreement or any sub-contract, the Vendor, its sub-contractors, or any person acting on behalf of the Vendor or sub-contractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. Vendor shall execute the attached City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance Statement. XI. INDEMNIFICATION. Vendor shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the Vendor's performance of this Agreement, except for that portion of the injuries and damages caused by the City's negligence. GOODS & SERVICES AGREEMENT - 4 (Over$10,000.00, including WSST) 27 The City's inspection or acceptance of any of Vendor's work when completed shall not be grounds to avoid any of these covenants of indemnification. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. XII. INSURANCE. The Vendor shall procure and maintain for the duration of the Agreement, insurance of the types and in the amounts described in Exhibit B attached and Incorporated by this reference. 1 XIII. WORK PERFORMED AT VENDOR'S RISK. Vendor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary for that purpose. All work shall be done at Vendor's own risk, and Vendor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. XIV. MISCELLANEOUS PROVISIONS. A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties' performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section XI of this Agreement. D. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to GOODS & SERVICES AGREEMENT - 5 (Over$10,000.00, including WSST) 28 the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. E. A5signment. Any assignment of this Agreement by either party without the written consent of the non-assigning party shall be void. If the non-assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. F. Modification. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Vendor. G. Entire Agreement. The written provisions and terms of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, 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. All of the above documents are hereby made a part of this Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. H. Compliance with Laws. The Vendor agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Vendor's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. I. Coul3terparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. VENDOR: CITY OF KENT: By: BY: (signature) (signature) Print Name: Print Name: Suzette Cooke Its Its Mayor (title) DATE: DATE: NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: VENDOR: CITY OF KENT: Keith Welsenburg Larry R. Blanchard Cascade Columbia Distribution City of Kent 6900 Fox Avenue S. 220 Fourth Avenue South Seattle, WA 98108 Kent, WA 98032 (206) 763-2350 (telephone) (253) 856-5500 (telephone) (206) 762-5995 (facsimile) (253) 856-6500 (facsimile) GOODS & SERVICES AGREEMENT - 6 (over$1 0,000.00, including WSST) 29 APPROVED AS TO FORM: Kent Law Department Cascade Columbia-2009 Water Chemicals/Bauer GOODS & SERVICES AGREEMENT - 7 (Over$10,000.00, including WSST) 30 DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City's sole determination regarding suspension or termination for all or part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical i disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed by me, the Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. By signing below, I agree to fulfill the five requirements referenced above. Dated this day of , 200_._,_. By: For: Title: Date: EEO COMPLIANCE DOCUMENTS - 1 of 3 31 CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City's nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City's equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. EEO COMPLIANCE DOCUMENTS - 2 of 3 32 CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. I, the undersigned, a duly represented agent of Company, hereby acknowledge and declare that the before-mentioned company was the prime contractor for the Agreement known as that was entered into on the (.date) , between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. 1 Dated this day of , 200 By: For: Title: Date: EEO COMPLIANCE DOCUMENTS - 3 of 3 � 33 1 � Exhibit A i t I 1 1 1 I 1 r i WATER TREATMENT CHEMICAL SUPPLY FOR 2009 34 PROPOSALFORM The undersigned hereby proposes to provide all equipment, labor, materials and supplies to perform the service as specified in this contract (see special provisions 1.2 & 1.6) for the following fees: 11 1� Bidder' Name: C_.ARAO( COW) GA CASE Q6UR0JJ Item Estimated Description Bid Unit Total Annual Unit Prices Usage 6 60,000 Sodium Fluoride in 50 Lb. Bags $ �57 $ 3(�,'zoo.0 a LBS FOB Clark Springs LB �� Total $ 3 225. O UAA CAOC COt, QJ A U STYUQy1 OtJ Company Submitting Proposal Auth ed ture (Vote: Contractor must submit a firm proposal for the contract term(s). 35 WATER TREATMENT CHEMICAL SUPPLY FOR 2009 PROPOSAL FORM The undersigned hereby proposes to provide all equipment, labor, materials and supplies to perform the service as specified in this contract (see special provisions 1.4 & 1.6) for the following fees:Bidder' Name: (SCACC- COWAgA 0kS +YU G`Jf1 WJ- Item Estimated Description Bid Unit Total Annual Unit Prices Usage 9 1,000 Potassium Permanganate in $ ?, b $ 2 5(0, 0 LBS 50 to 55 Lb. Drums LB 1 R-V' PooM7 FOB 212kh St. Treatment Plank � Sub Total $ 255 G's • 0 0 9.0% WA State Sales Tax $ 2.3 2. 6.5 l Total $ CASCAOC- COWMt3A OtSTMU R00 Companly Submitting Proposal Auth d Sig re Note: Contractor must submit a firm proposal for the contract term(s). 36 EXHIBIT B INSURANCE REQUIREMENTS FOR SERVICE CONTRACTS Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 1185. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products-completed operations aggregate limit. 37 EXHIBIT B (Continued) C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate Qf Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Contractor's Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANN. E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. F. Subcontractors Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Contractor. 38 ACORD, CERTIFICATE OF LIABILITY INSURANCE DATE / 0 -- 10/3131/2200808 PI ER (206) 838-9077 HIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION "9"" LY AND CONFERS NO RIGHTS UPON THE CERTIFICATE L Insurance ServicesInc, LDER. THIS CERTIFICATE DOES NOT AMEND EXTEND OR 4005 20th Ave W Ste 132 t ` ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, Seattle WA 98199- i, `1,` 1{ i;.: INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER&American Int'1 Specialty Newco, Inc. dba Cascade Columlzi,!`'Pistributiori;. �; RE et and Industry et al ® w'" t t�r ;'I ;fir F`. ( c•American Int'1 Specialty 6900 Fox Ave S INSURER D Seattle WA 98108— INSURER E' COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADD'. POLICY EFFECTIVE POLICY EXPIRATION LTR IINSRO TYPE OF INSURANCE POLICY NUMBER DATE MWDDIYY) DATE(MNUD LIMITS A GENERAL LIABILITY EG2674220 10/31/2008 10/31/2009 EACH OCCURRENCE S 1,000,000 ED X COMMERCIAL GENERAL LIABILITY PREMISES Es o�cairrrerm S 100,000 CLAIMS MADE aOCCUR / / / / MEDEXP CAny oneperson) S 25,000 X 8ollution Liability PERSONAL BADVINJURY $ 1,000,000 X Vendors Liability / / / / GENERAL AGGREGATE S 2,000,000 GENt AGGREGATE LIMIT APPLIES PER PRODUCT MP/OP AGG $ 2,000,000 POLICY JELQT X LOC B AUTOMOBILE LIABILITY CA7665964 10/31/2008 10/31/2009 COMBINED SINGLE LIMIT X ANY AUTO (Ea ac deM) S 1,000,000 ALL OWNED AUTOS / / / / BODILY INJURY SCHEDULED AUTOS (Per person) S HIR£DAUTOS / / / / BODILY INJURY (PereWdeM) $ NON-OWNED AUTOS PROPERTY DAMAGE (Per acddent) S GARAGE LIABILITY AUTO ONLY-EAACCIDENT S ANY AUTO / / / / OTHER THAN EA ACC 6 AUTO ONLY. AGG S EXCESSIUMBRELLA LIABILITY EACH C N E S OCCUR CLAIMS MADE AGGREGATE S S DEDUCTIBLE RETENTION S 6 A WORKERS COMPENSATION AND EA2674220 10/31/2008 10/31/2009 X I TV&RUNIV5 F1OE EMPLOYERS'LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE E.L,EACH ACCIDENT S 1,000,000 OFFICERIMEMBEREXCLUDED7 (WA Stop Gap) / / / / E.L.DISEASE-EA EMPLOYEE S 1,000,000 It yes,describe Under SPECIAL PROVISIONS below E.L DISEASE-POLICY LIMIT S 1,000,000 B OTHER Auto Physical Damage cA7665964 10/31/2008 10/31/2009 Comprehensive Ded 1,000 Collision Deductible 1,000 DESCRIPTION OF OPERATIONS!LOCATIONS/VEHICL£S/EXCLUSIONSADDED BY ENDORSEMEN7lSPECULL PROVISIONS Below Certificate Holder is listed as additional insured with respect: work performed by insured. CERTIFICATE HOLDER CANCELLATION (253) 856-5500 (253) 856-6500 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE Nancy Yoshitake EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT City of Kent FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE Public Works Engineering INSURER,ITS AGENTS OR REPRESENTATIVES. 400 W GOwe AUTHORIZED REPRESENTATIVE Kent WA 98032- ACORD 26(2001108) a ACORD CORPORATION 1988 INS025(010s)D5 ELECTRONIC LASER FORMS.INC •(800)327.0545 Page 1 of 2 39 ENDORSEMENT NO. 25 This endorsement,effective 12:01 AM, October 31, 2007 Forms a part of Policy No: EG 2674220 Issued to: CASCADE COLUMBIA DISTRIBUTION By: AMERICAN INTERNATIONAL SPECIALTY LINES INS. CO. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY COVERAGE A, B, AND C ENHANCEMENT ENDORSEMENT ADDITIONAL INSURED-OWNERS, LESSEES OR CONTRACTORS FOR COVERAGES A, B, AND C This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY POLLUTION LEGAL LIABILITY COVERAGE FORM SCHEDULE Name of Person or Organization: WHERE REQUIRED BY WRITTEN CONTRACT i (If no entry appears above, information required to complete this endorsement will be shown in the Dec- larations as applicable to this endorsement) With respect to Coverages A, B, and C, WHO IS AN INSURED (Section 11) Is amended to include as an insured the person or organization shown in the Schedule, t only with respect to liability arising out of your ongoing operations performed for that insured. 411,14 AUTH IZED REPRESENTATIVE or countersignature(in states where applicable) 65386(2/98) PAGE 1 OF 1 C10545 INSURED'S COPY Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 60 1. SUBJECT: TRANSIT SERVICE AGREEMENT WITH KING COUNTY FOR ROUTE 918 - AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the Transit Service Agreement with King County for Route 918, subject to agreement of terms and conditions acceptable to the City Attorney and the Public Works Director. This agreement is different than previous agreements in that it is for a period of three (3) years rather than the previous practice of renewing the agreement each year. The City had been paying for this service with an Intelligent Transportation Systems (ITS) federal grant. The next three years will be covered by a Congestion Mitigation and Air Quality (CMAQ) federal grant. The City's 20% match is estimated at approximately $22,488 per year. This amount is already in the budget. 3. EXHIBITS: Public Works Memorandum dated 11/18/08 and Transit Service 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 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: 41 PUBLIC WORKS DEPARTMENT Larry R. Blanchard, Public Works Director Phone: 253-856-5500 KENT Fax: 253-856-6500 W A S HI NGTON Address: 220 Fourth Avenue S. Kent, WA 98032-5895 DATE: November 19 2008 TO: Chair Deborah Ranniger and Public Works Committee Members PW Committee Meeting Date: December 1, 2008 FROM: Cathy Mooney, Senior Transportation Planner THROUGH: Larry Blanchard, Public Works Director SUBJECT: Transit Service Agreement By and Between King County and the City of Kent for Route 918 Motion: Move to recommend Council authorize the Mayor to sign the Transit Service Agreement by and between King County and the City of Kent for the Route 918, subject to terms and conditions acceptable to the City Attorney and the Public Works Director. Background/Summary: This Commuter Shuttle service was started in February 2003 to meet each Sounder Train in the morning and afternoon. Commuters depart from the train or from express buses at the Kent Transit Center, get on the Commuter Shuttle, and ride to their workplace in the valley. In the afternoon, the shuttle picks up commuters at or near their worksites and returns them to the Kent Transit Center to transfer back to their bus or train for the ride home. In summary, this Agreement is different than previous Agreements in that it is for a period of three (3) years rather than our previous practice of renewing the Agreement each year. We had been paying for this service with an Intelligent Transportation Systems (ITS) federal grant. The next three years will be covered by a Congestion Mitigation and Air Quality (CMAQ) federal grant. The City's 20% match is estimated at approximately $22,488 per year. This amount is already in the budget. P WdnunSuplPWCnmmtttee12008112 0108 Transit Route 918 doc Transit Service Agreement By and Between King County and The City of Kent 1, INTRODUCTION THIS AGREEMENT is made by and between King County, (hereinafter referred to as the "County")and the City of Kent(hereinafter referred to as the"City"). IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS: 2. PURPOSE OF AGREEMENT The purpose of this agreement is to establish the responsibilities of the City and County as related to the provision of the DART service on Route 918 in Kent. The grant funds will be used in conjunction with funds provided by the City to continue operation of this service for the next three years. 3. DEFINITIONS Definitions - as used throughout this Agreement, the following terms shall have the meanings set forth below: 1 A. "DART" service is demand-responsive transportation service such as dial-a-ride or route- deviation, that provides the general public with the ability to call and schedule trips within the designated service area. DART service is provided by a private service provider under contract with the County. 4. COUNTY'S RESPONSIBILITIES 4.1 During the term of this Agreement, the County will manage and operate DART service (Route 918) in Kent. The County shall provide for the operation of the service in accordance with its regular procedures, including the collection of regular Metro fares. 4.2 The County will develop and print timetables for the DART service (Route 918). 5. CITY'S RESPONSIBILITIES The City will be responsible for reimbursing the County for the operation of Route 918 as specified in Section 7 - Consideration. 6. TERM 6.1 Unless terminated as provided in this Agreement,the term of this Agreement will be from January 1, 2009 through December 31, 2011. This Agreement may be extended for up to two additional years upon written agreement by both parties. 7. CONSIDERATION 7.1 In return for providing the Route 918 DART service specified in Attachment A, the City will compensate the County for twenty percent (20%) of the operating costs based on the current DART contract hourly rates in effect when the service was operated and related fuel costs. The projected DART contract rates beginning in 2009 are: Hourly Rate — DART Vehicles Jan 2009 —Aug2009 $64.72 Sept 2009—Aug2010 $67.69 Sept 2010—Aug2011 $70.69 Sept 2011 — Dec 2011 $73.18 7.2 Fuel Costs. Fuel costs for the Route 918 will be calculated based on the DART program's total fuel cost for the month, divided by the number of DART revenue service hours that month. The resulting hourly rate for fuel will be added to DART contract rate to determine the operating cost for Route 918. 7.3 The Route 918 will operate the following service hours unless otherwise revised by agreement of both parties. REVENUE SERVICE HOURS Daily Hours 5.97 Est. Annual Hours 1,505 2009 Estimated Annual Cost Jan 09—Aug09 1,003 hrs $64.72 $64,914 Sept 09— Dec 09 502 hrs $67.69 $33,980 Fuel 1,505 $9.00 $13,545 Est.Total Annual $112,439 20% $22,488 80% $89,951 7.4 Grant Funds. Funds from the County's CMAQ grant for Kent Passenger Shuttle Operations will be used to pay for eighty percent (80%) of the operating costs associated with Route 918 during the term of this Agreement. The remaining twenty percent (20%) match will be the responsibility of the City, as provided for within section 7.1 above. 2 7.5 Fare Revenue. Regular Metro fares will be collected from passengers riding the Route 918. The County will be responsible for collecting the cash fares on this service and accounting for this revenue as program income as required by the Federal Transit Administration (FTA). As specified by the FTA, such fare revenue cannot be applied towards the local match requirements for this grant. 7.6 Both parties agree that any agreed-upon service revisions that result in an increase or decrease in the service hours and costs for Routes 918 will result in an adjustment to the amount owed by the City for the operation of this service. 8. INVOICES/PAYMENT PROCEDURES 8.1 The County shall issue invoices to the City every three (3) months for the cost of providing this service. The invoice shall indicated the number of days service was operated, the daily service hours, the hourly rate, the fuel cost and fare amount credited towards the service cost The City agrees to make payment within thirty(30)days after receipt of an invoice for service performed in accordance with this Agreement. 82 Late Charges Should the City fail to pay the County the amount due within forty-five (45) days of receipt of a billing invoice from the County, a penalty shall be applied to any outstanding balance due for that month's invoice. The penalty shall be fixed at a rate not to exceed that allowable under State of Washington law. Continued failure to submit payments within the schedule specified may result in the County terminating this Agreement. 9. LIABILITY AND LEGAL RELATIONS 9.1 It is understood and agreed that this Agreement is solely for the benefit of the parties hereto and gives no right to any other parry. No joint venture or partnership is formed as a result of this Agreement. No employees or agents of one party or its contractors or subcontractors shall be deemed, or represent themselves to be, employees, agents, contractors or subcontractors of the other party. 9.2 Both parties shall comply, and shall ensure that their contractors comply with all federal, state and local laws, regulations, and ordinances applicable to the work and services to be performed under this Agreement. 9.3 Each party shall protect, defend, indemnify and save harmless the other party, its officers, officials, employees and agents while acting within the scope of their employment as such, from any and all costs, claims,judgments, and/or awards of damages, arising out of or in any way resulting from each party's own negligent acts or omissions. Each party agrees that it is fully responsible for the acts and omissions of its own subcontractors, their employees and agents, acting within the scope of their employment as such, as it is for the acts and omissions of its own employees and agents. Each party agrees that its obligations under this provision extend to any claim, demand, and/or cause of action brought by or on behalf of any of its employees or agents. The foregoing indemnity is specifically and expressly intended to constitute a waiver of each party's immunity under Washington's Industrial Insurance act, RCW Title 51, as respects the other party only, and only to the extent necessary to provide the indemnified party with a full and complete indemnity of claims made by the indemnitors employees. The parties acknowledge that these provisions were specifically negotiated and agreed upon by them. 3 9.4 The County's rights and remedies in this Agreement are in addition to any other rights and remedies provided by law. 9.5 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 arising under this Agreement 96 The provisions of this section shall survive any termination of this Agreement. 10. ASSIGNMENT No assignment of responsibilities, monies due, or claims arising out of this Agreement may be made without the prior consent of the other party, which consent should not be unreasonably withheld. 11. CHANGES AND MODIFICATIONS Any changes made within the general Scope of Work of this Agreement shall be mutually agreed to by both parties in writing. If such change causes an increase or decrease in the cost and/or revenue of, or in the time required for the performance, of any services under this Agreement, an equitable adjustment agreed to by both parties may be made in the Agreement price or period of performance, and the Agreement shall be modified in writing accordingly. 12. TERMINATION OF AGREEMENT 12.1 Either party may terminate this Agreement, in whole or in part, in writing if the other party substantially fails to fulfill any or all of its obligations under this Agreement through no fault of the other; provided, that, insofar as practicable, the party terminating the Agreement will give not less than ten (10) calendar days' written notice delivered by certified mail, return receipt requested, of intent to terminate 12.2 In addition to termination under Paragraph 12.1 of this Section, either party may terminate this Agreement, in whole or in part, in writing, for its convenience; provided, that the other party will be given not less than sixty (60) calendar days' written notice delivered by certified mail, return receipt requested, of intent to terminate. 12.3 Provided, however, the County's ability to perform the work of this Agreement beyond the current ` appropriation year is conditional upon appropriation by the King County Council of sufficient funds to support said work. Should such an appropriation not be approved, this Agreement will terminate automatically at the close of the current appropriation year. The appropriation year ends on December 31 of each year. 13. EXCUSE FROM PERFORMANCE Either party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by a cause beyond its control, including, but not limited to: any incidence of fire, flood, earthquake or acts of nature; strikes or labor actions; commandeering material, products, or facilities by the federal, state or local government; national fuel shortage; when satisfactory evidence of such cause is presented to the other party, and provided further that such non-performance is beyond the control and is not due 4 to the fault or negligence of the party not performing. In no event should this provision eliminate the need to make payment to the County for work performed in accordance with this Agreement 14. WAIVER OF DEFAULT Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless stated to be such in writing, signed by authorized parties and attached to the original Agreement. 15. ALL TERMS AND CONDITIONS This Agreement merges and supersedes all prior negotiations, representations and agreements between the parties related to the subject matter hereof and constitutes the entire agreement between the parties. This Agreement may be amended only by written agreement of both parties. This Agreement contains all the terms and conditions agreed upon by the parties No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. IN WITNESS WHEREOF: The parties hereto have executed this Agreement on the day of ,2008. CITY OF KENT By Title KING COUNTY r By �r Title 5 ATTACHMENT A Route 918 Service SPECIFICATIONS A. SHUTTLE BUS OPERATIONS 1. SERVICE DESCRIPTION The Route 918 will be operated as DART service, providing peak hour service on weekdays in Kent. The route will operate as a commuter shuttle providing service about every 30 minutes between North Kent and the Kent Station during the a.m. and p.m. peak hours. 2. ROUTING The routing for Route 918 is indicated in the attached map. 3. FARES Regular King County Metro Fares will be collected from passengers riding the Route 918. 4. HOLIDAYS ` There is no service on this route on weekends or the following holidays: • Thanksgiving j • Christmas • New Year's • Presidents' Day • Memorial Day • 41h of July • Labor Day 6 , Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6P 1. SUBJECT: WASHINGTON TRAFFIC SAFETY COMMISSION "X-52" GRANT - ACCEPT 2. SUMMARY STATEMENT: Accept the Washington Traffic Safety Commission "X-52" Grant in the amount of $5,003, amend the budget to authorize expenditure of the grant funds, and authorize the Mayor to sign all necessary documents. This grant is in addition to an earlier grant for $7,000 which was awarded in August 2008. The funds will provide sustained overtime funding for DUI enforcement and speeding emphasis patrols. The campaign entitled, "X-52 Patrols" began on October 13, 2008 and runs through September 27, 2009. Emphasis patrols must be multi-jurisdictional with a minimum of three law enforcement agencies coordinating patrols on designated dates. Funding is on a reimbursement basis. 3. EXHIBITS: E-mail announcement dated 11/13/08 4. RECOMMENDED BY: Public Safety Committee 12/2/08 (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? X ' Currently in the Budget? Yes No X 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: From: Boisvert, Deanne [mailto:Deanne.Boisvert@kingcounty.gov] Sent: Thursday, November 13, 2008 3:48 PM To: Lt. Tim Thibert; Velez, Cesi; Clark Wilcox Cc: Padilla, Rafael Subject: Extra Funding for KC X-52 Patrols ' Importance: High Good Afternoon, Your agency will receive extra money(amount below)to conduct the scheduled X-52 patrols. Important Notes: �1 Half of the extra money is for DUI patrols,the other half for speed. I All the extra money must he used for already scheduled X-52 patrols (see attached schedule) EXCEPT: You may use the extra DUI money to hold additional X-52 DUI patrols over the winter holidays on any of the following dates:Dec 19-21,Dec.24,Dec.26-28, or Dec.31-Jan. 1. 1 All X-52 patrol rules apply to these holiday patrols,i e.3 contacts an hour,patrols between the hours of 6PM-4AM on the dates specified,etc. 2 You may put all December patrols on the same A-19. You do NOT have to do extra DUI patrols during the holidays.If you don't,again,the extra DUI money must be used for the already scheduled X-52 DUI patrols. 1 Please call me if you have questions 206-263-8160. Original Funding Request Allocation of Extra KC Funds Total Allocated $7,000.00 $5,003.00 $12,003.00 Deanne M. Boisvert, MNPL, BSPH Violence & Injury Prevention Public Health - Seattle & King County 401 Fifth Ave, Suite 900 Seattle, WA 98104 tPhone: 206-205-5866 or 206-263-8160 Fax: 206-296-0208 Interdepartmental Mail: CNK-PH-0900 2008-2009 X-52 PATROL DATES for King County MON-SUN October 13-19,2008 Speed FRI-SUN December 12-14,2008 DUI MON-SUN February 9-15,2009 Speed FRI-SUN Match 20-22,2009 DUI - MON-SUN April 13-L9,2009 Speed FRI-SUN June 12-14,2009 DUI FRI-SUN July 24-26,2009 DUI MON-SUN September 21-27,2009 Speed Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 60 1. SUBJECT: SEATTLE POLICE DEPARTMENT COST REIMBURSEMENT AND SERVICE AGREEMENT - ACCEPT 2. SUMMARY STATEMENT: Accept reimbursement from the Seattle Police Department, in an amount not to exceed $5,000, to assist in the investigation and ' prosecution of gang related crime through a multi-jurisdictional Special Gang Enforcement Taskforce and authorize the Police Chief to sign all necessary documents. Kent Police Department officers will work with the task force to implement a coordinated approach to reducing crime and related activities perpetrated by ' identified criminal gangs in hot spot emphasis areas. The Agreement is in effect until June 30, 2009. The Seattle Police Department is the recipient of a grant through the Washington Association of Sheriffs and Police Chiefs (WASPC), and will oversee and convene 1 meetings of the task force. 3. EXHIBITS: Cost Reimbursement and Service Agreement 4. RECOMMENDED BY: Public Safety Committee 12/2/08 (Committee, Staff, Examiner, Commission, etc.) ' 5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes No X 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: Cost Reimbursement and Service Agreement Executed by Seattle Police Department(SPD), a department of the City of Seattle, hereinafter referred to as "SPD", Department Authorized Representative: Lt. Ron Wilson 610 5ch Avenue ' PO Box 34986 Seattle, WA 98124-4986 and Kent Police Department (KPD) a department of the ' City of Kent, hereinafter referred to as KPD, Department Authorized Representative: Lt. Ken Thomas 232 Fourth Ave S ' Kent, WA 98032 ' WHEREAS, SPD is the recipient of a grant through the Washington Association of Sheriffs and Police Chiefs (WASPC) to assist in the investigation and prosecution of gang related crime; and ' WHEREAS, SPD oversees and convenes bi-weekly meetings of a multi-jurisdictional Special Gang Enforcement Taskforce intended to reduce crime and related activities perpetrated by identified criminal gangs in hot spot emphasis areas through a coordinated and comprehensive ' application of enforcement activities focusing on the dismantling of these criminal organizations; NOW THEREFORE, the parties hereto agree as follows: This Cost Reimbursement Agreement contains seven (7) Articles: ARTICLE I: TERM OF AGREEMENT: The term of this Cost Reimbursement Agreement shall be in effect until June 30, 2009 unless terminated earlier pursuant to the provisions hereof. ' ARTICLE II: DESCRIPTION OF SERVICES Under the direction of SPD's Gang Lieutenant, who will function as the Coordinator of the Special ' Gang Enforcement Taskforce, SPD officers along with KPD officers will implement a coordinated approach to reducing crime and related activities perpetrated by identified criminal gangs in hot spot emphasis areas. SPD will utilize WASPC grant funding to reimburse participating Kent Police Officers to work on a pre-approved overtime basis, under the coordination of SPD's Gang Unit Lieutenant, to conduct pro-active and follow-up investigations in identified hot spot areas; and to reimburse pre-approved overtime worked by Kent Police Crime Analyst personnel for collecting,tracking, and reporting gang-crime data. In order to be reimbursable, overtime worked by Kent Police personnel must be approved in advance by SPD's Gang Lieutenant. ' SPD may, at its sole discretion, utilize WASPC grant funding to purchase investigative equipment to assist the Taskforce in conducting gang investigations and collecting and reporting gang-crime data, i.e. a laptop, software license, air card, digital camera, and/or digital audio recorder. ARTICLE III: OPERATIONAL STANDARDS , KPD agrees to participate in the Special Gang Enforcement Taskforce and attend bi-weekly meetings of the group. , KPD agrees to attend court proceedings relating to cases that arise from working on the Special Gang Enforcement Task-force at the employing jurisdiction's expense. , KPD agrees that informants are managed by the jurisdiction that the investigation arises out of. KPD will maintain accurate records pertaining to an contacts investigations, and arrests that will P g gang � g � , be collected and forwarded not less than monthly to Lt. Ron Wilson, Seattle Police Department, 610 51h Avenue, PO Box 34986, Seattle, WA 98124-4986, to ensure timely quarterly statistical , reporting to WASPC. (A Gang-Crime Data Reporting Form is included as an attachment to this Agreement.) ' ARTICLE IV: LIABILITY ' KPD agrees to indemnify and hold the City of Seattle, its employees, officers and agents and SPD harmless from any and all losses, claims, actions, costs, expenses,judgments, subrogation or other damages resulting from injury to any person(including injury resulting in death) or damage , (including loss or destruction) to property, of whatsoever nature, of any person arising out of or incidental to the KPD's participation in the Special Gang Enforcement Taskforce. KPD agrees that any and all work related injury or illness incurred by a KPD employee while , working on this Special Gang Enforcement Taskforce shall be covered by the employee's employing jurisdiction, the City of Kent. , Each jurisdiction participating as a member of the Taskforce shall assume liability for any and all personal injury, property damage, third party damage, or other damage resulting from a vehicle ' collision that occurs while acting in furtherance of, participation in,-or incidental to the Taskforce and its mission. Each jurisdiction participating as a member of the Taskforce shall be solely liable for any and all ' claims, lawsuits, losses, costs, expenses,judgments, or other damages arising out of that jurisdiction's employees' actions or inactions while working on the Taskforce. Therefore, liability , of one Taskforce jurisdiction that arises out of acting in furtherance of the Taskforce and its mission shall not automatically attach to any other participating jurisdiction based upon Taskforce membership alone. , Page 2 of 3 ARTICLE V: VENUE STIPULATION—DISPUTE RESOLUTION This agreement shall be construed as having been made and delivered between the City of Seattle and the City of Kent and the laws of the State of Washington shall be applicable to its construction and enforcement. Any action at law, suit in equity, or judicial proceeding for the enforcement of this agreement or any provision hereto shall be instituted in King County, Seattle, Washington. ARTICLE VI: REIMBURSEMENT ' Requests for reimbursement will be made on a monthly basis and should be forwarded to SPD as soon as practical after the first of the month that follows the month for which reimbursement is requested. Such requests should be forwarded by KPD's Special Investigations Unit Lieutenant to SPD's Gang Lieutenant for his review, approval, and submission to SPD's chain of command for processing. Overtime reimbursements for KPD personnel assigned to the Special Gang Enforcement Taskforce will be calculated at the usual rate for which the individual deputies' time would be compensated in the absence of this agreement, excluding FICA and retirement benefits. Each request for reimbursement will include the name, rank, overtime compensation rate, number of reimbursable hours claimed and the dates of those hours for each officer for whom reimbursement is sought. Each reimbursement request must be accompanied by a certification signed by an appropriate supervisor of the department that the request has been personally ' reviewed, that the information described in this paragraph is accurate, and the personnel for whom reimbursement is claimed were working on an overtime basis with the Special Gang Enforcement Taskforce. The maximum amount to be paid under this cost reimbursement agreement shall not exceed five thousand dollars ($5,000). Requests for reimbursement must be received by SPD by June 30, 2009 to be payable. ARTICLE VII: AMENDMENTS No modification or amendment of the provisions hereof shall be effective unless in writing and signed by authorized representatives of the parties hereto. The parties hereto expressly reserve the right to modify this Agreement, by mutual agreement. IN WITNESS WHEREOF, the parties have executed this Agreement by having their representatives affix their signatures below. KENT POLICE DEPARTMENT SEATTLE POLICE DEPARTMENT Steve Strachan, Chief of Police R. Gil Kerlikowske, Chief of Police Date: Attachment: Gang-Crime Data Reporting Form Page 3 of 3 Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6R ' 1. SUBJECT: HOMELAND SECURITY SUB GRANT - ACCEPT 2. SUMMARY STATEMENT: Accept a reimbursable grant, not to exceed $50,000 from the King County Office of Emergency Management for continuation of the Community Emergency Response Team (CERT) training "bulk buy" program. This program purchases and distributes required personal safety equipment to all trained CERT individuals in King County. The Agreement with King County has been reviewed and approved by our City ' Attorney. 3. EXHIBITS: Sub-grant Agreement 9 9 ' 4. RECOMMENDED BY: Staff and Public Safety Committee 12/2/2008 (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? X Currently in the Budget? Yes No X 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: King County Office of Emergency Management HOMELAND SECURITY SUBGRANT AGREEMENT SUB GRANT AGREEMENT NUMBER: FFY07-SHSP-CC-002 PROJECT TITLE: King County CERT Programs Bulk Buy THIS AGREEMENT is made and entered into by and between King County and the City of ' Kent, hereinafter"Subgrantee", for the express purposes set forth in the following provisions of this Agreement. It is understood that funding for this Agreement has been granted to King County by the United States Department of Homeland Security (DHS) through the Washington State Military Department, Emergency Management Division (EMD). The funding source of the grant is the FFY07 State Homeland Security Program (SHSP) Catalog of Federal Domestic Assistance (CFDA)# 97.067, State Contract#E08-196. Neither the DHS nor the Federal Government shall be a party to any subagreement nor to any solicitations or request for proposals. This Agreement shall be subject to the applicable grant contract between DHS and EMD and the subgrant contract between EMD and King County, The Subgrantee agrees not to perform any act, fail to perform any act, or refuse to comply with any King County requests that would cause King County to be in violation of the DHS and EMD grant terms and conditions, a copy of which is attached hereto as Exhibit D. ' NOW THEREFORE, King County and the Subgrantee mutually agree as follows: 1. SCOPE OF WORK, BUDGET AND APPROVED EQUIPMENT LIST The Subgrantee will accomplish the work and tasks as set forth in this Agreement including the Scope of Work, (attached hereto as Exhibit A), Budget (Exhibit B) and Approved Equipment List ' (Exhibit C). 2. PERIOD OF PERFORMANCE The period of performance under this Agreement will be from November 1, 2008 to March 31, 2009. All work must be satisfactorily completed, and all invoice reimbursement requests, reports, and deliverables must be submitted to King County Office of Emergency Management, by the end of this Period of Performance. 3. CONTRACT REPRESENTATIVES King County's Project Manager on this Agreement shall be Tony Lewis -- Project/Program Manager II at King County Office of Emergency Management. The Project Manager shall be j responsible for monitoring the performance of the Subgrantee, the approval of actions by the Subgrantee, approval for payment of billings and expenses submitted by the Subgrantee, and the acceptance of any reports by the Subgrantee. The Subgrantee's representative to this Agreement shall be Dominic Marzano-Assistant Chief who will be the contact person for all communications regarding the conduct of work under this Agreement and who will ensure that all terms of the Agreement are met. Page 1 of 38 Any notice required or permitted under this Agreement shall be deemed sufficiently given or , served if sent to King County or the Subgrantee at the addresses provided below: If to King County: Tony Lewis King County Office of Emergency Management 3511 NE 2"d Street Renton, WA 98056 PH: (206) 296-3830/ FAX: (206) 205-4056 , alec.chapman(&kinqcounty.gov If to the Subgrantee: Dominic Marzano City of Kent 24611 116`"Ave SE Kent, WA 98030 PH: (253) 856-4316/ FAX: (253) 856-4119 dmarzanoaci.kent.wa.us 4. REIMBURSEMENT REQUESTS AND PAYMENT This is a reimbursement Agreement and will not to exceed $50,000.00 (Filly thousand dollars , and zero cents)with compensation payable to the Subgrantee for satisfactory performance of the work under.this Agreement. Payment for satisfactory performance of the work shall not exceed this amount. The parties may amend this amount by mutual agreement. Compensation for satisfactory work performance shall be payable upon receipt of properly completed Invoice Reimbursement Request, which is available to the Subgrantee at. , http://www.metrokc.gov/prepare/homelandsecurity/homelandsecurii ry subgrant.asox Invoice Reimbursement Request forms for eligible costs may be submitted no more than monthly and no less than quarterly after expenses have been incurred. Supporting documentation is required for reimbursement of all expenses related to the Scope of Work, Budget and Approved Equipment List in Exhibits A, B and C. Supporting documentation includes, but is not limited to, paid invoices to vendors, paid expense claim forms, canceled checks, etc. The documentation must also include the date of payment by the Subgrantee to ensure that the work was completed within the subgrant period of performance. When seeking reimbursement for equipment, the Subgrantee must also present a Hand Receipt Form. King County may also require the Subgrantee to document that funding governed by this Agreement Is not being used to replace or supplant existing programs, staff costs, activities and/or ' equipment. Payment shall be considered timely if mailed by King County to the Subgrantee within thirty (30) calendar days after receipt of properly completed Invoice Reimbursement Request. Payment shall be sent to the address designated by the Subgrantee on the Invoice Reimbursement Request form. King County may, at its sole discretion, withhold payments claimed by the , Page 2 of 38 , w Subgrantee for services rendered if King County has determined that the Subgrantee has failed to satisfactorily comply with any term or condition of this Agreement. King County does not incur liability for any payment to the Subgrantee that is subsequently disallowed by State or Federal granting agencies. King County reserves the right to withhold or recoup payment for work or activities determined by funding agencies to be ineligible for reimbursement. 5. REPORTING REQUIREMENTS Narrative Progress Reports are due on a quarterly basis. This report must include the Subgrantee's progress in implementing the Scope of Work, including any problems encountered and possible cost overruns or under runs. If no progress has been made on the Agreement a report must still be provided quarterly. 6. RECORDS MAINTENANCE 1 The Subgrantee shall maintain accounts and records, including personnel, financial, and programmatic records, and other such records as may be deemed necessary by King County, to ensure proper accounting for all project funds and compliance with this Agreement. All such records shall sufficiently and properly reflect all direct and indirect costs of any nature expended and service provided in the performance of this Agreement. These records shall be maintained for a period of six (6) years after subgrant close-out, and shall be subject to inspection, review or audit by King County, State or Federal officials as so authorized by law. 7. EQUIPMENT MANAGEMENT& GENERAL PROGRAM REQUIREMENTS 1 A. EQUIPMENT MANAGEMENT All equipment purchased under this Agreement by the Subgrantee will be recorded and maintained in an equipment inventory system. 1. Upon successful completion of the terms of this Agreement, all equipment purchased through this Agreement will be owned by the Subgrantee, or a recognized sub-grantee for which a contract, subgrant agreement, or other means of legal transfer of ownership is in place. ' 2. The Subgrantee, or a recognized subgrantee shall be responsible for any and all operation and maintenance expenses and for the safe operation of the equipment, including all questions of liability. 3. The Subgrantee shall maintain equipment records that include: a description of the property; the manufacturer's serial number, model number, or other identification number; the source of the equipment, including the Catalogue of Federal Domestic ' Assistance or CFDA number; who holds title; the acquisition date; the cost of the equipment and the percentage of Federal participation in the cost;the location, use and condition of the equipment at the date the information was reported; and disposition data 1 including the date of disposal and sale price of the property. 4. Records for equipment shall be retained by the Subgrantee for a period of six (6) years from the date of the disposition, replacement or transfer. If any litigation, claim, or audit is started before the expiration of the six(6)year period, the records shall be retained by the Subgrantee until all litigations, claims, or audit findings Involving the records have been resolved. 5. The Subgrantee shall take a physical inventory of the equipment and reconcile the results with the property records at least once every two (2) years. Any differences between quantities determined by the physical inspection and those shown in the 1 Page 3 of 38 records shall be investigated by the Subgrantee to determine the cause of the difference. ' The Subgrantee shall, in connection with the inventory, verify the existence, current utilization, and continued need for the equipment. 6. The Subgrantee shall develop a control system to ensure adequate safeguards to ' prevent loss, damage, and theft of the property. Any loss, damage or theft shall be investigated and a report generated which will be submitted to King County Office of Emergency Management. 7. The Subgrantee will develop adequate maintenance procedures to keep the property in good condition. 8. If the Subgrantee is authorized or required to sell the property, proper sales procedures ' must be established to ensure the highest possible return. 9. When original or replacement equipment is no longer needed for the original project or program or for other activities currently or previously supported by a Federal agency, disposition of the equipment will be made as follows: a. Items of equipment with a current per-unit fair market value of less than $5,000 may be retained, sold or otherwise disposed of by the Subgrantee with no further obligation to the awarding agency. b. Items of equipment with a current per-unit fair market value of more than $5,000 may be retained or sold and the Subgrantee shall compensate the Federal- sponsoring agency for its share. As subgrantees of federal funds the Subgrantee must pass on equipment management requirements that meet or exceed the requirements outlined above for all subgrantees who receive pass-thru funding from this contract. B. GENERAL PROGRAM REQUIREMENTS Subgrantee must adhere to all financial and procurement guidance, including competitive process and other procurement requirements as documented in the Department of Homeland Security(DHS) Financial Guide at: ' http://www.dhs.gov/xlibraW/assets/Grants Financial ManagementGuide.pdf Local and state procurement and contracting regulations take precedent over these ' requirements when local and state regulations are more stringent. • Adhere to Office of Grants and Training requirements that all sole source contracts over$100,000 be reviewed and approved by the King County prior to execution of a , contract. This requirement must be passed on to all of the Subgrantee's sub- contractors, at which point the Subgrantee will be responsible for reviewing and approving their sub contractor's sole source justification. • Adhere to Office of Grants and Training requirements that all contracts with individual consultants,that are not competitively bid, and where the consultant will be charging an excess of$450 per day(excluding travel and subsistence) must be approved by King ' County before the contract is executed. This requirement must be passed on to all of the Subgrantee's sub-contractors, at which point the Subgrantee will be responsible for reviewing and approving their sub-contractor's contract. ' No travel or subsistence costs, including lodging and meals, reimbursed under this sub grant agreement may exceed federal maximum rates which can be found at www.gsa.gov. 8. COMPLIANCE WITH APPLICABLE LAWS AND GRANT REQUIREMENTS The Subgrantee shall be responsible for following all applicable Federal, State and local laws, ordinances, rules and regulations in the performance of work described herein. New federal Page 4 of 38 laws, regulations, policies and administrative practices may be established after the date this Agreement is established and may apply to this Agreement. To achieve compliance with changing federal requirements, the Subgrantee agrees to accept all changed requirements that apply to this Agreement and to require compliance with changed requirements in all subcontracts. Failure to comply shall constitute a material breach of this Agreement. By entering into this Agreement the Subgrantee agrees to implement the National Incident Management System (NIMS) per DHS requirements as outlined in the 2007 Homeland Security Grant Program Guidelines. rThe Subgrantee and all its subcontractors shall comply with, and DHS is not responsible for determining compliance with, any and all applicable federal, state, and local laws, regulations, and/or policies. This obligation includes, but is not limited to, laws, regulations and policies listed in this Agreement. A. EQUAL EMPLOYMENT OPPORTUNITY During the performance of this Subgrant, the Subgrantee shall comply with all federal and state nondiscrimination statutes and regulations. These requirements include, but are not limited to: 1. Nondiscrimination in Employment: The Subgrantee shall not discriminate against any employee or applicant for employment because of race, color, sex, religion, national origin, creed, marital status, age,Vietnam era or disabled veterans status, or the presence of any sensory, mental, or physical handicap. This requirement does not apply, however, to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities. 2. The Subgrantee shall take affirmative action to ensure that employees are employed and treated during employment without discrimination because of their race, color, religion, national origin, creed, marital status, age, Vietnam era or disabled veterans status, or the presence of any sensory, mental, or physical handicap. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, ' or transfer, recruitment, or recruitment selection for training, including apprenticeships and volunteers. Ref: Executive Order 11246, as amended by Executive Order 11375; Title V1I of the Civil Rights Act, as amended, 42 USC § 2000e; section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 USC § 623; section 102 of the Americans with Disabilities Act, as amended, 42 USC §§ 12101 et seq.; 29 CFR Part 1630; 41 CFR § 60- 1.4. B. NON-DISCRIMINATION During the performance of this Agreement, neither the Subgrantee nor any party subcontracting under the authority of this Agreement shall discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation, age, or presence of any sensory, mental, or physical handicap in the employment or application for employment or in the administration or delivery of or access to services or any other benefits under this Agreement as defined by King County Code, Chapter 12.16. 1 Page 6 of 38 During the performance of this Agreement, neither the Subgrantee nor any party subcontracting under the authority of this Agreement shall engage in unfair employment practices as defined by King County Code, Chapter 12.17 or 12.18. The Subgrantee shall comply fully with all applicable Federal, State and local laws, ' ordinances, executive orders and regulations that prohibit such discrimination. These laws include, but are not limited to, RCW Chapter 49.60 and Titles VI and VII of the Civil Rights Act , of 1964. During the performance of this Agreement, the Subgrantee, for itself, its assignees and successors-in-Interest agrees as follows: 1. Nondiscrimination The Subgrantee, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, creed, gender, disability, age or national origin in the selection and retention of subcontractors. The Subgrantee shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers a program set forth in Appendix B of the Regulations. Ref: 20 USC §§ 1681 et seq., Age Discrimination Act of 1975, as amended, 42 USC §§ 6101 et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 USC § 794, Americans with Disabilities Act of 1990 (ADA), as amended, 42 USC §§ 12101 et seq. 2. Solicitations for Subcontracts, Including Procurements of Materials and Equipment In all solicitations either by competitive proposal or negotiation made by the Subgrantee for work to be performed under a subcontract each potential subcontractor or supplier shall be notified by the Subgrantee of the Subgrantee's obligations under this Agreement and the regulations relative to nondiscrimination on the grounds of race, color, creed, gender, disability, age or national origin. 3. Information and Reports The Subgrantee shall provide all information and reports required by the regulations or directives issued pursuant thereto and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined to be pertinent to ascertain compliance with such regulations, orders and instructions. The Subgrantee shall maintain all required records for at least six (% years after King County makes final , payment and all other pending matters are closed. 4. Incorporation of Provisions The Subgrantee shall include the provisions of paragraphs A through D of this section in every subcontract, unless exempt by the regulations or directives issued pursuant thereto. The Subgrantee shall take such action with respect to any subcontract or procurement as King County or DHS may direct as a means of enforcing such provisions, including sanctions for noncompliance. Provided, however, that, in the event the Subgrantee becomes involved in or is threatened with litigation with a subcontractor or supplier as a result of such direction, the Subgrantee may request King County to enter into such litigation to protect the interests of the County, and in addition, the Subgrantee may request the Federal Government to enter into such litigation to protect the interests of the United States. C. AMERICANS WITH DISABILITIES ACT In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. , § 12112, the Contractor shall comply with the requirements of U.S. Equal Employment Page 6 of 38 Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. The Subgrantee is required to comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), 42 USC §§ 12101, et seq.; Section 504 of the Rehabilitation Act 1 of 1973, as amended, 29 USC § 794; and, and the following regulations and any amendments thereto: 1. U.S. Department of Justice (DOJ) regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services,"28 CFR Part 35; 2. U.S. Department of Justice regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,"28 CFR Part 36; 3. U.S. General Services Administration regulations, "Construction and Alteration of Public Buildings,"41 CFR Subpart 101-19; 4. U.S. Equal Employment Opportunity Commission (EEOC) "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630; 5. U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled", , 47 CFR Part 64, Subpart F. D. PRIVACYACT Should the Subgrantee, or any of its subcontractors, or their employees administer any system of records on behalf of the Federal Government, the Privacy Act of 1974, 5 USC § 552a, imposes information restrictions on the party administering the system of records. For purposes of the Privacy Act, when the Agreement involves the operation of a system of ' records on individuals to accomplish a government function, the Subgrantee and any subcontractors and their employees involved therein are considered to be government employees with respect to the government function. The requirements of the Act, including the civil and criminal penalties for violations of the Act, apply to those individuals involved. Failure to comply with the terms of the Act or this provision of this Agreement shall make this Agreement subject to termination. The Subgrantee agrees to include this clause in all subcontracts awarded under this Agreement that involve the design, development, operation, Or maintenance of any system of records on individuals subject to the Act. E. INTEREST OF MEMBERS OF OR DELEGATES OF CONGRESS Pursuant to 41 USC § 22, no member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefit arising therefrom. F. DISCLOSURE OF LOBBYING ACTIVITIES Agreements in excess of $100,000 require that a Certification Regarding Lobbying, and Disclosure of Lobbying Activities (if appropriate), be completed and submitted to King County as required by 49 CFR Part 20, "New Restrictions on Lobbying." The Subgrantee certifies that it shall not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal Contract, grant or any other Page 7 of 38 award covered by the Byrd Anti-Lobbying Amendment, 31 USC § 1352. The Subgrantee shall ' disclose the name of any registrant under the Lobbying Disclosure Act of 1995, codified at 2 USC § 1601 et seq., who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal Contract, grant or award covered by 31 USC § 1352. Such disclosures ' are to be forwarded to King County. The Subgrantee shall include the language of this certification in all subcontract awards at any tier and require that all recipients of subcontract awards in excess of$100,000 shall certify and disclose accordingly. Ref: 49 CFR Part 20, modified as necessary by 31 USC § 1352. G. FALSE OR FRAUDULENT STATEMENTS OR CLAIMS t The Subgrantee acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification to King County in connection with this project, the County reserves the right to pursue the procedures and impose on the recipient the penalties of 18 USC § 1001, 31 USC§§3729 and 3801 et seq., and/or 49 USC§ 5307(n)(1), as may be appropriate. The Subgrantee agrees to include this clause in all subcontracts awarded under this Agreement. H. ENERGY CONSERVATION The Subgrantee agrees to comply with mandatory standards and policies relating to energy efficiency that are contained in the State Energy Conservation plan issued in compliance with the Energy Policy and Conservation Act,42 USC §§ 6321 et seq., and 49 CFR Part 18. The Subgrantee agrees to include this clause in all subcontracts awarded under this Agreement. I. ENVIRONMENTAL REQUIREMENTS The Subgrantee agrees to comply with the applicable requirements of the National Environmental Policy Act of 1969, as amended, 42 USC §§ 4321, et seq., consistent with Executive Order No. 11514, as amended, "Protection and Enhancement of Environmental Quality," 42 USC § 4321 note. Council on Environmental Quality regulations on compliance with the National Environmental Policy Act of 1969, as amended, 42 USC § 4321 et seq. and 40 CFR Part 1500, etseq. J. PREFERENCE FOR RECYCLED PRODUCTS , To the extent practicable and economically feasible, the Subgrantee agrees to provide a competitive preference for products and services that conserve natural resources and protect the environment and are energy efficient. Examples of such products may include, but are not limited to, products described in the United States EPA Guidelines at 40 CFR Part 247, implementing section 6002 of the Resource Conservation and Recovery Act, as amended, 42 USC §6962, and Executive Order 12873. K. PATENT RIGHTS If any invention, improvement, or discovery of the Subgrantee or any of its Subcontractors is conceived or first actually reduced to practice in the course of or under this Agreement, and that invention, improvement, or discovery is patentable under the laws of the United States or any foreign country, the Subgrantee agrees to notify King County immediately and provide a detailed report. The rights and responsibilities of the Subgrantee and King County with respect to such invention, improvement or discovery shall be determined in accordance with applicable Federal laws, regulations, policies, and any waiver thereof. Page 8 of 38 Unless the Federal Government later makes a contrary determination in writing, irrespective of the Subgrantee's status (i.e., a large business, small business, state government or state instrumentality, local government, nonprofit organization, academic institution, individual), the County and the Subgrantee agree to take the necessary actions to provide, through DHS, those rights in that invention due the Federal Government as described in U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 CFR Part 401. The Subgrantee also agrees to include the requirements of this section in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by DHS. Ref: 49 CFR Part 19, Appendix A, Section 5 L.. OMB CIRCULARS The Subgrantee shall comply with OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments; OMB A-102, Grants and Cooperative Agreements with State and Local Governments; and A-133, Audits of States, Local Governments, and Non-Profit Organizations. M. SINGE AUDIT ACT Non-federal entities receiving financial assistance of $500,000 or more in Federal funds from all sources, direct and indirect, are required to have a single or a program-specific audit conducted in accordance with the U.S. Office of Management and Budget (OMB) (Revised June 27, 2003) Circular A-133-Audits of States, Local Governments, and Non-Profit Organizations. Non-federal entities that spend less than $500,000 a year in Federal awards are exempt from Federal audit requirements for that year, except as noted in Circular No. A- 133. Entities required to have an audit must ensure the audit is performed in accordance with Generally Accepted Auditing Standards (GAAS), Government Auditing Standards (the Revised Yellow Book) developed by the Comptroller General and the OMB Compliance Supplement. ' The Subgrantee has the responsibility of notifying the State Auditor's Office and requesting an audit, if required. The Subgrantee shall maintain its records and accounts so as to facilitate the audit requirement and shall ensure that any subrecipients or subcontractors also maintain auditable records. The Subgrantee must send a letter stating there has been a single audit completed and there were no findings or if there were findings, the letter should provide a list of the findings. In addition to sending a copy of the audit, the Subgrantee must include a corrective action plan for any audit findings and a copy of the management letter if one was received. The Subgrantee must send this letter to King County no later than nine (9) months after the end of the Subgrantee's fiscal year(s). The Subgrantee shall include the above audit requirements in any subcontracts. Page 9 of 38 t N. CERTIFICATION REGARDING DEBARMENT,SUSPENSION,OR INELIGIBILITY If Federal funds are the basis for this contract, the Subgrantee certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in transactions by any Federal department or agency. By signing and submitting this Agreement, the Subgrantee is providing the signed certification set out below. The certification in this clause Is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the Subgrantee knowingly rendered an erroneous certification, the Federal Government and County may pursue available remedies, including suspension and/or debarment. The Subgrantee shall provide immediate written notice to King County if at any time the Subgrantee learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. The terms "covered transaction," "debarred," "suspended," "ineligible," 'lower tier covered transaction," "participant," "persons," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29]. The Subgrantee agrees by signing this Agreement that it shall not knowingly enter into any covered transaction with a person or subcontractor who is debarred, suspended, declared Ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized in writing by King County. The Subgrantee shall include the requirement in this section in any subcontracts. 9. AMENDMENTS This Agreement may be amended only by written concurrence of both parties. Amendments to Scope of Work(Exhibit A), Budget (Exhibit B) and Approved Equipment List (Exhibit C) will only be approved if the proposed amendment is consistent with State and Federal granting agency rules. Except for changes in Equipment and Salaries & Benefits on the Budget (Exhibit B), up to ten percent (10%) of the total award amount may be shifted between the other approved budget categories and sub categories. For Equipment, Salaries & Benefits or amounts over ten percent (10%), the Subgrantee must submit a written budget amendment request for approval. I Such requests will only be approved if the proposed change(s) is (are) consistent with and/or achieves) the goals stated in the Scope of Work (Exhibit A) and falls within the grant requirements. 10. TERMINATION This Agreement may be terminated by King County, in whole or in part, for convenience without cause prior to the end of the Period of Performance, upon thirty (30) calendar days advance written notice. This Agreement may be terminated by either party, in whole or in part, for cause prior to the end of the Period of Performance, upon thirty (30) calendar days advance written notice. Reasons for termination for cause may include but not be limited to: material issues of nonperformance misuse of funds, and/or failure to provide grant-related invoices, reports, or any requested documentation. Page 10 of 38 If the Agreement is terminated as provided above, King County will be liable only for payment in accordance with the terms of this Agreement for satisfactory work completed prior to the effective date of termination. The Subgrantee shall be released from any obligation to provide further services pursuant to this Agreement. Nothing herein shall limit, waive, or extinguish any right or remedy provided by this Agreement or law that either party may have in the event that the obligations, terms and conditions set forth in this Agreement are breached by the other party. Funding under this Agreement beyond the current appropriation year is conditional upon appropriation of sufficient funds to support the activities described in this Agreement. Should such an appropriation not be approved, this Agreement will terminate at the close of the current appropriation year. 11. HOLD HARMLESS AND INDEMNIFICATION The Subgrantee shall protect, indemnify and hold harmless King County, its officers, officials, agents, and employees from and against any and all claims, costs, and/or issues whatsoever occurring from any and all actions by the Subgrantee and/or its subcontractors pursuant to this Agreement. The Subgrantee shall defend at its own expense any and all claims, demands, suits, penalties, losses, damages, or costs of any kind whatsoever (hereinafter "claims") brought against King County arising out of or incident to the Subgrantee's execution of, performance of or failure to perform this Agreement. Claims shall include but not be limited to assertions that the use or transfer of any software, book, document, report, film, tape, or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, and/or otherwise results in unfair trade practice. In the event the County incurs attorney fees and/or costs in the defense of claims within the scope of the paragraph above, such attorney fees and costs shall be recoverable from the Subgrantee. In addition King County shall be entitled to recover from the Subgrantee its attorney fees, and costs incurred to enforce the provisions of this section. ' 12. INSURANCE Subgrantee shall provide and maintain and shall cause its subcontractors to provide and maintain Commercial General Liability in the minimum amount of $1,000,000 per occurrence and $ 2,000,000 in the aggregate. King County, its officers, officials, agents and employees shall be named as additional insureds. If the Agency is a Municipal Corporation or an agency of the State of Washington and is self- insured for any of the above insurance requirements, a certification of self-insurance shall be submitted to King County Office of Emergency Management and shall constitute compliance with this section. 13. SCHEDULE OF EXPENDITURES OF FINANCIAL ASSISTANCE King County Government Subgrantees should not include expenditures incurred by your agency and reimbursed by DHS through King County Office of Emergency Management on your annual Schedule of Expenditures of Financial Assistance. King County Office of Emergency Management, the lead agency for this federal award, is responsible for including these expenditures on their Schedule of Expenditures of Financial Assistance. Page 11 of 38 1 14. ENTIRE CONTRACTIWAIVER OF DEFAULT , This Agreement is the complete expression of the agreement of King County and the Subgrantee hereto, and any oral or written representations or understandings not incorporated herein are excluded. Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of breach of any provision of this Agreement shall not be deemed to be waiver of any other or subsequent breach and shall not be construed to be an amendment of the terms of this Agreement unless stated to be such through written approval by both parties and shall be attached to the original Agreement. 15. SEVERABILITY If any section, subsection, sentence, clause or phrase of this Agreement is, for any reason, found to be unconstitutional or otherwise invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Agreement. M APPROVAL This Agreement shall be subject to the written approval of King County's authorized representative and shall not be binding until so approved. THIS AGREEMENT, consisting of 12 pages and 4 attachments, is executed by the persons signing below who warrant and represent that they have the authority to execute the Agreement. IN WITNESS WHEREOF this Agreement has been executed by each party on the date set forth below: CITY OF KENT KING COUNTY BY Suzette Cooke, Mayor Robin Friedman, Director Date Date Page 12 or 38 A-1 GENERAL INFORMATION: Project Title: King County Community Emergency Response Team (CERT) Bulk Buy Project Sub Grantee's Name: City of Kent Contact Person: Dominic Marzano Job Title: Assitant Chief Complete Address: 24611 116'"Ave SE Phone: (253) 856-4316 Fax: (253) 856-4119 E-Mail: dmarzano@ci.kent.wa.us A-2 INVESTMENT JUSTIFICATION: Check ONE Investment Justification from the grant that will fund your project that best describes it. SHSP & LETPP Projects: ❑ NIMS Implementation Activities ❑ Regional Collaboration and Coordination ❑ Analytical Support for Fusion Center and Regional Intelligence Groups ® Community Preparedness and Participation ❑ Law Enforcement Investigation Resources & Specialized Response ❑ Strengthen CBRNE Detection, Response, and Decontamination Capabilities ❑ Critical Infrastructure Protection ❑ Catastrophic Planning ❑ Interoperable Communications ❑ Medical Response Capability Enhancements UASI Projects: ❑ Regional Counter-Terrorism Center Enhancement ❑ WMD/CBRNE/Hazmat response, decontamination,and mass casualty care ❑ Law Enforcement Comprehensive CBRNE & Counter Terrorism Operations & Investigations ❑ Critical Infrastructure Protection (CIP) ❑ Citizen Preparedness ❑ Catastrophic Planning ❑ Interoperable Communications--Regional Page 13 of 38 A-3 GOAL&OBJECTIVE SHSP & LETPP Projects: Identify ONE Goal and ONE Objective in the Washington Statewide Homeland Security Strategic Plan that best represents the project: (The DESCRIPTIONS are not subjective- use the descriptions from the Plan). GOAL M 5.4 GOAL DESCRIPTION: To train and educate citizens, volunteers, tribal nations, the business community, the media and government on how to prepare for, respond to recover from acts of terrorism. OBJECTIVE M 5.4.1 OBJECTIVE DESCRIPTION: Further develop the all hazards public education program to include terrorism homeland security related topics to provide citizens information on how to prepare for, recognize, report and respond to an act of terrorism. Identify ONE Goal and ONE Objective in the Region 6 Homeland Security Strategic Plan that best represents the project: (The DESCRIPTIONS are not subjective - use the descriptions from the Plan). REGIONAL PRIORITY M VI REGIONAL PRIORITY DESCRIPTION: Develop Region-Wide Public Information, Public Education and Outreach Strategies. GOAL M C GOAL DESCRIPTION: Increase public awareness of hazards and risks to promote self-reliance and personal safely. OBJECTIVE M 2 OBJECTIVE DESCRIPTION: Utilize neighborhood groups, such as Citizen Corps Councils and Community Emergency Response Teams (CERT). UASI Projects: Identify ONE Goal and ONE Objective in the UASI Seattle-King County Urban Area Strategy that best represents the project: (The DESCRIPTIONS are not subjective - use the descriptions from the Plan). GOAL M GOAL DESCRIPTION: _ OBJECTIVE M _ OBJECTIVE DESCRIPTION: Page 14 of 38 , 1 A-4 PROJECT DESCRIPTION: Describe your project using a maximum of two pages by answering ALL of the following questions separately using complete sentences: 1. Provide a description of your project (who/what/where/when/why/how): With funds received, a method of universal identification of all Community Emergency Response Team (CERT) trained individuals throughout King County will be continued. The King County Citizen Corps Sub-Committee Steering Committee allocated $50,000 to provide CERT programs within King County with equipment (identified below). For the purposes of this grant funding, qualifying programs are defined as programs which teach the entire 20 hour CERT curriculum as outlined by the Federal Emergency Management Agency (FEMA). Jurisdictions that teach the qualified CERT curriculum are entitled to one CERT kit for each student trained. In addition to CERT kits, funds for this grant will also be used to purchase and distribute moulage supplies to qualifying programs. Kent Emergency Management will be the point of contact for this grant request. 2. What is the purpose of the project? The purpose of the project is to allow interoperability of individuals who receive CERT training at different jurisdictions. To provide much needed moulage supplies to jurisdiction providing the CERT training. 3. What problem does the project solve? The project will ensure that each individual completing a qualified CERT training in King County will be issued the proper safety equipment. Jurisdictions that provide the training will be issued moulage supplies in order to complete the necessary disaster simulation for CERT trained individuals. i d security and preparedness for 4. How does the project enhance local /regional homeland se u ity a p p CBRNE/Terrorist/WMD incidents? Coordinated by the Department of Homeland Security (DHS), Citizen Corps and its programs, is a component of the USA Freedom Corps that focuses on opportunities for people to participate in a range of measures to make their families, homes and communities safer from the threats of terrorism, crime, and disasters of all kinds. Citizen Corps also brings together a community's first responders, firefighters, emergency health care providers, law enforcement, and emergency managers with its volunteers. 5. What activities need to be completed to finish the project? if the project will be implemented in phases, identify this clearly and tie them to your timeline in the following section. a. Establish vendor b. Purchase equipment Page 16 of 38 c. Receive and inventory equipment d. Distribute equipment to King County jurisdictions as requested. 6. What are the tangible results and/or deliverables of the project? The tangible results of this project will be that jurisdictions that teach the qualified CERT curriculum are entitled to one CERT kit for each student trained. In addition, moulage supplies will be distributed. 7. How will the grant funds be used to support this project? Grant funds will be used to purchase standardized equipment known as a CERT kit that can be issued to each student completing CERT training in King County. A"CERT kit" includes: green ratcheting helmet with CERT stickers, helmet chin strap, goggles, dust mask, two pairs of medical gloves, CERT patch, backpack, CERT field guide and student manual. Grant funds will also be used to purchase basic moulage supplies for interested jurisdictions that teach a qualified program. 1 1 Page 16 of 38 A-5 PROJECT TIMELINE: Make a timeline that includes measurable activities for task completion and critical dates. Project must be completed and delivered prior to end date identified by KCOEM Grant Manager. Narrative Progress Reports are required to be submitted on a quarterly basis (or more frequently if required by the KCOEM Grants Managerj. The dates for these reports are January 15, April 15, July 15 and October 15. If your project started 1 month prior to a narrative progress report due date, you may wait until the following quarter or if your subgrant ends within 1 month of a narrative progress report you may submit with the final invoice. Include in the timeline submission of invoices reimbursement requests to KCOEM and the end of project report to KCOEM. if your project involves purchase of equipment, allow 3 months for equipment approval process to be completed which will happen before the contract is executed. Estimated Completion Activity Date Narrative Progress Reports January 15, 2009 Narrative Progress Reports A dI 15 2009 Narrative Progress Reports July 15, 2009 Narrative Progress Reports October 15, 2009 Purchase Equipment January 2009 Receive and inventory equipment February 2009 Distribute equipment to King County jurisdictions as needed and while Ongoing supplies are available Page 17 of 38 i 1 B-1 ALLOWABLE COSTS: Using Appendix D - ALLOWABLE COST MATRIX of FFY07-HSGP Program Guidance & Application Kit identify (by checking the box) the allowable costs that best represent this project: PLANNING: ❑ Public education & outreach ❑ Develop and implement homeland security support programs and adopt ongoing DHS National Initiatives ❑ Develop and enhance plans and protocols ❑ Develop or conduct assessments ❑ Establish, enhance, or evaluate Citizen Corps related volunteer programs ❑ Hiring of full-or part-time staff or contract/consultants to assist with planning activities (not for the purpose of hiring public safety personnel fulfilling traditional public safety duties) ❑ Conferences to facilitate planning activities ❑ Materials required to conduct planning activities ❑ Travel/per diem related to planning activities ❑ Overtime and backfill costs QAW operational Cost Guidance) ❑ Other project areas with prior approval from G&T i TRAINING: ❑ Overtime and backfill for emergency preparedness and response personnel attending G&T-sponsored and approved training classes and technical assistance programs ❑ Overtime and backfill expenses for part-time and volunteer emergency response personnel participating in G&T training ❑ Training workshops and conferences ❑ Full-or part-time staff or contractors/consultants ❑Travel ❑ Supplies ❑Tuition for higher education ❑ Other Items EXERCISE: ❑ Design, Develop, Conduct and Evaluate an Exercise ❑ Exercise planning workshop ❑ Full-or part-time staff or contractors/consultants ❑ Overtime and backfill costs, including expenses for part-time and volunteer emergency response personnel participating in G&T exercises Implementation of HSEEP ❑Travel ❑ Supplies ❑ Other Items Page 18 of 38 1 EQUIPMENT: ® Personal Protective ❑ Explosive Device Mitigation and Remediation Equipment ❑ CBRNE Operational Search and Rescue Equipment ❑ Information Technology ❑ Cyber Security Enhancement Equipment ❑ Interoperable Communications Equipment ❑ Detection Equipment (not eligible under LETPP) ❑ Decontamination Equipment (not eligible under LETPP) ❑ Medical Supplies and Limited Pharmaceuticals (not eligible under LETPP) ❑ Power Equipment ❑ CBRNE Reference Materials ❑ CBRNE Incident Response Vehicles ❑ Terrorism Incident Prevention Equipment ❑ Physical Security Enhancement Equipment ❑ Inspection and Screening Systems Agriculture Terrorism Prevention, Response, and Mitigation (not eligible under for LETPP) ❑ Equipment ❑ CBRNE Response Watercraft ❑ CBRNE Aviation Equipment (not eligible under LETPP) ❑ CBRNE Logistical Support Equipment ❑ Intervention Equipment ❑ Other Authorized Equipment (Sales Tax, Shipping, and Training on Purchased Equipment etc.) Page 19 of 38 1 1 B-2 BUDGET SUMMARY. Fill out the budget table using the correct budget category for your project i expenses. For ALL item descriptions you MUST specify what the amount is for using question 7, sectionA-4 of Exhibit A. Double click within the table to enter information. The budget category(les) must reflect the allowable costs (section B-1). Budget Category Planning Training Exercise Equipment Equipment $ - $ - $ - $ 50,000.00 Ironsultant Fees $ - $ - $ - Salaries& Benefits $ _ $ _ $ _ Overtime/Backfill $ _ $ _ $ _ Travel & Per Diem $ _ $ _ $ _ Goods&Services $ _ $ _ $ _ Total Amount $ Is I $ - $ 50,000.00 Grant Total $ 50,000.00 • With the exception of Equipment and Salaries & Benefits, changes to budget of no more than 10% are allowed without prior authorization from KCOEM. Any changes to Equipment and Salaries & Benefits must have prior authorization from KCOEM • Invoices submitted for reimbursement must not exceed total amount of award and must comply with grant requirements. 1 Page 20 of 38 �.f Exhibit C: COPY OF CONTRAaS�lllgtOrl 5 a @ Iltairy U( g 1@li�ement Division AND King County CONTRACT FACE SHEET k- `1. Contractor Name and Address: 2. Contract Amount: 3. Contract Number � : i g King County 208 Office of Emergency Management $2,350,774 E08-196 King County ull"ce f 3511 NE end Street Emergency Managen ient Renton,WA 98056 4. Contractor's Contact Person,phone number: 5. Contract Start Date: .6. Contract End Date: Jeff Bowers (206) 205-4062 July 1,2007 September 30,2009 7. MD Program Manager/phone number: 8. State Business License#: 9. USI#(state revenue): Kyle Herman (253) 512.7461 NA 578-037-394 10. Funding Authority: IWashington State Military Department(Department) and the U.S. Department of Homeland Security(DHS) 11. Funding Source Agreement#: 12. Program Index# & OBJ/SUB-OJ: 13. CFDA#&Title: 14. TIN or SSN: 2007-GE-T7.0017 773SU,773ST,773SQ,773SA,773S5 97.067 SHSP 91-6001327 15. Service Districts: 16. Service Area by County(les): 17. Women/Minority-Owned,State (BY LEGISLATIVE DISTRICT):1, 5,11, 30-34, Kind County Cerdfled?: X N/A ❑ NO 36,37,41,43,45.48 ❑ YES,OMWBE# (BY CONGRESSIONAL DISTRICT): 7,8, 9 18. Contract Classification: 19. Contract Type(check all that apply): ❑ Personal Services ❑ Client Services 1'Public/Local Gov't X Contract ❑ Grant ❑ Agreement ❑ Collaborative Research ❑ A/E ❑ Other ❑ intergovernmental (RCW 39.34) . ❑ Interagency 20. Contractor Selection Process: 21. Contractor Type(check all that apply) X "To all who apply&qualify" ❑ Competitive Bidding ❑ Private Organizatlon/lndlvldual ❑ For-Profit ❑ Sole Source ❑ A/E RCW ❑ N/A X Public Organization/Jurisdiction X Non-Profit ❑ Filed w/OFM? ❑ Advertised? ❑YES []NO_ ❑ VENDOR X SUBRECiPIENT ❑ OTHER 22. BRIEF DESCRIPTION: The U.S.Department of Homeland Security(DNS),Office of Grants and Training(OGT)Is providing funds to enhance the capability of state and local units of government to prevent, deter, respond to, and recover from incidents of terrorism through the FFY 2007 Homeland Security Grant.Program, State Homeland Security Program (SHSP). The funding Is being provided to address the unique exercise, training, planning and management and administration needs of emergency responders. IN WITNESS WHEREOF, the Department and Contractor acknowledge and accept the terms of this contract and attachments hereto and have executed this contract as of the date and year written below. This Contract Face Sheet, Special Terms and Conditions,General Terms and Conditions,Statement of Work,and Budget govern the rights and obligations of both_parties to this contract. In the event of an inconsistency In this contract, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) Applicable Federal and State Statutes and Regulations (b) Statement of Work (c) Special Terms and Conditions (d) General Terms and Conditions,and If attached, (a) any other provisions of the contract incorporated by reference. This contract contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this contract shall be deemed to exist or to bind any of the parties hereto. WHEREAS,the parties hereto have executed this contract on the day and year last specified below. FOR THE DEPARTMENT: FOR THE CONTRACTOR: Signature Date ig� Date James M. Mull n, Director James J. Buck,County Administrative Officer Emergency Management Division Washington State Military Department for APPROVED AS TO FORM: King County Office of Emergency Management Sara J. Finlay (signature on file) 9/12/2007 Assistant Attorney General Form 10/27/00 kdb YV FFY07 Homeland Security Grant Program Page 1 of 18 "lO�County OEM Page 21 of 38 E08-496 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management DMsfon AND King County SPECIAL TERMS AND CONDITIONS ARTICLE i --COMPENSATION SCHEDULE: , This is a fixed price, reimbursement contract. Within the total contract amount, travel, subcontracts, salaries and wages, benefits, printing, equipment, and other goods and services or other budget categories will be reimbursed on an actual cost basis unless otherwise provided in this contract. Any travel or subsistence reimbursement allowed under the contract shall be paid In accordance with rates set pursuant to RCW 43.03.050 and RCW 43.03.060 as now existing or amended and in agreement with federal rates. Receipts and/or backup*documentation for any approved budget line items including travel related expenses that are authorized under this contract must be maintained by the Contractor and be made available upon request by the Military Department. Some flexibility to shift funds between/among budget categories is allowed as follows: Changes to the budget -in excess of 10% will not be reimbursed without the prior written authorization of the Department. Budget categories are as specified or defined In the budget sheet of the contract. ARTICLE 11 --REPORTS: In addition to the reports as may be required elsewhere In this contract, the Contractor shall prepare and submit the following reports to the Department's Key Personnel: Financial #/Copies Due Date Quarterly Invoices 1 . Within 30 days following the end of the quarter In which the work was performed. Invoices must be submitted no more often than monthly, but at least quarterly. Failure to submit invoices in a timely manner will cause the Department to hold all requests for equipment approval until invoices are submitted. , Final Invoice 1 No later than 45th day following (shall not exceed overall contract amount) the contract end date All contract work must end on.the contract end date, however the Contractor has up to 45 days after the contract end date to submit all final bliling. Technical #/Copies Due Date BI-Annual Strategy Implementation Report Electronic January 15th and July 15th of each year j of the contract period Bi-Annual Progress Report Electronic January 15th and July 15th of each year of the contract period Final Report Electronic No later than 451h day following the contract end date All contract work mast end on the contract end date, however the Contractor has up to 45 days after the contract end date to submit all final reports and/or deliverables. The Bi-Annual Strategy implementation Report will be submitted via OGT's web-based grant reporting tool at https://www.reporting.odp.dhs.gov/. The Bi-annual Progress Report and the Final Report will be submitted electronically to his.reaortina0emd.wa.aov. ARTICLE III --KEY PERSONNEL: The individuals listed below shall be considered key personnel. Any substitution must be made by written notification to the Military Department. CONTRACTOR: MILITARY DEPARTMENT: Christa Valverde, Program Manager Kyle Herman, Program Coordinator FFY07 Homeland security Grant Program Page 2 of 18 King County OEM Page 22 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County ARTICLE IV--ADMINISTRATIVE REQUIREMENTS: The Contractor shall comply with OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments; OMB A-102, Grants and Cooperative Agreements with State and Local Governments; and A- 133, Audits of States, Local Governments, and Non-Profit Organizations. ARTICLE V--ADDITIONAL SPECIAL CONDITIONS AND MODIFICATION TO GENERAL CONDITIONS: 1. Funds are provided by the U.S. Department of Homeland Security (DHS), Office of Grants and Training (OGT)solely for the purpose of enhancing the capability of state and local units of government to prevent, deter, respond to, and recover from incidents of terrorism, and when dual benefit can be justified, catastrophic Incidents. The Contractor shall use the funds to perform tasks as described in the Statement of Work and Budget portions of the Contractor's request for funding. Grant funds may not be used to replace or supplant.existing funding. 2. The Contractor's expenditures on personnel costs are limited to 15 percent (15%) of the sub-award amount. 3. The Contractor shall provide a match of$0 of non-federal origin. 4. The Contractor acknowledges that since this contract involves federal funding, the period of performance described herein will likely begin prior to the availability of appropriated federal funds. Contractor agrees that it will not hold the Department, the State of Washington, or the United States liable for any damages, claim for reimbursement, or any type of payment whatsoever for services performed under this contract prior to distribution of appropriated federal funds. The Contractor agrees that it will not hold the Department, the State of Washington; or the United States . liable for any damages, claim for reimbursement or any type of payment If federal funds are not ' appropriated or are not appropriated In a particular amount. ARTICLE VI —EQUIPMENT MANAGEMENT: All equipment purchased under this contract, by the Contractor or a Sub-Contractor, will be recorded and maintained in an equipment Inventory system. 1. Upon successful completion of the terms of this contract, all equipment purchased through this contract will be owned by the Contractor, or a recognized sub-contractorlsub-grantee for which a contract, sub- grant agreement, or other means of legal transfer or ownership is in place. -2. The Contractor; or a recognized sub-contractorlsub-grantee, shall be responsible for any and all operation, mairitenance, replacement, and for the safe operation of the equipment, Including all questions of liability. 3. . The Contractor shall maintain equipment records that include: a description of the property; the manufacturer's serial number, model number, or other Identification number; the source of the equipment, including the Catalogue of Federal Domestic Assistance (CFDA) number; who holds title; the acquisition date; the cost of the equipment and the percentage of federal participation in the cost; the location, use and condition of the equipment at the date the information was reported; and disposition data including the date of disposal and sale price of the property. 4. Records for equipment shall be retained by the Contractor for a period of six(6) years from the date of the disposition, replacement or transfer. If any litigation, claim, or audit is started before the expiration of the six year period, the records shall be retained by the Contractor until all litigations, claims, or audit findings involving the records have been resolved. 5. The Contractor shall take a physical inventory of the equipment and reconcile the results with the property records at least once every two years. Any differences between quantities determined by the physical Inspection and those shown in the records shall be investigated by the Contractor to determine the cause of the difference. The Contractor shall, in connection with the inventory, verify the existence, current utilization, and continued need for the equipment. FFY07 Homeland Security Grant Program Page 3 of 18 King County OEM Page 23 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County 6. The Contractor shall develop a control system to ensure adequate safeguards to prevent loss, damage, and theft of the property. Any loss, damage or theft shall be investigated and a report generated. 7. The Contractor will develop adequate maintenance procedures to keep the property in good condition. 8. If the Contractor is authorized or required to sell the property, proper sales procedures must be established to ensure the highest possible return. 9. When original or replacement equipment is no longer needed for the original project or program or for other activities currently or previously supported by a federal agency, disposition of the equipment will be made as follows: a. Items of equipment with a current per-unit fair market value of less than $5,000 may be retained, sold or otherwise disposed of by the Contractor with no further obligation to the awarding agency. b. Items of equipment with a current per-unit fair market value of more than $5,000 may be retained or sold and the Contractor shall compensate the federal-sponsoring agency for its share. 10. As sub-grantees of federal-funds, the Contractor must pass on equipment management requirements that meet or exceed the requirements outlined above for all sub-contractors, consultants, and sub-grantees who receive pass-through funding from this contract. ARTICLE VII —SUBRECIPIENT MONITORING The Department will monitor the activities of the Contractor from award to closeout and for the life of equipment purchased under this contract. The goal of the Department's monitoring activities will be to ensure that agencies receiving federal pass-through funds are in compliance with federal and state audit requirements, federal grant guidance, applicable federal and state financial guides, as well as OMB Circular A-133 and A-122 where applicable. Monitoring activities may include: • review of performance reports; • monitoring and documenting the completion of contract deliverables; documentation of phone calls, meetings, a-mails and correspondence; • review of reimbursement requests to insure allowablity and consistency with contract budget; • observation and documentation of contract related activities, such as exercises, training, funded events and equipment demonstrations; • on-site visits to -review equipment records and inventories, verify source documentation for reimbursement requests and performance reports and verify completion of deliverables. As sub-grantees of federal funds, the Contractor is required to meet or exceed the monitoring activities, as outlined above, for all sub-contractors, consultants, and sub-grantees who receive pass-through funding from this contract. FFY07 Homeland Security Grant Program Page 4 of 18 King County OEM Page 24 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County Exhibit A 2007 Subrecipient Washington Military Department GENERAL TERMS AND CONDITIONS 1. DEFINITIONS As used throughout this contract, the following terms shall have the meaning set forth below: a. "Department" shall mean the Washington Military Department, as a state agency, any division, section, office, unit or other entity of the Department, or any of the officers or other officials lawfully representing that Department. b. "Contractor" shall mean that firm, organization, group, individual, or other entity performing services under this contract, and shall Include all employees of the Contractor. It shall include any subcontractor retained by the prime Contractor as permitted under the terms of this contract. "Contractor" shall be further defined as one or the other of the following and so indicated on face sheet of the contract. 1) "Subreclpfent' shall mean a contractor that operates a federal or state assistance program for which it receives federal funds and which has the authority to determine both the services rendered and disposition of program funds. 2) "Vendoe" shall mean a contractor that agrees to provide the amount and kind of service or activity requested by the Department and that agrees to provide goods or services to be utilized by the Department. C. "Subcontractor" shall mean one, not in the employment of the Contractor,who Is performing all or part of those services under this contract under a separate contract with the Contractor. The terms"subcontractor" and"subcontractors" mean subcontractor(s) In any tier. d. "Recipient"— a nonfederal.entity that expends federal awards received directly from a federal awarding agency to carry out a federal program. e. "Pass Through Entity" means the Washington State Military Department as it is applied to this contract. As found In SAAM 50,30.30 —"A nonfederal entity that provides a federal award to a subrecipient to carry out a federal program." f. "Nonfederal Entity" is defined as a state local government or nonprofit organization (as defined in federal Circular A-133). g. "Cognizant State Agency" shall mean a state agency that has assumed the responsibility of implementing single audit requirements and coordinating audit follow-up for a particular grantee by virtue of providing the majority of federal assistance. If funds are received from more than one state agency, the cognizant state agency shall be the agency who contributes the largest portion of federal financial assistance to the subrecipient unless the designation has been reassigned to a different state agency by mutual agreement. h. "Federal Financial Assistance"—Assistance that nonfederal entities receive or administer in the form of grants, loans, loan guarantees, property (including donated surplus property), cooperative agreements, interest subsidies, insurance, food commodities, direct appropriations or other assistance. It does not include amounts received for provision of vendor services to federal agencies or reimbursement for services rendered directly to Individuals. 1. "Grant"- For the purposes herein, the term "grant" may be used to mean"contracts"or"grants" or"agreements". j. "CFDA Number" — The five-digit number assigned to a federal assistance program in the federal Catalog of Federal Domestic Assistance (CFDA) or, in the absence of a catalog defined number, the number defined by instructions from the federal audit clearinghouse, k, "CFR"—Code of Federal Regulations 1. "OMB"—Office of Management and Budget M. "RCW"-Revised Code of Washington n "WAC" -Washington Administrative Code. FFY07 Homeland Security Grant Program Page 5 of 18 King County OEM Page 25 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County 2. SUBRECIPIENT MONITORING a. The Department, as a Recipient and/or Pass-Through Entity,� receives' federal financial assistance under federal programs and is charged with maintaining compliance with federal- and state laws and regulations regarding the monitoring, documentation, and auditing of subrecipient grant activities using federal financial assistance. Management and implementation guidelines for the federal programs ensure compliance with statutes, grant guidelines, the sub-award agreement, Office of Management and Budget (OMB) circulars (including OMB Circular A-133), subrecipient audits, and other guidance found in the Federal Register. The Department shall adhere to its Subrecipient Monitoring Policy and the Subrecipient Monitoring Procedures (WMD Policy number 00-025-05.) b. The Contractor shall perform under the terms of the contract and the Department has responsibility for reasonable and necessary monitoring of the Contractor's performance. The Department shall conduct contract monitoring activities on a regular basis. Monitoring is defined as any planned, ongoing, or periodic activity that measures and ensures contractor compliance with the terms, conditions, and requirements of a contract. Monitoring involves prudent collection of information about Contractor operations and is not limited to site visits or the completion of formal reviews. Monitoring may include periodic contractor reporting to the Department, Department review of audit reports, invoice reviews, onsite reviews and observations, and surveys. Adequate documentation is essential for effective contract monitoring and will Include copies of letters, meeting notes, and records of phone conversations as evidence that conscientious monitoring has occurred during the period of the contract. Subrecipient monitoring will occur throughout the year rather than relying solely on a once-a-year audit, The Contractor agrees to cooperate with all monitoring activities and to comply with reporting requirements. The Department as the Recipient and/or Pass-Through Entity will conduct on-site visits as appropriate and required by contract for "for-profit" subrecipients, since the A-133 Single Audit does not apply to"for-profit"organizations. 3, RECORDS, MONITORING AND AUDIT ACCESS a. The Contractor shall cooperate with and fully participate in all monitoring or evaluation activities that are pertinent to this contract. b. Access to public records-The Contractor acknowledges that the Department Is subject to the Public Records Act, Chapter 42.56 RCW, and that records prepared, awned, used or retained by the Department relating to the conduct of government or the performance of any governmental or proprietary function are available for public inspection and copying, except as exempt under RCW 42.56 or other statute which exempts or prohibits disclosure of specific information or records. C. The Contractor shall maintain all books, records, documents, data and other evidence relating to this contract and the provision of any materials, supplies, services and/or equipment under this contract herein, including, but not limited to, records of accounting procedures and practices that sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this contract, At no additional cost, these records, including materials generated under the contract, shall be subject at all reasonable times to inspection, review and audit by personnel duly authorized by the Department, the Washington State Auditor's Office, and federal officials so authorized by law, rule, regulation, or contract. The Contractor will retain all books, records, documents, and other materials relevant to this contract and make them available for inspection, review or audit for six (6) years from the end date of this contract, date of final payment or conclusion of services performed under this contractor; whichever is later. If any litigation, claim or audit is started before the expiration of the six(6)year period, the records shall be retained until final resolution of all litigation, claims, or audit findings involving the records. FFY07 Homeland Security Grant Program Page 6 of 18 King County OEM Page 26 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND tang County d. Contractor shall provide right of access to its facilities and records to the Department and any other authorized agent or official of the state of Washington or the federal government, at all reasonable times, In order to monitor and evaluate performance, compliance, and/or quality assurance under this contract. 4. SINGLE AUDIT ACT REQUIREMENTS (INCLUDING ALL AMENDMENTS) Non-federal entities as subrecipients that expend $500,000 or more in one fiscal year of federal funds from all sources, direct and indirect, are required to have a single or a program-specific audit conducted in accordance with the Office of Management and Budget (OMB) Circular A-133-Audits of States, Local Governments, and Non-Profit Organizations (revised June 27, 2003, effective for fiscal years ending after December 31, 2003). Non-federal entities that spend less than $500,000 a year in federal awards are exempt from federal audit requirements for that year, except as noted In Circular No. A-133. Circular A-133 is available on the OMB Home Page at http://www.omb.ci and then select "Grants Management"followed by"Circulars". Contractors required to have an audit must ensure the audit is performed in accordance with Generally Accepted Auditing Standards.(GARS) as found In the Government Auditing Standards (the Revised Yellow Book) developed by the Comptroller General and the OMB Compliance Supplement. The Contractor has the responsibility of notifying the Washington State Auditor's Office and requesting an audit. Costs of the audit may be an allowable grant expenditure. The Contractor shall maintain auditable records and accounts so as to facilitate the audit requirement and shall ensure that any subcontractors also maintain auditable records. The Contractor Is responsible for any audit exceptions incurred by its own organization or that of its subcontractors.* Responses to any unresolved management findings and disallowed or questioned costs shall be Included with the audit report. The Contractor must respond to Department requests for information or corrective action concerning audit issues dr findings within 30 days of the date of request. The Department reserves the right to recover from the Contractor all disallowed costs_ resulting from the audit. Once the single audit has been completed, the Contractor must send a full copy of the audit to the Department and a letter stating there were no findings, or if there were findings, the letter should provide a list of the findings. The Contractor must send the audit and the letter no later than nine (9) months after the end of the Contractor's fiscal year(s)to: Accounting Manager Washington Military Department Finance Division, Building#1 TA-20 Camp Murray,WA 98430-5032 Ih addition to sending a copy of the audit, the Contractor must Include a corrective action plan for any audit findings and a copy of the management letter if one was received, The Contractor shall include the above audit requirements In any subcontracts. 5. RECAPTURE PROVISIONS In the event that the Contractor fails to expend funds under this contract In accordance with applicable state and federal laws and/or the provisions of this contract, the Department reserves the right tor recapture funds In an amount equivalent to the extent of the noncompliance in addition to any other remedies available at law or in equity. Such right of recapture shall exist for a period not to exceed six(6)years following contract termination or audit resolution, whichever is later. Repayment by the Contractor of funds under this recapture provision shall occur within 30 days of demand. The Department is required to institute legal proceedings to enforce the recapture provision. 6. COMPLIANCE WITH APPLICABLE LAW The Contractor and all subcontractors shall comply with all applicable federal, state, tribal government, and local laws, regulations, and policies. FFY07 Homeland Security Grant Program Page 7 of 18 King County OEM Page 27 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County This obligation Includes, but Is not limited to, compliance with Ethics in Public Service (RCW 42.52); Covenant Against Contingent Fees (48 C.F.R. § 52.203-5); Public Records Act (RCW 42.56); Drug- Free Workplace Act of 1988 (41 U.S.C. § 701 et seq. and 15 C.F.R. Part 29); Lobbying Restrictions (31 U.S.C. § 1352 and 15 C.F.R. Part 28); and safety and health regulations. The Department is not responsible for advising the Contractor about, or determining the 'Contractor's compliance with, applicable laws, regulations and policies. In the event of the Contractor's or a subcontractor's noncompliance or refusal to comply with any applicable law, regulation or policy, the Department may rescind, cancel, or terminate the contract in whole or in part. The Contractor is responsible for any and all costs or liabfilty arising from the Contractor's failure to comply with applicable law, regulation or policy. 7. NONDISCRIMINATION During the performance of this contract, the Contractor shall comply with all federal and state nondiscrimination statutes and regulations. These requirements include, but are not limited to: a. Nondiscrimination In Employment: The Contractor shall not discriminate against any employee or applicant for employment because of race, color, sex, sexual orientation, religion, national origin, creed, marital status, age, Vietnam era or disabled veterans status, or the presence of any sensory, mental, or physical handicap. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment selection for training, including apprenticeships and volunteers. This requirement does not apply, however, to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational Institution or society of its activities. b. Nondiscrimination laws and policies (such as RCW 49.60, Washington's Law Against Discrimination, and Title VII of the Civil Rights Act). 8. AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101.336, 42 U.S.C. § 12101 et seq. and 28 C.F.R Part 35 and other Implementing regulations. The Contractor must comply with the ADA, which provides comprehensive civif rights protection to Individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunication. 9. UTILIZATION OF MINORITY AND WOMEN BUSINESS ENTERPRISES (MWBE) The Contractor is encouraged to utilize firms that are certified by the Washington State Office of Minority and Women's Business Enterprises as minority-owned and/or women-owned in carrying out the purposes of this contract. 10. PUBLICITY The Contractor agrees to submit to the Department all advertising and publicity relating to this contract wherein the Department's name Is mentioned or language used from which the connection of the Department's name may, In the Department's judgment, be inferred or implied. The Contractor agrees not to publish or use such advertising and publicity without the prior written consent of the Department. 11. DISCLOSURE The use or disclosure by any party of any Information concerning the Department for any purpose not directly connected with the administration of the Department's or the Contractor's responsibilities with respect to services provided under this contract is prohibited except by prior written consent of the Department. 12. CERTIFICATION REGARDING DEBARMENT SUSPENSION OR INELIGIBILITY If federal funds are the basis for this contract, the Contractor certifies that neither the Contractor nor Its principals are presently debarred, suspended, proposed for debarment, declared Ineligible, or voluntarily excluded from participating in this contract by any federal department or agency. If requested by the Department, the Contractor shall complete and sign a Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion form. Any such form completed by the Contractor for this Contract shall be incorporated into this Contract by reference. FFY07 Homeland Security Grant Program Page 8 of 18 King County OEM Page 28 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County Further, the Contractor agrees not to enter into any arrangements or contracts related to this grant with any party that Is on the "General Service Administration List of Parties Excluded from Federal Procurement or Non-procurement Programs"which can be found at www.egis.aov. 13. LIMITATION OF AUTHORITY --"Authorized Signature" The signatories to this contract represent that they have the authority to bind their respective organizations to this contract. Only the assigned Authorized Signature for each party, or the assigned delegate by writing prior to action, shall have the express, 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 Signature(s). 14. CONTRACTOR NOT EMPLOYEE—INDEPENDENT STATUS OF CONTRACTOR The parties intend that an independent contractor relationship will be created by this contract. The Contractor and/or employees or agents performing under this contract are not employees or agents of the Department in any manner whatsoever, and will hot be presented as nor claim to be officers or employees of the Department or of the State of Washington by reason hereof, nor will the Contractor and/or employees or agents performing under this contract make any claim, demand, or application to or for any right, privilege or benefit applicable to an officer or employee of the Department or of the State of Washington, Including, but not limited to, Worker's Compensation coverage; unemployment insurance benefits, social security benefits, retirement membership or credit, or privilege or benefit which would accrue to a civil service employee under Chapter 41.06 RCW. It is understood that if the Contractor is another state department, state agency, state university, state college, state community college, state board, or state commission, that the officers and employees are employed by the state of Washington In their own right. If the Contractor Is an Individual currently employed by a Washington State agency, the Department shall obtain proper approval from the employing agency or institution. A statement of "no conflict of interest" shall be submitted to the Department. 15. NONASSIGNABILITY This contract, the work to be provided under this contract, and any claim arising thereunder, are not assignable or delegable by either party in whole or in part, without the express prior written consent of the other party, which consent shall not be unreasonably withheld. 16. SUBCONTRACTING Neither the Contractor nor any subcontractor shall enter Into subcontracts for any of the work contemplated under this contract without obtaining prior written approval of the Department. Contractor shall use a competitive process In award of any contracts with subcontractors that are entered into after original contract award. All subcontracts entered into pursuant to this contract shall incorporate this contract in full by reference. In no event shall the existence of the subcontract operate to release or reduce the liability of the Contractor to the Department for any breach in the performance of the Contractor's duties. The Military Department may request a copy of any and/or all subcontracts for work being completed under this contract. 17. CONTRACT MODIFICATIONS The Department and the Contractor may, from time to time, request changes to the contract or grant. Any such changes that are mutually agreed upon by the Department and the Contractor shall be incorporated herein by written amendment to this contract. It is mutually agreed and understood that no alteration or variation of the terms of this contract shall be valid unless made in writing and signed by the parties hereto, and that any oral understanding or agreements not Incorporated herein, unless made in writing and signed by the parties hereto, shall not be binding. 18. SEVERABILITY In the event any term or condition of this contract, any provision of any document Incorporated by reference, or application of this contract to any person or circumstances Is held Invalid, such invalidity shall not affect other terms, conditions, or applications of this contract which can be given effect without the invalid term,.condition, or application. To this end, the terms and cbriditions of this contract are declared severable. FFY07 Homeland Security Grant Program Page 9 of 18 King County OEM Page 29 of 38 E06-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County 19. ADVANCE PAYMENTS PROHIBITED The Department shall make no payments In advance or in anticipation of goods or services to be provided under this contract. Contractor shall not invoice the Department in advance of delivery of such goods or services. 20. TAXES, FEES AND LICENSES Unless otherwise provided in this contract, the Contractor shall pay for and maintain In current status all taxes, unemployment contributions, fees, licenses, assessments, permit charges and expenses of any other kind for the Contractor or its staff required by statute or regulation that are necessary for contract performance. 21. TRAVEL AND SUBSISTENCE REIMBURSEMENT Unless the contract specifically provides for different rates, any travel or subsistence reimbursement allowed under the contract shall be paid in accordance with rates set pursuant to RCW 43,03.050 and RCW 43.03.060 as now existing or amended. The Contractor may be required to provide to the Department copies of receipts for any travel related expenses other than meals and mileage (example: parking lots that do not provide receipts)that are authorized under this contract. 22. GOVERNING LAW AND VENUE This contract shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the state of Washington. Venue of any suit between the parties arising out of this contract shall be the Superior Court of Thurston County, Washington. 23. HOLD HARMLESS AND INDEMNIFICATION Each party to this contract shall be responsible for Injury to persons or damage to property resulting from negligence on the part of Itself, Its employees, agents, officers, or subcontractors. Neither party assumes any responsibility to the other party for the consequences of any act or omission of any third party. 24. WAIVER OF DEFAULT Waiver of any default or breach shall not be deemed to be a waiver of any other or subsequent default or breach. Any waiver shall not be construed to be a-modification of the terms of this contract unless stated to be such in writing signed by The Adjutant General or the Authorized Signature for the Department and attached to the original contract. 25. DISPUTES The patties shall make every effort to resolve disputes arising out of or relating to this contract through discussion and negotiation. Should discussion and negotiation fall to resolve a dispute arising under this contract, the parties shall select a dispute resolution team to resolve the dispute. The team shall consist of a representative appointed by each party and a third representative-mutually agreed upon by both parties. The team shall attempt, by majority vote, to resolve the dispute. Both parties agree that this disputes process shall precede any action in a judicial or quasi-judicial tribunal. Nothing in this section shall preclude the parties from mutually agreeing to a different dispute resolution method In lieu of the procedure outlined above. 26, ATTORNEY'S FEES In the event of litigation or other action brought to enforce contract terms, or alternative dispute resolution process, each party agrees to bear its own attorney's fees and costs. 27. LOSS OR REDUCTION OF FUNDING In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this contract and prior to normal completion, the Department may reduce its scope of work and budget or unilaterally terminate all or part of the contract as a "Termination for Cause", without providing the Contractor an opportunity to cure. Alternatively, the parties may renegotiate the terms of this contract under "Contract Modifications" to comply with new funding limitations and conditions, although the Department has no obligation to do so. FFY07 Homeland Security Grant Program Page 10 of 18 King County OEM Page 30 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County 28. TERMINATION OR SUSPENSION FOR CAUSE in the event the Department, In its sole discretion, determines the Contractor has failed to fulfill In a timely and proper manner Its obligations under this contract, Is in an unsound financial condition so as to endanger performance hereunder, is in violation of any laws or regulations that render the Contractor unable to perform any aspect of the contract, or has violated any of the covenants, agreements or stipulations of this.contract, the Department has the right to immediately suspend or terminate this contract in whole or in part. The Department may notify the Contractor in writing of the need to take corrective action and provide a period of time in which to cure. The Department is not required to allow the Contractor an opportunity to cure if it is not feasible as determined solely within the Department's discretion. Any time allowed for cure shall not diminish or eliminate the Contractor's liability for damages or otherwise affect any other remedies available to the Department. If the Department allows the Contractor an opportunity to cure, the Department shall notify the Contractor in writing of the need to take corrective action. If the corrective action is n9t taken within ten (10) calendar days or as otherwise specified by the Department, or if such corrective action Is deemed by the Department to be insufficient, the contract may be terminated in whole or in part. The Department reserves the right to suspend all or part of the contract, withhold further payments, or prohibit the Contractor from Incurring additional obligations of funds during investigation of the alleged compliance breach, pending corrective action by the Contractor, If allowed, or pending a decision by the Department to terminate the contract in whole or In part. In the event of termination, the Contractor shall be liable for all damages as authorized by law, including but not limited to, any cost difference between the original contract and the replacement or cover contract and all administrative costs directly related to the replacement contract, e.g., cost of administering the competitive solicitation process, mailing, advertising and other associated staff time. The rights and remedies of the Department provided for in this section shall not be exclusive and are in addition to any other rights and remedies provided by law. if It Is determined that the Contractor: (1)was not in default or material breach, or(2)failure to perform was outside of the Contractor's control, fault or negligence, the termination shall be deemed to be a "Termination for Convenience". 29. TERMINATION FOR CONVENIENCE Notwithstanding any provisions of this contract, the Contractor may terminate this contract by providing written notice of such termination to the Department's Key Personnel identified in the contract, specifying the effective date thereof, at least thirty(30)days prior to such date. Except as otherwise provided in this contract, the Department, In its sole discretion and in the best interests of the State of Washington, may terminate this contract In whole or In part by providing ten (10) calendar days written notice, beginning on the second day after mailing to the Contractor. Upon notice of termination for convenience, the Department reserves the right to suspend all or part of the contract, withhold further payments, or prohibit the Contractor from Incurring additional obligations of funds. In the event of termination, the Contractor shall be liable for all damages as authorized by law. The rights and remedies of the Department provided for In this section shall not be exclusive and are in addition to any other rights and remedies provided by law. 30. TERMINATION PROCEDURES In addition to the procedures set forth below, if the Department terminates this contract, the Contractor shall follow any procedures specified in the termination notice. Upon termination of this contract and in addition to any other rights provided In this contract, the Department may require the Contractor to deliver to the Department any property specifically produced or acquired for the performance of such part of this contract as has been terminated. If the termination is for convenience, the Department shall pay to the Contractor the agreed upon price, if separately stated, for properly authorized and completed work and services rendered or goods delivered to and accepted by the Department prior to the effective date of contract termination, and the FFY07 Homeland Security Grant Program Page 11 of 18 King County OEM Page 31 of 38 E08_1 gg Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County amount agreed upon by the Contractor and the Department for (I) completed work and services and/or equipment or supplies provided for which no separate price is stated, (11) partially completed work and services and/or equipment or supplies provided which are accepted by the Department, (Ili) other work, services and/or equipment or supplies which are accepted by the Department, and (iv) the protection and preservation of property. Failure to agree with such amounts shall be a dispute within the meaning of the "Disputes" clause of this contract. If the termination is for cause, the Department shall determine the extent of the liability of the Department. The Department shall have no other obligation to the Contractor for termination. The Department may withhold from any amounts due the Contractor such sum as the Department determines to be necessary to protect the Department against potential loss or liability. The rights and remedies of the Department provided in this contract shall not be exclusive and are in addition to any other rights and remedies provided by law. After receipt of a notice of termination, and except as otherwise directed by the Department in writing, the Contractor shall, a. Stop work under the contract on the date, and to the extent specified, in the notice; b. Place no further orders or subcontracts for materials, services, supplies, equipment and/or facilities in relation to this contract except as may be necessary for completion of such portion of the work under the contract as is not terminated; C. Assign to the Department, in the manner, at the times, and to the extent directed by the Department, all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the Department has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts; d. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the Department to the extent the Department may require, which approval or ratification shall be final for all the purposes of this clause; e. Transfer title to the Department and deliver in the manner, at the times, and to the extent directed by the Department any property which, if the contract had been completed,would have been required to be furnished to the Department; f. Complete performance of such part of the work as shall not have been terminated by the Department In compliance with all contractual requirements;and g. Take such action as may be necessary, or as the Department may require, for the protection i and preservation of the property related to this contract which Is In the possession of the' Contractor and in which the Department has or may acquire an Interest. AAG Approved 9/12/2007 FFY07 Homeland Security Grant Program Page 12 of 18 King County OEM Page 32 of 38 E08.196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County Exhibit B Statement of Work FFY 2007 State Homeland Security Program INTRODUCTION: The Washington State Military Department Emergency Management Division's (EMD) Homeland Security Section is responsible for programs designed to prepare and improve the State's. ability to respond to a Chemical, Biological, Radiological, Nuclear and Explosive (CBRNE) attack. Through the FFY07 Homeland Security Grant Program(HSGP), State Homeland Security Program (SHSP)the Department is providing funds to enhance the capability of state and local units of government to prevent, deter, respond to, and recover from incidents of terrorism. The FFY07 grant guidance also provides funding for planning, training, and exercise activities related to catastrophic events,when the benefit to terrorism preparedness can be justified. King County Office of Emergency Management(herein known as the Contractor)agrees to the following tasks: GENERAL PROGRAM REQUIREMENTS: 1. Work closely with the established Regional Homeland Security Councll to develop a strategy and subsequent budget for the use of these funds. The implementation of the projects or activities associated with these funds will be coordinated with the counties, cities, and the tribal governments located within the established region. 2. Prepare and submit a Bi-Annual Strategy Implementation Report (BSIR), via the web-based grant reporting tool. Failure to meet all of the reporting deadlines outlined In the Milestone and Timeline Schedule will prohibit the Contractor from being reimbursed while reports are outstanding. 3. Electronically submit progress reports. Failure to meet all of the reporting deadlines outlined in the Timeline will prohibit the Contractor from being reimbursed and will put a freeze on the processing of equipment approvals, while reports are outstanding. 4. Adhere to all financial and procurement guidance, Including competitive processes and other procurement requirements as documented in the Department of Homeland Security Financial Guide found at http://www.dhs.00v/xilbrary/assets/Grants FinancialManagementGuide.pdf. Local and state procurement and contracting regulations take precedent over these requirements when local and state regulations are more stringent. • Adhere to OGT requirements that all sole source contracts over$100,000 be reviewed and approved by the Department prior to execution of a contract. This requirement must be passed on to all of the Contractor's sub-contractors, at which point the Contractor will be responsible for reviewing and approving their sub-contractors'sole source justifications. • Adhere to OGT requirements that all contracts with individual consultants, that are not competitively bid, and where the consultant will be charging art excess of $450 per day (excluding travel and subsistence) must be approved by the Department before the contract is executed. This requirement must be passed on to all of the Contractor's sub-contractors, at which point the Contractor will be responsible for reviewing and approving their sub-contractors' contract. 5. The Contractor is required to,ensure that all of their sub-grantees and sub-contractors are in compliance with the FFY07 Homeland Security Grant Guidance through monitoring of expenditures and periodic reviews of equipment inventories. 6. Plan and implement equipment purchases, exercises, training, planning and management & administration in accordance with the FFY07 Homeland Security Grant Program Guidance, which can be found at http://www.oly.usdoiaov/odp/grants hsgp.htm,as well as all subsequent policy changes. 7. All activities under this contract must have a clear correlation to the goals, objectives, and priorities Identified In the Washington State Strategic Plan and corresponding Investment Justifications submitted in the FFY07 grant application. FFY07 Homeland Security Grant Program Page 13 of 18 King County OEM Page 33 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County 8. If purchasing equipment,the Contractor must meet the following requirements: • Be In compliance with the OGT Authorized Equipment List(AEL), as detailed at: http://Wwwl.rkb.mi pt.ora/. • Submit all proposed equipment purchases to the Committee on Homeland Security, Sub-committee on Equipment to ensure that the requested equipment is on the AEL, is aligned with the statewide equipment purchasing strategy, and submit to OGT if necessary. ■ No reimbursement for purchased equipment will occur until the appropriate approvals have been obtained. ■ The overall equipment budget can not be exceeded and over expenditures for.any reason, including additional cost of sales tax, shipping, or installation, will be the responsibility of the Contractor. • Determine whether or not it Is in the best Interest of the Contractor to make purchases using their own procurement process or ask the Department to make purchases on their behalf. • Make a request to the Department in writing that authorizes the Department to de-obligate funding from the Contractor's contract and use the state's procurement process and contracts to purchase equipment on behalf of the Contractor. This will necessitate an amendment to the contract reducing the Contractor's award by an amount sufficient for the Department to make the purchase(s). The Department will pay the vendor directly and all Items will be drop shipped to a location designated by the Contractor. 9. Exercises that are implemented with grant funds must meet the requirements of the FFY07 Homeland Security Grant Program Guidance, be threat and performance based, and should evaluate performance of critical prevention and response tasks required to respond to the exercise scenario. Upon completion of the exercise, an After Action Report and an Improvement Plan must be prepared and submitted to the Department within 60 days of completion of the exercise. Final reimbursement for related expenditures can not be made until this requirement has been'met. 10. The Contractor understands National Incident Management System (NIMS) compliance is required to receive Federal preparedness assistance grants beginning October 1, 2006. The Contractor certifies, by signing this agreement, that the contractor and Its principals have met NIMS compliance requirements and state reporting requirements for Federal Fiscal Year 2006 (FFY06) and shall meet NIMS compliance requirements and state reporting requirements for subsequent federal fiscal years during the performance period of this contract. The NIMS Integration Center (NIC) web page, http://Www.fema.aov/ememency/nims provides information about NIMS and guidance to determine the extent to which jurisdictions are already compliant, as well as identify the NIMS requirements that have not been met. The Contractor and Its principals are required to report NIMS compliance to the Department via the online form available on the Department's homepage http://www.emd.wa.goy/. 11, The Contractor may not exceed 5% of the total grant award on Management and Administrative expenditures. 12. Complete all work under the contract by the contract end date, to include receipt of equipment items. 13. Submit at a maximum monthly and a minimum quarterly, signed and approved invoice vouchers (State Form A-19)to the Department for costs Incurred. • No costs will be paid In advance of their being incurred by the Contractor. • No equipment costs will be reimbursed until the equipment has been received by the Contractor and invoiced by the vendor. Each A-19 will be accompanied by a spreadsheet detailing the expenditure's. Related financial documents and invoices must be kept on file by the Contractor and be made avallable"upon request to the Department, and local, state, or federal auditors. • Requests for reimbursement of equipment purchases will include a copy of the vendor's invoice and packing slag or a statement signed and dated by the Contractor's authorized representative that states "all Items invoiced have been received in good working order, are operational, and have been inventoried according to contract and local procurement requirements". FFY07 Homeland Security Grant Program Page 14 of 18 King County OEM Page 34 of 38 EWA N Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County All contract work must end on the contract end date, however the Contractor has up to 45 days after the contract end date to submit all final billing. • No travel or subsistence costs, Including lodging and meals, reimbursed under this contract may exceed federal maximum rates which can be found at www.gsa.gov. CONTRACTOR TASKS: 1. Provide technical assistance to local communities as necessary to enable the jurisdiction to successfully meet the requirements and intent of the SHSP grant. 2. Attend and participate in the monthly Regional Coordination meeting. 3. -Manage and administer the FFY07 SHSP Grant Program. 4. Report accomplishments on project deliverables, as may apply, including: a. NIMS/NRP compliance and Implementation; b. Development and implementation of Regional Coordination preparedness, prevention, response and recovery plans, assessments, networking, protocols and procedures completed for Region 6; c. Development and implementation of Training and Exercise Programs within Region 6, including training and exercises completed and number of participants; d. Enhancement of Interoperable communications within Region 6 including equipment purchased, installed,tested, trainings conducted and exercises completed; e. Development and implementation of Citizen Preparedness Programs; f. Equipment purchased. 5. If necessary, hire a Subcontractor to assist in accomplishing the contract tasks. THE MILITARY DEPARTMENT AGREES TO: 1. Provide technical assistance, expertise, and state coordination with OGT where necessary. 2. Reimburse the Contractor within 45 days of receipt and approval of signed, dated invoice vouchers (state form A-19)and all documentation of expenditures as required. FFY07 Homeland Security Grant Program Page 15 of 18 King County OEM Page 35 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County MILESTONE TIMELINE I IFFY 2007 State Homeland Security Program MILESTONE TASK July 1, 2007 Start of grant performance period September 2007 Submission of Initial Strategy Implementation Plan (ISIP) October 2007 Contract Execution January 15, 2008 Submission of BI-annual Strategy Implementation Report(BSIR) & Progress Report July 15, 2008 Submission of Bl-annual Strategy Implementation Report(BSiR) &Progress Report January 15,2009 Submission of Bi-annual Strategy Implementation Report (BSIR) & Progress Report July 15, 2009 Submission of Bi-annual Strategy Implementation Report(BSIR) &Progress Report September 30, 2009 Termination of the contract performance; all work must end under this-contract. - No later than November 14, 2009 Submit all final reports, Invbices for reimbursement and/or dellverables. i FFY07 Homeland Security Grant Program Page 16 of 18 icing County OEM Page 36 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County Exhibit C BUDGET SHEET FFY 2007 State Homeland Security Program PLANNING Sub-Category r FundingSource: 773SU Salaries&Benefits $ 331,000 Consultants/Sub-Contracting $ 400,000 Goods&Services $ 136,500 Travel&Per Diem $ 3,500 Pass Thru $ 178,000 Other-Indirect $ Total $ 1,049,000 TRAINING Sub-Category Funding Source: 773ST Salaries&Benefits $ - Overtime $ - Consultants/Sub-Contracting $ Goods&Services $ Travel&Per Diem $ Pass Thru $ 210,000 Other $ - Total $ 210 000 EXERCISE Sub-Category Funding Source: 773SQ Salaries&Benefits $ Overtime $ Consultants/Sub-Contracting $ - Goods&Services $ Travel&Per Diem $ - Pass Thru $ 140,000 Other $ - Total $ 140 000.00 MANAGEMENT& ADMINISTRATION Sub-Category Funding Source: 773SA Salaries&Benefits $ 112,500 Consultants/Sub-Contracting $ - Goods&Services $ 49039 Travel&Per Diem $ 1,000 Pass Thru $ Other $ - Total $ 117,539 EQUIPMENT $ 834,235 Funding Source:773SS Total Budget $ 2,350,774 '1.Expenditures may only occur within the categories and sub-categories listed above. However,bhanges of up to 10%can be made without prior approval from the Department. Changes that exceed 10%will require the Contractor submit a budget change request to the Department for approval. '2.G&T Grant program requirements affirm that federal funds will be used to supplement existing funds,and will not replace (supplant)funds that have been appropriated for the same purpose. `3.Management and Administration expenditures cannot exceed 5%of the total contract amount. FFY07 Homeland Security Grant Program Page 17 of 18 King County OEM Page 37 of 38 E08-196 Exhibit C: COPY OF CONTRACT BETWEEN Washington State Emergency Management Division AND King County Exhibit D DEPARTMENT PURCHASED EQUIPMENT IFFY 2007 State Homeland Security Program Upon approval of the Contractor, the Department will purchase the following equipment on behalf of the Contractor. The Department will reimburse the vendor and the equipment will be drop shipped to a location designated by the Contractor. Equipment Category Date Item Discipline Approved Purchased For Total amount de-obligated under this contract: $ FFY07 Homeland Security Grant Program Page 18 of 18 King County OEM Page 38 of 38 E08-196 WA I - Ur Insurance Authority P.O. Box 88030 Uikwila WA 98138 06-Nov-08 Cert#: 5907 Phone: 206-575-6046 Homeland Security Attn: Tony Lewis Fax: 206-575-7426 KCOEM -3511 NE 2nd St. Renton,WA 98056 RE: City of Kent Emergency Management to renew subgrant agreement. Evidence of Coverage The above captioned entity is a member of the Washington Cities Insurance Authority (WCIA), which is a self insured pool of over 123 municipal corporations in the State of Washington. WCIA has at least$1 million per occurrence combined single limit of liability coverage 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. WCIA is an Interlocal Agreement among municipalities and liability is completely 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, Eric B. Larson Deputy Director cc: Christopher Hills Linda Reeff,City of Kent cletter Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6S 1. SUBJECT: WASHINGTON DENTAL SERVICE CONTRACT - AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the Washington Dental Services 2009-2011 Administrative Services Agreement, subject to final terms and conditions acceptable to the City Attorney. The City is self-insured for its dental program. The 2009 WDS contract reflects a 50% decrease in administrative fees with year two and three rates guarantee at a 5.5% maximum increase each year. The annual cost for 2009 for our administra- tive services contract is $51,000 and claims cost is projected at $888,000 for a total cost budgeted in our Health & Wellness Fund of $939,000. 3. EXHIBITS: 2009-2011 WDS Administrative Services Agreement 4. RECOMMENDED BY: Operations Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: 36 Washington Dental Service Dental Care Service Contract WDS Program#00611 Name of Group: City of Kent Herein called Group, agrees to a Dental Care Service Contract with Wash"gton - I Service, herein called WDS. The effective date of this Contract shall be 12:01 a.m. Pacific StandawTime on the first d' January, 2009 at Seattle, Washington, and shall run for a period of one year. x This Contract is issued and delivered in the state of Washfiri pd is govgrned by Washington:-ate laws. It is subject to the terms set forth on the subsequent pages,appendicea and amr 91nbments,which area part of this Contract. �'V_ :4, xr � Accepted by: � �a .Accepted by: �M� tZ xi, ; City of Kent �,x Washington Dental Service N ;. � ri, Post Office Box 76983 -,, \ L 17 lSeattle,Washington 98176-0983 x•' ' 011 By By Title "" �:o Title S for Vice resident 7 ��M� ems" " 6J Underwriting &Actuarial +,F Date Date November 25, 2008 2009-01-00611-NC-01 (DRAFT) --1 -- Article I—Definitions For the purpose of this Contract,the following definitions shall apply: 1.01 "Administrative Fee"means the monthly amount payable by Group as designated in Appendix E. 1.02 "Benefit Period" means the period beginning January 1 and ending December 31. 1.03 'Contract" means this agreement between WDS and Group.This Contract constitutes the entire Contract between the parties and supersedes any prior agreement, understanding or negotiation between the parties. 1.04 "Contract Term"means the time period specified in Appendix E. a 1.05 "Covered Dental Benefits" means those dental services that are cox e (Rider this Contract, subject to the Limitations set forth in Appendix C. 1.06 "Delta Dental Non-PPO Dentist"means any licensed Dentist.�n+hoja a DeltaxCa I Participating Dentist and has not entered into a PPO Provider Agreement with akprfcipting plan. s , 1.07 "Delta Dental PPO Dentist" means a Delta Dental Partigloating Dentist who has aged to render services and receive pay ment in accordance with the terms ai a,,' onditions,,Qf a written Delta De-a(PPO Dentist Agreement between the participating la a ''�ti plan and t suc11 1,08 "Delta Dental Participating Dentist"means a licensed Dmist whd,' as agreed to render,services and receive payment in accordance with the terms and conditions 0,t written Delta Dental Participating Dentist Agreement between WDS/Delt ental and such Dent M` 1.09 "Delta Dental Participating Dentist Filed f ',fix, ans the approvecfeQccepted by WDS for a specific dental procedure performed by a Delta De .' ° ici,ating Dentist. to Dental Participating x Dentist has agreed to accept such approved;',feesa�',pr�ment in full. 1.10 Dentist means a licensed Dentist legally autltrizeto° r act i; din rstry at the time and in the place a , services are performed h�Gontract providefor�overed seri�s only if those services are performed by or under direction qf,.--��� a Dentist or otl' ' WDS-approved Licensed Professional.A"Licensed Dentist"does not r l- a der . echanic or an tither type of dental technician. ;_ 1.11 "Eligibility Date Y''At the date 6P which an Eligibi&Person's benefits become effective under the terms ,of this Contract. OU ; , 1.12 "Eligible De ndent"mews ,fad pian �t�e z ligible Employee who meets the conditions of eligibility set fo,I ti' B. ;•. 1.13 "Eh"gible Employe® ns any loyee who meets the conditions of eligibility set forth in Appendix A. � � 1.14 !1*ligible Person" mean Eligible,.- °` yee or an Eligible Dependent. 1.15 "Eie *ency Examinatior,r:,�ans otherwise covered dental care services medically necessary to evaluate and tir ,"n emergency dW I condition. 1.16 "Exclusion eans those,t ntal services that are not a contract benefit set forth in Appendix C and all other servic' t specif x;ally included as a Covered Dental Benefit set forth in Appendix C. 1.17 "Filed Fee" mean '; 'proved fee accepted by WDS for a specific dental procedure performed by a Participating Dentia ubmitting that fee and performing the dental service. 1.18 "Full-time Employment"means a minimum of 80 hours worked by an employee each month. 1.19 "Group"means the employer or entity that is contracting for dental benefits for its employees. 1.20 "Licensed Professional" means an individual legally authorized to perform services as defined in their license, Licensed Professional includes, but is not limited to a denturist, hygienist and radiology technician. 1.21 "Limitations"means those dental services that are subject to restricting conditions set forth in Appendix C. 2009-01-00611-NC-01 (DRAFT) --2 -- 38 1.22 "Maximum Allowable Fees"means the maximum dollar amount that will be allowed toward the reimbursement for any service provided for a Covered Dental Benefit. 1.23 "Nonparticipating Dentist"means a licensed Dentist who has not agreed to render services and receive payment in accordance with the terms and conditions of a written Participating Dentist Agreement between WDS and such Dentist. 1.24 "Not a Paid Covered Benefit" refers to any dental procedure that, under some circumstances, would be covered by WDS but is not covered under other conditions, examples of which are listed in Appendix C. 1.25 "Payment Level"means the applicable percentage of Maximum Allowable Fees for Covered Dental Benefits that shall be paid by WDS as set forth in Appendix D. 1.26 "Plan"means a Group contract that provides for coordination of benefi s'"nd contains a provision stating what benefits from that contract and other sources are to be recogni#rt!Gnder the coordination provision. Each such source shall be defined as a"Plan." .O E 1.27 "Qualified Medical Child Support Order(QMCSO)" means aq,order issued T ourt under which an employee must provide medical coverage for a dependent,chlld,Q_I IICSO's ar issued, for example, following a divorce or legal separation. 1.28 "Specialist"means a licensed Dentist who has successfully completed an education IV am accredited by the Commission of Dental Accreditation, two ormo, gears in left th, as specified b Council on Dental Education or be diplomates of an American DenssocQrrecognized certif g board. 1.29 "WDS"means Washington Dental Service, a nonprofit corp6t-aeon incorporated in Washington state. Washington Dental Service is a member ofthe Delta Dental Plar,Association. Article II—Eligibility - �' 2.01 Every person who meets the conditions of gjgibility�'as};set forth in AppSn'tiix A or Appendix B is eligible for dental benefits for the purposes of this Contract. —, 2.02 Group eligibility shall be submitted to WDS prilAsto,the begin Q,,�' each monthly eligibility period. Article III—Monthly Payt nt �� ash 3.01 The monthly Admirti ,ative Fee;_►7 be remitted full�t,,y "roup, is as set forth in Appendix E. 3.02 Initial Administrative Fe��all la'_`ai40Madvance otithe effective date of this Contract. Subsequent Adminis ra i e Fees sha eid l ;,_Jrst day of each calendar month for which benefits are to be erson ss�lt be entitled toy• efits under this Contract during any month for which p ����p, Adrlh strative y ent hay cat been received by WDS. 3.03 .,,04ment of Adminis ti a Fee isI a�'op•or before the first day of the month. If payment is not received " 'e 15th of the mon a late fee , tie percent per month may be incurred. If payment is not received bY� ?, , p p Y pY withiri,. Owdays WDS may e written•notice that payment is due and may, at its option,terminate all benAlt 1„,� 0 be released fr �r all further obligations as set forth in Article X entitled"Notice and Termina f,FILE 3.04 WDS shall 1 a0t,retroact��e additions to eligibility(payments)that are received by WDS within 60 days of the request date. Exceptions may be made at the discretion of WDS on a case-by-case basis. 3.05 WDS shall accept etroactive terminations of eligibility(credits)that are received by WDS within 60 days of the requested termination date, or to the end of the month of the last paid claim of termed subscriber, whichever is later. 3.06 WDS shall not be obligated to refund paid claims for treatment from providers when the treatment was performed in good faith that eligibility was current and accurate at the time of treatment. Exceptions may be made at the discretion of WDS on a case-by-case basis. Article IV—Benefits Provided, Limitations and Exclusions 2009-01-00611-NC-01 (DRAFT) --3 -- 4.01 Covered Dental Benefits, Limitations and Exclusions are described in Appendix C and are subject to the program maximum and deductible, as described in Appendix D. 4.02 The amounts payable by WDS for Covered Dental Benefits provided to an Eligible Person by a Delta Dental Participating Dentist in the state of Washington are described in Appendix D, Method of Payment for Delta Dental Non-PPO Dentists. 4.03 The amounts payable by WDS for Covered Dental Benefits provided to an Eligible Person by a Delta Dental PPO Dentist in the state of Washington are as set forth in Appendix D, Method of Payment for Delta Dental PPO Dentists. 4.04 The amounts payable by WDS for Covered Dental Benefits provided to amS'ible Person by a Dentist who is not a Delta Dental Participating Dentist in the state of Washington ha11 be based on the applicable percentage, provided in Appendix D, Method of Payment for Delta Deg Non-PPO Dentists.This shall be applied to the lesser of WDS's Maximum Allowable Fees for Nonpark'r` pating Dentists, or such Dentist's actual charges. 4.05 The amounts payable by WDS for Covered Dental Benefits provided to an EI le Person by a Dentist �.- outside of the state of Washington shall be based on the applicable percentage;prr�ided in Appendix D, Method of Payment for Delta Dental PPO Dentists.Thiwill be applied to the lesserDS's Maximum Allowable Fees for out-of-state Dentists, or such Deritl'it's actual charges. , 4.06 WDS shall not be obligated to pay for treatment per for claim f0t s are submitted fof`payment more than six months after the date of such treatment. For orthtf -,ntialaims;the initial banding date is the treatment date considered in the timely filing. 4.07 If there are two or more professionally agceptable plans of de aeatment, WDS will pay the appropriate percentage of the lowest fee. The remainfteph ' unt will be the patis's responsibility. 4.08 Payment for services provided b a Delta ' pating Dentist elf jibe made directly to the Y p Y j rTA Dentist. Contracts between Delta Dental an jo is Delta''D6 iFaj Participat pg Dentists provide that if Delta Dental fails to pay the dentist,the Eligible Peon shalf`r1ot. Ilak�lepthe dentist for any sums owed by Delta Dental. 11 t3, Article V—Conditions fo enefits ispute Deter ination Procedures ' 5.01 Benefits are avaffili ,for an Eligi�e Person from Ale Eligibility Date until such eligibility terminates. - 5.02 An Eligible Person ma ect th�ase lees of any licesed Dentist.WDS is not responsible for availability of any particular licensee 5.03 WDD: = f Abeto re i'. fom any atterl ing Dentist, or from hospitals in which a Dentist's care is rendered, any rec `CsPlating� eatment rendered to an Eligible Person as may be required in the :r ninistration of clairris Vt 4L) 5.04' Prdyider dispute resoluti�process i 'available as outlined in individual provider contracts. 5.05 To de'objpe Covered Dew I Benefits for certain treatments, WDS may require an Eligible Person to obtain an• ination fro WDS-appointed consultant Dentist.WDS will pay 100 percent of the charges!no, , for the a' ination. Article VI—Coordina " „� eflts(COB) 6.01 All of the benefits this Contract are subject to the provision of this Article VI. The COB provision applies when a person has health care coverage under more than one Plan. 6.02 Whenever used in this Article VI,the following terms shall be defined as specified: (i) Allowable Expense—A dental care expense, including deductibles, coinsurance and copayments, that is covered at least in part by any Plan covering the person.When a Plan provides benefits in the form of services rather than cash payments, the reasonable cash value of each service shall be considered an allowable expense and a benefit paid.An expense that is not covered by any Plan covering the person is not an allowable expense. In no event shall the allowable expense be greater than the actual expense incurred. 2009-01-00611-NC-01 (DRAFT) --4-- 40 (ii) Claim Determination Period—Calendar year in which treatment was incurred. (III) Plan—Group contracts issued by health care service contractors or health maintenance organizations(HMO)that provides benefits or services for dental care or treatment. Each of the other Plans under which a patient is covered, and each of the benefits within the other Plan shall be considered separately in administering this coordination of benefits provision.The term "other Plan" shall not include accident-only coverage; school accident type coverage; Medicaid coverage; or coverage under other federal governmental plans, unless permitted by law. (iv) Custodial Parent—The parent awarded custody by a court decree or, in the absence of a court decree, is the parent with whom the child resides more than one half of,the calendar year excluding any temporary visitation. (v) Primary Plan—A plan whose benefits for a person's dental care spoverage must be determined without taking the existence of any other plan into consideration,,,Wp (vi) Secondary Plan—A plan that is not primary. 6.03 General Provision—Benefits shall be provided under this Contir to the a that the patient could not have received benefits for the same services under any othef�Qlan,4had claim$ made. If the other Plan has a coordination of benefits provision and if the benefits provided under th' g ntract and all other Plans under which the patient is covered would exceed the total of the highest allow expenses,then this coordination of benefits provision shall apply.T iimeans that`the benefits shall f; ,educed so that i the sum of the benefits of all Plans shall not exceed tFie�t©tal of the=h)ghest allowable exp�rrse. If the benefits of this Contract are reduced during any claim dif Orpinatir' period because of this provision, each benefit that would be payable in the absence of this pfo sfon' shall be reduced proportionately, and the amount reduced shall be applied toward any allowable exAVInes incurred during that claim determination period.The benefits of the Q her Plan shall includOW,Penefits that would have been payable had claim been duly made therefOot 6.04 Order of Benefit Determination—If both thi6 Co c And the other Paf�rovide that the benefits of this Contract must first be exhausted,the other ian may'kilgnored in determining benefits under this Contract; but otherwise the following rules shad estaplfsh tti araer of benefit payment under this Contract and the other Plan: 4 m0i , (i) The benefitsof, he Planxtdoes not have`e coordination of benefits provision shall be primary. (ii) The benefitsathe Plant _Io' covers the person as an employee, member, policyholder, subscriber or retire6shalla4610etermi @ before the benefits dif a Plan that covers the person as a dependent. m If the person is a, wt r s are not 6parated or divorced: 1) Az enefits of i� Plan co � arent whose month and day of birth occurs earlier in ` the SI ��ar yeah dell be determin ed before the benefits of the Plan of the parent whose montfi.r�itay of occurs later in the calendar year. µ 2) If both pa have tit an birthday,the Plan that has covered the parent the longest is the primaryFJn. (iv) A`If t e person is a chj.6f parents who are separated or divorced or not living together,whether or ii0they have ever bben married,where there is no court order in place then the benefits are -, deter ed in the follpwving order: 1) tPlan cov�"i ng the Custodial parent, first; 2) T li-A.I i n c V�bring the spouse of the Custodial parent, second; 3) The>'l' tsiovering the non-custodial parent,third; and 4) The PI n covering the spouse of the non-custodial parent, last. (v) If a court decrees that one parent has financial or health care expenses or health care coverage responsibility,that Plan is primary. (vi) The Plan covering the person as a retired or laid-off employee or dependent of such person shall be determined after the benefits of any other Plan covering such person as an employee, other than a laid-off or retired employee, or dependent of such person.This provision shall not apply if either Plan does not have a provision regarding laid off or retired employees,which results in each Plan determining its benefits after the other. 2008-01-00611-NC-01 (DRAFT) --6 -- (vii) If a person whose coverage is provided under COBRA or under a right of continuation provided by state or other federal law is covered under another Plan,the Plan covering the person as an employee, member, subscriber or retiree or covering the person as a dependent of an employee, member subscriber or retiree is the Primary plan and the COBRA or state or other federal continuation coverage is the Secondary plan. (viii) If none of the above rules determine the primary Plan, then the Plan that covered the patient the longest shall be primary. 6.05 Limitations on Payments—In no event shall the Eligible Person recover more than the total of the highest allowable expense of the benefits offered by this Contract and all other Plans combined.The patient shall refund to WDS any excess payment WDS may have paid. a R k 11 6.06 Payment to Other Plans—If a payment that should have been made-utt`er this Contract was made by another Plan,WDS shall have the right to pay the other Plan any amti&VDS determines necessary to satisfy the provision of this Article VI.Any amounts paid shall be b�iside%,Oenefits paid under this Contract,and,to the extent of such payments,WDS shall be ful discharg*�om liability under this Contract.* 6.07 Right of Recovery—Whenever payments have been mile by WDS in excess okf 'maximum payment necessary to satisfy the provisions of this Article V1, !1(7 shall have the right to recover.-;uch excess payments from the patient, the employee,the pro i p n or,the other,,;Plan. � ' 6.08 Right to Receive and Release Necessary Information co i n'of receiving benefits under this Contract,the patient agrees to provide any necessary inforJllt1' WDS requests, and authorizes WDS to release or obtain from any other insurer,organization, or pers W, ny information necessary to administer the provisions of Article VI. = ; 6.09 If the Eligible Person is covered by more e bealth plan, they,i , he, .provider should file all claims with each plan at the same time. If Medicar, is `enary plan, Medice may submit claims to a secondary carrier. Article VII WDS's Obligatio s.- in, 7.01 WDS shall issue to r up P additional co§ standard WDS benefit booklets summarizing the ' program benefit ny amen6 nt to this Contr materially affects any benefits described in such booklets, correckeoklets oriklet inserts show -the change shall be issued to Group.A new booklet shall be crew eau►on IN i inception of Con tact and every other year thereafter.An insert will be created and sent in thewarki AeM. t i o'produced. If Group requests a new or updated booklet�fq,rj�terr)ate years, p sha f"mc xpense. Group shall also incur any charges for variatI6Kin"b`8' =; i e or pa.e S shall pr'vide for Group one printed booklet for each enrolled employee pursuarirt,„ � ice otl Its . .surance Commissioner regulation (WAC 284-44-050)with an J4itional 10 percen�i eve supp � rw Uji �a1proval WDS shfve bool)ets delivered to Group within 15 business days. 7.02 WDS s4pllprov1 a predeti r motion, claim review,complaint and appeal procedures and grievance procedAi,,10 the benefit tio¢klets issued to Groups. 7.03 If a Dentist o ligiblerson requests a predetermination of benefits,WDS shall predetermine ' benefits when sa f d- 'at the patient is an Eligible Person. Such predetermination of benefits shall be for a reasonable p > i of time, but no longer than such person's period of eligibility. Predeterminations are not an authori al!on for services but a notification of benefits available and are not a guarantee of payment. 7.04 WDS shall not be obligated to make payment for any services rendered to a patient who is not an Eligible Person at the time the services were performed. 7.05 WDS may provide professional review of the adequacy and appropriateness of services rendered through its Quality Management and Clinical Review processes. 2009-01-00611-NC-01 (DRAFT) --6 -- � 42 7.06 WDS shall provide Participating Dentist Directories to Group. This directory is also available on-line at www.DeltaDentalWA.com. It is understood that the composition of such directory is subject to change. WDS reserves the right to change the directory without notice. Each Eligible Person is free to select a Dentist of his or her choice.WDS shall not be held liable for any action or omission on the part of the ' selected Dentist. Nothing contained in this Contract shall be construed as obligating WDS to render dental services; its sole obligation being to pay the agreed-upon portion of Dentist's charges for covered services'in accordance with the terms of this Contract. 7.07 Both parties will act in accordance with applicable state and federal privacy requirements and disclosure requirements, such as the Gramm-Leach-Bliley Act(GLBA)and the related egulations of the Health Insurance Portability and Accountability Act(HIPAA). Article Vlll—Group's Obligations 8.01 Group shall provide information to all Eligible Employees as to theexistett nd terms of this Contract. Group shall make available to each Eligible Employee, booklets"` immariz program benefits. A. 8.02 Group shall permit WDS, at WDS's expense, on reasonab ran written n to inspect eligibility records in order to verify the accuracy of information subilt ed to"WDS.An equit djustment of Administrative Fee shall be made in the event of inad event clerical errors or delay . orting eligibility. �=� r, 8.03 Group shall sign and return any and all Contract documeil s within 3days of the effecti .'date or the date WDS mails the Contract document to Group,whicheveji#.],,t"er. 8.04 If a signed Contract or any changes affecting the Contract prodtxns are not received by WDS from the Group or the Group's legal representatir' (s�within the 30 day tini., nod as indicated In Article 8.04, but Group remits Administrative Fee as stipulaiei�:�,,lppendix E forth 'S, '; t Togth of this Contract term, WDS will assume acceptance of the Conte4g.t'1.41t fi, 0, including acc' a of rates, Contract language and provisions.WDS will process claims on,,J�a effective pte according�fo these Contract provisions. Article IX--General Provisions_ � 9.01 No change in this Coptrar �s is abe valid unless evidenced by written amendment signed by the President of WDS, or his desi ee. 9.02 Legal action tore a'� enefits ovided for in this 6n)ract may not be initiated prior to 60 days after receipt of claim by W,dS adq A uch legal actioo must commence within six years from the date the t claim was received by g 9.03 Any,p'ro�ilsin zf ( Contrad*rt_thXs in confli ith any governing law or regulation of the state of Washington is h�eb mended�o-comply with the minimum requirements of such law or regulation. Article : Notice and Term ilion 10.01 Any 60i Fe under this Cont ct shall1 a sufficient if given by either Group or WDS by regular mail to the other act( ssed to the offf stated on the front page of this Contract or to such other address as may be designatedIMk .written notito the other. 10.02 This Contrac 131 a to nated effective at the end of any Contract Term by either Group or WDS, by either party giwnSra niotice to the other at least 30 days prior to the end of the Contract Term, except as otherwise proviy in Article III or this Article X. 10.03 Upon default by Group in any of its obligations hereunder,WDS may elect to terminate this Contract, effective at the end of the month for which Administrative Fees have been received by WDS prior to the time of such election, by giving written notice thereof to Group. If WDS elects to so terminate because of default by Group,then Group shall be indebted to and agrees to pay WDS the sum of all claims payments and expenses incurred for dental services rendered from the date of default until the date of termination, including costs of recovery. 10.04 If on termination of this Contract, Group has paid Administrative Fee to WDS applicable to a period of time after the termination date,WDS shall,within 30 days after termination, return such portion of Administrative Fee to Group together with amounts due on claims, if any, less any amounts due to WDS. 2009-01-00611-NC-01 (DRAFT) --7-- 10.05 Acceptance by WDS of the proper amount of Administrative Fee, after termination of this Contract and without requiring a new application, shall reinstate the Contract as though it had never terminated, unless WDS shall,within five business days of receipt of such payment, either 1) Refund the payment so made,or 2) Issue to Group a new Contract accompanied by written notice stating clearly those respects in which the new Contract differs from the terminated Contract in benefits, coverage or otherwise. 10.06 Upon termination of this Plan, all expenses incurred prior to the termination of the Plan, but not submitted to WDS within the timeframe as set forth in Article IV of the effective date of termination of this Plan,will be excluded from any benefit consideration. ¢ Article XI—Subrogation5 11.01 To the extent of any amounts paid by WDS for an Eligible Person ti abcunt of services made necessary by an injury to or condition of his or her person,WDS shall be sy 'ogate i or her rights against any q�third party liable for the injury or condition.WDS shall, however, n be obli �,to pay for such services unless and until the Eligible Person,or someone legally quaif46q and authoriz C f- act for him or her, agrees to: d A- • Include those amounts in any insurance claim or�iw�any liability claim made agaan he third party for Pl the injury or condition; , • Repay WDS those amounts Included in the claim frp i 3 ae excess,-received by the iol6red party, after full compensation for the loss is received;ar , • Cooperate fully with WDS in asserting its rights under they oritract, to supply WDS with any and all information and execute any and all3,l�lruments WDS reas6n,, �, r needs for that purpose. 11.02 Provided the injured party is in compliancd� _e above, WDS witFoidr t any attorneys'fees incurred in the recovery. pry 11.03 If an Eligible Person receives this program s��renefits fob<�talrt�u or condition possibly caused by another person, they must include in their insurance cl, n hab11ity"cl#i��a amount of those benefits.After they SF A+i iYn. have been fully compsns , = their loss, an - cney recover¢ in excess of that loss must be used to reimburse WDS. WRY s all a any attorney fees a sf the amount owed to WDS. Article XII—List of Appa� ices 12.01 The attached appendic$' reta4- f" is Contract ppendices are identified as follows: Appen ployee�ility� equir' App St '� ' > ent Ell 6111ty Requirements 'e ' A pendix C—, Co ental B' _ 'ts, Imitations and Exclusions P-Aondix D—Method'�t�"� ayment � App E—Gr)up's F '`uncial Obl►gations ApperraTx' —Continuati - f Coverage"COBRA" Appendix Cr, MySmi e Wisonal Benefits Center 41 1 W1 , 2009-01-00611-NC-01 (DRAFT) -- i 44 Appendix A ' Employee Eligibility Requirements A. Definition of Eligible Employee An"Eligible Employee"is a full-time employee of Group for whom Group has submitted monthly Administrative Fee to WDS. B. Effective Date of Coverage Eligible Employees(as defined in Section A)are eligible on the effective datq of this Contract. ' An employee hired after the effective date of this Contract shall become e g re:on the date of hire. WDS will waive the waiting period for an employee hired after the effective date of this Contract and who is transferring into the dental program from any other WDS dental, dog nrollment for such employee must be completed within 30 days of said transfer and the empigy a mus been eligible for benefits under the prior WDS dental program in the month coincidingvith`1r immedi receding the month of transfer.The effective date of coverage for such employee sh'dlll bethe first da a calendar month following enrollment. Notification of previous coverage iSiaquire&at the time of e` ent. {: C. Continuation of Coverage ' An employee shall continue to be eligible during the tim' s Confifd&is in effect as lo s the employee remains an Eligible Employee as defined abov The Federal Family and Medical Leave 4ct(FMLA) became effec Miye Aug. 5, 1993. Dental benefits under this Contract may be continued provide A employee is eligible f� F IIILA leave and is on a leave of absence that meets the FMLA criteria. � kwje While satisfying the various requirements o�,thests rimarily with up,WDS intends to fully cooperate with Group in complying with the law. . '' In the event of a suspend, .ar termination of all m `nsation' ite or indirectly as a result of a strike, lockout or other labor `iift ' Eligible Empl a may pay t� applicable premium directly to Group for a period not to exc dd six monk"and Group sh'sil pay the premium to WDS. Payment of the premium must be made `" ue or the, erage may be�minated by WDS. D. Termination of Cover-aagJOL, An emplo e all cease ti� �eligib1 ,� df the calendar month in which the employee ceases to be an,, -EW oyee as cke fed above or 0 on termination of this Contract,whichever occurs first. ln`the event an Eligi}�- erson ceeso to be eligible, or in the event of termination of this Contract for any .: dbuse,WDS shall not' uired toff" a for services beyond the termination date, except for the comle>ion {within threeR asks)of sig�e procedures requiring multiple visits to complete, that were started)' ile this f? coverage as in effect,which are otherwise benefits under the terms of this plan. The Eligible on should calf' stomer service to see if their procedure qualifies for this extension. E. Enrollment iremegr All Eligible Emprolled in the Group-sponsored medical Plan must be enrolled In this dental program regardle ` _{ whether or not enrolled as a dependent in another dental program. Employees who are not enrolled in the Group-sponsored medical Plan may not enroll in this dental program. Each Eligible Employee must complete an enrollment form.WDS must receive the completed form within 60 days of the employee's Eligibility Date as defined in Section B. If the enrollment form is not received within 60 days, enrollment will not be accepted until the next open enrollment period. If this Contract provides coverage for dependents, as defined in Appendix B, all such employee's Eligible Dependents must be listed on the enrollment form unless they are enrolled in another Dental Program. 2009-01-00611-NC-01 (DRAFT) -9. Appendix B Dependent Eligibility Requirements A. Definition of Eligible Dependent "Eligible Dependents"are an Eligible Employee's lawful spouse/domestic partner for whom Group has received an Affidavit of Domestic Partnership and unmarried children from birth through age 24. Unmarried children include biological children, stepchildren,foster children and adopted children. ' To enter into a state registered domestic partnership the two persons involved must meet the following requirements: 1) Both persons share a common residence; ' 2) Both persons are at least eighteen years of age; ' 3) Neither person is married to someone other than the pa a domestic partnership and neither person is In a state registered domestic partpship wl other person; 4) Both persons are capable of consenting to the domesfiiipartnerslla , 5) Both of the following are true: a)The persons are not nearer of kin to each other than second cousins,w t'er of the whole or half blood computing by the rules of the,Ci±il law; and,, �, b) Neither person is a sibling, child, grandchild;, nt, uncle, ylece, or nephew to�i other person; and 6) Both persons are members of the same sex;. "� W ' Following termination of a domestic q,ination must be filed with Group's pattn hip a statement of q (,?.. Human Resources Department within 30 f#ermination.Termi�tion of domestic partnership includes death of a partner. Application for another Affidavit of Domesticartnd�`ship,cannot be filefor 180 days following the filing of the statement of termination of domestic pa rship wthTGt an Resources Department. A newborn shall be cover0`d=f, ,m and after the-4 �ent of birth an adopted child shall be covered , from the date of plat r e� -own in Section below. Dent coverage provided shall include, but is not limited to, cov 4 ge for cond"ell tal anomalies a such infant children from the moment of birth, A child shall bd`conred an E�ble Dependent an adopted child if the following conditions are met: I 1)the child has been d wI e. ligible Emploj;� for the purpose of adoption under the laws of the state in which the emplo _ i o oyee has assumed a legal obligation for total or partial 7s;` ' :" e child i icipatiori`b on. Notification of placement of a child for adoption and , pay ert�of any°' o" l req i monthly Administrative Fees must be furnished to WDS within 60 days jf. , the date of pia�'r� nt. ' 'C enrage for an unn �dependei�i�child over the limiting age will not be terminated if the child is and coMI a s;dIcap be both 1)IMb fable of self sustaining employment by reasons of developmental disability or phys�-i and 2) ]efly dependent upon the employee or member for support and maintenance, provided--o ESpf of Incapacik nd dependency is furnished to WDS within 31 days of the child's attainment of the limit "* a and the= 'ild was an Eligible Dependent upon attainment of the limiting age. , Pursuant to th s, __ Qualified Medical Child Support Order(QMCSO),the plan also provides coverage for ane Employee's child, even if the Eligible Employee does not have legal custody of the child or the chi]'''is not dependent on them for support, and regardless of any enrollment season restrictions that rrii°ght otherwise exist for dependent coverage. If Eligible Employee is not enrolled in dental benefits,they must enroll for coverage for themselves and the child. If the plan receives a valid QMCSO and they do not enroll the dependent child,the custodial parent or state agency may enroll the affected child. ' 2009-01-00611-NC-01 (DRAFT) --10 -- 46 Appendix B Dependent Eligibility Requirements A QMCSO may be either a National Medical Child Support Notice issued by a state child support agency ' or an order or judgment from a state court or administrative body directing the company to cover a child under the plan. Federal law provides that a QMCSO must meet certain form and content requirements to be valid.The custodial parent, a state agency or an alternate recipient may enroll a dependent child pursuant to the terms of a valid QMCSO.A child who is eligible for coverage pursuant to a QMCSO may not enroll dependents for coverage under the plan B. Effective Date of Coverage Coverage for an Eligible Dependent shall become effective on the date tf�e�hg�le Employee's coverage becomes effective or on the first day of the calendar month following th month in which such person became an Eligible Dependent of the Eligible Employee, except nevi-9 4infants shall be covered as provided in Section E of this Appendix B. T C. Continuation of Coverage When a dependent no longer meets the eligibility require' nts dUe to death or d of the employee, or does not meet the age requirements for children, c oVerage may continue up to t _ ears, or until the dependent is covered under another Group Plan by, _A the required premium. While satisfying the various requirements of the law rests R,rimarily�tlGroup,WDS int ' ds to fully cooperate with Group in complying with the law. A dependent shall continue to be eligiblq during the time this C, kract is in effect as long as the dependent remains an Eligible Depend6kas defined above andIdtoup has made timely payment of the monthly premiums on behalf of the depert -to WDS. .- D. Termination of Coverage ,.r� . A dependent shall cease to be eligible at the et1d of.t�he calendamoiith during which the Eligible Employee's eligibility termites or the dependeot -' longer meets the definition of an Eligible Dependent,whichevp>�occurs,fir' . In any event;- igibility for&I ependent shall terminate at the end of the calendar monh ,for which t m ly payment of tlie,,monthly Premiums were last received by WDS from Group, or upo tiATOAtion of thrs,',Contract,whiche�gr occurs first. In the event an Eligibly Parson s@s to be eligible;o�in the event of termination of this Contract for any cause,WDS shall not b6,'r"V�51_d & °>r ides beyond the termination date, except for the 3 ce�- complelirob�r�(�it �three weeli )of si Fes requiring multiple visits to complete, that were started while jhi'g} ovgage wg2tr; k ffect which are otherwise benefits under the terms of this plan.The Etgible Person shou all cusE ervica to see if their procedure qualifies for this extension. E. Efi,,111 ent Requiremen& EligiWilolpendents enroll.;d=,in the Group-sponsored medical program of the Eligible Employee must also be*`rli'`6I4 d in the de rit program providing they satisfy the dental eligibility requirements as provided in Section" his Apperldi�x B.A family member not covered under the Group-sponsored medical program can covprid under the dental program. Any new family mijlier,with the exception of newborns and adopted children, acquired by an employee ' after his/her coverage is in effect(such as a lawful spouse, stepchildren or foster children) must be enrolled within 30"days from the date of acquisition or not until the next open enrollment period. 2009.01-00611-NC-01 (DRAFT) -- Appendix B ' Dependent Eligibility Requirements , A newborn shall be covered from and after the moment of birth, and an adopted child shall be covered from the date of placement for the purpose of adoption; provided, however,that if this Contract requires ' payment of an additional monthly Administrative Fee for coverage of such child, enrollment of the newborn or adopted child, and payment to WDS of all applicable Administrative Fees, must be completed within 60 days after the date of birth or placement to assure coverage. If no additional monthly Administrative Fee is required, WDS requests completion of the enrollment process for the newborn or , adopted child within 60 days after the date of birth or placement, but coverage will be provided in any event. To enroll a newborn or adopted child, a parent must complete a new enroll bnt.orm provided by WDS. If I an additional Administrative Fee for coverage is required and enrollmeot�a"nd payment is not completed for a newborn or adopted child within said 60 days, such child may be4prolled coincident with any renewal or extension of this Contract. i,,W, 11 A new enrollment form must be filed for new family members M' When a family member is dropped from either the medical, rgrrn or the dental pr� ram,the family member must also be dropped from the other program,,; Ur i 1 2009-01.00611-NC-01 (DRAFT) --12-- 48 Appendix C Covered Dental Benefits, Limitations and Exclusions The following are Class I, Class II and Class III Covered Dental Benefits under this Contract that are subject to the Limitations and Exclusions contained in this Contract. Such benefits(as defined)are available only when rendered by a licensed Dentist or other WDS-approved Licensed Professional when appropriate and necessary as determined by the standards of generally accepted dental practice and WDS. The amounts payable by WDS for Class I, Class II and Class III Covered Dental Benefits are as set forth in Appendix D. Dental Accident Coverage ott Notwithstanding the amounts payable by WDS for Class I, Class II and Class IUD nefits,as provided in Appendix D,WDS shall pay 100 percent of the Filed Fee or the Maximum Allowable Flee to the unused program maximum, for expenses for Covered Dental Benefits arising as a direct result o a , cidental bodily injury that ' occurred while the patient was an Eligible Person hereunder.A bodily in' does ' lude teeth broken or damaged during the act of chewing or biting on foreign objects. Coverage Includes n ry procedures for dental diagnosis and treatment rendered within 180 days followingiiiie'l8ate of the sic Class I Diagnostic ' Covered Dental Benefits — Routine examination(periodic oral eva�yation) — Comprehensive oral evaluation . — X-rays 79 — � Emergency examination — Specialist examination performed by a Specialist iinn`�iiA erican Dents' ssociation-recognized specialty. — WDS-approved caries(tooth decay)and periddontal �sc`�ea `i it'- /ris tests. Limitations � � — Routine examination Mis�co`'etsd�twice in a Bene� Period. — Comprehensive oraFevaluations�overed once ira three-year period from the date of service as one of the two covered=ems`opations idlWBenefit Period r Eligible Person per dental office.Additional comprehensive oral� i�ations�il be allowed as rc�u�' e examinations.The patient will not be responsible for any di 4-W a tragb .' h. service re provided by a participating Dentist. Complete se ies�. any num ' or com�'mt1 "Qgtraoral X-rays, billed for same date of service that � � equals��r'ex ��d§ritt�, allows �t �for a compete series is considered a complete series for payment poses) or an X rays ar��ered once in a five-year period from the date of service. Supplementary bit���C-rays aY ve d once in a Benefit Period. -7' 4grtostic services and ys rela temporomandibular joints (jaw joints)are Not A Paid Covered Benefit under Class I Cov' .ed DentP, enefits. Exclusions= Consulta� r elective seond opinions — Study mod or Preventive _ Covered Dental Bene — Prophylaxis(cleaning) — Periodontal maintenance — Fissure sealants — Topical application of fluoride or preventive therapies(e.g.fluoridated varnishes) — Space maintainers when used to maintain space for eruption of permanent teeth. 2009.01-00611-NC-01 (DRAFT) --13-- Appendix C Covered Dental Benefits, Limitations and Exclusions , Limitations — Prophylaxis and/or periodontal maintenance procedures will be limited to two covered procedures in a ' Benefit Period. — Under certain conditions of oral health, prophylaxis or periodontal maintenance(but not both)may be covered up to a total of four times in a Benefit Period. — Topical application of fluoride or preventive therapies (but not both) is covered twice in a Benefit Period. , — Payment for application of sealants will be for permanent maxillary(upper)or mandibular(lower)molars with incipient or no caries(decay)on an intact occlusal surface.The application of fissure sealants is a Covered Dental Benefit only once in a three-year period per tooth from thedate of service. — Replacement of a space maintainer previously paid for by WDS is Not aRald Covered Benefit. Exclusions — Plaque control program(oral hygiene instruction, dietary instruction and lipNe fluoride kits) — Cleaning of a prosthetic appliance. I_ Onh Perlodontics Covered Dental Benefits If "' — Prescription strength fluoride toothpaste � � �4 — Antimicrobial mouth rinse Limitations — Prescription strength fluoride toothpaste and antimicrobial mot - inse is a Covered Dental Benefit following periodontal surgery or other covered periodontal prod6 res when dispensed in a dental office. Proof of a periodontal procedure must act ,ppny the claim or the.p gents WDS history must show a I, rs .,,, periodontal procedure within the previous-I' °; , � — Antimicrobial mouth rinse is covered once p*er pe 0AO-Iritaltreatment. — Antimicrobial mouth rinse is available for women durin �preg n ancy witktout any periodontal procedure.- %a�-` **Refer,AJso To General Li tip s"and GT, , Exclusions** , Class II OT General Anesthesia ' ' Covered Dental Benefits -- General.anesthesia whe r �nIit6Nd i � ed Dentist or other WDS-approved Licensed " a WM" Profeslorialiia =beets the` , national,cre tialing and privileging guidelines established by the tpJ' gw_ Dental Quality Asap a Commii lion of the state of Washington or as determined by the state in which t=ts services are rand�:r =� re; , — Ger� �� nesthesia is cod in conjunction with certain covered endodontic, perlodontic and oral surge649' cedures, as de mined by WDS, or when medically necessary,for children through age six, or a phys2l ,,or develop r e tally disabled person,when in conjunction with Class I, Il, III and Orthodontic ed dent p rocedures. ' — Either general' then� intravenous sedation (but not both) are covered when performed on the same day. — General anesthesi or routine post-operative procedures is Not a Paid Covered Benefit. Intravenous Sedation Covered Dental Benefits Intravenous sedation when administered by a licensed Dentist or other WDS-approved Licensed Professional who meets the educational, credentialing and privileging guidelines established by the Dental Quality Assurance Commission of the state of Washington or as determined by the state in which the services are rendered. 2009-01-00611-NC-01 (DRAFT) --14-- 50 Appendix C Covered Dental Benefits, Limitations and Exclusions Limitations — Intravenous sedation is covered in conjunction with certain covered endodontic, periodonti and oral surgery procedures, as determined by WDS. Either general anesthesia or intravenous sedation (but not both)are covered when performed on the same day. — Intravenous sedation for routine post-operative procedures is Not a Paid Covered Benefit. Palliative Treatment Covered Dental Benefits - Palliative treatment for pain. Limitations " Postoperative care and treatment of routine post-surgical complications i k I ded in the initial cost for surgical treatment if performed within 30 days. Restorative ; Covered Dental Benefits a — Amalgam restorations(fillings) and, in anterior to@tii;:, based co posite or lass for restorations for treatment of carious lesions(visible destruction of h�aatooth st �kire result in from� process of ; dental decay)or fracture resulting in significant loss of tooth" r cure(missing cusp). — Resin-based composite or glass ionomer restorations place� e buccal(facial) surface of bicuspids — Stainless steel crowns Limitations — Restorations on the same surface(s)of th ;saMktpot are covered o two-year period from the date of service. — If a resin-based composite or glass ionomer r-storatiop ls:pfilabed 'n a posterior tooth(except on bicuspids as noted above), it will be.considered as a cos eti - rocedurKmk-n amalgam allowance will be made, with any difference in� the responsibil , f the patien�' Restorations nece scary to cdrrE`vt;vertical dimen or to alter the morphology(shape)or occlusion are Not A Paid Cov Benefit. Stainless steel c56 a covered once in a two-ye4r eriod from the date of service. Refer to Class III Limi a`Qns if tee e restored wit�h'crowns, veneers, inlays or onlays. Exclusions �' — Overt�ahg�re c�„°copings, - ontouring or Pik ishing of restoration �t.-.� Oral Surgery , Covered,Vental Benefits — RemgY�of teeth ' — Prepar"- of the mouth " nsertion of dentures. Treat meri I athologic ditions and traumatic injuries of the mouth. — Refer to Cla' J eneral esthesia or Intravenous Sedation for additional information, Exclusions — Bone replacemen- for ridge preservation. ' — Bone grafts, of anlP ind, to the upper or lower jaws not associated with periodontal treatment of teeth. — Tooth transplants — Materials placed in tooth extraction sockets for the purpose of generating osseous filling. Periodontics Covered Dental Benefits — Surgical and nonsurgical procedures for treatment of the tissues supporting the teeth. Services covered include periodontal scaling/root planing and periodontal surgery. ' 2009-01-00611-NC-01 (DRAFT) --15-- Appendix C , Covered Dental Benefits, Limitations and Exclusions ' — Limited adjustments to occlusion(eight teeth or less) — WDS-approved localized delivery of antimicrobial agents. ' — Refer to Class I Covered Dental Benefits and Limitations for periodontal maintenance benefits. — Refer to Class III Periodontics for benefits and Limitations on complete occlusal equilibration and occlusal guard(nightguard). Limitations , — Periodontal scaling/root planing is covered once in a three-year period from the date of service. — Periodontal surgery(per site) is covered once in a three-year period from thldate of service, — Soft tissue grafts(per site)are covered once in a three-year period from batpof service. — Limited occlusal adjustments are covered once in a 12-month period fro, the dale of service. Localized delivery of antimicrobial agents approved by WDS is a Co,ee Dental Benefit under certain conditions of oral health. Localized delivery of antimicrobial agen lim►81�o two teeth per quadrant and up to two times(per tooth)in a Benefit Period. Periodontal surgery and localized delivery of antimicrobial ago Ptsxthust be pry { d by scaling and root planing a minimum of six weeks and a maximum of six rrlalhs 1pr the patient m ave been in active supportive periodontal therapy, prior to such treatment; — Localized delivery of antimicrobial agents is Not A PaidCovered Benefit when used loth purpose of maintaining non-covered dental procedures. ��Pp ' Crown and bridgework in conjunction with periodontal'splir�ig or,R to&periodontal therapy and periodontal appliances are Not A Paid Covered Benefit. , ``' `$ Exclusions — Periodontal splinting. .6 — Gingival curettage. C Endodontics 'e A3 t, Covered Dental Benefits — Procedures for pulpal a o canal treatmen Services covered ingtposure treatme #,pulpotomy d apicoectomy. Limitations — Root canal treatm ;o the sa tooth is covered rspiy..once in a two-year period from the date of service. — Re-treatment of the sari►Q o 1 NaL n edformed by a different dental office. Refer � 'I� initationtie root a ��placed in conjunction with a prosthetic appliance. Exclusl B aching of teeth " "*Refd.F,�sl a To General Limitations and General Exclusions"* ah . ;4' � ML Class III Note: For new h enrolling ink b 100 percent and Group Health medical plan, each Eligible Person must be on this dents , for 1 onths before they become eligible for Class ll1 Benefits. Note: For new hires en n the HSA and 80 percent medical plan, each Eligible Person must be on this dental plan for 12 onths before they become eligible for Class 111 Benefits. , Periodontics Covered Dental Benefits ' — Under certain conditions of oral health, services covered are occlusal guard (nightguard), repair and relines of occlusal guard (nightguard)and complete occlusal equilibration. Limitations — Occlusal guard(nightguard)is covered once in a three-year period from the date of service. 2009-01-00611-NC-01 (DRAFT) --16 -- 52 Appendix C ' Covered Dental Benefits, Limitations and Exclusions — Repair and relines done more than six months from the date of service after the initial placement are covered. — Complete occlusal equilibration is covered once in a lifetime. Restorative Covered Dental Benefits — Crowns, veneers, inlays(as a single tooth restoration—with Limitations)or onlays(whether they are gold, porcelain,WDS-approved gold substitute castings[except laboratory proce d resin]or combinations thereof)for treatment of carious lesions(visible destruction of hard tooth,sttr resulting from the process of dental decay)or fracture resulting in significant loss of tooth structure)missing cusp),when teeth cannot reasonably be restored with filling materials such as amal�a or resin-based composites. — Crown buildups, subject to Limitations. ` — Post and core, subject to Limitations. Ncomp Limitations tip — Crowns, veneers, inlays(as a single tooth restoration- r�Limitations) o same teeth are covered once in a seven-year period from the seat datQ: — If a tooth can be restored with a filling material suc'asamalgam 6Lresin- s n allowance will be made for such a procedure toward they t of any,�ier type of restor�h that may be provided. ; — WDS will allow the appropriate amount for an amalgam resto'tioh (posterior tooth)or resin-based composite restoration(anterior tooth)toward the cost of a lab ry processed resin inlay(as a single tooth restoration—with Limitations),onlizyeneer or crown. Payment for crowns, veneers, inlays(as is p14e tooth restoration', h Limitations)or onlays shall be paid upon the seat date. ; Inlays(as a single tooth restoration)will be cbnsid re .x ' a�cosmetic pfo'cedure and an amalgam allowance will be made, with any difference irr ost beV ;tPre'-hes onsibility of the patient. Crown buildups are a Covee�e�yyd� Dental Benefit ore thane rcent of the natural corona)tooth structure is missing or Mor Jess than 2mm 6 .ical height ri maining for 180 degrees or more of the tooth circumference 1' he e, 4,vidence of decor or other significant pathology. — Crown buildups r. . overed on a seven-yearperiod from the date of service. — Crown buildups'ark Paid ered Benefit with n o years from the date of service of a restoration on the same tooth.��� — Crown buildups for the Mpoi�P0 0,xt form,filling in undercuts or reducing bulk in castings are coni ece� ing matee��and ar Nb aid Covered Benefit. Posa�ld�coie� re'go�ered oriR�i, a seven-year period on the same tooth from the date of service. — A> ,rown used for Jul s of r�a#ouring or repositioning a tooth to provide additional retention for a ;a raremovable partial dery s Not A (:Svered Benefit unless the tooth is decayed to the extent that a '. would be require estore� ooth whether or not a removable partial denture is art of the _ . q p p trea&lei.0t. _ — Crowns ' onlays are Not', aid Covered Benefit when used to repair micro-fractures of tooth structure when 1 tha-66" is asympt ` 'tic(displays no symptoms)or there are existing restorations with defective margins whe< ere is no ecay or other significant pathology present. Crowns and/of' 'I s pl`ced because of weakened cusps or existing large restorations without overt pathology are N x Covered Benefit. — Crown and bridgewar in conjunction with periodontal splinting or other periodontal therapy and periodontal appliances are Not A Paid Covered Benefit. Exclusions — Copings. Prosthodontics Covered Dental Benefits ' 2009.01-00611-NC-01 (DRAFT) Appendix C Covered Dental Benefits, Limitations and Exclusions ' — Dentures,fixed partial dentures(fixed bridges), Inlays(only when used as an abutment for a fixed bridge), removable partial dentures and the adjustment or repair of an existing prosthetic device — Surgical placement or removal of implants or attachments to implants Limitations — Replacement of an existing prosthetic device is covered only once every seven years from the date of service and only then if it is unserviceable and cannot be made serviceable. , — Inlays are a Covered Dental Benefit on the same teeth once in a seven-year period from the delivery date only when used as an abutment for a fixed bridge. s , — Payment for dentures,fixed partial dentures(fixed bridges), inlays(only win Wised as an abutment for a fixed bridge)and removable partial dentures shall be paid upon the delily date. — Replacement of implants and superstructures Is covered only after seven�years from the delivery date have elapsed from any prior provision of the implant. — Crowns in conjunction with overdentures are Not A Paid Covers 28enefit,— Full, Immediate and overdentures-�WDS will allow the prl�ate amou' bra full, immediate or overdenture toward the cost of any other procedure that mays Provided,such a grsonalized AI restorations or specialized treatment. a MI — Temporary/interim dentures--WDS will allow thTt ` ount of areline toward the cbt. f an nterim partial or full denture.After placement of the perrrtar�iposthesisgn initial reline will ld :enefit after six months. � 4 — Root canal treatment performed in conjunction with overd'dj re g s Iimied to two teeth per arch and is paid at the Class III Payment Level. - , — Partial dentures—If a more elaborates_o precision device is id tl to restore the case,WDS will allow the cost of a cast chrome and acrylic pai� ,e tuts toward the cldf any other procedure that may be provided. *, n, " R, Denture adjustments and relines—Dent�re is and relines ,c he more than six months after the initial placement are covered. Subsequer relines°Biases(but nod both)will be covered once in a 12-month period. �`" �`� ,. -aM g .4' ' Exclusions � r — Duplicate dentures., — Personalized deb tees t — Cleaning of proshd ppliance -r — Copings. "*Refe o G" rr" /t ins and General Exclusions" " U ,�; a , Orthodon�gP�enefits fo °. is an EUi idle Children Orthodo`ic'reatment is define= s,the Hates i'y procedures of treatment, performed by a licensed Dentist, involving s� al or appliance th y for m�g�Vement of teeth and post-treatment retention. Fore i in the 100 ; rcent and Group Health medical plan The lifetime' mum a nt payable by WDS for Orthodontic Benefits rendered to an Eligible Person , shall be$1,80� t mar than$900 of the maximum, or one-half of WDS's total responsibility shall be payable for treat rrte° d ring the"construction phase". Subsequent payments of WDS's responsibility shall be made on anthly basis,throughout the length of treatment submitted, providing the employee is eligible and the ependent is in compliance with the age limitation. 2009-01.00611-NC-01 (DRAFT) --18 -- 54 Appendix C Covered Dental Benefits, Limitations and Exclusions For enrollees in the HSA and 80 percent medical plan The lifetime maximum amount payable by WDS for Orthodontic Benefits rendered to an Eligible Person shall be$1,800. Not more than$900 of the maximum, or one-half of WDS's total responsibility shall be payable for treatment during the"construction phase". Subsequent payments of WDS's responsibility shall be made on a monthly basis, throughout the length of treatment submitted, providing the employee is eligible and the dependent is in compliance with the age limitation. For retirees Via. The lifetime maximum amount payable by WDS for Orthodontic Benefitendered to an Eligible Person shall be$1,000. Not more than$500 of the maximum,or one-half of 1 b,'S's total responsibility shall be payable for treatment during the"construction phase". Subsequentvay is of WDS's responsibility shall be made on a monthly basis,throughout the length of treatrr ent sub _' d, providing the employee Is eligible and the dependent is in compliance with the age limitatc�n. Notwithstanding the Payment Levels set forth in Appendix D and thWpr`ou(sion of Article t e amount payable by WDS for Orthodontic treatment shall be 50 percent of the le per of the Maximum Allow ees or the fees actually charged, ., It is strongly suggested that an orthodontic treatment plarrkbefta d to,, a predeterminati� 9 made by, WDS prior to commencement of treatment. A predetermination ba'n be of payment.A`ditionally, payment for orthodontic benefits is based upon eligibility. If indivldub'l`: me ineligible prior to the subsequent payment of benefits, subsequent payment is not covered. Covered Dental Benefits - - Treatment of malalignment of teeth and/o' ai ¢rthodontic recor x m (initial,periodic, comprehensive,detailed and extensive),x=ays-�n#rabral, extraoral,d tic radiographs, panoramic), diagnostic photographs, diagnostic casts(sr` dy mod6 c�ephalomgplc films. Limitations — Payment is limited to: ■ Completion, or th otagh-Iff`hj Dig age(refer to ppendix B), whichever occurs first. ■ Treatment rec ved after coverage begins(cla,ms must be submitted to WDS within the time limitation (as�st (bo in Articl`o-V)of the start of#Gs�verage). For orthodontia claims,the initial banding date is the treaty ' 1Ut ate c%,Oidered in the timelV,jIling. Treatment that began p o t. overage ill be prorated: .� _ Paymef►t' .made base t the'bWain ", ing after the down payment and charges prior to the ate bf i re dedd� ■ �IVDS will issu` aments b on our responsibility for the Length of the treatment.The payments -' are issued provi 1, ,he emp i igible and the dependent is in compliance with the age ` _ i - g'=limitation. .' ' — In t�exent of terminatiot the treatment plan prior to completion of the case or termination of this prog alrl°__ o subsequent p ments will be made for treatment incurred after such termination date. Exclusions',, — Charges fors cement owe of an appliance. — No benefits s 'b prole for services considered inappropriate and unnecessary, as determined by WDS. ..:v Refer Also To General Limitations and General Exclusions" General Limitations 1. Dentistry for cosmetic reasons is Not A Paid Covered Benefit. 2. Restorations or appliances necessary to correct vertical dimension or to restore the occlusion. Such procedures include restoration of tooth structure lost from attrition, abrasion or erosion and restorations for malalignment of teeth are Not A Paid Covered Benefit. 2009-01-00611-NC-01 (DRAFT) --19-- Appendix C Covered Dental Benefits, Limitations and Exclusions 3. General anesthesia/intravenous(deep) sedation is Not A Paid Covered Benefit, except as specified by WDS for certain oral, periodontal, or endodontic surgical procedures. General anesthesia is Not A Paid Covered Benefit except when medically necessary,for children through age six, or a physically or developmentally disabled person,when in conjunction with covered dental procedures. General Exclusions , 1. Services for injuries or conditions that are compensable under Worker's Compensation or Employers' Liability laws, and services that are provided to the Eligible Person by any federal or state or provincial government agency or provided without cost to the Eligible Person by aray�'J*iudlcipality, county or other political subdivision, other than medical assistance in this state, under.r6edical assistance RCW 74.08.500, or any other state, under 42 U.S.C., Section 1396a, sectip i4902 of the Social Security Act. 2. Application of desensitizing agents. `` K'w 3. Experimental services or supplies: uw, -, : , a. Experimental services or supplies are those whose use an s&-acceptance as urse of dental treatment for a specific condition is still under Invetii+gation/observation. In dete'riif�irig whether services are experimental,WDS, in conjunction- the the American Dental Associat�xnz,g all consider if: ; i) The services are in general use in the dental co MI U it -thftate of Washington; ii) The services are under continued scientific testinatld search; iii) The services show a demonstrable benefit for a partial , ental condition; and iv) They are proven to be safe and' ' Feptive.Any individual' r a claim is denied due to this experimental exclusion clause shi� . ,tified of the denial 1�i t in 20 working days of receipt of a fully documented request. �� � �. . b. Any denial of benefits by WDS on the gunds tFia9l,! n procedure is deemed experimental may be appealed to WDS. By law,WDS musl'spondaO suc a al within 20 working days after receipt of all documentatioa ably required t" a�C`e a decisi'o 20-day period may be extended only with written the Eligible Per ,< •_is 4. Analgesics such�s�,itrous oxid conscious sedatfgn, euphoric drugs or injections 5. Prescription drugs ti. In the event an Eligible' i a reg4(F6d examination from a WDS-appointed consultant Dentist.flcrkajrl treatment ; o beni `provided for such treatment. 1 ,�., 7. Hos Aalization'bh°" and an °=,' itional fees charged by the Dentist for hospital treatment. 8 at `ken appointment�� ` ° g. prd erns 10. CompI6. M1tj claim forms fir: 11. Habit-breakr �., ppliances 12. TMJ services pli s 13. This program doe Y p provide benefits for services or supplies to the extent that benefits are payable for them under any mar vehicle medical, motor vehicle no-fault, uninsured motorist, underinsured motorist, personal injury protection(PIP), commercial liability, homeowner's policy or other similar type of coverage. 14. All other services not specifically included in this Contract as Covered Dental Benefits. WDS shall have the discretionary authority to determine whether services are Covered Dental Benefits in accordance with the general Limitations and Exclusions shown in this Contract,but it shall not exercise this authority arbitrarily or capriciously or in violation of the provisions of the Contract. 2009-01-00611-NC-01 (DRAFT) ..20.. 56 Appendix C Covered Dental Benefits, Limitations and Exclusions Ji 4w '4,kCp 4A "WA I WIQ 4 Z07 2009-01-00611-NC-01 (DRAFT) --21 — Appendix D Method of Payment , FOR A PPO PARTICIPATING DENTIST,WDS SHALL PAY: 100 percent of the Maximum Allowable Fees as set forth in Article IV for allowable Class I Covered Dental Benefits as they are described in Appendix C. 80 percent of the Maximum Allowable Fees as set forth in Article IV for allowable Class II Covered Dental Benefits as they are described in Appendix C. 50 percent of the Maximum Allowable Fees as set forth in Article IV for allowable Class III Covered Dental Benefits as they are described in Appendix C. . , The amounts payable by WDS with respect to dental services render,&by a Dentist out of the State of Washington are the above applicable percentages applied to WDS's= imum Allowable Fees for out-of- state Dentists, or to such Dentist's actual charges, whichever shaiJe lesj�K,,. Expenses for all Covered Dental Benefits arising as a direct res s t of an ac bodily injury shall be tal payable at 100 percent, up to the unused program maximu " FOR A DELTA DENTAL PARTICIPATING DENTIST OR A NONPARTICIPATING DENT. ,Ef�- IDS SHALL PAY: Alp 100 percent of the Maximum Allowable Fees as set fdrt��t Article IVIor allowable Class; overed Dental Benefits as they are described in Appendix C. A, � 80 percent of the Maximum Allowable Fees as set forth in Al V for allowable Class 11 Covered Dental Benefits as they are described in Appendi C. 50 percent of the Maximum Allowable Fe Vorth in Article I allowable Class fit Covered Dental Benefits as they are described inAppendi ,�C. w Expenses for all Covered Dental Benefits aft ing as)-- l e ,t� esult of an accidental bodily injury shall be payable at 100 percent, up to the unused pro m aximum , Plan Maximum ' �4 For enrollees 1�-g '_ 00 perceif nd Group Health medical plan The maximum amo DS for Class I d III Covered Dental Benefits(including Dental Accident Benefits) per' gable ole �Ez�d i the p I d January 1 through December 31 shall be$1,500. Charge, formal procedf requiring �ieatment dates shall be considered incurred on the date the i Jfc, 0°'S' '011 e,ed. for such prrs edures shall be applied to the program maximum based o such ircurred V Fd �rollees in the and 80 p_rd nt medical plan The 1" mum amount pa F le by AS for Class I, it and III Covered Dental Benefits(including Dental AccldeO,t`e efits)per Eliji, a Person during the period January 1 through December 31 shall be$1,800. Charges cA tal proced' 's requiring multiple treatment dates shall be considered incurred on the date the service is• pleted. e' ounts for such procedures shall be applied to the program maximum based , on such incurr�` te. wiz , For retirees The maximum amount payable by WDS for Class I, 11 and III Covered Dental Benefits(including Dental Accident Benefits)per Eligible Person during the period January 1 through December 31 shall be$1,500. Charges for dental procedures requiring multiple treatment dates shall be considered incurred on the date the service is completed.Amounts for such procedures shall be applied to the program maximum based on such incurred date. 2009-01-00611-NC-01 (DRAFT) --22-- 58 Appendix D Method of Payment Plan Deductible WDS shall not be obligated to pay the first$50 of fees for Covered Dental Benefits received by an Eligible Person during each period January 1 through December 31. Such deductible amount shall not exceed$150 during each period for all Eligible Persons in a single family consisting of an Eligible Employee and Eligible Dependents. Once the maximum deductible per family has been satisfied, no further deduction shall apply until the next succeeding period. The deductible does not apply to Class I Covered Dental Benefits, Orthodontic Benefits or Dental Accident Benefits. L iR Vi nj ; a mow , it 0° 2009-01-00611-NC-01 (DRAFT) --23-- Appendix E Group's Financial Obligations , WDS shall notify Group, on the last WDS payment day of each calendar month, the actual amount of claims paid by WDS for that month. Notification will be via Fax letter which will constitute an invoice. Group will then have two business days to wire transfer to the appropriate WDS bank account an amount equal to total claims paid for the month. Funds are due on the date notified. If the funds are not transferred within five days of notification, a late fee of one percent of claims will be charged.An additional late charge of one percent of claims will be charged for each subsequent 30 day period for which payment is not received. The charges shall be submitted by WDS with a subsequent payment notification. The monthly Administration fee payable by Group under this Contract during theyperlod January 1, 2009 through December 31,2011 shall be$5.30 per Eligible Employee. Group's payment„,s tall'4e in the form of an electronic transfer and shall accompany the eligibility listing.. WDS will then update t Mies„afi„ send a new billing to Group for the next month of coverage. " ' 10N ' .„ Legislative Surcharge Clause—If an its g g y governmental unit shall' 'e any new tax of°i essment or increases the rate of any current tax or assessment that is measured direct q by the payments made toMPS by Group, then WDS is authorized to increase the monthly Administrative F y the amount of such new tad;�ssessment or increase. bun IX al ' "& ' � "—g¢ 2009.01.00611-NC-01 (DRAFT) 60 Appendix F Continuation of Coverage"COBRA" Federal Health Benefit Continuation Provision Applicable to Group Health Care Plans effective Jan. 1, 1987, provided the Group employs at least 20 employees on a "typical business day"during the preceding calendar year. (Part of the Consolidated Omnibus Budget Reconciliation Act known as COBRA. Public Law 99-272 and as amended by Public Law 104-191.) An employee (and his/her family members)employed by an employer affected by the above law, should be aware of the following terms, conditions and of this law as it applies to temporary continuation of Group dental coverage upon the occurrence of certain qualifying events. An employee of an employer covered by the Group Health Care Plan has a right nose this continuation coverage, if Group dental coverage is lost because of a reduction in hours of m Royme4 or the termination of employment for reasons other than gross misconduct on the art of the em I- V The dependents of an employee covered by the Group Health Care Pla; . rve the, t to choose continuation coverage, if Group dental coverage under the Group Health Care Plan is st for an' s following five reasons: 1) The death of the employee; 2) A termination of the employee's employment(for reasar s^other than gross miscon or reduction in the employee's hours of employment; 3) Divorce or legal separation from the employee _ g� 4) The employee becomes entitled to Medicare; or :f 5) The dependent ceases to be an"Eligible Dependent"under '; roup Health Care Plan. Under the law,the employee or a family membeF s the responsibility _grm the employer of a divorce, legal separation, or a child losing dependent status uno Group% Health Care p. COBRA coverage begins on the date that coverag' oiifd�b�l1 rise have be eA1 due to a qualifying event. um Coverage will end at the end of the maxim perio _ When the employer is notified that one of these eventgias appene hiployer will, in turn, notify the employee of his or her right to, ntinuation cove e. Under th , the employee has at least 60 days from the date he or she woul fiose ,page because o e of the events described above to inform thes employer that continuationverage ha en chosen. If continuation coverage is no ''. sen, t Group health car' pVerage will end. If continuation coverage is chos h ,e' ulredto give the employee coverage that, as of the time coverage is being,ti. frilled is identic�al,to the co v vided under the plan to similarly situated employees or family memb4is� l eT Mires the "e employee be afforded the opportunity to maintain continuation ,the loss roup dental coverage was because of a termination of employment coveragefor three years uri or redyAtip in hours. In that d the req' �ritinuation coverage period is 18 months. If continuation of coverag �c)Ioosen,the employeALI- ,,IWoverage requiredt i give coverage that, as of the time coverage is being provided, is identical totk provide ,der the, Ian to similarly situated employees or family members. If the covered E. , yee's ell ibilitCnder this Contract ends when he or she becomes entitled to Medicare benefits then covdra l ay not bel ntinued for the employee. But coverage may be continued for any dependents for up to onths, fr m the covered employee's Medicare entitlement date. If the covered employee's eligibility uric , ontract continues beyond Medicare entitlement, but later ends upon termination of employment or retiremer Mien any Dependents may continue coverage for up to: 1) 36 months from the covered employee's Medic re entitlement date; or 2) 18 months from the date the Insured persons employment ended(whichever is later). Disabled individuals, either employees or dependents, who are disabled at the time the employee terminates employment or has a reduction in hours, or if disability occurs at any time during the first 60 days of COBRA coverage, are eligible for an additional 11 months of continuation coverage. The total continuation coverage period will not exceed 29 months.The individual must be determined to be disabled by the Social Security Administration and must notify Group within 60 days of Social Security's determination date. 2009-01-00611-NC-01 (DRAFT) __25__ Appendix F Continuation of Coverage"COBRA" If the Eligible Employee has a child or adopts a child during the period of COBRA coverage, such employee may elect to cover that child. Generally, COBRA participants lose coverage when they become eligible under another Group plan. However, if the new plan has pre-existing Limitations and Exclusions, affected individuals may continue coverage under the former plan until the pre-existing condition(s)Is no longer limited or the continuation coverage period ends, whichever is earlier. COBRA payments are due within 45 days from the date of application. Payments must be made retroactively from the date of COBRA eligibility up through the current month of eligibility. If a dependent is actively participating in COBRA and the covered employee beaesnes entitled to Medicare benefits then coverage may not be continued for the employee. But coverag, be continued for any dependents for up to 36 months, from the covered employee's Medicare e itI em , �zdate. If the covered employee's eligibility under the contract continues beyond Medicare entlti bent, 6 r ends upon termination of employment or retirement; then any Dependents may continue c p adkfor up to: 6 months from the covered employee's Medicare entitlement date; or 2) 18 months f �m�ie,date the insur'et()ersons employment ended (whichever is later). . Dependents experiencing second qualifying events whiler OBRA rrr y extend coveragE� an 'dditional 18 months. ,. Continuation coverage may be ended according to the law for anytkre1iilowIng reasons: • The employer no longer provides Group health care coverag`' r<??;�ny of its employees; • The Premium for continuation coverage, paid, or not paid o, , as provided by law; • The Eligible Person becomes covered un� ter Group health after the date the Eligible Person elects COBRA coverage. If, however fi83� n contains a lusion or limitation for apre- existing condition(as explained above), coverage doe -ofi�e�d for thi§.reason until the exclusion or limitation no longer applies; �`,� �- • The Eligible Person b ' ,i`" _titled to Medile� er the dafie l e Eligible Person elects COBRA coverage; or r, T 0- • The spouse is 1W .did from a %red employeel d subsequently remarries and is covered under any Group health CZAR", pr� nless a life-existing Condit escribed above takes precedence. Proof of insurability is not requi to c I.kh, , of uation eoVbrage. However, under the law,the employee may have to pay all pr,plpi of the Pre it . r theto ttdoverage. 2009-01-00611-NC-01 (DRAFT) ..26-- 62 Appendix G MySmile®Personal Benefits Center The MySmile®personal benefits center is an online tool that provides personalized strategies for employees to improve their oral health and that of their family members. Here are examples of what MySmile can do for employees; • Allow them to check their plan coverage and eligible benefits • Let them search for dentists near their homes or work places • Lets them check the status of current claims and view previous payments • Provide access to printable ID cards ' • Provide personalized ways to improve their oral health WDS will provide Group with a series of communications encouraging Group,,Aojilpe this program. Group understands that any cost savings they may see on the treatment side areidirecAlVi4,rq led to employee usage rates. re^ `tQ, yy6 µ 2009-01-00611-NC-01 (DRAFT) —27— Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6T 1. SUBJECT: 2008 PROPERTY TAX LEVY ORDINANCES - ADOPT 2. SUMMARY STATEMENT: Adopt Ordinance No. authorizing the statutory 1% increase in the property tax levy rate, and adopt Ordinance No. levying the property tax levy for collection in 2009. State law requires a separate ordinance to authorize any increase in property tax. The first ordinance authorizes an increase in the regular property tax to 1% over ' the previous year's maximum allowed tax levy. The second ordinance levies the tax for 2009 collection. The estimated levy is $27,170,338 for the General Fund and $600,000 for the Debt Service funds, for a total of $27,770,338. These are the preliminary numbers per King County Assessor's Office. 3. Finance Director EXHIBITS: Ordinances and Memo from Fin E a 4. RECOMMENDED BY: Operations Committee (Committee, Staff, Examiner, Commission, etc.) S. FISCAL IMPACT Expenditure? N/A Revenue? N/A Currently in the Budget? Yes No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: ORDINANCE NO. AN ORDINANCE of the City Council of the 1 City of Kent, Washington, authorizing the 2008 property tax levy for the 2009 budget at the previous year's tax levy, with a statutorily allowed one (1) percent increase to partially cover impacts from inflation, together with any increases resulting from the addition of new construction and improvements to property, from any increase in the value of state-assessed property, from the refund fund levy, and from annexed properties. RECITALS A. Pursuant to RCW 84.55.120 and after providing all appropriate notice, the City Council held a public hearing on October 21, 2008, to consider the City of Kent's proposed operating and capital budget for the 2009 calendar year, and to address the City's 2008 property tax levy, revenues, and limit factors, as well as the proposed 2009 budget. B. In accordance with RCW 84.55.120, any increase in property tax revenue other than that resulting from the addition of new construction and improvements to property, annexations, and any increase in the value of state-assessed property and the refund fund levy, requires the adoption of a separate ordinance from the tax levy ordinance specifically authorizing the increase in terms of both dollars and percentage. 1 Tax Levy Adjustment Authorized (1%) - 2009 Budget C. The City Council finds that to best protect the public health, safety, and welfare, to best protect the City's future property tax levy capacity, to best serve the citizens of Kent by maintaining an appropriate level of service throughout the City, to appropriately discharge the City's expected expenses and obligations, and to best serve the citizens of Kent through a continued commitment to capital improvements throughout the City, a substantial need exists to increase its tax levy over last year. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. - Recitals Incorporated. The foregoing recitals are incorporated into this ordinance. SECTION 2. - Property Tax Levy Authorized. In addition to the increase resulting from new construction and improvements to property, from annexations, from any increase in the value of state-assessed property, and from the refund fund levy, the 2008 regular property tax dollar levy for the 2009 budget is authorized at the previous year's property tax levy, plus a one (1) percent increase, representing $263,511. SECTION 3. - 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. 2 Tax Levy Adjustment Authorized (1%) - 2009 Budget SECTION 4. - 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. SUZETTE COOKE, MAYOR ATTEST: BRENDA JACOBER, CITY CLERK APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY PASSED: day of December, 2008. APPROVED: day of December, 2008. PUBLISHED: day of December, 2008. 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 P\Civil\Ordinance\TaxLevyIncreaseEstablished-2009 doc 3 Tax Levy Adjustment Authorized (1%) - 2009 Budget ORDINANCE NO. AN ORDINANCE of the City Council of the City of Kent, Washington, levying 2008 property taxes for the 2009 budget for the City of Kent. RECITALS A. Pursuant to RCW 84.55.120 and after providing all appropriate notice, the City Council held a public hearing on October 21, 2008, to consider the City of Kent's proposed operating and capital budget for the 2009 calendar year, and to address the City's 2008 property tax levy, revenues, and limit factors, as well as the proposed 2009 budget. B. In accordance with RCW 84.55.120, any increase in property tax revenue other than that resulting from the addition of new construction and improvements to property, annexations, and any increase in the value of state-assessed property and the refund fund levy, requires the adoption of a separate ordinance from the tax levy ordinance specifically authorizing the increase in terms of both dollars and percentage. C. By separate ordinance, the City Council has adopted an ordinance to establish a one (1) percent increase in property tax revenue to be levied and collected in year 2009. 1 Property Tax Levied (1%) 2009 Budget D. Pursuant to RCW 84.52.010 and WAC 458-12-365, taxes shall be levied in specific dollar amounts. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. - Recitals Incorporated. The foregoing recitals are incorporated into this ordinance. , SECTION 2. - Property Tax Levied. There is hereby levied against the assessed value of the property in the City of Kent, Washington, a tax for the City's 2007 budget in the following amounts for the following funds: , A. For the General Fund, for the purpose of paying the general expenses of municipal government: Levy per $1,000 of Fund assessed valuation (estimated) (estimated) Dollar Amount General Fund $2.133 $27,170,338 B. For Voted Bond Interest and Redemption Fund, for the purpose of paying debt service in the following amounts for the following funds: Levy per $1,000 of assessed valuation Fund (estimated) Dollar Amount General Obligation Refunding $.0471 $600,000 (Public Safety and Senior Housing) C. Total General Fund and Voted Bond Interest and Redemption Fund: Levy per $1,000 of assessed valuation (estimated) Dollar Amount TOTAL LEVY $2.180 $27,770,338 2 Property Tax Levied (1%) 2009 Budget SECTION 3. - Limitation on Levv. The application of the General Fund levy shall be consistent with and shall not result in a tax revenue in excess of the limitation imposed by RCW 84.55.010. SECTION 4. - Adjustments. City administration shall administer the Annual Budget and in doing so may authorize adjustments pursuant to RCW 35A.33.120. SECTION S. - Severability. 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. SECTION 6. - 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. SUZETTE COOKE, MAYOR ATTEST: BRENDA JACOBER, CITY CLERK APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY 3 Property Tax Levied (1%) 2009 Budget t PASSED: day of December, 2008. APPROVED: day of December, 2008. PUBLISHED: day of December, 2008. 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 P\Gvd\0rdinance\TaxLevied-2009 doc 4 Property Tax Levied (1%) 2009 Budget 169 FINANCE R. J. Nachlinger, Director Phone: 253-856-5260 KEN T Fax: 253-856-6255 W A S H I N O T O N Address: 220 Fourth Avenue S. Kent, WA. 98032-5895 DATE: December 2, 2008 TO: Kent City Council Operations Committee FROM: R. J. Nachlinger, Finance Director THROUGH: John Hodgson, Chief Administrative Officer SUBJECT: 2008 Property Tax Levy Established MOTION: Recommend council adopt the proposed ordinances which authorize and establish an increase in the 2008 property tax levy for collection in 2009, final numbers subject to minor adjustment upon receipt of the assessed valuation from King County. SUMMARY: The proposed ordinances establish the actual 2008 property tax levy for the 2009 budget. The levy includes the 1% increase over last year's levy and increases resulting from new construction, increases in state assessed property, other adjustments and annexed properties. State law requires a separate ordinance to authorize any increase in property tax. The first ordinance authorizes an increase in the regular property tax to 1% over the previous maximum allowed tax levy. The second ordinance levies the tax for 2009 collection. The current estimates for the 2009 budget are 27,170,338 for the regular levy and $600,000 for the voted debt levy, for a total levy estimate of $27,770,338. Final numbers are pending receipt of the assessed valuation from King County. BUDGET IMPACT: 2009 Budget BACKGROUND: The actual levy amounts will be presented to Council on receipt of the certified assessed valuation numbers from King County. Kent Council Operations Committee 1 2008 Total Tax Levy Established Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6U 1. SUBJECT: AUKEEN COURT LEASE AGREEMENT - AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign a twenty (20) year lease agreement with King County for space within the Aukeen District Court, subject to final lease terms and conditions acceptable to the City Attorney. The City has leased space at the Aukeen District Court since 1998. Both King County and the City have identified needs for additional courtrooms and regular office space and public space. The City will fund and manage the scope of work, timeline, and budget. Additionally, the City has a right of first offer to purchase. In recognition of the City's substantial investment, the City will receive consideration for its investment upon the eventual termination or expiration of the lease. The additional courtrooms will benefit the citizens served by the courts. This project will be funded by $7.7 million in LTGO bonds that were budgeted and sold this fall. The funds are for design, construction, property acquisition for parking, and mitigation. 3. EXHIBITS: Memo to Operations Committee 12 2 08 and Lease P / / � Agreement 4. RECOMMENDED BY: Operations Committee (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: 63 LAW DEPARTMENT Tom Brubaker, City Attorney Phone: 253-856-5770 KENT Fax: 253-856-6770 W A S H I N G T O N Address: 220 Fourth Avenue S. Kent, WA. 98032-5895 December 2, 2008 To: Operations Committee From: Kim Adams Pratt, Assistant City Attorney Regarding: Aukeen Lease Agreement 1 MOTION: Recommend Council authorize the Mayor to sign a twenty (20) year lease agreement with King County for space within the Aukeen District Court subject to final terms agreeable to the City Attorney. SUMMARY: The City has leased space at the Aukeen District Court since 1998. Both the County and the City have identified needs for additional courtrooms. The City will fund and manage the scope of work, timeline and budget. The City has a right of first offer to purchase. In recognition of the city's substantial investment, the city will receive consideration for its investment upon the eventual termination or expiration of the lease. The addition of the courtrooms will benefit the citizens served by the courts. BUDGET IMPACT: This project will be funded by $7.7 million in LTGO bonds that were budgeted and sold this fall. The funds are for design, construction, property acquisition for parking and mitigation. 1 LEASE AGREEMENT between KING COUNTY "LANDLORD" and THE CITY OF KENT "TENANT" BUILDING: Aukeen District Court 1210 C. Central Avenue Kent, WA 98032 PREMISES: 4,782 Square Feet of Office Space, and certain additional space to be constructed by Tenant Table Of Contents Page i SECTION 1: RECITALS AND BASIC PROVISIONS ................................................................I SECTION 2: PREMISES AND CONSTRUCTION OF TENANT IMPROVEMENTS ..............4 SECTION 3: TERM AND COMMENCEMENT..........................................................................6 SECTION 4: BASE RENT AND ADDITIONAL RENT..............................................................8 SECTION 5: QUIET ENJOYMENT AND TENANT SECURITY..............................................9 SECTION 6: UTILITIES AND SERVICES..................................................................................9 SECTION 7: MAINTENANCE AND REPAIRS........................................................................10 SECTION8: ALTERATIONS.....................................................................................................I I SECTION 9: INSURANCE..........................................................................................................I I SECTION 10: CASUALTY DAMAGE......................................................................................12 SECTION 11: CONDEMNATION ............................................................................................14 SECTION 12: ASSIGNMENT AND SUBLEASE......................................................................14 SECTION 13: PERSONAL PROPERTY AND LEASEHOLD TAXES ....................................15 SECTION14: DEFAULT............................................................................................................15 SECTION 15: RIGHTS RESERVED BY LANDLORD.............................................................18 SECTION 16: [INTENTIONALLY OMITTED].........................................................................19 SECTION 17: RELEASE AND INDEMNITY............................................................................19 SECTION 18: [INTENTIONALLY OMITTED].........................................................................20 SECTION 19: TERMINATION...................................................................................................21 SECTION 20: EXPIRATION OF LEASE TERM.......................................................................21 SECTION 21. HOLDING OVER.................................................................................................22 SECTION 22: DISPOSITION OF BUILDING UPON TERMINATION OR EXPIRATION OF LEASE ............................................................................22 SECTION 23: TELECOMMUNICATION LINES......................................................................22 SECTION 24: HAZARDOUS SUBSTANCES; DISRUPTIVE ACTIVITIES...........................22 SECTION 25: DISABILITIES ACTS..........................................................................................23 SECTION 26: APPRAISAL OF BUILDING..............................................................................24 SECTION 27: RIGHT OF FIRST OFFER TO PURCHASE PROPERTY.................................24 SECTION 28: PARKING AND RECIPROCAL PARKING EASEMENT................................25 Page i SECTION 29: SUBORDINATION, ATTORNEMENT AND LENDER PROTECTION .........25 SECTION 30: ESTOPPEL CERTIFICATE.................................................................................26 SECTION 31: NOTICES..............................................................................................................26 SECTION 32: MISCELLANEOUS .............................................................................................27 SECTION 33: ENTIRE AGREEMENT......................................................................................28 Page ii LEASE THIS LEASE ("Lease") is made and entered into by and between KING COUNTY, a political subdivision of the State of Washington ("Landlord"), and the CITY OF KENT, a municipal corporation of the State of Washington ("Tenant") (collectively "the Parties"). In consideration of this Lease, Landlord and Tenant covenant and agree as follows: SECTION 1: RECITALS AND BASIC PROVISIONS A. RECITALS WHEREAS, the County owns the Aukeen District Court facility, consisting of a building (`Building") located on certain real property ("Property") in the city of Kent; and WHEREAS, the Building and Property are sometimes collectively referred to herein as the "Facility"; and WHEREAS, since 1998 the County has leased two of the four courtrooms in the Building to the City, together with certain ancillary space, for City municipal court ("Municipal Court") operations and has a continuing and growing need for Municipal Court facility space; and WHEREAS the Countyhas identified in its District Court Facility Master Plan dated ty , March 2007, an immediate need for an additional two (2) courtrooms in the Southeast Division of the District Court; and WHEREAS, the County's District Court Facility Master Plan further identifies that the preferred long-term facility plan for the Southeast Division is to consolidate operations to a single location at, or adjacent to, the Maleng Regional Justice Center ("RJC") located in Kent, but there is currently no commitment of funding to accomplish this; and WHEREAS, the City has a present need for at least one (1) additional municipal court courtroom; and WHEREAS, the near-term facility needs for both Kent Municipal Court and Southeast Division of District Court can be addressed by expanding the number of courtrooms at the Building from four (4) to seven (7), together with an expansion of ancillary space (collectively, the "Tenant Improvements"); and WHEREAS, the Parties have agreed upon a preliminary scope of work, timeline and preliminary budget for the Tenant Improvements, and have further agreed that the Tenant Improvements will be funded and managed by the City as a City public work and at no time will any cost of the Tenant Improvements become an obligation of the County; and WHEREAS, it is integral to the willingness of both Parties to pursue the Tenant Improvements that the Building be open during regular business hours for both Municipal Court AUKEEN DISTRICT COURT EXPANSION LEASE Page I and District Court operations, including but not limited to the use of four(4) courtrooms, during the entirety of the construction of the Tenant Improvements; and WHEREAS, the City currently has a right of first offer to purchase the Facility; and WHEREAS, in recognition of the substantial investment to be made by the City in the Building, which is and shall remain for the duration of this Lease a County-owned facility, the Parties agree that the City should receive consideration for its investment upon the eventual termination or expiration of this Lease, whether the Facility is retained by the County, sold to the City, or sold to a third party; and WHEREAS, the Parties agree that the formula included in this Lease for the calculation of the City's and County allocation of value for the Facility upon termination or expiration of the Lease represents full and fair value for same; WHEREAS the Parties desire to continue to work collaboratively to ensure that the jointly occupied Building and adjacent parking lots will be operated to the mutual benefit of both the Parties and the public; and WHEREAS, the addition of courtrooms to address growing caseload of both the District Court and Municipal Court will be of benefit to the citizens served by these courts; NOW THEREFORE, in consideration of the promises and agreements contained in this agreement and subject to the terms and conditions set forth, it is mutually understood and agreed by the parties as follows: B. BASIC PROVISIONS 1. Building. Aukeen District Court facility, 1210 S. Central Avenue, Kent, WA, the floorplan and use of which is generally depicted in Exhibit A before Tenant's Work, and in Exhibit A-1 following Tenant's Work. 2. Property. The parcel of real property owned by the County on which the Building is located, legally described in Exhibit B. In order to meet permitting requirements for the Tenant's Work, prior to commencement of any Tenant Improvements, the boundaries of the Property shall be expanded by lot line adjustment (LLA) completed at the expense of Tenant. The LLA will add to the Property from an adjacent parcel for purposes sufficient for the setback and zoning requirements of the City of Kent, which addition, upon the approval of the LLA Tenant shall convey to Landlord by bargain and sale deed, subject to the terms in Section 2.B below. Upon final approval of the LLA by the City of Kent, Exhibit B shall be replaced with an updated legal description, which shall become Exhibit B-1. Upon execution of the Lease, Landlord and Tenant agree to cooperate and use commercially reasonable efforts to obtain the City of Kent's approval of the LLA. 3. Premises. That portion of the Building leased to Tenant, initially depicted in Exhibit A, constituting approximately 4,782 square feet, excluding Common Areas. The AUKEEN DISTRICT COURT EXPANSION LEASE Page 2 Premises will be expanded by the Tenant Improvements to constitute approximately 6,904 square feet of space leased to Tenant as shown on Exhibit A-1. 4. Commencement Date. The date of full execution of this Lease. 5. Expiration Date. Two hundred and forty (240) full calendar months (20 years) following the Commencement Date. 6. Base Rent. The amount of annual base rental payments ("Rent") calculated as set forth in Section 4.A. 7. Additional Rent. A pro-rated share of Utilities, payable quarterly in arrears per Section 4.B. 8. Permitted Use. Tenant shall utilize the Premises for the purpose of operating a municipal court and for no other purpose without the advance written consent of Landlord. Landlord agrees to utilize its portion of the Building for District Court, prosecuting attorneys, probation offices, public defenders and other ancillary court functions, but excluding community corrections and other detention uses. 9. Parking. Vehicle parking available to Landlord and Tenant as described in that certain Amended Reciprocal Parking Easement to be recorded and set forth at Exhibit E, and pursuant to the Agreement to Execute Parking Lot Lease Between City of Kent and King County, attached as Exhibit F. Tenant intends to develop additional parking, depicted on Exhibit 3 of Exhibit E as Phase V, which shall be available for public parking use accessory to the Building, as well as City-owned facilities, during the term of this Lease and as provided in Section 28. 10. Riders/Exhibits. In addition to Rider One (Tenant's Right of First Offer), Rider Two (Landlord's Right of First Offer), this Lease contains Exhibit A (Diagram of Property, Building and Premises), Exhibit A-1 (Diagram Property, Building and Premises after Tenant Improvements), Exhibit B (Legal Description Before LLA), Exhibit B-1 (Legal Description After LLA ), Exhibit C (Work Letter), Exhibit D (Rent Formula), Exhibit E (Amended Reciprocal Parking Easement), Agreement to Execute Parking Lot Lease Between City of Kent and King County (Exhibit F), and a legal description of Lot B (Exhibit G). 11. Landlord's Notice Address (subject to Section 24): King County Real Estate Services Section Attn: Leasing Supervisor King County Administration Building 500 Fourth Avenue, Room 500 Seattle, WA 98104 12. Tenant's Notice Address: AUKEEN DISTRICT COURT EXPANSION LEASE Page 3 City of Kent Attn: Facilities Manager 220 Fourth Avenue South Kent,WA 98032 13. Rent Payments. Rent is to be paid monthly and shall be adjusted based on Tenant performing Tenant's Work in accordance with Section 4.A. SECTION 2: PREMISES AND CONSTRUCTION OF TENANT IMPROVEMENTS A. PREMISES 1. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises subject to the provisions contained herein. Prior to completion of the Tenant Improvements defined in Exhibit C ("Tenant's Work"), the Premises is comprised of approximately 4782 square feet, as generally depicted in Exhibit A. Upon Substantial Completion of Tenant's Work, the Premises shall be expanded to approximately 6,904.10 square feet, as generally depicted on Exhibit A-1. 2. In addition to the Premises depicted in Exhibit A-1, the Parties agree to continue to cooperate and coordinate courtroom use so that while Tenant is assigned the three (3) court rooms depicted in Exhibit A-1 (2 court rooms with jury rooms, one court room without a jury room), Tenant will also be allowed use of a fourth court room with a jury room subject to the priority use by district court. Landlord shall not unreasonably withhold consent to Tenant's use of a fourth court room with a jury room. Likewise, while Landlord is assigned four court rooms depicted in Exhibit A-1 (3 court rooms with jury rooms, one court room without a jury room), Landlord will be allowed use of a fifth court room with a jury room subject to priority use by municipal court. Tenant shall not unreasonably withhold consent to Landlord's use of a fifth court room with a jury room. 3. Tenant shall also have non exclusive access to Common Areas at all times during the Lease (subject to restrictions in Exhibit C which are necessary to accomplish Tenant's Work). Tenant shall be authorized to commence construction of"Tenant's Work" upon meeting the conditions described in Section 2.B below. 4. Five (5) years from the Commencement Date, the parties shall execute an addendum to this Lease that removes the file room in the east corner of the Building from Common Areas and includes the file room within the Premises for the exclusive use of the Tenant. Rent shall also be adjusted consistent with Section 4. B. TENANT'S WORK 1. Commencement. "Commencement of Tenant's Work" shall mean the date on which Tenant begins construction of Tenant's Work. Tenant shall be authorized to proceed to construct the Tenant's Work described in Exhibit C only upon delivering written notice to the Landlord that the following conditions have been met and the Landlord agreeing in writing that AUKEEN DISTRICT COURT EXPANSION LEASE Page 4 the conditions have been satisfied (which agreement shall not be unreasonably withheld or delayed): a) Tenant has obtained and provided to Landlord copies of all permits, franchises, authorizations, approvals and property interests necessary for Tenant and its contractors to perform Tenant's Work, including but not limited to completion of the required LLA and recording of Rider 1 and Rider 2 as provided in Section 27. b) Tenant and Landlord have agreed in writing to the Final Approved Design, pursuant to the process described in Exhibit C. c) Tenant has issued Limited Tax General Obligations bonds in the amount of at least $7,500,000.00 for expenditure on the Aukeen Court expansion as described in Exhibit C and adjacent City owned real property, the funds from which shall in all instances be pledged for the purpose of completing Tenant's Work as described herein and as set forth in Kent Ordinance No. 2. Authority and Permitting. The Tenant has examined the recorded deeds, easements, agreements, leases, licenses, permits and other authorizations related to the Building, Property, and adjacent real property. Tenant shall at no expense to the Landlord acquire or obtain any further rights, titles, interests, notices or permissions required to perform Tenant's Work. As owner of the Building and Property, the Landlord shall not create, amend, modify or change any easement, agreements, leases, license, permits, or right of entry affecting the Building or Property without Tenant's written consent having been first obtained, which consent shall not be unreasonably withheld. 3. Tenant Responsibility for Design of Tenant's Work. Tenant shall be responsible for the preparation and procurement of all designs, specifications and preliminary cost estimates, preparation of as-built plans and any other design work necessary to construct Tenant's Work. Tenant expressly acknowledges and agrees that Landlord's participation in the assessment and design work under this Lease, including but not limited to, providing information and reviewing, commenting on, and disapproving and/or accepting designs, plans, field change orders, and specifications (i) is solely for the benefit and protection of the Landlord, (ii) does not create or impose upon the Landlord any standard or duty of care towards Tenant, all of which are hereby disclaimed, (iii) may not be relied upon by Tenant in determining requirements, and (iv) may not be asserted, nor may the Landlord's exercise or failure to exercise any such rights be asserted, against the Landlord by Tenant as a defense, legal or equitable to Tenant's obligation to fulfill such standards and requirements and regardless of any acceptance of work by Landlord. 4. Building Assessment. Tenant has had the opportunity to conduct all due diligence, studies, testing and investigations of the Building and is not relying on any statement or representation of Landlord as to the condition of the Building. The Landlord makes no warranties as to the condition of the Building or its fitness for modifications. Tenant acknowledges that the Building is made available for purposes of the Tenant's Work on an "as is" and"with all faults"basis. AUKEEN DISTRICT COURT EXPANSION LEASE Page 5 1 5. Completion of Tenant's Work-- Timeline. Tenant shall substantially complete "Tenant's Work" in accordance with the Final Approved Design and the terms of Exhibit C within eleven (11) months of Commencement of Tenant's Work. The obligations of Tenant to perform work and supply materials and labor shall be as set forth in Exhibit C. Tenant shall submit for Landlord's approval the Preliminary Approved Design for 100 percent stage review within six (6) months of the Commencement Date. Tenant shall take all necessary steps to hire a contractor within five (5) months of Landlord's approval of 100% Preliminary Approved Design. Tenant shall further satisfy the conditions contained in Section 2.13.1 within eleven (11) months of the Commencement Date. 6. Tenant's Financial Obligations. Tenant's Work shall be completed at Tenant's sole cost and expense. No part of the cost of construction of the Tenant Improvements shall ever be or become an obligation of Landlord, including the cost of any Field Change Order, regardless of whether it is initiated by Tenant or Landlord, except as provided in Exhibit C, Section 3. 7. Tenancy During Construction of Tenant Improvements. The Parties acknowledge that the Building is occupied by Landlord and Tenant and shall remain occupied and fully operational as a functioning facility, with four(4) operational courtrooms and attendant spaces necessary for clerical, security and judicial staff working in the Building as of the Commencement Date (but excluding King County probation staff), during all phases of Tenant's Work, as provided in Exhibit C SECTION 3: TERM AND COMMENCEMENT A. TERM AND CONFIRMATION This Lease shall be fully effective and enforceable in accordance with its terms on the date this Lease is fully executed, acknowledged and delivered by both Landlord and Tenant. The term ("Term") of this Lease shall commence on the Commencement Date and end on the Expiration Date as specified in Section 1 above, unless sooner terminated as provided herein, subject to adjustment as provided below and the other provisions hereof. B. ACCEPTANCE OF PREMISES Occupancy of the Premises by Tenant prior to the initiation of Tenant's Work shall be conclusive evidence the Premises were in good, clean and tenantable condition and delivered in accordance with this Lease. Following Substantial Completion of Tenant's Work, as defined in Exhibit C, Tenant shall have no right to object to Landlord as to the condition of the Premises, subject to Section 7. C. SCHEDULE FOR TENANT IMPROVEMENTS The Commencement Date shall precede the date of Commencement of Tenant's Work. Tenant shall complete or cause to be completed all of Tenant's Work, subject to punch list items, according to the scheduling provisions herein and terms contained in Exhibit C. AUKEEN DISTRICT COURT EXPANSION LEASE Page 6 1. Substantial Completion. As used herein, "substantially completed" or "Substantial Completion" shall mean that each of the following have occurred subject only to completion of customary "punch list" items: (a) Tenant's contractor shall have notified Tenant in writing that Tenant's Work is substantially complete in accordance with the Approved Design; (b) Tenant's contractor shall have issued its Certificate of Substantial Completion (AIA Document G704) (the "Certificate of Completion") stating Tenant's Work is sufficiently complete in accordance with the Final Approved Design, including Approved Field Change Orders, to permit Landlord and Tenant to occupy and utilize the portion of the Building included in the Tenant's Work for the permitted use; (c) the City of Kent has issued a certificate of occupancy or temporary certificate of occupancy such that Landlord and Tenant are legally entitled to occupy the portion of the Building included in the Tenant's Work for its permitted use; and (d) Landlord shall have accepted in writing, with Tenant's concurrence, Tenant's Work as substantially complete, provided, Landlord shall not unreasonably withhold, delay or condition its concurrence if each of the items (a) through (c) have occurred, and provided further, it shall be deemed unreasonable hereunder for Landlord to withhold its concurrence unless the Certificate of Completion is incorrect in any material respect. 2. Tenant agrees to provide Landlord no less than seven (7) business days advance notice of Substantial Completion, along with all supporting documentation (including but not limited to third party commissioning reports), and for the sole purpose of determining Substantial Completion hereunder, Landlord shall be deemed to have conclusively concurred with Tenant's acceptance of Tenant's Work unless Landlord provides Tenant notice that the Certificate of Completion is incorrect in any material respect prior to expiration of said seven (7) business day period. 3. Landlord and Tenant may alter any of the deadlines contained in Sections 3.0 and D of the Lease by mutual written amendment to this Lease. Neither party's approval shall be unreasonably withheld. Landlord's and Tenant's respective facilities directors shall submit any such dispute to the King County Chief Administrative Officer who shall, in consultation with Kent's Chief Administrative Officer, render a decision within two (2) business days of submittal to him which decision shall be final and binding. D. TENANT DELAY Other than as provided in this Section 3, Tenant shall have no liability for loss or damage to Landlord resulting in any delay in the Substantial Completion of Tenant's Work, as defined in Exhibit C, except as follows: 1. Notwithstanding the foregoing, in the event Tenant fails to both a) submit the Preliminary Approved Design to Landlord for 100 percent stage review and approval within six (6) months of the Commencement Date, and b) meet all conditions specified in Section 2.13.1. and initiate Tenant's Work within nine (9) months following the Commencement Date of this Lease, and is not diligently and demonstrably pursuing compliance, Landlord may terminate this Lease upon sixty (60) days written advance notice of such termination to Tenant, and neither Landlord nor Tenant shall have any further rights or obligations hereunder, except as provided in Sections 4 (Base Rent and Additional Rent), 17 (Release and Indemnity) and 24 (Hazardous AUKEEN DISTRICT COURT EXPANSION LEASE Page 7 Substances). Provided, Tenant may exercise a one time opportunity to cure its failure to commence Tenant's Work by initiating it within the 60 day notice period referenced above. In the event of termination of this Lease pursuant to this Section 3.13.1, Tenant shall have sixteen (16) months to vacate the Premises. 2. In the event Tenant initiates Tenant's Work within the time period required in Section 3.D.1 but fails to Substantially Complete Tenant's Work within eleven (11) months of the Commencement of Tenant's Work, Landlord may terminate this Lease upon ninety (90) days advance written notice, at which time Tenant agrees to vacate the Premises while remaining subject to Sections 4, 17 and 24 of the Lease as provided in Section 3.13.1, and Landlord shall have the option of completing Tenant's Work. Should Landlord elect to complete Tenant's Work in accordance with the Final Approved Design and Exhibit C, upon Landlord's completion of the work Tenant shall be entitled to compensation as calculated by applying the formula in Exhibit D, minus Landlord's attorney's fees and costs incurred as a result of Tenant's failure to complete Tenant's Work. E. LANDLORD DELAY As used in this Lease the term "Landlord Delay" shall mean any of the following events which result in delay to Tenant's performance of Tenant's Work (and provided such events are not caused by Tenant's default or an event of Force Majeure): (i) delay resulting from Landlord's failure to act or perform within the applicable time frame required by this Lease for such Landlord action or performance; (ii) delay resulting from Landlord-initiated Field Change Orders pursuant to Exhibit C; and (iii) delay resulting from Landlord's default of any term or condition of this Lease. Following Tenant's discovery of any such Landlord Delay, Tenant agrees to provide Landlord's project manager reasonably prompt notice of such Landlord Delay. Notwithstanding the foregoing, in any instance where this Lease expressly provides that if Landlord fails to act within a specified time period Landlord shall be conclusively deemed to have acted in a particular manner, the passage of such specified time period without Landlord action shall not be considered Landlord Delay hereunder. SECTION 4: BASE RENT AND ADDITIONAL RENT A. BASE RENT. Tenant shall pay the sum of$6,774.50 per month (based on an annual rent of $17.00 per square foot), due and payable on the first day of each calendar month in advance, for the period from the Commencement Date through the month of Substantial Completion. For the five year period from and immediately after Substantial Completion, Tenant shall pay Base Rent equal to the Post-Construction Appraised Rent Value (based on annual rent on a per square foot basis as determined in accordance with Section 26.C), calculated as a monthly amount, for the Premises (as expanded by Tenant's Work), which Base Rent shall be due and payable on the first day of each calendar month in advance. Base Rent shall thereafter be adjusted every five (5) years (counting forward from the end of the initial five year period immediately following Substantial Completion) ("Subsequent Base Rent Adjustment") based on the Seattle Tacoma Bremerton All Urban Consumers' Price Index year ending rate (December). AUKEEN DISTRICT COURT EXPANSION LEASE Page 8 B. ADDITIONAL RENT FOR OPERATING EXPENSES Additional Rent shall be payable quarterly in arrears within 30 days of invoicing. From and after Substantial Completion Tenant shall pay as Additional Rent a pro-rata share of public utilities (electricity, water, sewer, garbage removal), grounds and/or Building maintenance and repair, assessments, insurance premiums, and janitorial service based on the ratio of square footage of the Building leased to Tenant versus square footage dedicated to the use by Landlord (i.e., excluding the square footage of Common Areas from the calculation.) Landlord shall provide Tenant quarterly with a written statement showing the calculation of said Additional Rent. SECTION 5: QUIET ENJOYMENT AND TENANT SECURITY A. QUIET ENJOYMENT Landlord agrees that if Tenant performs the terms and provisions hereunder, Tenant shall hold the Premises during the Term, free of lawful claims by any party acting by or through Landlord, subject to all other terms and provisions of this Lease. B. TENANT SECURITY Landlord and Tenant acknowledge that the Building will be used for criminal justice services, including courtrooms and judges' chambers. Landlord and Tenant agree to work cooperatively to maintain security for Court operations, and to the extent necessary, develop a joint operating plan for the provision of Court operational security. In the event Landlord and Tenant cannot agree upon a mutually acceptable security agreement, they shall form a committee of equal representation ("Security Committee"), who shall then agree on the final odd numbered member, to draft a security plan which will remain in effect for the term of this Lease, unless modified by the procedure contained in this Section 5.13. SECTION 6: UTILITIES AND SERVICES A. STANDARD UTILITIES Landlord shall make available to the Premises public utilities generally available to the Building. B. INTERRUPTIONS AND EMERGENCY MEASURES Landlord shall use reasonable diligence to remedy an interruption in the furnishing of such services and utilities. If, however, any governmental authority imposes regulations, controls or other restrictions upon Landlord or the Building which would require a change in the services provided by Landlord under this Lease (collectively "Government Regulations"), or if Landlord reasonably determines an interruption or other change in utilities, services or Building access is required due to an emergency or other similar concern for the safety of Building AUKEEN DISTRICT COURT EXPANSION LEASE Page 9 occupants (collectively "Emergency Measures"), Landlord may proceed with such Emergency Measures and may comply with such Government Regulations, including without limitation, curtailment, rationing or restrictions on Building or Premises access, the use of electricity or any other form of utilities or services serving the Premises. Tenant will cooperate and do such things as are reasonably necessary to comply with Landlord's Emergency Measures and to enable Landlord to comply with such Government Regulations and Landlord shall have no liability to Tenant for any loss, damage or expense Tenant may sustain due to such Emergency Measures or Government Regulations. Additionally, and notwithstanding anything in this Lease to the contrary, Landlord does not warrant that any of the services and utilities referred to above will be free from interruption. Interruption of services and utilities shall not be deemed an eviction or disturbance of Tenant's use and possession of the Premises or any part thereof, or render Landlord liable to Tenant for damages or loss of any kind, or relieve Tenant from performance of Tenant's obligations under this Lease. C. COMMON AREAS The following areas adjacent to or located in or on the Premises, shall constitute Common Areas available for Tenant's non-exclusive use including without limitation: walkways, hallways, stairways, driveways, lavatories, janitorial rooms, mechanical rooms, electrical rooms, landscaped areas and grounds, and all other areas used in common by Landlord and invitees and employees of the Tenant. All Common Areas shall be subject to Landlord's management and control and shall be operated and maintained in such a manner as Landlord, in its reasonable discretion, shall determine. Landlord may, from time to time in Landlord's reasonable discretion, alter, modify or change the dimensions and location of the Common Areas; provided, however, that any such alterations, modifications or changes shall not materially interfere with Tenant's use and enjoyment of the Premises as set forth in this Lease, and shall not alter,modify or change the dimensions and location of the Common Area expansion or renovation made by Tenant Improvements, unless otherwise agreed in writing by the parties Tenant and others entitled or allowed to use the Common Areas shall be subject to and shall comply with the rules and regulations applicable to the Common Areas as may be established by Landlord from time to time. Any damage to the Common Areas occasioned by the act of Tenant or its employees or invitees shall be paid by Tenant upon demand by Landlord. Common Areas are generally depicted on Exhibits A and, following Substantial Completion of Tenant Improvements,Exhibit A-1. SECTION 7: MAINTENANCE AND REPAIRS A. NORMAL MAINTENANCE AND REPAIR Unless expressly provided otherwise in this Lease or in Exhibit C, Landlord shall maintain and repair, suitable for use as the purpose identified in Section 1.B.8, the Building, including the Common Areas. Landlord's maintenance and repair obligations shall include the structural parts of the Building which shall include the foundations, bearing and exterior walls, subflooring, gutters, downspouts, and the roof of the Building and the Building Systems and Equipment, and malfunctioning fixtures; provided, in the event any such replacements, repairs or maintenance are caused by or result from Tenant's excessive or improper use or occupation thereof or which are caused by or result from the negligence or improper conduct of Tenant, its AUKEEN DISTRICT COURT EXPANSION LEASE Page 10 agents, employees or invitees, the cost of such repairs shall be paid solely by Tenant. Landlord's obligations under this Section 7 shall also include janitorial services. B. MAINTENANCE AND REPAIR DURING TENANT'S WORK During Tenant's Work, Tenant's contractor shall cooperate with Landlord to allow j Landlord necessary access for normal maintenance and repairs. Landlord shall have no duty to perform any maintenance or repairs that will be made obsolete by Tenant's Work, but will continue to perform emergency, or similar repairs, not necessitate or caused by Tenant's Work. SECTION 8: ALTERATIONS Prior to the Commencement of Tenant's Work and following Substantial Completion, as provided in Section 2, Tenant shall not attach any fixtures, equipment or other items to the Premises, or paint or make any other additions, changes, alterations, repairs or improvements (collectively hereinafter "alterations") to the Premises, Building or Property without Landlord's prior written consent, which with respect to alterations to the Premises will not be unreasonably withheld. Any alterations, excluding Tenant's Work, so made shall remain on and be surrendered with the Premises upon expiration or earlier termination of this Lease, except that Landlord may, within thirty (30) days before or thirty (30) days after expiration or earlier termination hereof elect to require Tenant to remove any or all alterations at Tenant's sole costs and expense; provided, notwithstanding the foregoing, Landlord shall not have the right to require removal of any improvement or alteration constructed by Tenant as part of Tenant's Work. In the event Tenant desires to make any improvements or alterations other than Tenant's Work, at the time Tenant submits plans for requested alterations to Landlord for Landlord's approval, Tenant may request Landlord to identify which alterations Landlord may require Tenant to remove at the termination of or expiration of this Lease, and Landlord shall make such identification simultaneous with its approval (if any) of the alterations and Landlord shall have the right to require removal of any alterations so marked. If Landlord elects to require removal of alterations, then at its own and sole cost Tenant shall restore the Premises to the condition designated by Landlord in its election, before the last day of the term or within thirty (30) days after notice of its election is given, whichever is later. SECTION 9: INSURANCE A. TENANT OBLIGATIONS The Tenant agrees, at its own expense, to maintain, through its self-funded Self-Insurance program, coverage for all of its liability exposures under this Lease. The Tenant agrees to provide Landlord with at least thirty (30) days prior written notice of any material change in the City's self-funded Self-Insurance program, and will provide Landlord with a certificate of self- insurance as adequate proof of coverage. Landlord further acknowledges, agrees and understands that the Tenant does not purchase Commercial General Liability insurance and is a self-insured governmental entity; therefore the Tenant does not have the ability to add the Landlord as an additional insured. Should the Tenant elect and cease self-insuring its liability exposures and AUKEEN DISTRICT COURT EXPANSION LEASE Page 11 purchase Commercial General Liability insurance, Tenant agrees to add the Landlord (and Landlord's Lender) as an additional insured. B. LANDLORD OBLIGATIONS The Landlord agrees, at its own expense, to maintain, through its self-funded Self- Insurance program, coverage for all of its liability exposures under this Lease. The Landlord agrees to provide Tenant with at least thirty (30) days prior written notice of any material change 1 in the County's self-funded Self-Insurance Program, and will provide Tenant with a certificate of self-insurance as adequate proof of coverage. Tenant further acknowledges, agrees and understands that the Landlord does not purchase Commercial General Liability insurance and is a self-insured governmental entity; therefore the Landlord does not have the ability to add the Tenant as an additional insured. Should the Landlord elect and cease self-insuring its liability exposures and purchase Commercial General Liability insurance, Landlord agrees to add the Tenant as an additional insured. 1. Buildings/Structures/Facilities. The Landlord will carry "All Risk" property insurance in an amount equal to the full replacement value of all improvements, structures, and buildings located on the Premises. King County will not carry insurance on Tenant's property. 2. Tenant shall maintain "All Risk" property insurance in an amount equal to the full replacement value of all its personal property located on the Premises. 3. In consideration of the duration of this Lease, the parties agree that the Insurance Requirements Section herein, at the discretion of Landlord, may be reviewed and adjusted with each amendment, within 90 days of the end of the first five (5) year period of the Lease Term, and the end of each successive five (5) year period thereafter, and immediately prior to Substantial Completion. Any adjustments made as determined by Landlord, shall be in accordance with reasonably prudent risk management practices and insurance industry standards and shall be effective upon 90 days written notice by Landlord. C. WAIVER OF SUBROGATION Landlord and Tenant release and relieve the other, and waive the entire right of recovery for loss or damage to property located within or constituting a part or all of the Premises, the Building or the Property to the extent that the loss or damage is actually covered (and claim amount recovered) by insurance, or self insurance, carried by either party and in force at the time of such loss or damage. This waiver applies whether or not the loss is due to the negligent acts or omissions of Landlord or Tenant, or their respective officers, directors, employees, agents, contractors, or invitees. Each of Landlord and Tenant shall have their respective property insurers endorse the applicable insurance policies or self insurance program, to reflect the foregoing waiver of claims, provided, however, that the endorsement shall not be required if the applicable policy of insurance, or self insurance program permits the named insured to waive rights of subrogation on a blanket basis, in which case the blanket waiver shall be acceptable. AUKEEN DISTRICT COURT EXPANSION LEASE Page 12 SECTION 10: CASUALTY DAMAGE A. DAMAGE OR DESTRUCTION In the event the Building or Premises shall be destroyed or rendered untenantable, either wholly or in part, by fire or other casualty, Landlord may, at its option, elect to restore the Building or Premises to as near their previous condition as is reasonably possible and in the meantime the Base Rent and Additional Rent shall be abated in the same proportion as the untenantable portion of the Premises bears to the entire Premises, provided, such abatement (i) shall apply only to the extent the Premises are untenantable for the purposes permitted under this Lease and not used by Tenant as a result thereof, and (ii) shall not apply if Tenant or any other occupant of the Premises or any of their agents, employees, invitees, transferees or contractors caused the damage. Unless Landlord, within sixty (60) days after the happening of any such casualty, shall notify Tenant of its election to so restore, this Lease shall thereupon terminate, provided, if in Landlord's estimation the Premises cannot be restored within one hundred twenty (120) days following such destruction, Landlord shall notify Tenant and Tenant may terminate this Lease (regardless of Landlord's intent to restore) by delivery of notice to Landlord within thirty (30) days of Landlord's notice. In the event the Lease is terminated after Substantial Completion of Tenant's Work, Tenant shall be entitled to compensation for Tenant's Work as provided in Exhibit D. In the event the Lease is terminated before the commencement of Tenant's Work, Exhibit D shall not apply. Tenant agrees that in the event the Building or Premises are destroyed or rendered untenantable, either in whole or in part, its sole remedy shall be as set forth in this Section 10. Tenant further agrees that if it elects not to terminate the Lease, that the abatement of Base Rent and Additional Rent as provided above shall be Tenant's sole and exclusive recourse in the event of such damage, and Tenant waives any other rights Tenant may have under applicable law or this Lease to perform repairs or terminate the Lease by reason of damage to the Building or Premises. B. DAMAGE OR DESTRUCTION DURING TENANT IMPROVEMENTS; REBUILDING In the event the Building or Premises shall be destroyed or rendered untenantable, either wholly or in part, by fire or other casualty during Tenant's Work and prior to Substantial Completion, and Landlord elects to rebuild pursuant to Section 10.A above, Landlord and Tenant shall cooperate to rebuild the Tenant Improvements consistent with the Final Approved Plans attached to Exhibit C and shall rebuild the remainder of the Premises and Building to pre- casualty condition, with Tenant bearing responsibility and cost for the Tenant Improvements and Landlord bearing responsibility and cost for the remainder of the Premises and Building. Landlord and Tenant shall cooperate in the reconstruction, including public work administration, and may agree to different allocations of responsibility, including cost, for the most efficient and expedient arrangement for construction. The formula in Exhibit D shall not apply. C. DAMAGE OR DESTRUCTION DURING TENANT IMPROVEMENTS; NO REBUILDING. AUKEEN DISTRICT COURT EXPANSION LEASE Page 13 In the event, during construction of Tenant Improvements, Landlord elects to not rebuild as described in Section 10.A above, the Lease shall terminate, Landlord and Tenant shall have no further rights or obligations pursuant to the Lease and Tenant's recovery shall be in all instances limited to the proceeds from its own insurer. The formula in Exhibit D shall not apply. SECTION 11: CONDEMNATION A. NOTIFICATION Landlord and Tenant will immediately notify the other in writing p of the receipt of notice of any proceedings with respect to a condemnation or intent of any authority to exercise the power of eminent domain. B. COMPENSATION AND TERMINATION OF LEASE Either a may terminate this Lease if the whole or an material art f the Premises party y y p o e ses shall be taken or condemned for any public or quasi-public purpose through the exercise of eminent domain. Landlord shall also have the right to terminate this Lease in the event of a Taking of any portion of the Building or Property which would leave the remainder of the Building unsuitable for use as a courthouse in a manner comparable to the use prior to the Taking. In order to exercise its right to terminate this Lease, Landlord or Tenant, as the case may be, must provide written notice of termination to the other within 45 days after the terminating party first received notice of Taking. Any such termination shall be effective as of the date the physical taking of the Premises or the portion of the Building or Property occurs. In addition, Base Rent and Additional Rent for any portion of the Premises taken or condemned shall be abated during the unexpired term of this Lease effective when the condemner takes possession. Tenant shall hold harmless Landlord for any and all costs incurred by Tenant as a result of a Taking. Tenant's only recourse for compensation in the event of a Taking shall be against the condemner. Landlord and Tenant agree to cooperate in any condemnation proceeding to determine just compensation. Tenant may file a claim against the condemner at its sole cost and expense, separate from any claim brought against the condemner by Landlord, for just compensation, but only to the extent such claim does not diminish the award which would otherwise be received by Landlord. D. WAIVER Tenant agrees that it shall not exercise the power of eminent domain, neither on a total or partial basis, nor on a permanent or temporary basis, with regard to the Property, Building or Premises at any time while this Lease is in effect unless it has obtained Landlord's assent to such condemnation in writing and upon terms acceptable to both Landlord and Tenant. Landlord agrees that it shall not exercise the power of eminent domain, neither on a total or partial basis, nor on a permanent or temporary basis, with regard to the Tenant's leasehold interest in the Premises at any time while this Lease is in effect unless it has obtained Tenant's assent to such condemnation in writing and upon terms acceptable to both Landlord and Tenant. AUKEEN DISTRICT COURT EXPANSION LEASE Page 14 SECTION 12: ASSIGNMENT AND SUBLEASE Tenant shall not assign this Lease or any part thereof and shall not let or sublet the whole or any portion of the Premises without the written consent of Landlord, which consent shall not be unreasonably withheld by Landlord. This Lease shall not be assignable by operation of law. If consent is once given by the Landlord to a sublease of this Lease, or any interest therein, Landlord shall not be barred from afterwards refusing to consent to any further sublease. SECTION 13: PERSONAL PROPERTY AND LEASEHOLD TAXES To the extent applicable, Tenant shall pay prior to delinquency all taxes, charges or other ■ governmental impositions assessed against, levied upon or otherwise imposed upon or with respect to all fixtures, furnishings, personal property, systems and equipment located in or exclusively serving the Premises, and any improvements made to the Premises under or pursuant to the provisions of this Lease. Whenever possible, Tenant shall cause all such items to be assessed and billed separately from the other property of Landlord. In the event any such items shall be assessed and billed with the other property of Landlord, Tenant shall pay Landlord its share of such taxes, charges or other governmental impositions within ten (10) days after Landlord delivers a statement and a copy of the assessment or other documentation showing the amount of impositions applicable to Tenant's property. Tenant shall pay any rent tax, sales tax, service tax, transfer tax, value added tax, or any other applicable tax on the Rent, utilities or services herein, the privilege of renting, using or occupying the Premises, or collecting Rent therefrom, or otherwise respecting this Lease or any other document entered in connection herewith. SECTION 14: DEFAULT A. TENANT DEFAULT 1. Excluding Tenant's Work and the deadlines associated with the same pursuant to Section 3.1), the occurrence of any one or more of the following events shall constitute a "Default" by Tenant and shall give rise to Landlord's remedies set forth in Section 143 below: (i) failure to pay when due all or any portion of Base Rent or Additional Rent, if the failure continues for three (3) business days after written notice to Tenant; (ii) failure to observe or perform any term or condition of this Lease other than the payment of Base Rent or Additional Rent, unless such failure is cured within any period of time following notice expressly provided with respect thereto in other Sections hereof, or otherwise within a reasonable time, but in no event more than sixty (60) days following notice from Landlord (provided, if the nature of Tenant's failure is such that more time is reasonably required in order to cure, Tenant shall not be in Default if Tenant commences to cure promptly within such period and thereafter diligently pursues its completion); (iii) failure to cure immediately upon notice thereof any condition which is hazardous, interferes with another tenant or the operation or leasing of the Property, or may cause the imposition of a fine, penalty or other remedy on Landlord or its agents or affiliates; (iv) abandonment and vacation of the Premises (failure to occupy and operate the Premises for ten (10) consecutive days ). The occurrence of any of the aforementioned events of Default shall not under any circumstance excuse or relieve Tenant from any of its obligations under this Lease, AUKEEN DISTRICT COURT EXPANSION LEASE Page 15 ■1 including payment of Rent and Additional Rent pursuant to Section 4. In the event of a Default under this Section 14 prior to Commencement of Tenant's Work, the formula provided in Exhibit D shall have no application and Tenant shall not be entitled to any compensation whatsoever. 2. Defaults related to Tenant's Work and the deadlines associated with the same shall be governed by the notice provisions, cure deadlines, Landlord remedies, deadlines for Tenant to vacate, and Tenant compensation for Tenant's Work as specifically provided elsewhere in this Lease. B. LANDLORD'S REMEDIES If a Default occurs, Landlord shall have the right without notice or demand (except as provided in Section 14.A.1) to pursue any of its rights or remedies at law or in equity which shall be cumulative with and in addition to any other right or remedy allowed under this Lease. Landlord may elect to terminate this Lease and Tenant's right to possession, at any time following a Default and upon sixty (60) days written notice to Tenant. In the event Landlord terminates the Lease hereunder, the following shall apply: 1. In the event Landlord elects to terminate the Lease due to Tenant's Default occurring after Substantial Completion of Tenant's Work, Landlord shall refund to Tenant its share of the value of the Tenant Improvements (Tenant's Work) based upon the formula and pursuant to the schedule in Exhibit D, minus Landlord's attorney's fees and direct costs arising from the Default ("Termination Refund Offset Cost"). Landlord's obligation to refund Tenant's net share of the value of the Tenant Improvements shall commence on the latter happening of either (a) the date of termination or, (b) in the event such Default results in litigation, the date of entry of a judgment, or the date upon which a written settlement is reached, or as agreed to in writing by Landlord and Tenant. 2. In the event Tenant defaults after Commencement of Tenant's Work, but prior to Substantial Completion, and provided the default cannot be reasonably cured pursuant to Section 14.A, Landlord may elect to complete Tenant's Work in accordance with the Final Approved Design and Exhibit C. In such event, Tenant agrees to make available to Landlord the unexpended portion of the $7,500,000 2008 Limited Tax General Obligation bonds issued by Tenant and allocated for the contracted costs for construction and construction management costs of Tenant's Work. In addition, Landlord reserves the right to pursue any and all remedies available at law or in equity against Tenant. Upon completion of Tenant's Work by Landlord, Tenant shall be entitled to a refund equal to the value of the Tenant Improvements as calculated by applying the formula provided in Exhibit D, less any legal costs incurred by Landlord as a result of Tenant's default. 3. In the event of any such reentry by Landlord, Landlord may, at Landlord's option, require Tenant to remove from the Premises any of Tenant's property located thereon. If Tenant fails to do so, Landlord shall not be responsible for the care or safekeeping thereof and may remove any of the same from the Premises and place the same elsewhere in the Building or in storage in a public warehouse at the cost, expense and risk of Tenant with authority to the warehouseman to sell the same in the event that Tenant shall fail to pay the cost of transportation AUKEEN DISTRICT COURT EXPANSION LEASE Page 16 and storage, all in accordance with the rules and regulations applicable to the operation of a public warehouseman's business. In any and all such cases of reentry Landlord may make any repairs in, to or upon the Premises which may be necessary, desirable or convenient, and Tenant hereby waives any and all claims for damages which may be caused or occasioned by such reentry or to any property in or about the Premises or any part thereof. 4. Forbearance by Landlord to enforce one or more remedies shall not constitute a waiver of any Default. C. LANDLORD DEFAULT AND TENANT REMEDIES Landlord's failure to perform or observe any of its obligations under this Lease or to correct a breach of any warranty or representation made in this Lease within thirty (30) days after receipt of written notice from Tenant setting forth in reasonable detail the nature and extent of the failure referencing pertinent Lease provisions or if more than thirty (30) days is required to cure the breach, Landlord's failure to begin curing within the thirty (30) day period and diligently prosecute the cure to completion, shall constitute a default. 1. If Landlord commits a default that materially affects Tenant's use of the Premises, and Landlord has failed to commence to cure such default within thirty (30) days (or such shorter time as is commercially reasonable in the case of an emergency threatening imminent harm to persons or property), Tenant may, without waiving any claim for damages for breach of agreement, thereafter cure the default for the account of the Landlord. Such notice shall include notice of Tenant's plans to undertake the cure if Landlord does not do so within thirty (30) days (or less as provided above). The reasonable cost of such cure shall be deemed paid or incurred for the account of Landlord, and Landlord shall reimburse Tenant for these costs. Landlord shall reimbursement Tenant within thirty (30) days after completion of the cure and invoice to Landlord itemizing the costs of cure. If Landlord disputes either the necessity of the cure or the cost thereof, the matter shall be settled by arbitration administered by the American Arbitration Association in accordance with its Rules for the Real Estate Industry before a single neutral arbitrator of the American Arbitration Association sitting in Seattle, Washington. The arbitrator shall be a person having at least ten (10) years' experience and knowledge about commercial leasing and property management. The arbitration shall be held within sixty (60) days of Landlord notifying Tenant it disputes Tenant's cure. The costs of the arbitrator shall be shared equally by the parties. The prevailing party shall be entitled to an award of reasonable attorney's fees. The arbitrator's award shall be final and binding on the parties. 2. If Landlord commits a default that materially affects Tenant's use of the Premises after Substantial Completion, and Landlord has failed to commence to cure such default within thirty (30) days of receipt by Landlord of notice of default (or such shorter time as is commercially reasonable in the case of an emergency threatening imminent harm to persons or property), and the default is not reasonably cured by Tenant performing labor or similar cure, Tenant may elect to a) seek specific performance of the Landlord in court, or b) terminate this Lease. In the event Tenant elects termination, Tenant shall be entitled to a refund as calculated by applying the formula provided in Exhibit D. Either election remedy (specific performance or termination) by Tenant shall be Tenant's exclusive remedy. Tenant shall have no right to terminate the Lease prior to Substantial Completion, but shall be limited to specific performance. AUKEEN DISTRICT COURT EXPANSION LEASE Page 17 SECTION 15: RIGHTS RESERVED BY LANDLORD Except to the extent expressly limited herein, Landlord reserves full rights to control the Facility (which rights may be exercised without subjecting Landlord to claims for constructive eviction, abatement of Rent, damages or other claims of any kind), including more particularly, but without limitation, the following rights: A. GENERAL MATTERS To: (i) change the name of the Building or Property or designation of the Premises (subject to restrictions in 15.C. below), (ii) install and maintain signs on the exterior and interior of the Building or Property, and grant any other person the right to do so, (iii) retain at all times, and use in appropriate instances, keys to all doors within and into the Premises, subject to Tenant's security rights under Section 5 above, (iv) grant to any person the right to conduct any business or render any service at the Facility, whether or not the same are similar to the use permitted Tenant by this Lease, but only so long as those uses are not incompatible with Tenant's use of the Premises, (v) grant any person the right to use separate security personnel and systems respecting access to their premises, subject to Section 5, (vi) have access for ' Landlord and other tenants of the Building to any mail chutes located on the Premises according to the rules of the United States Postal Service (and to install or remove such chutes), and (vii) in case of fire, invasion, insurrection, riot, civil disorder, emergency or other dangerous condition, or threat thereof: (a) limit or prevent access to the Building or Property or Premises, (b) shut down services, and (c) otherwise take such action or preventative measures deemed necessary by Landlord for the safety of tenants of the Facility or the protection of the Facility and other property located thereon or therein (but this provision shall impose no duty on Landlord to take such actions, and no liability for actions taken in good faith). B. ACCESS TO PREMISES To enter the Premises in order to inspect, supply cleaning service or other services to be provided Tenant hereunder, and perform any work or take any other actions under Section 15.0 below, or exercise other rights of Landlord under this Lease or applicable Laws, subject to Tenant's security rights under Section 5 above. However, Landlord shall: (a) provide reasonable advance written notice to Tenant's court administrator or other appropriate person for matters which will involve a significant disruption to Tenant's business (except in emergencies), (b) take reasonable steps to minimize any significant disruption to Tenant's business, and following completion of any work, return Tenant's leasehold improvements, fixtures, property and equipment to the original locations and condition to the fullest extent reasonably possible, and (c) take reasonable steps to avoid materially changing the configuration or reducing the square footage of the Premises, unless required by Laws or other causes beyond Landlord's reasonable control (and in the event of any permanent material reduction, the Base Rent and Additional Rent and other rights and obligations of the parties based on the square footage of the Premises shall be proportionately reduced). Tenant shall not place partitions, furniture or other obstructions in the Premises which may prevent or impair Landlord's access to the systems and equipment for AUKEEN DISTRICT COURT EXPANSION LEASE Page 18 the Building or the systems and equipment for the Premises. If Tenant requests that any such ' access occur before or after Landlord's regular business hours and Landlord approves, Tenant shall pay all overtime and other additional costs in connection therewith. C. CHANGES TO THE BUILDING OR PREMISES To: (i) paint and decorate, (ii) perform repairs or maintenance, and (iii) make replacements, restorations, renovations, alterations, additions and improvements, structural or otherwise in and to the Building or Premises or any part thereof, including any adjacent building, structure, facility, land, street or alley, or change the uses thereof(including changes, reductions or additions of corridors, entrances, doors, lobbies, parking facilities and other areas, structural support columns and shear walls, elevators, stairs, escalators, mezzanines, solar tint windows or ' film, kiosks, planters, sculptures, displays, and other amenities and features therein, and changes relating to the connection with or entrance into or use of the Building or Premises or any other adjoining or adjacent building or buildings, now existing or hereafter constructed). Provided that Landlord shall have no right to reduce the square footage of the Premises or change the designation of the Premises from that built per the Final Approved Design (as amended by Field Change Orders) unless otherwise agreed in writing by the parties. In connection with such ' matters, Landlord may among other things erect scaffolding, barricades and other structures, open ceilings, close entry ways, restrooms, elevators, stairways, corridors, parking and other areas and facilities, and take such other actions as Landlord deems appropriate. However, ' Landlord shall: (a) take reasonable steps to minimize or avoid any denial of access to the Premises except when necessary on a temporary basis, and (b) in connection with entering the ' Premises shall comply with Section 15.13 above. SECTION 16: INTENTIONALLY OMITTED ' SECTION 17: RELEASE AND INDEMNITY A. INDEMNITY ' 1. Tenant shall indemnify, defend (using legal counsel reasonably acceptable to , Landlord) and save Landlord harmless from all claims, suits, losses, damages, fines, penalties, liabilities and expenses (including Landlord's reasonable attorneys fees incurred in connection with claims prior to Tenant's acceptance of its indemnity and defense obligations hereunder, regardless of whether such claims involve litigation) resulting from any actual or alleged injury (including death) of any person or from any actual or alleged loss of or damage to any property occurring during the Term of this Lease and arising out of or in connection with (i) Tenant's ' occupation, use or improvement of the Premises, including Tenant's Work as provided in Exhibit C or that of its employees, agents or contractors, (ii) Tenant's breach of its obligations hereunder or (iii) any negligent act or omission of Tenant or any subtenant, licensee, assignee or concessionaire of Tenant, or of any officer, agent, employee, or contractor of Tenant. Nothing in this Section 17.A shall require Tenant to protect, defend and indemnify Landlord to the extent of Landlord's negligence. This indemnity with respect to acts or omissions during the term of this Lease shall survive termination or expiration of this Lease. The foregoing indemnity covers actions brought by Tenant's own employees and it is specifically and expressly intended to AUKEEN DISTRICT COURT EXPANSION LEASE Page 19 constitute a waiver of Tenant's immunity, as respects the Landlord only, under Washington's Industrial Insurance Act, RCW Title 51, only to the extent necessary to provide Landlord with a full and complete indemnity from claims made by Tenant and its employees, to the extend provided herein. Tenant shall promptly notify Landlord of casualties or accidents occurring in or about the Premises. LANDLORD AND TENANT ACKNOWLEDGE THAT THE INDEMNIFICATION PROVISIONS OF SECTION 17 AND SECTION 24 WERE SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM. ' 2. Landlord shall indemnify, defend (using legal counsel reasonably acceptable to Tenant) and save Tenant harmless from all claims, suits, losses, damages, fines, penalties, liabilities and expenses (including Tenant's reasonable attorneys fees incurred in connection with ' claims prior to Landlord's acceptance of its indemnity and defense obligations hereunder, regardless of whether such claims involve litigation) resulting from any actual or alleged injury (including death) of any person or from any actual or alleged loss of or damage to any property occurring during the Term of this Lease and arising out of or in connection with (i) Landlord's occupation, use or improvement of the Property, or that of its employees, agents or contractors, (ii) Landlord's breach of its obligations hereunder, or (iii) any negligent act or omission of Landlord or any subtenant, licensee, assignee or concessionaire of Landlord, or of any officer, agent, employee, or contractor of Landlord. Nothing in this Section I TA shall require Landlord ' to protect, defend and indemnify Tenant to the extent of Tenant's negligence. This indemnity with respect to acts or omissions during the term of this Lease shall survive termination or expiration of this Lease. The foregoing indemnity covers actions brought by Landlord's own employees and it is specifically and expressly intended to constitute a waiver of Landlord's immunity, as respects the Tenant only, under Washington's Industrial Insurance Act, RCW Title 51, only to the extent necessary to provide Tenant with a full and complete indemnity from ' claims made by Landlord and its employees, to the extend provided herein. LANDLORD AND TENANT ACKNOWLEDGE THAT THE INDEMNIFICATION PROVISIONS OF SECTION 17 AND SECTION 24 WERE SPECIFICALLY NEGOTIATED AND ' AGREED UPON BY THEM. B. RELEASE ' Landlord and Tenant hereby fully and completely waives and releases all claims against each other for any losses or other damages sustained by the other party or any person claiming ' through the other party resulting from any accident or occurrence in or upon the Property, Building, and Premises, or any act, omission or negligence of co-tenants, licensees or any other persons or occupants of the Building; provided only, that the releases contained in this Section ' 17.13 shall not apply to claims for actual damage to persons or property resulting from the negligence or willful misconduct of the party making the claim. C. LIMITATION ON INDEMNITY In compliance with RCW 4.24.115 as in effect on the date of this Lease, all provisions of this Lease pursuant to which Landlord or Tenant (the "Indemnitor") agrees to indemnify the other (the "Indemnitee") against liability for damages arising out of bodily injury to persons or damage to property relative to the construction, alteration, repair, addition to, subtraction from, AUKEEN DISTRICT COURT EXPANSION LEASE Page 20 improvement to, or maintenance of, any building, road, or other structure, project, development, or improvement attached to real estate, including the Premises, (i) shall not apply to damages caused by or resulting from the negligence of the Indemnitee, its agents or employees, and (ii) to the extent caused by or resulting from the concurrent negligence of (a) the Indemnitee or the Indemnitee's agents or employees, and (b) the Indemnitor or the Indemnitor's agents or employees shall apply only to the extent of the Indemnitor's negligence. D. DEFINITIONS As used in any Section of this Lease establishing indemnity or release of Landlord, "Landlord" shall include Landlord, its directors, elected officials, agents, employees and contractors, and"Tenant" shall include Tenant and any person or entity claiming through Tenant. ' SECTION 18: INTENTIONALLY OMITTED SECTION 19: TERMINATION FOR CONVENIENCE , This Section 19 is in addition to any other provision of this Lease authorizing or otherwise ' relating to early termination of this Lease. Landlord shall have no right to terminate for convenience pursuant to this Section 19 in the period prior to Substantial Completion of Tenant's Work. , A. TERMINATION FOR CONVENIENCE—SALE NOTICE ' Landlord may terminate this Lease for convenience following Substantial Completion of Tenant's Work upon providing ninety (90)days advance written notice in the form of a Sale Notice , to Tenant, which shall be commensurate with and in the form required in the Right of First Offer contained in Rider One. B. PRE-TERMINATION OBLIGATIONS ' Termination shall not release Tenant from any liability or obligation with respect to any matter occurring prior to such termination. Should Tenant not elect to purchase the Facility, Landlord shall refund to Tenant an amount determined by the application of the formula prescribed in Exhibit D. , SECTION 20: EXPIRATION OF LEASE TERM Upon the expiration of the Lease Term, excluding termination pursuant to Section 3.1), , unless Landlord has approved the Tenant Holding Over as provided in Section 21, or Landlord has offered, and Tenant has agreed, to exercise its Right of First Offer as provided in Rider One, , AUKEEN DISTRICT COURT EXPANSION LEASE Page 21 Tenant shall vacate the Premises leaving them in good condition, ordinary wear and tear excepted. SECTION 21: HOLDING OVER If the Tenant shall, with the written consent of Landlord, holdover after the expiration of the term of this Lease, such tenancy shall be for an indefinite period of time on a month to month tenancy, such tenancy may be terminated as provided by the laws of the State of Washington. During such tenancy Tenant agrees to pay to the Landlord the same rate of rental as set forth herein, unless a different rate is agreed upon, and to be bound by all of the terms, covenants, and conditions as herein specified, so far as applicable. SECTION 22: DISPOSITION OF BUILDING UPON TERMINATION OR EXPIRATION OF LEASE Upon termination of this Lease, other than termination for convenience pursuant to p Section 19, including any default termination, or upon expiration of this Lease, Landlord shall have the right in its sole discretion to determine whether to sell or retain the Facility. If Landlord determines to sell the Facility, Tenant shall have the right to purchase the Facility as provided in Rider One. Except as otherwise provided in this Lease, upon sale of the Property to Tenant or a third party, or upon a decision by Landlord to retain the Property, the price (in event of purchase by Tenant), or allocation of sale proceeds (in event of sale to a third party), or buy-out amount owed to Tenant (upon retention of the building by Landlord) shall be determined in accordance with the application of the formula described in Exhibit D. SECTION 23: TELECOMMUNICATION LINES Tenant is responsible for all installation, operation and termination charges related to its own independent telecommunications system, including, but not limited to, costs, expenses and charges for telephone equipment and line charges, line installation, inside wiring, re-configuration, and system repairs. Tenant shall install a system compatible with Landlord's system and shall coordinate and schedule with the Landlord all work by communications vendors for installation of such a compatible system. Tenant shall notify the Landlord thirty (30) days in advance of terminating their telephone service or increasing/decreasing the size of their telephone system. ' Tenant shall be responsible for acquiring and paying for local telephone directories. SECTION 24: HAZARDOUS SUBSTANCES; DISRUPTIVE ACTIVITIES ' A. PRESENCE AND USE OF HAZARDOUS SUBSTANCES Tenant shall not, without Landlord's prior written consent of Landlord's sole discretion, keep on or around the Premises, Building or Property, for use, disposal, treatment, generation, storage or sale, any substances designed as, or containing components designated as, a "hazardous substance," "hazardous material," hazardous waste," "regulated substance" or "toxic substance" (collectively referred to as "Hazardous Substances"). With respect to any such Hazardous Substances, Tenant shall: (i) comply promptly, timely and completely with all Laws AUKEEN DISTRICT COURT EXPANSION LEASE Page 22 for reporting, keeping and submitting manifests, and obtaining and keeping current identification numbers; (ii) submit to Landlord true and correct copies of all reports, manifests and identification numbers at the same time as they are required to be and/or are submitted to the ' appropriate governmental authorities; (iii) within five (5) days of Landlord's request, submit written reports to Landlord regarding Tenant's use, storage, treatment, transportation, generation, disposal or sale of Hazardous Substances and provide evidence satisfactory to Landlord of Tenant's compliance with all applicable Laws; (iv) allow Landlord or Landlord's agent or representative to come on the Premises at all times to check Tenant's compliance with all applicable Laws; (v) comply with minimum levels, standards or other performance standards or , requirements which may be set forth or established for certain Hazardous Substances (if minimum standards or levels are applicable to Hazardous Substances present on the Premises, such levels or standards shall be established by an on-site inspection by the appropriate governmental authorities and shall be set forth in an addendum to this Lease); and (vi) comply with all applicable Laws regarding the proper and lawful use, sale, transportation, generation, treatment and disposal of Hazardous Substances. B. MONITORING COSTS Any and all costs incurred by Landlord and associated with Landlord's monitoring of Tenant's compliance with this Section 24, shall be due and payable to Landlord immediately upon demand by Landlord. C. CLEANUP COSTS, DEFAULT, AND INDEMNIFICATION 1. Tenant shall be fully and completely liable to Landlord for any and all cleanup costs, and any and all other charges, fees, penalties (civil and criminal) imposed by any governmental authority with respect to Tenant's use, disposal, transportation, generation and/or sale of Hazardous Substances, in or about the Premises, Building or Property. Tenant's obligations pursuant to this Section 24.C.1 shall survive the termination of this Lease. 2. Tenant shall full indemnify, defend and save Landlord harmless from an and all Y fY� Y of the costs, fees, penalties and charges assessed against or imposed upon Landlord as a result of , Tenant's use, disposal, transportation, generation and/or sale of Hazardous Substances, in or about the Premises, Building or Property. Tenant's obligations pursuant to this Section 24.C.2 shall survive the termination of this Lease. , D. LANDLORD'S INDEMNITY Landlord shall fully indemnify, defend and save Tenant harmless from any and all of the ' costs, fees, penalties and charges assessed against or imposed upon Tenant (as well as Tenant's reasonable attorney fees and costs) as a result of Landlord's use, disposal, transportation, ! generation and/or sale of Hazardous Substances in or about the Building, Premises or Property. SECTION 25: DISABILITIES ACTS The parties acknowledge that the Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) and regulations and guidelines promulgated thereunder ("ADA"), and any , AUKEEN DISTRICT COURT EXPANSION LEASE Page 23 similarly motivated state and local Laws, as the same may be amended and supplemented from time to time (collectively referred to herein as the "Disabilities Acts") establish requirements for ' business operations, accessibility and barrier removal, and that such requirements may apply to the Premises, Building and Property depending on, among other things: (i) whether Tenant's business is deemed a "public accommodation" or "commercial facility", (ii) whether such requirements are "readily achievable", and (iii) whether a given alteration affects a "primary function area" or triggers "path of travel" requirements. The parties hereby agree that: (a) Landlord shall perform any required Disabilities Acts compliance in the common areas, except as provided below, (b) Tenant shall perform any required Disabilities Acts compliance in the Premises, including as part of Tenant's Work relating to Tenant Improvements and (c) Landlord may perform, or require that Tenant perform, and Tenant shall be responsible for the cost of, Disabilities Acts "path of travel" and other requirements triggered by any public accommodation or other use of, or alterations in, the Premises by Tenant. Tenant shall be responsible for Disabilities Acts requirements relating to Tenant's employees, and Landlord shall be responsible for Disabilities Acts requirements relating to Landlord's employees and Disabilities Acts "path of travel" and other requirements triggered by any public accommodation or other use of, or alterations in, the Building by Landlord. SECTION 26: APPRAISAL OF FACILITY A. The parties have selected Darin Shedd of Allen, Brackett, Shedd as the Appraiser to provide the Pre-Construction Appraisal Value, Post-Construction Appraisal Value, and Post- Construction Rental Value (as those terms are defined here in and in Exhibit D). In the event he/she is no longer willing or available to serve as appraiser, the parties shall select another appraiser. In the event the parties cannot agree, they shall each select an appraiser and the two appraisers shall in turn select the Appraiser. B. The Appraiser shall conduct an appraisal of the Fair Market Value of the Facility as near as practicable to a date immediately prior to the Commence of Tenant's Work; that value shall be the Pre-Construction Appraisal Value. The parties shall each pay one-half of the Appraiser's fee. C. The Appraiser shall conduct an appraisal of the Fair Market Value of the Facility as near as practicable following Substantial Completion of Tenant's Work; that value shall be the Post Construction Appraisal Value. In conjunction with determining the Post Construction Appraisal ' Value, the Appraiser shall also conduct an appraisal to determine the Post-Construction Appraised Rent Value, which shall constitute the rental value, on an annual per square foot basis, payable monthly, of the Premises for purposes of determining Base Rent from and after the Date of Substantial Completion. The parties shall each pay one-half of the Appraiser's fee. D. The Appraiser shall conduct a final appraisal, upon the request of Landlord, at the time ' the Lease is terminated or expires, for the purpose of determining the allocation of value in the Building and Property between Landlord and Tenant per Exhibit D, but prior to issuance of the Sale Notice pursuant to, and in conformity with, the provisions of the Right of First Offer(Rider ' One). SECTION 27: RIGHT OF FIRST OFFERS AUKEEN DISTRICT COURT EXPANSION LEASE Page 24 In further consideration of this Lease and other related transactions set forth in the Recitals contained in Section 1, the Parties covenant to enter into the following agreements: A. Landlord and Tenant shall execute the Right of First Offer in favor of Tenant to purchase the Facility attached as Rider One upon completion of the Lot Line Adjustment as provided in Section 1. ' B. Landlord and Tenant shall execute the Right of First Offer in favor of Landlord to purchase City real property attached as Rider Two simultaneously with the execution of Rider One. Landlord and Tenant further agree to execute and record an amendment to Rider Two incorporating the real property described in Exhibit G (also referred to as Lot B in Exhibit E) when Tenant has completed condemnation or otherwise acquired title to the Exhibit G property. ' SECTION 28: PARKING AND RECIPROCAL PARKING EASEMENT A. The Parties have previously executed and recorded the Reciprocal Parking Easement dated, January 22, 2003, King County recording number 20030122002929. That Easement shall be rescinded and replaced with the Reciprocal Parking Easement attached hereto as Exhibit E. The replacement Exhibit E shall be executed upon completion of the Phase V parking lot. Phase V shall consist of approximately 71 parking stalls located on Lots A and B as defined in Exhibit E and which parking shall be available for public parking uses accessory to this Lease as well as ' City of Kent owned facilities. Tenant shall invoice Landlord for repair and maintenance expenses of the Phase V parking in the same manner as other parking repair and maintenance , expenses as provided in section 7 of Exhibit E during the term of this Lease. B. The Parties agree to work together in the scheduling of court calendars including jury , trials so as to minimize parking demand at the Building. SECTION 29: SUBORDINATION,ATTORNMENT AND LENDER PROTECTION In the event Tenant fails to exercise its Right of First Offer to purchase the Facility and provided Tenant is presented a Subordination, Non-Disturbance and Attornment Agreement in a , commercially reasonable form as shall be reasonably acceptable to Tenant and such non- subordinating party (the "SNDA"), this Lease shall be subject and subordinate to all Mortgages now or hereafter placed upon the Property, Building, Premises or any interest of Landlord therein, and all other encumbrances, and matters of public record applicable to the Property, Building or Premises. Tenant agrees upon written request of any purchaser at the time of sale, to attorn and pay Base Rent and Additional Rent to such party, and recognize such party as Landlord (provided such purchaser shall agree not to disturb Tenant's occupancy so long as Tenant does not Default hereunder, on a form customarily used by, or otherwise reasonably acceptable to, such party). However, in the event of attornment, no purchaser or lender shall be: ' (i) liable for any act or omission of Landlord, or subject to any offsets or defenses which Tenant might have against Landlord (arising prior to such purchaser becoming Landlord under such attornment), and (ii) liable for any security deposit or bound by any prepaid Rent not actually , received by such purchaser. Any lender may elect to make this Lease prior to the lien of its mortgage by written notice to Tenant, and if the lender of any prior mortgage shall require, this 1 AUKEEN DISTRICT COURT EXPANSION LEASE Page 25 Lease shall be prior to any subordinate mortgage; such elections shall be effective upon written notice to Tenant, or shall be effective as of a later date set forth in such notice. Tenant agrees to give any lender by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing (by way of service on Tenant of a copy of an assignment of leases, or otherwise) of the address of such lender. SECTION 30: ESTOPPEL CERTIFICATES Tenant shall from time to time, within ten (10) business days after written request from Landlord, execute, acknowledge and deliver a statement certifying: (i) that this Lease is unmodified and in full force and effect or, if modified, stating the nature of such modification and certifying that this Lease as so modified, is in full force and effect (or specifying the ground for claiming that this Lease is not in force and effect); (ii) the dates to which the Rent has been paid, (iii) that Tenant is in possession of the Premises, and the status of any unpaid Base Rent or Additional Rent; or offsets, defenses or claims, or specifying the same if any are claimed; (iv) that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord or Tenant which are pertinent to the request, or specifying the same if any are claimed; and (v) certifying such other matters as Landlord may reasonably request, or as may be requested by Landlord's prospective purchasers and their lenders, insurance carriers, and auditors. Any such statement may be relied upon by any such parties. If Tenant shall fail to execute and return such statement within the time required herein, Tenant shall be deemed to have agreed with the matters set forth therein, and Landlord acting in good faith shall be authorized as Tenant's agent and attorney-in- fact to execute such statement on behalf of Tenant (which shall not be in limitation of Landlord's other remedies). SECTION 31: NOTICES All notices to be given hereunder shall be in writing and shall be personally delivered, mailed, or sent by facsimile and addressed to the party at their respective mailing addresses as follows: To Lessor at: King County Property Services Division Attn: Leasing Supervisor King County Administration Building 500 Fourth Avenue, Room 500 Seattle, Washington 98104 To Lessee at: City of Kent Attn: Facilities Manager 220 Fourth Avenue South Kent, Washington 98032 AUKEEN DISTRICT COURT EXPANSION LEASE Page 26 SECTION 32: MISCELLANEOUS A. CAPTIONS AND INTERPRETATION ' The captions of the Sections and Paragraphs of this Lease are for convenience of reference only and shall not be considered or referred to in resolving questions of interpretation. Tenant acknowledges that it has read this Lease and that it has had the opportunity to confer with counsel in negotiating this Lease; accordingly, this Lease shall be construed neither for nor against Landlord or Tenant, but shall be given a fair and reasonable interpretation in accordance with the meaning of its terms. The neuter shall include the masculine and feminine, and the singular shall include the plural. The term "including" shall be interpreted to mean "including, but not limited to." B. SURVIVAL OF PROVISIONS All obligations (including indemnity, Rent and other payment obligations) or rights of either party arising during or attributable to the period prior to expiration or earlier termination of this Lease shall survive such expiration or earlier termination. C. SEVERABILITY , If any term or provision of this Lease or portion thereof shall be found invalid, void, , illegal, or unenforceable generally or with respect to any particular party, by a court of competent jurisdiction, it shall not affect, impair or invalidate any other terms or provisions or the remaining portion thereof, or its enforceability with respect to any other party. D. FORCE MAJEURE (1). Landlord. Landlord shall have no liability whatsoever to Tenant on account of t Landlord's inability to perform any of its obligations under this Lease, in whole or part, including the restoration of the Building and the Premises following damage or destruction, as a , result of"force majeure," which shall include (a) strike, lockout, other labor trouble, dispute or disturbance; (b) governmental regulation, moratorium, action, preemption or priorities or other controls; (c) shortages of fuel, supplies or labor, other than those which were reasonably foreseeable; (d) any failure or defect in the supply, quantity or character of electricity or water furnished to the Premises by reason of any requirement, act or omission of the public utility or others furnishing the Building with electricity or water; and (e) for any other reason, whether similar or dissimilar to the above, or for Act of God, beyond Landlord's reasonable control and which were not reasonably foreseeable. If this Lease specifies a time period for performance of an obligation of Landlord to complete Landlord's Work, or the restoration of the Building and the Premises following damage or destruction, that time period shall be extended by the period of any delay in Landlord's performance caused by any of the events of force majeure described herein. , AUKEEN DISTRICT COURT EXPANSION LEASE Page 27 (2) Tenant. Tenant shall have no liability whatsoever to Landlord on account of Tenant's inability to timely complete Tenant's Work as a result of"force majeure,"which shall include (a) strike lockout, other labor trouble, dispute or disturbance; (b) governmental regulation, moratorium, action, preemption or priorities or other controls; (c) shortages of fuel, supplies or labor; (d) any failure or defect in the supply, quantity or character of electricity or water furnished to the Premises by reason of any requirement, act or omission of the public utility or others furnishing the Building with electricity or water; and (e) for any other reason, whether similar or dissimilar to the above, or for Act of God, beyond Tenant's reasonable control. If this ' Lease specifies a time period for performance of an obligation of Tenant to complete Tenant's Work, or the restoration of Tenant's Work following damage or destruction, that time period shall be extended by the period of any delay in Tenant's performance caused by any of the events of force majeure described herein. Nothing in this section shall be construed as excusing or delaying the obligation of Tenant to pay in a timely manner when due any Rent or other amounts due under this Lease. E. APPLICABLE LAW AND OTHER MATTERS This Lease shall be interpreted and construed under and pursuant to the laws of the State of Washington. Any action regarding or arising from this Lease shall be brought in the Washington State Superior Court located in the county where the Property is located. Time is of the essence of this Lease. In the event an attorney is engaged by either party to enforce the terms of this Lease or in the event suit is brought relating to or arising from this Lease, the prevailing party shall be entitled to recover from the other parry its reasonable attorney fees and costs. SECTION 33: ENTIRE AGREEMENT This Lease, together with the Riders and Exhibits (which collectively are hereby incorporated where referred to herein and made a part hereof as though fully set forth), contain all the terms and provisions between Landlord and Tenant relating to the matters set forth herein and no prior or contemporaneous agreement or understanding pertaining to the same shall be of any force or effect, except any such contemporaneous agreement specifically referring to and modifying this Lease, signed by both parties. Neither this Lease, nor any Riders or Exhibits referred to above may be modified, except in writing signed by both parties; provided, in the event the consent of Landlord's lender (if any) is required as a condition to the effectiveness of any amendment or modification, such modification or amendment shall not be effective until Landlord provides Tenant notice of any such Lender's written consent. IN WITNESS WHEREOF, the parties have executed this Lease, which shall become effective on the last date entered below. 1 AUKEEN DISTRICT COURT EXPANSION LEASE Page 28 LANDLORD: KING COUNTY BY: Ronald Sims, King County Executive APPROVED AS TO FORM: , BY: Timothy Barnes, Sr. Deputy Prosecuting Attorney TENANT: CITY OF KENT ' BY: Suzette Cooke, Mayor APPROVED AS TO FORM: , BY: Kim Adams Pratt, Asst. City Attorney P\Crvi1\Files\OpenFdes\0676\AukeenLease7-14-08 doc AUKEEN DISTRICT COURT EXPANSION LEASE Page 29 i LANDLORD ACKNOWLEDGMENT STATE OF WASHINGTON ) ss. COUNTY OF KING ) 1 I, the undersigned, a Notary Public, in and for the County and State aforesaid, do hereby certify that , personally known to me to be the and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that in such capacity of said limited liability company being authorized so to do, (s)he executed the foregoing instrument on behalf of said company, by subscribing the name of such company by himself/herself as such officer, as a free and voluntary act, and as the free and voluntary act and deed of said company, as member or agent for the Landlord designated in the foregoing instrument, for the uses and purposes therein set forth. GIVEN under my hand and official seal this day of , 200_. Notary Public [Printed Name] 1 Residing at My Commission Expires: AUKEEN DISTRICT COURT EXPANSION LEASE Page 30 TENANT ACKNOWLEDGMENT STATE OF WASHINGTON ) ' ss. COUNTY OF KING ) On this the day of 20 , before me a Notary Public duly authorized in and for the said County in the State aforesaid to take acknowledgments personally appeared known to me to be , of KING COUNTY, the political subdivision of the State of Washington described in the foregoing instrument, and acknowledged that as such officer, being authorized so to do, (s)he executed the foregoing instrument on behalf of said State by subscribing the name of such State by himself/herself as such officer, as his free and voluntary act, and as the free and voluntary act of said State, for the uses and purposes therein set forth. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public [Printed Name] ! Residing at My Commission Expires: AUKEEN DISTRICT COURT EXPANSION LEASE Page 31 It'll INS EXHIBIT A-1 (DIAGRAM OF BUILDING AFTER TENANT'S WORK) [To be inserted after Substantial Completion] AUKEEN DISTRICT COURT EXPANSION LEASE Page 33 EXHIBIT A-1: Diagram of Property After LLA EXHIBIT B (LEGAL DESCRIPTION OF PROPERTY AT EXECUTION OF LEASE LOT aw:IMCI COUNTY TAK Accot TMMER: 0006604043-0 . LEGAL DESCi9PTI0N: S W RUSSELL D C#41 PM TRACT 24 HORSESHOE ACRE TRAcM&POR S W RUSSELL DLC IN MN QTR STR 24-2z o4.DAF BW AT pY M S BNDRY LN SD DL C W(IH E LN SEC 25 TH N 8944 28 W ALG S BNDRY SD DLC 59.W FT To TPOB TH S o"7-57 W 2o&74 FT TH N 89.35.24 W 128.73 FT TH N 00-03.47 E 84.40 FT TH N 45-54.33 w 94.1 o FT TN N 00-30-2S E 5LB3 FT TO S BNORY SD DLCTH S SW44-28 E Was FT TO P? 187.12 FT W MF E LN SEC 25 TH N 0035 W E PLL TO SD E LN 3gs Fr MA_TO S MGN S 259TH ST TH EALG S MGM 102.13 FT MIL TO PT&&W FT W OF E LN SEC 2S TH S 00,1j5-5O W 367_42 FT TO S LN SO DLD IH S 85 44-M E AL 3 S LN 25.14 FT T O MMS 1 7 i I� 1 i i i AUKEEN DISTRICT COURT EXPANSION LEASE Pap 34 � EXHMIT B: Legal Description at Execution of Lease ' EXHIBIT B-1 (LEGAL DESCRIPTION OF PROPERTY AFTER LLA) [To be developed after execution of Lease] i AUKEEN DISTRICT COURT EXPANSION LEASE Page 35 EXHIBIT B-1: Legal Description after LLA EXHIBIT C WORK LETTER ADDENDUM TENANT IMPROVEMENTS AND TENANT'S WORK This Work Letter Addendum is part of and incorporated into that certain Lease (the "Lease") between King County, a political subdivision of the State of Washington (hereafter "Landlord") and the City of Kent, a municipal corporation (collectively "Parties"), for the Premises, as defined in Section 1.13 of the Lease, located at 1210 S. Central Avenue, Kent, WA 98032. Capitalized terms in this Work Letter Addendum shall have the meanings set forth in the Lease. In case of conflicting definitions or terms, the definitions contained herein shall control. 1.0 GENERAL INTENT It is the intent of this Work Letter Addendum ("Work Letter") that Tenant shall construct "Tenant's Work" in accordance with the Final Approved Design(described below) so long as the same is done at the sole cost and risk of Tenant. The Final Approved Design shall contain the detailed design work necessary to achieve the design contained in the Attachment 1 Preliminary Approved Design. Tenant's Work shall include all tenant improvements to the Building (the "Tenant Improvements") required in the Final Approved Design. As more fully set out in the Preliminary Approved Design, and incorporated into the Final Approved Design pursuant to the process contained below, the Building, upon completion of Tenant Improvements shall include at minimum the following: 1.1 A new total of seven (7) courtrooms (four(4) existing and three (3) new), five (5) of which will have a jury room with restroom facilities. 1.2 A new total of seven (7)judge's chambers (four (4) existing and three (3) new)„ accessible to courtroom or via secure hallway. 1.3 A new total of five (5) service windows (three (3) existing and two (2) new), to be allocated as three (3) for district court and two (2) for municipal court. 1.4 One private public defender screening room. 1.5 Administrative space to accommodate the district court and municipal court staff as depicted in Attachment 1. 1.6 One (1) private office for the district court administrator and one (1) private office for the municipal court administrator. 1.7 Expanded lobby area to accommodate additional traffic flow, including information area, ATM, public phone, computer kiosk, and other elements included in the Preliminary Approved Design. 1.8 An office for Tenant's Security Officer. AUKEEN DISTRICT COURT EXPANSION LEASE Page 36 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 1.9 Administrative space for five (5) probation staff(or Landlord's prosecutorial staff) including not less than three (3) private offices/interview rooms. The space will have security entrance and a lobby phone to contact staff in the secured space. 1.10 One (1) conference room. 1.11 One (1) holding cell. ' 1.12 File storage space to meet the needs of municipal court and district court. 1.13 One "information technology" closet for Tenant (in addition to existing Landlord "information technology closet"). 1.14 All interior signage, including but not limited to court rooms, rest rooms, jury rooms, chambers,professional offices, staff areas and exits. 2.0 CONSTRUCTION DOCUMENTS. 2.1 Tenant will obtain all necessary plans required for the performance of Tenant's Work addressed in this Work Letter, including plans and specifications for the Tenant Improvements (the "Preliminary Approved Design" and "Final Approved Design") which are prepared by Tenant's architect and which present a full and complete accounting of the scope of the Tenant Improvements. Tenant designates Dave Clark as architect ("Architect") for the Preliminary Approved Design. Tenant's designation of an architect may be changed by written notice to Landlord. 2.2 The PreliminaryApproved Design shall include construction drawings and pp g g specifications for the Tenant Improvements, including but not limited to any alterations, improvements or upgrades to Landlord's existing Building mechanical or electrical systems , necessitated by the Tenant Improvements. Tenant shall contract directly with Architect for preparation of all design work. The Preliminary Approved Design at the thirty (30) percent plan development stage is attached to this Work Letter Attachment 1. Tenant shall provide the Preliminary Approved Design consistent with Attachment 1 to Landlord at 60%, 90% and 100% plan development stages for its review and written approval. Landlord approvals, comments or requests for revisions to the Preliminary Approved Design must be identified by Landlord and returned to Tenant within seven (7) business days after Landlord's receipt. For each day beyond the seven (7) business days, one day shall be added to the six (6) month deadline for submission of the Preliminary Approved Design for 100 percent plan development stage provided in Section 2.13.5 of the Lease. Any revisions by Landlord to the Preliminary Approved Design shall similarly be responded to by Tenant within seven (7) business days after Tenant's receipt. The Preliminary Approved Design so approved by Landlord at the 100% complete stage shall become the Final Approved Design for all purposes hereunder, subject only to approved Field Change Orders in accordance with section 3.0 below. The Final Approved Design, once AUKEEN DISTRICT COURT EXPANSION LEASE Page 37 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work approved and signed by Landlord, shall be incorporated into this Work Letter as Attachment 2. Tenant shall also obtain the appropriate building permits and other approvals, and shall construct the Tenant Improvements in accordance with the Final Approved Design. At no time will any cost of construction of Tenant's Work become an obligation of Landlord. Tenant shall perform all work necessary to Substantially Complete the Tenant Improvements within the time periods specified in Section 3 of the Lease at Tenant's sole cost, expense and liability. 2.3 Landlord's approval of the Preliminary Approved Design at the 60%, 90% and 100% review stages shall not be unreasonably withheld. Should Landlord and Tenant disagree as to the approval of the Preliminary Approved Design at any stage requiring Landlord approval, the King County director of the facilities management division and the Kent director of parks and community services shall attempt to resolve the dispute within five (5) days, and if not successful, shall submit the dispute in writing with appropriate documentation to the King County chief administrative officer or his designee for a decision, which shall be rendered within three (3) business days and shall be final and binding on both Landlord and Tenant. If the decision of the King County chief administrative officer is not rendered within three (3)business days of written notification of the dispute being submitted to him, Landlord's approval shall be deemed granted. The number of days used to obtain this decision shall be added to the six (6) month deadline to submit plans in Section 2.13.5 of the Lease. If Tenant disagrees with the decision of the King County Chief Administrative Officer, Tenant may provide Landlord written notice within seven (7) days of receiving Landlord's decision of its intention to immediately terminate this Work Letter addendum, in which case Tenant shall simultaneously terminate the Lease upon 16 months advance written notice to Landlord and Landlord and Tenant shall have no further rights or obligations thereunder. In case of such termination, the Lease and all of its terms excluding those pertaining to Tenant's Work shall remain in effect and Tenant shall vacate the Premises promptly after 16 months. In the event this Section 2.3 conflicts with any other provision of the Work Letter or Lease, this Section 2.3 shall control. 2.4 Landlord and Tenant agree that the Final Approved Design, once reviewed by Tenant and Landlord and approved in writing by Landlord and Tenant, and any Field Change Orders approved in accordance with Section 3.0 below, shall represent the complete understanding between Landlord and Tenant as to the scope of the Tenant Improvements to be constructed under the Lease and this Work Letter. 3.0 FIELD CHANGE ORDERS 3.1 Revisions to the Final Approved Design, if any, are to be accomplished by Field Change Orders. A "Field Change Order" is a document which details the scope of a requested change to any work set forth in the Final Approved Plans and bears the signature of Landlord's and Tenant's project manager, and if required, other representative's of Landlord and Tenant, (as provided below) approving such change. Field Change Orders shall be approved by Landlord and Tenant prior to being executed or acted upon by Tenant's contractor. With the exception of Section 3.5 below, the cost of any Field Change Order shall be the sole responsibility of Tenant. 3.2 In order to avoid delays in construction, in the event the cost of the work included in a Field Change Order request is Fifty Thousand Dollars ($50,000) or less, the aggregate AUKEEN DISTRICT COURT EXPANSION LEASE Page 38 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 1 amount of Field Change Order requests has not exceeded Three Hundred Thousand Dollars ($300,000), and the Field Change Order will not likely result in a delay in the Substantial Completion date, Landlord's project manager shall have authority to provide the necessary approval in writing on Landlord's behalf promptly with proper documentation and cost itemization to follow. In addition, Landlord's project manager may approve Field Change Orders on an emergency basis if he/she reasonably believes that unreasonable delays in the construction schedule or unreasonable cost increases cannot otherwise be avoided, but excluding any proposed Field Change Orders which fall within the provision of Section 3.3 below. All other Field Change Orders must be approved in advance on behalf of Landlord by Landlord's director of the facilities management division. 3.3 In the event Landlord and Tenant, in the opinion of either facilities director, cannot agree upon the terms or necessity of a proposed Field Change Order which has the potential to cause a material deviation from the Final Approved Design, the King County chief administrative officer, in consultation with the City director of parks and community services, shall within three (3) business days of either party submitting same to the King County chief administrative officer in writing with appropriate documentation, render a decision which shall be communicated to Tenant in writing and shall be final and binding on both Landlord and Tenant. The number of days required to render a decision in accord with this section shall be added to the eleven(11) month deadline in Section 2.13.5 of the Lease. 3.4 Landlord and Tenant shall provide each other written notice of the name and contact information of the individual designated as its project manager. Project managers shall be available on not more than one (1) business day notice to be present at the job site to respond to questions and Field Change Order issues. Approved Field Change Orders shall, if necessary, be accompanied by written amendments to the Lease adjusting the date for Substantial Completion and associated provisions in the Lease accordingly. 3.5 Landlord shall have authority to initiate Field Change Orders based upon aesthetics, practical considerations, cost savings, materials, and other discretionary purposes at Landlord's expense. Landlord shall also bear the cost of Tenant-initiated Field Change Orders arising from Maintenance issues which were not reasonably discoverable by Tenant, its agents, contractors or consultants, exercising due diligence prior to Tenant's preparation of its contract with its contractor. For purposes of this Section 3.5, "Maintenance" shall mean repair and replacement of existing Building systems for the purpose of operating such systems as originally intended, for reasonable use and operation of the Building as configured prior to this Lease and excluding alterations, improvements, interconnections, and upgrades to any Building system or structures necessary to achieve the Tenant's Improvements contemplated herein. 3.6 Landlord shall further have authority to initiate Field Change Orders based on commercially reasonable decisions that errors have occurred. The categories of errors subject to this Section 3.6 shall include design errors, construction errors, architecture and engineering discrepancies, design and construction discrepancies, mutual mistake, lack of coordination between new and existing systems, or any other foreseen or unforeseen error, mistake, condition or discrepancy of any kind, except as provided in Section 3.5. AUKEEN DISTRICT COURT EXPANSION LEASE Page 39 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 3.7 Tenant's contract, including all planned specifications therein, shall include 1 provisions which require all work necessary to coordinate existing Building systems (mechanical, electrical, etc.) and structures with newly constructed systems and structures. Tenant shall ensure that all mechanical and other systems installed are compatible with and integrated into the Building control systems. 3.8 Tenant's project manager shall oversee the daily construction activities on the Property. Landlord and Tenant acknowledge that Landlord's project manager shall have the opportunity to inspect construction, attend construction meetings and receive copies of all construction meeting minutes, and in the event Landlord's project manager becomes aware of any error or problem with respect to Tenant's performance or construction of Tenant's Work, or deviation from the Final Approved Design, Landlord's project manager shall provide Tenant notice of the same so that Tenant may take any corrective action it deems appropriate. Landlord's failure to exercise its rights pursuant to this section 3.8 shall not constitute a waiver of rights to enforce any other provision of this Work Letter addendum or the Lease. Landlord shall fully cooperate with Tenant in responding to requests for information from Tenant's contractor. Tenant's project manager shall respond to Landlord's requests for information as expeditiously as possible. 3.9 For purposes of this Work Letter, the term "contractor" shall be a reference to Tenant's prime construction contractor. The term contract shall mean the document issued by the Tenant on which prospective contractors must bid and which shall become the construction agreement between Tenant and its contractor. 4.0 CONSTRUCTION OF TENANT IMPROVEMENTS 4.1 Tenant acknowledges that it is solely responsible for the Tenant Improvements contained in this Work Letter and that it will enter into a construction contract with a contractor of its choosing. 4.2 The Final Approved Design, and the terms of this Work Letter shall be the basis of Tenant's solicitation of bids from prospective contractors to construct the Tenant Improvements. 4.3 Given that Tenant's Work will include tying into the Building's existing systems, prior to Tenant's submittal of 60 percent design documents, Tenant shall establish the "as is" condition of the Building's mechanical and electrical systems through an agreed upon qualified third party consultant, which shall be incorporated into both the Final Approved Design and the requirements of the Tenant's construction contract. Tenant shall provide Landlord's project manager with a copy of the consultant's findings. 4.4 Prior to Commencement of Tenant's Work, Landlord shall remove from the Property the two outdoor storage containers located near the northeast corner of the Building. These containers are located within the footprint of Tenant's Improvements. AUKEEN DISTRICT COURT EXPANSION LEASE Page 40 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work i 4.5 Prior to Substantial Completion, Tenant shall provide third party commissioning of all mechanical and electrical systems by a mutually agreed upon third party consultant.. 4.6 Warranty. Upon Substantial Completion of Tenant's Work, Tenant shall at minimum warrant to Landlord for a period of one (1) year (the "Tenant Warranty Period") each of the following: (i) that Tenant's Work has been substantially completed in accordance with the Final Approved Design (subject to completion of any customary punch list items), and (ii) that Tenant's Work is free from any material defects in workmanship or materials (the foregoing warranties collectively "Tenant's Warranty"). Alternatively, Tenant may, subject to the aforementioned minimum warranty requirements, require Tenant's contractor to provide Tenant a warranty assignable in full to Landlord for the duration of the Tenant Warranty Period. In addition to the foregoing, and upon the substantial completion of Tenant's Work, Tenant shall assign and deliver to Landlord all warranties, guarantees, maintenance contracts, and equipment warranties received by Tenant from Tenant's contractor, and any subcontractor, supplier, materialmen or equipment manufacturer arising from the performance of any part of Tenant's Work, but only if such assignment and delivery will not adversely affect Tenant's ability to independently enforce all such warranties, or warranty claims, against any such contractors, suppliers or materialmen during the Tenant Warranty Period. In the event any contractor, supplier, materialmen or equipment manufacturer provides a warranty that is of longer duration than Tenant's Warranty Period, nothing herein shall be deemed to affect or limit the duration of such third party warranties. 4.7 Tenant agrees to make best efforts to seek the highest LEED certification points that are cost effective, as determined by Tenant, based on the life cycle cost analysis and the limits of available funding for the Tenant Improvements. Landlord and Tenant agree that the Preliminary Approved Design was at the 30 percent development stage as of May 2008. 5.0 CONSTRUCTION REQUIREMENTS Landlord and Tenant agree that the Building must continue to function as a courthouse during all g g g phases of construction of the Tenant Improvements. Tenant shall be solely responsible for maintaining and safeguarding the construction site, and all related structures, appurtenances, L systems and equipment at all times during construction of the Tenant Improvements. Tenant shall be responsible, either directly or indirectly through its contract with its contractor, for the following requirements, which shall be incorporated into the contract between Tenant and its contractor: 5.1 Restrictions 5.1.1 All construction work shall be performed on an off-shift basis, specifically, all construction work must take place between 3 P.M. and 10 P.M. on weekdays, and between 3 P.M. Fridays and 6 A.M. on Mondays; provided, however, that no access shall be given nor shall any work occur in any portion of the Building accessible to the general public before 3:30 P.M. on weekdays, and no construction work shall be performed that causes AUKEEN DISTRICT COURT EXPANSION LEASE Page 41 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work disruptive noise until after 3:30 P.M. on weekdays. At no time shall the public be allowed in areas of active construction. 5.1.2 Tenant may make use of the existing water supply available at the project site for performance of the construction work as long as it does not overload the existing water supply system or cause any dangerous conditions or a condition which may impact the operation of court operations. 5.1.3 Use of the Premises shall be limited to the areas indicated on the contract documents and based upon the Final Approved Design. Keep driveways and entrances serving Building and Premises clear and available at all times during normal district court hours of operation to the public. Do not use these areas for parking or storage of materials. Move any stored products under contractor's control that interfere with the operations of the court. 5.1.4 Schedule deliveries to minimize use of driveways and entrances; schedule deliveries to minimize space and time requirements for storage of materials and equipment on the site. 5.1.5 Coordinate use of Premises under the direction of Landlord's project manager. 5.1.6 Construction Phasing:Given that Tenant's Work includes both expansion of the Building and renovotion of the Building while the courts continue to operate, court personnel will need to relocate within the Building during various stages of construction. Tenant's contractor and project manager shall schedule construction and coordinate the construction work with use of existing spaces with the district and municipal court administrators during regularly scheduled meetings. Each party will be responsible for moving its own staff. Tenant shall provide a minimum of four (4) days written advance notice to Landlord of any such requested moves. 5.1.7 Interruption of Services: Tenant's contractor and project manager shall schedule interruption of services with district and municipal court administrators during regularly scheduled meetings, but in no case less than four(4) days prior to the scheduled interruption. 5.1.8 No signs or advertisements will be allowed to be displayed on the Property without the advance written approval of Landlord. 5.2 Safety 5.2.1 Provide and maintain a temporary fence of the appropriate type and dimensions around all construction and materials to secure the work from AUKEEN DISTRICT COURT EXPANSION LEASE Page 42 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work unwanted visitors and to isolate potential hazards. Provide lockable gates at locations where required for access to the enclosed area. 5.2.2 Provide temporary barricades, safety guards, and warning lights at all open excavations and other unsafe areas outside fenced work areas. Barricades shall physically prohibit passage of pedestrians into excavations and other hazards. 5.2.3 Provide security/dust barricades around all work areas and maintain these for the entire construction phase. Sound attenuation barriers for applicable areas shall be constructed in areas which may be affected by construction noise. 5.2.4 Close joints between sheet materials, and seal edges and intersections with existing surfaces, to prevent penetration of dust or moisture. 5.2.5 Take all necessary precautions for the safety of employees, County and City staff, the public, and other persons on the site of the construction work. Comply with all applicable codes and ordinances to prevent accident or injury to persons on or adjacent to the Property where work is being done. Report to the Landlord's project manager immediately and in writing all accidents to persons or property occurring on the construction site or Property. 5.2.6 Comply with all governing laws, codes, and regulations to maintain required protection at all times. Include proper and adequate backup protection during any "shut down" of normal protection systems. Conduct operations in a manner that is fire-safe for the construction work area and adjacent areas. Proper fire extinguishers shall be provided, identified, and maintained. The Property shall be maintained clear of rubbish, debris, or other material constituting a potential fire hazard. A proper fire separation shall be maintained between new and existing construction. 5.2.7 Where significant or continued non-compliance with fire safety is noted, Landlord reserves the right to stop the construction work at no extra costs or extension of time pending remedial action. Furthermore, Tenant's contractor shall be responsible for, and reimburse Tenant as appropriate, for any fines or penalties levied by the City of Kent. 5.3 Security 5.3.1 Prevent damage to all Premises, and all related systems, structures, equipment, art works, and any other elements, to the extent they are not the object of replacement or modification as part of the Tenant's Work. AUKEEN DISTRICT COURT EXPANSION LEASE Page 43 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 5.3.2 Prevent entry into the Premises, except by authorized personnel and Landlord's employees, through use of barriers and provision of security services as necessary. 5.3.3 Prevent the creation in, and emanation from, the construction site, of odors, fumes, noise, dust, debris and any matter in levels that (i) are beyond any applicable statutes and regulations, (ii) give rise to a nuisance, inverse condemnation, trespass, waste, tort or other cause of action against Landlord, or (iii) violate any agreement, license, permit, easement or other obligation of Landlord. 5.3.4 Maintain the construction site in a clean and neat appearance at all times. Take all necessary fire prevention measures. Not allow hazardous, dangerous, or unsanitary conditions or nuisances to develop or persist at the site. 5.3.5 Initiate and maintain a specific program to prevent accumulation of debris at the construction site, storage and parking areas, and along access roads and haul routes and allow no flammable materials or other hazardous materials to be stored on the site without proper fire protection procedures and methods as approved by authority having jurisdiction. 5.3.6 Maintain storm sewers free of debris or extraneous materials; protect existing utilities from any damage or interruption of services. (Tenant shall be responsible for determining the exact location of all existing utilities, whether or not indicated on the drawings.) Coordinate the moving or adjustment of affected utilities. No interruption of service will be allowed without prior approval of Landlord. Interruptions of service will be scheduled per Section 5.1.7. 5.3.7 Security on site whenever access into the existing facility is required for iwork to be completed. Standards for selection of security personnel shall be subject to advance approval of Landlord. 5.3.8 Protection of work, stored materials, tools and vehicles from loss, theft and unauthorized entry. j5.3.9 Devise and initiate a construction security program in coordination with Landlord for review at the pre-construction conference. Maintain the construction security program throughout the construction period until a final occupancy permit has been issued. 5.3.10 Abide by the law which prohibits transport of any alcoholic beverages, drugs, weapons or ammunition of any kind into the courthouse Building. AUKEEN DISTRICT COURT EXPANSION LEASE Page 44 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 5.3.11 Storage of materials inside the Premises and Building will be coordinated with security personnel, Landlord and Tenant. All tools (ram sets, cartridges), hack saw blades, framing hammers and wire cutters, etc. will be inventoried in and out each day by security personnel. 5.3.12 All construction personnel may be subject to search each time they enter or leave the secured perimeter and buildings and shall carry a driver's license or other government issue picture I.D. 5.3.13 Entry into the Building shall be in compliance with RCW 9A.76.140/150/160. All persons and items entering and leaving the facility are subject to search by security personnel. Security may deny entry to any personnel not previously cleared or for any suspicious behavior. 5.3.14 All of the contractor's supervisory personnel shall be equipped with a mobile telephone for communications with the project managers and security personnel. 5.3.15 All of the contractor's and subcontractors' personnel will be required to undergo background checks prior to working on the site; background checks will be conducted by Landlord, and may require two (2) weeks to complete. There will be no compensable delay in the construction schedule for conduct of background checks. The contractor shall designate substitute personnel for background checks at the beginning of the job to avoid delays during the course of the work. 5.3.16 Barringof an employees from the site b security shall not be cause for YY tY any additional cost to Landlord and shall not be allowed as a reason for delays in the construction schedule. 5.3.17 Intoxicants, narcotics, dangerous drugs, firearms, edged weapons, mace, oleo capsicum, electronic weapons, ammunition, explosives, weapons, i and/or anything that could be construed as a weapon (excluding construction tools) or illegal substance of any kind will be considered contraband and shall not be brought onto the Property for any reason. It will be confiscated by Security and not returned. 5.3.18 The contractor shall maintain control and accounting of all tools, materials, and equipment at all times; any loss of such items shall be reported immediately to Security and the project managers. Tools, materials, and equipment must be stored in locked metal boxes when not in use. 5.3.19 Non-compliance with the requirements of this section 5.0 shall be considered a breach of security. Individuals causing any breach of security will be subject to non-admittance or expulsion from the Property and worksite and may be subject to arrest and prosecution. AUKEEN DISTRICT COURT EXPANSION LEASE Page 45 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 5.4 Conduct of Work 5.4.1 Temporary heating and ventilation as required during construction to protect the work from freezing or frost damage, and as necessary to ensure suitable working conditions for the construction operations of all trades. In areas of the Building used for district court purposes during construction, Tenant's Work shall not cause the temperature to be below 60 degrees Fahrenheit or above 80 degrees Farenheit. 5.4.2 Temporary heat and ventilation required to meet specified minimum conditions for installation of materials and to protect materials and finishes from damage due to temperature or humidity. 5.4.3 Adequate forced ventilation of enclosed areas to cure installed materials, disperse humidity, and prevent hazardous accumulations of dust, fumes, vapors, and gases. 5.4.4 After permanent systems are sufficiently installed, they may be used in lieu of temporary systems. (The responsibility for full operation remains with Tenant's contractor until Substantial Completion.) Provide air filters on building fan equipment and return duct openings, heat pumps, and the like, used for temporary heat. Replace used filters with clean ones at the completion of the construction work. 5.4.5 Use of the existing electricity and lighting available at the project site for performance of the construction work as long as it does not overload the existing electrical circuitry or cause any dangerous conditions or a condition which may impact the operation of court operations. 5.4.6 Make all arrangements with the local electric company for temporary electrical service for service which exceeds existing at the site or provide on-site portable electrical generators. Provide all equipment necessary for temporary power and lighting for the safe operation of all construction tools and equipment without overloading the capacity of the existing system on site. 5.4.7 Remove all temporary wiring, lighting, and other temporary electrical equipment and devices when construction is completed. 5.4.8 Provide and maintain in a sanitary condition, closed weathertight toilets for the use of all construction personnel at a location within the job site, complete with fixtures, water, and sewer connections and all appurtenances. Install in accordance with all applicable codes and regulations of authorities having jurisdiction. Chemical toilets may be permitted. The number of toilet rooms required shall be in accordance AUKEEN DISTRICT COURT EXPANSION LEASE Page 46 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work i with the ANSI Standard Safety Code for Building Construction or other local authorities. Upon completion of the construction work, toilets and their appurtenances shall be removed. 5.4.9 The contractor's personnel may use existing potable water available at the project site for performance of the construction work and for drinking. 5.5 Odor, Noise, and Control of Construction Impacts 5.5.1 Tenant's contractor shall provide a portable weathertight field office at the job site with a telephone, fax machine, and email capability. 5.5.2 At no time shall the contractor cause disruption to tenants within the existing building as a result of objectionable odor producing activities, such as use of solvent-based paint or adhesive products by contractor personnel. If, in the sole opinion of Landlord, or its designee, if objectionable odor is produced, upon notification, Tenant, through its contractor, shall immediately take remedial action to address the problem. 5.5.3 Noise levels shall not exceed those for construction activities outlined in either King County Code 12.88 or the Kent City Code, whichever is more restrictive. 5.5.4 Furnish and maintain all pumps or other dewaterin devices which may be p P g Y required by this work. 5.5.5 Provide methods to control surface water and � water underground as g applicable). Prevent damage to project work, site, and adjoining properties. Control excavation, grading and ditching to direct surface drainage away from construction areas, and to direct drainage to proper runoff sources. 5.5.6 Dispose of drainage water in a legal manner which prevents flooding, and other damage to any portion of the building, site or adjoining areas. 5.5.7 Apply for and obtain any required NPDES permit from the State. 5.5.8 Remove all temporary construction and facilities from structures and I Property following Substantial Completion, and restore existing facilities used during construction to their original condition. Restore permanent facilities used during construction to specified condition. 5.5.9 Provide mitigation and clean up of dust within office areas on at least a weekly basis, unless required more often. 5.6 Quality Assurance AUKEEN DISTRICT COURT EXPANSION LEASE Page 47 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 5.6.1 Provide and maintain an effective quality control program and perform sufficient inspections and tests of all items of work, including those of subcontractors, to ensure compliance with Final Approved Design. 5.6.2 Furnish appropriate facilities, instruments, and testing devices required for performance of the quality control program. 5.6.3 Quality controls must be adequate to cover construction operations and be keyed to the construction sequence. 5.6.4 Tenant's contractor shall provide for procedures to ensure that the Final Approved Design, and latest shop drawings, and instruction by the contract are used for fabrication, testing, and inspection. 5.6.5 The Tenant's contractor is responsible for the coordination of the work for all trades under the contract and with other contractors. The Tenant's contractor shall check specifications, addenda, and the drawings covering all trades as the work progresses. The Tenant's contractor shall promptly report to the Landlord's project manager any omissions, conflicts, or points requiring clarification. 5.6.6 Equipment and Material: It is the contractor's responsibility to be certain that all equipment and materials selected by him, or for him by his subcontractors or material suppliers, conform exactly to the requirements of the Final Approved Design. The approval of a manufacturer's name by Tenant's project manager does not relieve the contractor of the responsibility for providing materials and equipment which comply with the Final Approved Design. 5.6.7 Before the installation of every major unit of work which requires coordination with other work, ensure that the unit of work can be installed and function as intended and required to conjunction with other work which has preceded or will follow. If the installer reports unsatisfactory conditions for installation, do not proceed until these conditions have been corrected. 5.6.8 Tenant's contractor warrants that all materials and equipment furnished under this Work Letter Agreement will be new unless otherwise specified, and that all work will be of good quality, free from faults and defects and in conformance with the Final Approved Design. All work not so conforming to these standards may be considered defective. If required by Landlord, Tenant's contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The warranty provided herein shall be in addition to and not in place of any other warranty or remedy required by law or elsewhere in this Work Letter Agreement or in AUKEEN DISTRICT COURT EXPANSION LEASE Page 48 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work i i the Lease. For the purposes of this Work Letter Agreement, "new materials and equipment" means that all such materials and equipment shall be in current production at time of bidding. No discontinued lines, patterns, materials, or colors will be permitted. 6.0 LANDLORD ACCESS TO PREMISES 6.1 During the construction period, Tenant's contractor will need to alter or temporairily restrict the district court's access to areas of the Property, Building and Premises. Such restrictions will accommodate the need to carry on the business of four (4) courtrooms, maintain systems within the Building , and address emergency situations not specifically mentioned Tenant's contractor and project manager shall schedule access alterations with Landlord's Project Manager, inconsultation with the district and municipal court administrators during regularly scheduled meetings. 6.2 Except as specifically provided herein, Landlord shall have "24/7" access to the Property, Building and Premises; provided, however, that except in situations requiring immediate access, Landlord shall reasonably notify Tenant to coordinate such access. 6.3 Landlord shall continue to provide rodent and pest control in the Building during the construction period. Such services will be provided on an"as needed" basis by determination of Landlord's pest control personnel or by specific request of Tenant. Landlord does not make and specifically disclaims any warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose, with respect to such services. Tenant shall reimburse Landlord for all costs of such services required as a result of Tenant's Work. Landlord may invoice Tenant for reimbursement for such costs on a quarterly basis with Additional Rent. Tenant shall fully reimburse Landlord within 30 days of receipt of such an invoice. Total rodent and pest control costs to be reimbursed by Tenant shall not exceed ten percent (10%) of the base rent for one month. 7.0 INDEMNITY AND HOLD HARMLESS Tenant shall indemnify, defend (using legal counsel acceptable to Landlord) and hold Landlord harmless from all claims, damages, costs,judgments and settlements against Landlord from Tenant's contractor or subcontractors arising from the construction covered in this Work Letter. Tenant further agrees to indemnify, defend and hold Landlord harmless for any personal injury or property damage claims arising from the construction of the Tenant Improvements contemplated in this Work Letter. Nothing in this Section 7.0 shall require Tenant to protect, defend and indemnify Landlord to the extent of Landlord's negligence. This indemnity with respect to acts or omissions during the term of construction of tenant improvements shall survive termination and expiration of the Lease. The foregoing indemnity covers actions brought by Tenant's own employees and it is specifically and expressly intended to constitute a waiver of Tenant's own immunity, as respects the Landlord only, under Washington's Industrial Insurance Act, RCW Title 51, only to the extent necessary to provide Landlord with a full and complete indemnity from claims made by Tenant and its employees, to the extent provided herein. Tenant shall promptly notify Landlord of casualties or accidents occurring during construction. AUKEEN DISTRICT COURT EXPANSION LEASE Page 49 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 1 TENANT AND LANDLORD ACKNOWLEDGE THAT THE INDEMNIFICATION PROVISIONS OF THIS SECTION 7 WERE SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM. 8.0 INSURANCE REQUIREMENTS 8.1 By the date of execution of this Work Letter Agreement, and in addition to the insurance requirements in the Lease, the Tenant shall procure and maintain for the duration of this Work Letter Agreement, insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the performance of work hereunder by the Tenant, its agents, representatives, employees and/or contractor/sub-contractors. The Tenant or contractor/sub-contractor shall pay the costs of such insurance. The Tenant shall furnish separate certificates of insurance and policy endorsements from each contractor/sub-contractor as evidence of compliance with the insurance requirements of this Work Letter Agreement. The insurance requirements contained herein are separate and in addition to those required in the Lease. 8.2 The Tenant is responsible for ensuring compliance with all of the insurance requirements stated herein. Failure by the Tenant, its agents, employees, officers, contractor/sub-contractors to comply with the insurance requirements stated herein shall constitute a material breach of this Work Letter Agreement. 8.3 Each insurance policy shall be written on an "occurrence" form; except that insurance on a"claims made" form may be acceptable with prior Landlord approval. If coverage is approved and purchased on a "claims made" basis, the Tenant warrants continuation of coverage, either through policy renewals or the purchase of an extended discovery period, if such extended coverage is available, for not less than three years from the date of Work Letter Agreement termination, and/or conversion from a "claims made" form to an "occurrence" coverage form. Nothing contained within these insurance requirements shall be deemed to limit the scope, application and/or limits of the coverage afforded by said policies, which coverage will apply to each insured to the full extent provided by the terms and conditions of the policy(s). Nothing contained in this provision shall affect and/or alter the application of any other provision contained within this Work Letter Agreement. 8.4 By requiring such minimum insurance, the Landlord shall not be deemed or construed to have assessed the risks that may be applicable to the Tenant under this Work Letter Agreement, nor shall such minimum limits be construed to limit the limits available under any insurance coverage obtained by the Tenant. The Tenant shall assess its own risks and, if it deems appropriate and/or prudent, maintain greater limits and/or broader coverage. 8.5 Minimum Scope of Insurance. Coverage shall be at least as broad as the following: AUKEEN DISTRICT COURT EXPANSION LEASE Page 50 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work i 8.5.1 General Liability: Insurance Services Office form number (CG 00 01) covering COMMERCIAL GENERAL LIABILITY. 8.5.2 Professional Liability, Errors and Omissions Coverage: In the event that services delivered pursuant to this Work Letter Agreement either directly or indirectly involve or require professional services, Professional Liability, Errors and Omissions coverage shall be provided. "Professional Services", for the purpose of this Work Letter Agreement section, shall mean any services provided by a licensed professional or those services that require a professional standard of care. 8.5.3 Automobile Liability: Insurance Services Office form number (CA 00 01) covering BUSINESS AUTO COVERAGE, symbol 1 "any auto"; or the appropriate coverage provided by symbols 2, 7, 8, or 9. 8.5.4 Workers' Compensation: Workers' Compensation coverage, as required by the Industrial Insurance Act of the State of Washington, as well as any similar coverage required for this work by applicable federal or "Other States" state law. 8.5.5 Stop Gap/Employers Liability: Coverage shall be at least as broad as the protection provided by the Workers' Compensation policy Part 2 (Employers Liability) or, in states with monopolistic state funds, the protection provided by the "Stop Gap" endorsement to the general liability policy. 8.5.6 Builder's Risk/Installation Floater: The Tenant/Contractor shall procure and maintain during the life of the Work Letter Agreement, or until issuance of a final occupancy permit, whichever is longer, "All Risk" Builders Risk Insurance at least as broad as ISO form number CP0020 (Builders Risk Coverage Form) with ISO form number CP0030 (Causes of Loss—Special Form) including coverage for collapse, theft and property in transit. The coverage shall insure for direct physical loss to property of the entire construction project, for one hundred percent of the replacement value thereof. The policy shall be endorsed to cover the interests, as they may appear, of King County, Owner, Tenant, contractor and sub- contractors of all tiers with King County listed as a loss payee. 8.5.7 Minimum Limits of Insurance—Capital Projects: The Tenant shall maintain limits no less than the following: a) Commercial General Liability: $1,000,000 combined single limit per occurrence by bodily injury, personal injury, and property damage; and for those policies with aggregate limits, a $2,000,000 aggregate limit. AUKEEN DISTRICT COURT EXPANSION LEASE Page 51 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work b) Professional Liability, Errors, and Omissions: 1 000 000, Per Claim and in the Aggregate. c) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage if the use of motor vehicles is contemplated. d) Workers' Compensation: Statutory requirements of the state of residency. e) Stop Gap/Employers Liability: 1,000,000. f) Builders Risk Insurance: One hundred percent replacement value of funded structure. 8.6 Deductibles and Self-Insured Retentions: Any deductibles or self-insured retentions must be declared to, and approved by, the Landlord. The deductible and/or self-insured retention of the policies shall not apply to the Tenant's liability to the Landlord and shall be the sole responsibility of the Tenant. 8.7 Other Insurance Provisions: The insurance policies required in this Work Letter Agreement are to contain, or be endorsed to contain, the following provisions: 8.7.1 All Liability Policies except Professional and Workers Compensation: The Landlord, its officers, officials, employees, and agents are to be covered as additional insureds on the contractor's insurance as respects liability arising out of activities performed by or on behalf of the Tenant/contractor to connection with this Work Letter Agreement. Such coverage shall include Products-Completed Operations. 8.7.2 The Tenant's/contractor's insurance coverage shall be primary insurance as respects Landlord, its officers, officials, employees, and agents. Any insurance and/or self-insurance maintained by Landlord, its officers, officials, employees, or agents shall not contribute with the Tenant's insurance or benefit the Tenant in any way. 8.7.3 The Tenant's/contractor's insurance shall apply separately to each insured against whom claim is made and/or lawsuit is brought, except with respect to the limits of the insurer's liability. 8.7.4 Property Coverage Policies: Landlord shall be added as a Named Insured as their interests may appear to all Builders Risk policies. AUKEEN DISTRICT COURT EXPANSION LEASE Page 52 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work 1 1 8.7.5 All Policies: Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits, except by the reduction of the applicable aggregate limit by claims paid, until after 45 days prior written notice has been given to Landlord. 8.8 Acceptability of Insurers. Unless otherwise approved by Landlord, insurance is to be placed with insurers with a Bests' rating of no less than A: VIII, or, if not rated with Bests, with minimum surpluses the equivalent of Bests' surplus size VIII. Professional Liability, Errors, and Omissions insurance may be placed with insurers with a Bests' rating of B+VII. Any exception must be approved by Landlord. If, at any time, the foregoing policies shall fail to meet the above requirements, the Tenant shall, upon notice to that effect from Landlord, promptly obtain a new policy, and shall submit the same to Landlord, with appropriate certificates and endorsements, for approval. 8.9 Verification of Coverage. The Tenant shall furnish Landlord with certificates of insurance and endorsements required by this Work Letter Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements for each insurance policy are to be on forms approved by Landlord prior to the commencement of activities associated with the Work Letter Agreement. Landlord reserves the right to require complete, certified copies of all required insurance policies at any time. 8.10 Tenant shall include all contractors as insureds under its policies or shall require p q separate certificates of insurance and policy endorsements from each contractor. If Tenant is relying on the insurance coverages provided by contractors as evidence of compliance with the insurance requirements of this Work Letter Agreement, then such requirements and documentation shall be subject to all of the requirements stated herein. 8.11 If Tenant is a municipal corporation or an Agent of the state of Washington and is self-insured for any of the above insurance requirements, a certification of self-insurance shall be ; provided for the self-insured requirements and attached hereto and be incorporated by reference and shall constitute compliance with this Section 8. If the certificate of self-insurance does not cover all mandatory requirements, Tenant shall provide separate certificates and endorsements that document coverage. 9.0 GENERAL 9.1 This Work Letter Agreement, the Preliminary and Final Approved Plans, and any approved Field Change Orders shall constitute the complete construction specifications and no other representations, or oral agreements between the parties shall be recognized in the event of a dispute between Landlord and Tenant. 9.2 Time is of the essence with respect to each of the duties and obligations of Landlord and Tenant set forth in this Work Letter Agreement. Notwithstanding any of the foregoing provisions hereof, default by Tenant or Landlord under any provisions of this Work AUKEEN DISTRICT COURT EXPANSION LEASE Page 53 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work Letter Agreement which are not cured within applicable notice and cure periods set forth in the Lease shall constitute a default under the Lease. 9.3 Any notice, statement, advice, approval (with the exception of design approval pursuant to section 2.0 and Field Change Orders pursuant to section 3.0), consent or other communication required or permitted to be given by either party to the other pursuant to this Work Letter Agreement shall be given in the manner set forth in Section 31 (Notices) of the Lease. 9.4 In any instance where this Work Letter Agreement expressly provides that Tenant must obtain Landlord's approval or consent, and Landlord fails to act within the specified time period, Landlord shall be conclusively deemed to have granted its approval or consent. 9.5 It is understood and agreed that this Work Letter Agreement is solely for the benefit of the parties hereto and gives no right to any other party. No joint venture or partnership is formed as a result of this Work Letter Agreement. No employees or agents of Tenant or any of its contractors or subcontractors shall be deemed, or represent themselves to be, employees of Landlord. Tenant shall comply, and shall ensure its contractors comply, with all federal, state and local laws, regulations, and ordinances applicable to the work and services to be performed under this Work Letter Agreement. The parties'rights and remedies in this Work Letter Agreement are in addition to any other rights and remedies provided by law. This Work Letter Agreement shall be interpreted in accordance with the laws of the State of Washington in effect on the date of execution of this Work Letter Agreement. The Superior Court of King County, Washington, shall have exclusive jurisdiction and venue over any legal action arising under this Work Letter Agreement. TENANT AND LANDLORD AGREE TO THE ABOVE TERMS CONTAINED IN THIS EXHIBIT C AND ATTACHMENTS AND TO THE RELATED PROVISIONS OF THE LEASE TO WHICH THIS EXHIBIT C IS ATTACHED. TENANT: LANDLORD: CITY OF KENT KING COUNTY By: By: Its: Its: Date: Date: APPROVED AS TO FORM: Kim Adams Pratt, Asst. City Attorney Sr. Deputy Prosecuting Attorney AUKEEN DISTRICT COURT EXPANSION LEASE Page 54 EXHIBIT C: Work Letter Agreement—Tenant Improvements and Tenant's Work ATTACHMENT 1 PRELIMINARY APPROVED DESIGN 30 PERCENT DEVELOPMENT STAGE i 1 AUKEEN DISTRICT COURT EXPANSION LEASE Page 55 EXHIBIT C: ATTACHMENT 1—Preliminary Approved Design,30%Development Stage ATTACHMENT 2 FINAL APPROVED DESIGN AUKEEN DISTRICT COURT EXPANSION LEASE Page 56 EXHIBIT C: ATTACHMENT 2—Final Approved Design EXHIBIT D Formula for allocating value of Facility (Building and Property) upon Termination or Expiration of Lease This formula for allocating value is part of and incorporated into that certain Lease (the "Lease") between King County, a political subdivision of the State of Washington (hereafter "Landlord") and the City of Kent, a municipal corporation (collectively "Parties"), for the Premises, as defined in Section LB of the Lease, located at 1210 S. Central Avenue, Kent, WA 98032. Capitalized terms shall have the meanings set forth in the Lease. In case of conflicting definitions, the definitions contained herein shall control. 1. Concept: 1.1 The City and County should both receive value for their respective investment upon sale of the Aukeen District Court facility ("Facility"), or termination or expiration of the Lease. That value should be determinable at any point in time based upon an agreed formula as set forth in this Exhibit D. 1.2 The formula below would apply whether the Facility is sold to a third party (because the City chose not to exercise its Right of First Offer), or to the City (upon termination for convenience or expiration of the Lease), or the County elects to retain the Facility (upon default termination or expiration of the Lease). 1.3 The formula would not apply in the event termination occurs prior to the Date of Commencement of Tenant Improvements. The formula should be read together with the City's Right of First Offer to purchase the Facility in order to determine the cost to the City to exercise that right. 2. Terms: 2.1 Facility: The Facility consists of a courthouse building ("Building" as defined in Section 1 of the Lease) and the parcel of real property on which it sits (the "Property" as defined in Section 1 of the Lease), as the Building and Property are expanded and or modified in order to accomplish the Project. 2.2 Project: The defined project described in Exhibit C of the Lease, that generally being the addition of 3 courtrooms, 3 judge's chambers, and renovation of common spaces in the Building, together with ancillary space. 2.3 Appraiser: A real property appraiser jointly selected by the City and County, through process defined in Section 26 of the Lease. AUKEEN DISTRICT COURT EXPANSION LEASE Page 57 EXHIBIT D: Formula for Allocating Value Upon Lease Termination or Expiration 2.4 Lease: The Agreement between the City and County authorizing the City to lease portions of the existing Premises, undertake the Project, and upon completion of that Project, lease a defined portion of the expanded Facility, namely, certain Premises thereof. 2.5 Pre-Construction Appraisal Value: The Fair Market Value of the Facility as a courthouse immediately prior to commencement of construction of the Project, as determined by the Appraiser. 2.6 Post-Construction Appraisal Value: The Fair Market Value of the Facility as a courthouse determined by the Appraiser, upon completion of the Project. 2.7 Fair Market Value: The amount in cash which a well informed buyer, willing but not obligated to buy the property, would pay, and which a well informed seller, willing but not obligated to sell, would accept, taking into consideration the continued use of the Facility as a courthouse. 2.8 Lease Term: The period in which the Lease is in effect. 2.9 Lease Commencement Date: The first date on which the Lease is in effect. 2.10 Lease Termination Date: The last date on which the Lease is in effect. 2.11 Expiration Date: The last date on which the Lease is in effect per Section 1.13.5 of the Lease (natural expiration of the Lease term, 20 years following Commencement Date), as that date may be extended. 2.12 Termination Refund Offset Cost: As defined in Section 14.13.1 of the Lease. 3. Formulas: the formulas for calculatingthe amounts owed to the County and City under tY h' various scenarios of lease termination and sale of Facility are as provided below: L=(SxK) + P T= (S—L) L = Amount owed to County, as owner and Landlord, upon sale of the Facility or Lease termination/expiration. T = Amount owed to City, as investor and Tenant, upon sale of the Facility or Lease termination/expiration. S = Fair Market Value of the Facility at the date of Lease Termination or Lease Expiration (as applicable), as determined by the Appraiser. If the Facility is sold to a third party, then S will equal Fair Market Value (as determined by the Appraiser) or the sale price, whichever is higher. Taxes, fees and closing costs paid by County, if any, to accomplish the sale AUKEEN DISTRICT COURT EXPANSION LEASE Page 58 EXHIBIT D: Formula for Allocating Value Upon Lease Termination or Expiration to the City or third party shall be included in the calculation of "S". In the event of a termination of the Lease for condemnation or casualty/damage, "S" shall equal the amount of ' proceeds of condemnation awarded, or insurance proceeds in the event of casualty/damage, to the County as owner of the Facility. K = The percentage that the Pre-Construction Appraisal Value bears to the Post- Construction Appraisal Value. For example, if the Pre-Construction Appraisal Value of the Facility is $2 Million, and the Post-Construction Appraisal Value is $5.6 Million, K= 35.7% P = The amount Termination Refund Offset Cost chargeable to the City in the event the County terminates the Lease for default. 4. Timing of Payment: 4.1 In the event of a default termination in which the County retains the Facility, T is payable to the City over seven (7) years, in roughly equal amounts, subject to Section 14.B.1 of the Lease. 4.2 In the event of any other termination or expiration, payment to the City or County (as appropriate) shall be made at closing (in event of sale to City or a third party) or within ninety (90) days of Lease expiration(in event County retains the Facility). 5. Hypothetical Examples: the following are hypothetical examples of how the formulas would be used to calculate the amounts owed to the County and City under various scenarios of lease termination and sale of Facility: 5.1 Formula Calculation in event of termination for convenience by County. . Assume: Building is valued at $4M by Appraiser prior to Tenant's construction of Project. j Post-construction value is appraised at $6M. 5 years later, County terminates Lease for convenience and City elects to purchase the Facility per its Right of First Offer. Appraised FMV of Facility at Lease Termination Date is $7M (including closing costs for transfer). Formula Calculation: K=4= 6 =67% S = $7M P= 0 L = ($7M x .67) = $4,690,000 == amount paid by City to County upon closing of t sale. AUKEEN DISTRICT COURT EXPANSION LEASE Page 59 EXHIBIT D: Formula for Allocating Value Upon Lease Termination or Expiration T= ($7M - $4,690,000) _ $2,310,000 == share of building value deducted from S to establish L. 5.2 Formula Calculation in event City defaults under Lease and County terminates Lease and retains the Facility. Assume: Building is valued at$4M by Appraiser prior to Tenant's construction of Project. Post-construction value is appraised at$6M. 5 years later, Tenant defaults under Lease and Landlord terminates the Lease and elects to retain title to the Facility. Landlord incurs $10,000 in attorney's fees and costs as a result of default. Formula Calculation: K=4=6 = 67% S = $7M P= $10000 L = ($7M x .67) + $10,000 = $4,700,000 = share of building value retained by County. T = ($7M - $4,700,000) _ $2,300,000 == amount paid to City by County in roughly equal amounts over 7 years. l AUKEEN DISTRICT COURT EXPANSION LEASE Page 60 EXHIBIT D: Formula for Allocating Value Upon Lease Termination or Expiration EXHIBIT E RECIPROCAL PARKING EASEMENT AFTER RECORDING RETURN TO: City of Kent Attn: Property Manager 220 Fourth Avenue S Kent, Washington 98032 Grantor: City of Kent, a Washington municipal corporation. Grantee : King County, a political subdivision of Washington. Abbreviated Legal Description: Ptn. Tract 24 Horseshoe Acre Tracts recorded in Vol. 15, g p page 10 and a Ptn. of S.W. Russell DLC lying in the NW '/4, 25-22-04, King County, State of Washington. Additional Legal Description See Exhibit 1. Assessor's Tax Parcel ID No. 346280-0205-0 and 000660-0043-0. Project Name: Kent Municipal Court Parking Lot Document Date: RECIPROCAL PARKING EASEMENT THIS INSTRUMENT made this day of , 20_, by and between the CITY OF KENT, a municipal corporation of the State of Washington (the "City") and KING COUNTY, a political subdivision of the State of Washington(the "County "). 1. Propegy. The City owns the real property legally described as Lot A, B and C in Exhibit 1 and depicted in Exhibit 2, which are incorporated by this reference. The County owns the adjoining real property legally described as Lot D in Exhibit 1 and depicted in Exhibit 2. The City has constructed five parking lots on the real property described in Exhibit 1. These parking lots are depicted on Exhibit 3 incorporated herein: a) Phase I consists of thirty-two (32) parking stalls, built on Lots C and D, non-restricted parking used by the public in conjunction with the government services existing on Lot C and D; b) Phase II consists of twenty-six (26) parking stalls, built on Lots C and D, restricted parking for City and County personnel; AUKEEN DISTRICT COURT EXPANSION LEASE Page 61 c) Phase III consists of fifty-one (51) parking stalls, built on Lot C, 48 stalls restricted for City and County personnel and 3 stalls for general public; d) Phase IV consists of eighty-four (84) parking stalls, built on Lot C, non-restricted parking used by the public in conjunction with the government services existing on Lot C and D; and; e) Phase V is proposed to be built and will consist of approximately seventy-one (71) stalls to be constructed on Lots A and B. Maintenance and use of Phase V is addressed in that certain Lease between the parties dated and to which this Reciprocal Parking Easement is attached. 2. Purpose. The purpose of this Parking Easement is to grant the City and the County the right to use the portions of the parking lots constructed on the other party's real property for Phase I, Phase II, Phase III, and Phase IV and to establish the allocation of the restricted parking stalls in Phase II and Phase III as between the City and the County to provide perpetual parking rights to the City and County buildings which are appurtenant to this easement. In consideration for the County entering into that certain Lease dated (to which this Reciprocal Parking Easement is attached) is the assurance of continued access by the public and by County staff, both for the term of the Lease and thereafter in the event the County retains title to the Building and including further the ability to assure such parking access rights to the County's successors in interest. Therefore, while the Lease is in effect, and so long thereafter as the County owns the building appurtenant to this easement and has not exercised its right to acquire title to the said parking lots and the City jail property, Tenant grants the County the non- exclusive right to use and access the parking stalls in the Phase I through IV parking lots/stalls described herein, including therein some spaces for the County's restricted use, and the balance for public use for access to both County and City services. 3. Grant to City. The County, for and in consideration of mutual benefits derived and/or other valuable consideration, receipt of which is hereby acknowledged by the County, does grant to the City, its successors and/or assigns, an easement for use of and access to that portion of the Phase I and Phase I1 parking stalls depicted in Exhibit 3 which are located on the real property legally described in Exhibit 1 as Lot D and the balance of the parking stalls for public use associated with County and City services provided by the buildings that are appurtenant to this easement. The County reserves the right to use the easement area, so long as that use does not unreasonably interfere with the use of the City and public parking and so long as that use is consistent with the conveyance by the City in the following paragraph. 4. Grant to County. The City, for and in consideration of mutual benefits derived and/or other valuable consideration, receipt of which is hereby acknowledged by City, does grant to the County, its successors and/or assigns, an easement for use of and access to any portion of the Phase I, Phase II, Phase III, and Phase IV parking stalls identified in Exhibit 3, which are located on the real property legally described in Exhibit 1 as Lot C and the balance of the parking stalls for public use associated with County and City services provided by the buildings that are appurtenant to this easement. The City shall retain the right to use the easement area, so long as that use does not unreasonably interfere with the use of the County and public parking and so long as that use is consistent with the conveyance by the County in the previous paragraph. AUKEEN DISTRICT COURT EXPANSION LEASE Page 62 5. Non-Discrimination. The City shall not enact any policy which would have the effect, intended or unintended, of rendering public parking for County services at a disadvantage relative to public parking for City services. Likewise, the County shall not enact any policy which would have the effect, intended or unintended, of rendering public parking for City services at a disadvantage relative to public parking for County services. 6. Parking Stall Allocation. The County will have use of and access to seven (7) of the twenty-six (26) Phase II parking stalls and use of and access to sixteen (16) of the forty-eight (48) Phase III restricted parking stalls. 7. Maintenance. The City shall maintain and repair the constructed parking lots as shown in Exhibit 3. The cost of such maintenance and repair shall be allocated among the City and County until such time that the Lease shall expire or terminate, commencing upon completion of Phase V construction. The County shall pay to the City County's share of Phase I, Phase II, Phase III, and Phase IV reasonable parking lot maintenance and repair expenses based on a one third (1/3) allocation of those direct expenses incurred by the City, which maintenance and repair expenses shall be commensurate with maintenance and repair expenses for City- owned and maintained parking lots of similar usage. A list and schedule of standard City maintenance and repair is attached and incorporated as Exhibit 4. The City shall provide the County quarterly with an invoice showing the calculation of these direct expenses, which shall be due and payable to the City within 30 days of invoicing. Upon expiration or termination of the Lease, the County's maintenance obligations shall increase to two-thirds (2/3) allocation for Phase I, Phase II, Phase III and Phase IV. 8. Terms of Use. The City and County shall at all times exercise their rights under this Easement in accordance with the requirements of all applicable statutes, orders, rules and regulations of any public authority having jurisdiction. The City and County accept the easement areas in their present physical condition, "as is." 9. Indemnification. County does hereby release, indemnify and promise to defend and save harmless City from and against any and all liability, loss, damage, expense actions and claims, including costs and reasonable attorney's fees incurred by City in connection therewith, arising directly or indirectly on account of or out of the negligent exercise by County, its servants, agents, employees, and contractors of the rights granted in this Easement. City does hereby release, indemnify and promise to defend and save harmless County from and against any and all liability, loss, damage, expense actions and claims, including costs and reasonable attorney's fees incurred by County in connection therewith, arising directly or indirectly on account of or out of the negligent exercise by City, its servants, agents, employees and contractors of the rights granted in this Easement. 10. Run with the Land; No Merger. This Reciprocal Easement shall be a covenant j running with the land forever and shall be binding on the City and County, their successors and assigns, or until such time that the County may acquire the underlying fee interest in the City's real property described in Exhibit 1, whereupon it is the intent of the County and City that the County's easement merge into its fee title; or until such time that the City may acquire the AUKEEN DISTRICT COURT EXPANSION LEASE Page 63 1 underlying fee interest in the County's real property described in Exhibit 1, whereupon it is the intent of the City and County that the City's easement merge into its fee title. 11. Neither the City or County shall charge fees for parking in any of the parking lots encumbered by this Easement unless such fees have been mutually agreed to in writing by the City and County. KING COUNTY: CITY OF KENT: By: By: Print Name: Print Name: Suzette Cooke Its: Its: Mayor Date: Date: STATE OF WASHINGTON ) ss. COUNTY OF KING ) I hereby certify that on the day of , 2008, I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she is authorized to execute the instrument on behalf of the KING COUNTY, as its , and such execution to be the free and voluntary act of such party for the uses and purposes mentioned in the foregoing instrument. -Notary Seal Mwt Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. NOTARY PUBLIC, in and for the State of Washington residing at My appointment expires STATE OF WASHINGTON ) ss. COUNTY OF KING ) AUKEEN DISTRICT COURT EXPANSION LEASE Page 64 I hereby certify that on the day of , 2008, I know or have satisfactory evidence that Suzette Cooke is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she is authorized to execute the instrument on behalf of the CITY OF KENT as its Mayor, and such execution to be the free and voluntary act of such party for the uses and purposes mentioned in the foregoing instrument. -Notary Seal Must Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. NOTARY PUBLIC in and for the State of Washington residing at My appointment expires APPROVED AS TO FORM: King County Sr. Prosecuting Attorney APPROVED AS TO FORM: City Attorney AUKEEN DISTRICT COURT EXPANSION LEASE Page 65 RIDER ONE WHEN RECORDED RETURN TO: Property Management City of Kent 220 Fourth Avenue South Kent, Washington 98032 Grantor: King County, a political subdivision of Washington. Grantee: City of Kent, a Washington municipal corporation. Abbreviated Legal Description: Ptn. Tract 24 Horseshoe Acre Tracts recorded in Vol. 15, page 10 and a Ptn. Of S.W. Russell DLC lying in the NW '/4, 25-22-04, King County, State of Washington. Additional Legal Description See Attachment A-1. Assessor's Tax Parcel ID No. 000660-0043-0. Project Name: Aukeen District Court FacilityPurchase. Document Date: AMENDMENT TO RIGHT OF FIRST OFFER TO PURCHASE PROPERTY (Aukeen District Court Facility) This Amendment to Right of First Offer (the "Amendment Agreement") is made this day of , by and between KING COUNTY, a municipal corporation and political subdivision of the State of Washington ("King County") and the CITY OF KENT, a municipal corporation of the State of Washington("City of Kent"). AUKEEN DISTRICT COURT EXPANSION LEASE Page 66 RECITALS A. King County is the owner of certain real property commonly known as the Aukeen 1 District Court facility and certain real property underlying that facility (collectively known as "Facility"). B. The City of Kent has an interest in acquiring the Facility. C. In order to preserve the potential for the City of Kent to acquire the Facility, King County has heretofore granted the City of Kent a right of first offer to purchase the Facility. D. The City of Kent has entered into a long-term Lease with King County which includes an expansion and renovation of the Facility at the sole cost of the City of Kent. Such expansion will affect the fair market value of the Facility. E. In consideration for the expansion costs borne by the City of Kent, the City of Kent will be charged fair market rent for the Premises described in the Lease until the exercise of this Right of First Offer. F. In order to reflect the investment in the Facility and the value of the Facility to King County and the City of Kent, respectively, a formula will be used to determine the purchase price if and when the Right of First Offer is exercised. G. In order to accomplish the expansion of the Facility, the underlying real rope shall be p g property amended by a Lot Line Adjustment, after which time the Facility as amended by the Lot Line Adjustment shall be subject to the Right of First Offer, and an amended legal description shall be set forth in Attachment"A" incorporated herein. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: Upon removal of the Lot Line Adjustment contingency contained in Section 1.B.2 of that certain Lease, dated (recording number ) ("Lease"), Attachment A to that certain Right of First Offer Agreement dated January 22, 2003, and filed under recording number 20030122002928 ("Original Agreement") shall be repealed and replaced by the amended legal description reflecting the Lot Line Adjustment attached as Attachment A-1 incorporated herein. Upon exercise of the Right of First Offer, the formula provided in Attachment B hereto i shall be applied to determine the purchase price of the Facility. The formula in Attachment B shall similarly be applied to determine the purchase price offered to third parties by King County. All other terms and conditions of said Original Agreement remain in full force and effect. AUKEEN DISTRICT COURT EXPANSION LEASE Page 67 DATED as of the day and year first above written. KING COUNTY CITY OF KENT a political subdivision of Washington a Washington municipal corporation By: By: Print Name: Print Name: Suzette Cooke Its: Its: Mayor Date: Date: STATE OF WASHINGTON ) ss. COUNTY OF KING ) I hereby certify that on the day of , 2008, I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he is authorized to execute the instrument on behalf of the KING COUNTY, as its , and such execution to be the free and voluntary act of such party for the uses and purposes mentioned in the foregoing instrument. -Notary Seal Must Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. NOTARY PUBLIC, in and for the State of Washington residing at My appointment expires AUKEEN DISTRICT COURT EXPANSION LEASE Page 68 STATE OF WASHINGTON ) ss. COUNTY OF KING ) I hereby certify that on the day of , 2008, I know or have satisfactory evidence that Suzette Cooke is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she is authorized to execute the instrument on behalf of the CITY OF KENT as its Mayor, and such execution to be the free and voluntary act of such party for the uses and purposes mentioned in the foregoing instrument. -Notary Seal Must Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. NOTARY PUBLIC in and for the State of Washington residing at My appointment expires AUKEEN DISTRICT COURT EXPANSION LEASE Page 69 ATTACHMENT A-1: LEGAL DESCRIPTION OF PROPERTY (as amended by Lot Line Adjustment) AUKEEN DISTRICT COURT EXPANSION LEASE Page 70 ATTACHMENT B: Formula for allocating value of Facility (Building and Property) upon Termination or Expiration of Lease This formula for allocating value is part of and incorporated into that certain Lease (the "Lease") between King County, a political subdivision of the State of Washington (hereafter "Landlord") and the City of Kent, a municipal corporation (collectively "Parties"), for the Premises, as defined in Section LB of the Lease, located at 1210 S. Central Avenue, Kent, WA 98032. Capitalized terms shall have the meanings set forth in the Lease. In case of conflicting definitions, the definitions contained herein shall control. 1. Concept: 1.1 The Cityand County should both receive value for their respective investment tY p upon sale of the Aukeen District Court facility ("Facility"), or termination or expiration of the Lease. That value should be determinable at any point in time based upon an agreed formula as set forth in this Exhibit D. 1.2 The formula below would apply whether the Facility is sold to a third party (because the City chose not to exercise its Right of First Offer), or to the City (upon termination for convenience or expiration of the Lease), or the County elects to retain the Facility (upon default termination or expiration of the Lease). 1.3 The formula would not apply in the event termination occurs prior to the Date of Commencement of Tenant Improvements. The formula should be read together with the City's Right of First Offer to purchase the Facility in order to determine the cost to the City to exercise that right. 2. Terms: 2.1 Facility: The Facility consists of a courthouse building ("Building" as defined in Section 1 of the Lease) and the parcel of real property on which it sits (the "Property" as defined in Section 1 of the Lease), as the Building and Property are expanded and or modified in order to accomplish the Project. 2.2 Project: The defined project described in Exhibit C of the Lease, that generally being the addition of 3 courtrooms, 3 judge's chambers, and renovation of common spaces in the Building, together with ancillary space. 2.3 Appraiser: A real property appraiser jointly selected by the City and County, through process defined in Section 26 of the Lease. AUKEEN DISTRICT COURT EXPANSION LEASE Page 71 2.4 Lease: The Agreement between the City and County authorizing the City to lease portions of the existing Premises, undertake the Project, and upon completion of that Project, lease a defined portion of the expanded Facility, namely, certain Premises thereof. 2.5 Pre-Construction Appraisal Value: The Fair Market Value of the Facility as a courthouse immediately prior to commencement of construction of the Project, as determined by the Appraiser. 2.6 Post-Construction Appraisal Value: The Fair Market Value of the Facility as a courthouse determined by the Appraiser, upon completion of the Project. 2.7 Fair Market Value: The amount in cash which a well informed buyer, willing Y � g but not obligated to buy the property, would pay, and which a well informed seller, willing but not obligated to sell, would accept, taking into consideration the continued use of the Facility as a courthouse. 2.8 Lease Term: The period in which the Lease is in effect. 2.9 Lease Commencement Date: The first date on which the Lease is in effect. 2.10 Lease Termination Date: The last date on which the Lease is in effect. 2.11 Expiration Date: The last date on which the Lease is in effect per Section 1.B.5 of the Lease (natural expiration of the Lease term, 20 years following Commencement Date), as that date may be extended. 2.12 Termination Refund Offset Cost: As defined in Section 14.B.1 of the Lease. 3. Formulas: the formulas for calculating the amounts owed to the County and City under various scenarios of lease termination and sale of Facility are as provided below: L = (SxK)+ P T =(S—L) L = Amount owed to County, as owner and Landlord, upon sale of the Facility or Lease termination/expiration. T = Amount owed to City, as investor and Tenant, upon sale of the Facility or Lease termination/expiration. AUKEEN DISTRICT COURT EXPANSION LEASE Page 72 S = Fair Market Value of the Facility at the date of Lease Termination or Lease Expiration (as applicable), as determined by the Appraiser. If the Facility is sold to a third party, then S will equal Fair Market Value (as determined by the Appraiser) or the sale price, whichever is higher. Taxes, fees and closing costs paid by County, if any, to accomplish the sale to the City or third party shall be included in the calculation of "S". In the event of a termination of the Lease for condemnation or casualty/damage, "S" shall equal the amount of proceeds of condemnation awarded, or insurance proceeds in the event of casualty/damage, to the County as owner of the Facility. K = The percentage that the Pre-Construction Appraisal Value bears to the Post- Construction Appraisal Value. For example, if the Pre-Construction Appraisal Value of the Facility is $2 Million, and the Post-Construction Appraisal Value is $5.6 Million, K= 35.7% P = The amount Termination Refund Offset Cost chargeable to the City in the event the County terminates the Lease for default. 4. Timing of Payment: 11 4.1 In the event of a default termination in which the County retains the Facility, T is payable to the City over seven (7) years, in roughly equal amounts, subject to Section 14.13.1 of the Lease. 4.2 In the event of any other termination or expiration, payment to the City or County (as appropriate) shall be made at closing (in event of sale to City or a third party) or within ninety (90) days of Lease expiration(in event County retains the Facility). 5. Hypothetical Examples: the following are hypothetical examples of how the formulas would be used to calculate the amounts owed to the County and City under various scenarios of lease termination and sale of Facility: 5.1 Formula Calculation in event of termination for convenience by County. Assume: Building is valued at $4M by Appraiser prior to Tenant's construction of Project. Post-construction value is appraised at $6M. 5 years later, County terminates Lease for convenience and City elects to purchase the Facility per its Right of First Offer. Appraised FMV of Facility at Lease Termination Date is $7M (including closing costs for transfer). Formula Calculation: K=4=6 = 67% AUKEEN DISTRICT COURT EXPANSION LEASE Page 73 �r S = $7M P= 0 L = ($7M x .67) _ $4,690,000 == amount paid by City to County upon closing of sale. T= ($7M - $4,690,000) _ $2,310,000 == share of building value deducted from S to establish L. 5.2 Formula Calculation in event City defaults under Lease and County terminates Lease and retains the Facility. Assume: Building is valued at $4M by Appraiser prior to Tenant's construction of Project. Post-construction value is appraised at $6M. 5 years later, Tenant defaults under Lease and Landlord terminates the Lease and elects to retain title to the Facility. Landlord incurs $10,000 in attorney's fees and costs as a result of default. Formula Calculation: K=4= 6 = 67% S = $7M P = $10,000 L = ($7M x .67) + $10,000 = $4,700,000 = share of building value retained by County. T = ($7M - $4,700,000) _ $2,300,000 == amount paid to City by County in roughly equal amounts over 7 years. AUKEEN DISTRICT COURT EXPANSION LEASE Page 74 RIDER TWO WHEN RECORDED RETURN TO: King County Property Services Division King County Administration Building 500 Fourth Avenue, Room 500 Seattle, WA 98104 Grantor: City of Kent, a Washington municipal corporation Grantee: King County, a political subdivision of Washington.. Abbreviated Legal Description: SW RUSSELL DLC NO 41 PORTION OF SAMUEL W g p RUSSELL DONATION CLAIM NO 41 IN NE QTR STR 25-22-04 DAF HORSESHOE ACRE TRS TO KENT POR TRACT 24 & POR SW RUSSELL DLC # 41 IN NW QTR STR 25-22- 04 DAF Additional Legal Description See Attachment A. ' Assessor's Tax Parcel ID Nos. 000660-0021-0 and 346280-0205-0. Project Name: City Jail and Community Corrections Facility Purchase Document Date: RIGHT OF FIRST OFFER TO PURCHASE PROPERTY (City Jail and Community Corrections Facilities) This Right of First Offer (the "Agreement") is made this day of , by and between KING COUNTY, a municipal corporation and political subdivision of the State of Washington ("King County") and the CITY OF KENT, a municipal corporation of the State of Washington ("City of Kent"). RECITALS AUKEEN DISTRICT COURT EXPANSION LEASE Page 75 A. City of Kent is the owner of certain real property commonly known as the Kent City Jail and Community Corrections Facility and associated parking areas, legally described in Attachment"A" incorporated herein (the "Property"). B. King County has an interest in acquiring the Property. C. In order to preserve the potential for King County to acquire the Property, City of Kent has agreed to grant King County a right of first offer to purchase the Property. D. City of Kent has recorded a lot line adjustment to the Property in connection with the expansion of the Aukeen District Court facility. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Right of First Offer. If at any time after the date of this Agreement City of Kent desires to sell the Property (which does not include a change of use or custodianship within the City), subject to City of Kent Council approval, City of Kent shall first provide King County the right of first offer to purchase the Property on the terms set forth herein. 2. Notice, Terms of Transaction. Before marketing or offering the Property for sale, City of Kent shall provide King County with notice of its intent to sell (the "Sale Notice"). The Sale Notice shall be in writing, and shall specify the minimum terms and conditions under which ' City of Kent is willing to sell the Property (the "Minimum Terms"). The Minimum Terms shall include an all cash price for the sale of the Property based upon a MIA appraisal of the Property. A copy of the appraisal shall be included with the Minimum Terms. King County may pay for a second MIA appraisal if King County does not find the first appraisal acceptable. If the parties are not able to agree on a price based on the two appraisals King County will be deemed to have failed to exercise the right of first offer. The Minimum Terms shall also include the form of conveyance deed to be provided, a general description of the representations and warranties (if any) to be provided by City of Kent, a preliminary title commitment for the Property, and such other matters as City of Kent shall deem appropriate. 3. Exercise of Right. King County shall have a period of ninety (90) days after its receipt of the Sale Notice in which to exercise its right of first offer to purchase the Property on the Minimum Terms, or on such other terms as mutually agreed between City of Kent and King County. King County must exercise this right of first offer in writing, and the right shall be deemed exercised only when written notice of exercise is personally delivered to City of Kent. Failure to exercise the right of first offer in writing within such 90 day period shall cause the right to terminate as it applies to the Sale Notice. If King County does not exercise the right of first offer, at the request of City of Kent in connection with a subsequent sale of the Property, AUKEEN DISTRICT COURT EXPANSION LEASE Page 76 King County shall provide written confirmation that King County did not exercise the right. The written confirmation shall be in recordable form and may be provided by City of Kent to potential purchasers, lenders and title insurance companies which may be involved in the subsequent sales transaction. 4. Access to Property. For the ninety (90) day period after the date King County receives a Sale Notice, King County shall have the right to enter upon the Property for purposes of conducting studies, investigations and surveys of the Property. King County shall provide City of Kent with at least twenty-four(24) hours prior written notice before entering the Property for such purposes, shall conduct all studies and investigations so as not to interfere with the normal operation of the Property, and shall indemnify, defend and hold harmless City of Kent from all claims, actions or damages arising from King County's entry onto and testing on the Property, except to the extent due to City of Kent's negligence. King County shall also promptly repair any and all damage that arises due to King County's entry onto and testing on the Property. To the extent not in conflict with applicable law, King County agrees to keep confidential all information with respect to the Property made available to King County by City of Kent, and will divulge such information only to those of its employees and advisors who have a specific need to know such information for the purposes of investigating the status of the property for ' potential purchase by the King County, and only after advising each such employee and/or advisor of the confidentiality provisions of this Agreement. If King County elects not to purchase the Property, King County shall immediately return to City of Kent all information ' relating to the Property made available by City of Kent. 5. Effect of Exercise. If King County exercises the right of first offer in the manner ' set forth in Section 3 above, King County shall thereafter proceed to purchase the Property from City of Kent on the Minimum Terms (or such other terms as mutually agreed between City of Kent and King County). Closing shall occur within one hundred twenty (120) days of the date of ' exercise of the right by King County. The sale of the Property to King County shall be through a purchase and sale agreement, statutory warranty deed and other related documents, the form of which shall be mutually agreed upon by the parties. 1 6. Failure to Exercise. If King County does not exercise its right of first offer in the manner set forth in Section 3 above, City of Kent shall have a period of twelve (12) months from the date the right of first offer terminates in which to market and sell the Property, provided that the sales price is no less than 95% of the sale price set forth in the Minimum Terms and the other terms of sale are not substantially more favorable to the buyer than the Minimum Terms offered to King County. City of Kent shall inform King County of the terms of such proposed sale to another buyer, so that King County can compare them to the Minimum Terms. If City of Kent has not closed the sale of the Property within such twelve (12) month period, or if City of Kent ' desires to sell the Property at a price which is less than 95% of the sales price set forth in the Minimum Terms or on substantially more favorable terms than the Minimum Terms offered to AUKEEN DISTRICT COURT EXPANSION LEASE Page 77 King County, this right of first offer shall be reinstated in full, and City of Kent must first reoffer the property to King County on the terms set forth above. ' If King County does not exercise its right of first offer in the manner set forth in Section 3 above and City of Kent thereafter sells the Property as set forth above, the right of first offer ' and this Agreement shall thereafter terminate and become null and void. In this respect, and except as specifically provided in Section 7 below, this Agreement and the rights of King County hereunder shall not apply to a successor owner or purchaser of the Property. ' 7. Excluded Transactions. The right of first offer set forth in this Agreement shall g g not apply to (i) the merger, consolidation or reorganization of City of Kent, whether or not City of Kent is the surviving entity in such merger, consolidation or reorganization; and (ii) a foreclosure sale, trustees sale or deed in lieu of foreclosure with respect to any financial liens or ' encumbrances on the Property. Notwithstanding the foregoing, in the event of a transaction described in (i), or (ii) above, the right of first offer shall continue to apply to the Property notwithstanding such transfers and/or contributions (i.e., if the Property is transferred to a ' subsidiary as described above, the sale of the Property by the successor would be subject to the right of first offer). ' 8. Subordination. This Agreement and the rights of King County hereunder shall be subject and subordinate to any mortgages or deeds of trust that may now or hereafter be placed upon the Property and to any or all advances to be made or amounts owing thereunder, and all ' renewals, replacements, consolidations and extensions thereof. King County shall execute and deliver, within fifteen(15) days after demand therefore, whatever instruments may reasonably be required from time to time by any mortgagee or deed of trust beneficiary to confirm such ' subordination. 9. Personal Rights. The right of first offer set forth in this Agreement is personal to ' King County, and may not be transferred or assigned by King County without the express written consent of City of Kent, which shall not be unreasonably withheld. 10. Recordation/Release. This Agreement will be recorded in the real property records of King County, Washington. However, at the request of City of Kent, King County will sign and record a termination of this Agreement in connection with a sale of the Property (in accordance with the terms hereof). Without limiting the foregoing requirements, the failure of King County to record a termination of this Agreement within fifteen (15) days of request from City of Kent(and assuming City of Kent is otherwise entitled to such termination pursuant to this Agreement) shall constitute a default by King County hereunder, and City of Kent may seek immediate equitable relief to obtain such termination (in addition to any other rights of City of Kent hereunder). 11. Breach, Remedy. In the event either party defaults or fails to perform its obligations hereunder, the aggrieved party may seek any and all remedies available at law or in AUKEEN DISTRICT COURT EXPANSION LEASE Page 78 equity. Without limiting the foregoing, if the Property is sold in contravention of King County's , rights under this Agreement, King County shall have the right to equitable relief to declare the sale to be invalid. ' 12. Governing Law, Attorneys' Fees. This Agreement shall be construed according to the laws of the State of Washington. If either City of Kent or King County should find it ' necessary to employ an attorney, including an employee of either party, to enforce a provision of the Agreement or to recover damages for the breach hereof (including proceedings in bankruptcy), the prevailing party shall be entitled to be reimbursed for its reasonable court costs and attorneys' fees, in addition to all damages, through all levels of appeal. 13. Authorijy. Each person signing this Agreement on behalf of City of Kent and King County, respectively, warrants that he/she has the proper corporate authority to enter into this Agreement. 14. Notices. An and all notices required under this Agreement shall be deemed to , Y q g have been given upon receipt when personally delivered, sent overnight courier, or two days ' after deposit in the United States mail. All notices shall be addressed as set forth below or such other address as any party may later specify in writing: Seller: City of Kent , Attn: Facilities Manager 220 Fourth Avenue South , Kent, WA 98032-5895 With a copy to: City of Kent , City Attorney's Office 220 Fourth Avenue South Kent, WA 98032-5895 , Buyer: King County Property Services Division King County Administration Building ' 500 Fourth Avenue, Room 500 Seattle, WA 98104 With a copy to: King County Prosecuting Attorney Civil Division 500 Fourth Avenue, Room 900 Seattle, WA 98104 With a copy to: King County Transit Division ' 201 S. Jackson Street Seattle,WA 98104 AUKEEN DISTRICT COURT EXPANSION LEASE Page 79 t 15. Complete Agreement. This Agreement constitutes the full and complete ' agreement concerning the right of first offer. Any modification of this Agreement shall be in writing and properly executed by the parties hereto or their successors-in-interest. ' DATED as of the day and year first above written. KING COUNTY CITY OF KENT a political subdivision of Washington a Washington municipal corporation By. By. Print Name: Print Name: Suzette Cooke Its: Its: Mayor Date: Date: AUKEEN DISTRICT COURT EXPANSION LEASE Page 80 STATE OF WASHINGTON ) 1 ss. COUNTY OF KING ) ' I hereby certify that on the day of , 2008, I know or have satisfactory evidence that is the person who appeared before me, and ' said person acknowledged that she signed this instrument, on oath stated that she is authorized to execute the instrument on behalf of KING COUNTY, as its , and such execution to be the free and voluntary act of such party for the uses and purposes mentioned , in the foregoing instrument. -Notary Seal Must Appear Within This Box- , IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. ' NOTARY PUBLIC, in and for the State of Washington residing at , My appointment expires AUKEEN DISTRICT COURT EXPANSION LEASE Page 81 , 1 r iSTATE OF WASHINGTON ) ss. COUNTY OF KING ) I hereby certify that on the day of , 2008, I know or have satisfactory evidence that Suzette Cooke is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she is authorized to execute the instrument on behalf of the CITY OF KENT as its Mayor, and such execution to be the free and voluntary act of such party for the uses and purposes mentioned in the foregoing instrument. -Notary Sea!Must Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. r ' NOTARY PUBLIC, in and for the State of Washington residing at My appointment expires r 1 1 1 r 1 r r rAUKEEN DISTRICT COURT EXPANSION LEASE Page 82 r r ATTACHMENT A: LEGAL DESCRIPTION OF PROPERTY AUKEEN DISTRICT COURT EXPANSION LEASE Page 83 1 ' EXHIBIT F AGREEMENT TO EXECUTE PARKING LOT LEASE BETWEEN CITY OF KENT AND KING COUNTY This Agreement To Execute Parking Lot Lease ("Agreement") is made and entered into by and between KING COUNTY, a political subdivision of the State of Washington ("County"), and the CITY OF KENT, a municipal corporation of the State of Washington ("City") (collectively "the Parties"). In consideration of this Agreement, the Parties covenant and agree as follows: Recitals A. The City owns or is acquiring ownership of Lot A , B, and C legally described in Exhibit 1 and depicted on Exhibit 2. The County owns the adjacent Lot D also legally described and depicted on Exhibit 1 and Exhibit 2. B. Five parking lots including approximately 258 parking stalls were constructed or are being constructed by the City on Lots A, B, C, and D. These parking lots were constructed for use by the occupants of the Aukeen Court building ("Aukeen), 1210 and 1220 South Central Avenue, and the City of Kent Municipal Jail (the "Jail"), 1230 South Central Avenue. The use of the five parking lots is used roughly two-thirds by the occupants of Aukeen and one-third each by the Jail. Also related to the use of the parking lots is the Reciprocal Parking Easement, recording number 20030122002929 and any amendments/replacements to same. C. Since 1998 the City has leased space in Aukeen for City municipal court ("Municipal Court") operations. The Parties currently operate under a Lease Agreement dated ----- ("Aukeen Lease"). D. In the event of the termination of the Aukeen Lease the parties recognize the need for the County to continue to use the parking lots built on City owned real property. The Reciprocal Parking Easement addresses parking lots constructed on Lots C and D, and this Agreement is intended to address the parking lot on Lots A and B. NOW THEREFORE, in consideration of the promises and agreements contained in this Agreement and subject to the terms and conditions set forth, it is mutually understood and agreed by the parties as follows: Agreement 1. A Parking Lot Lease for Lot A and B between the City as landlord and the County as tenant is attached and incorporated as Exhibit 3. AUKEEN DISTRICT COURT EXPANSION LEASE Page 84 2. The Parties agree to execute the Parking Lot Lease which is substantially similar to the Parking Lot Lease attached as Exhibit 3 in the event of the following: a) expiration or other termination of the Aukeen Lease; and b) Tenant's Work described in Exhibit C to the Aukeen lease was Substantially Completed (as defined in the Aukeen Lease); and c) the City has vacated the Premises as described in the Aukeen Lease; and , d) either the City has not exercised its rights under the Right of First Offer, King County recording number 20030122002928 and amendments thereto; or the County has determined it will retain ownership of Lot D and not offer Lot D for sale. 3. If any term or provision of this Agreement or portion thereof shall be found invalid, void, illegal, or unenforceable generally or with respect to any particular party, by a court of ' competent jurisdiction, it shall not affect, impair or invalidate any other terms or provisions or the remaining portion thereof, or its enforceability with respect to any other party. 4. This Agreement shall be interpreted and construed under and pursuant to the laws of the ' State of Washington. Any action regarding or arising from this Agreement shall be brought in the Washington State Superior Court located in the county where the real property is located. , Time is of the essence of this Agreement. In the event an attorney is engaged by either party to enforce the terms of this Agreement or in the event suit is brought relating to or arising from this Agreement, the prevailing party shall be entitled to recover from the other party its reasonable i attorney fees and costs. 5. This Agreement, together with the Exhibits (which are collectively incorporated where , referred to herein and made a part hereof as though fully set forth), contain all the terms and provisions between the City and County relating to the matters set forth herein and no prior or contemporaneous agreement or understanding pertaining to the same shall be of any force or effect, except any such contemporaneous agreement specifically referring to and modifying this Agreement, signed by both parties. Neither this Agreement or Exhibits referred to above may be modified, except in writing signed by both parties. IN WITNESS WHEREOF, the parties have executed this Agreement, which shall ' become effective on the last date entered below. r t AUKEEN DISTRICT COURT EXPANSION LEASE Page 85 ' r r KING COUNTY r BY: rRonald Sims, King County Executive APPROVED AS TO FORM: BY: Timothy Barnes, Sr. Deputy Prosecuting Attorney rCITY OF KENT r BY: ' Suzette Cooke, Mayor ' APPROVED AS TO FORM: BY: Kent City Attorney's Office 1 P:\Civil\Files\OpenFiles\0676\AgreementToExecuteParkingLotLease.doc 1 i r r AUKEEN DISTRICT COURT EXPANSION LEASE Page 86 r i 1 Exhibit 1 r 1 1 r r r r r r r r r r r r AUKEEN DISTRICT COURT EXPANSION LEASE Page 87 r r 1 Exhibit 2 AUKEEN DISTRICT COURT EXPANSION LEASE Page 88 EXHIBIT 3 PARKING LOT LEASE AGREEMENT THIS LEASE AGREEMENT ("Lease") is entered into by and between the CITY OF KENT, Washington municipal corporation ("Landlord") and KING COUNTY, a political , subdivision of the State of Washington, ("Tenant"). In consideration of this Parking Lot Lease Agreement ("Lease"), Landlord and Tenant covenant and agree as follows: BACKGROUND A. Landlord is the owner in fee simple of Lot A, B, and C located in the City of Kent, King County, Washington, legally described on the attached Exhibit 1 and depicted in the attached Exhibit 2. Tenant is in owner of the adjacent Lot D also legally described in Exhibit 1 and depicted in Exhibit 2. B. When the City was a tenant in the Aukeen Court building ("Aukeen") located on Lot D, the City constructed five parking lots on Lots A, B, C, and D, approximately 258 parking stalls as depicted in Exhibit 3. These parking lots were constructed for use by the occupants of , Aukeen, 1210 and 1220 South Central Avenue, and the City of Kent Municipal Jail (the "Jail"), 1230 South Central Avenue. The use of the five parking lots is used roughly two-thirds, 172 parking stalls, by the occupants of Aukeen and one-third, 86 stalls, by the Jail. Approximately 46 of the parking stalls are located on Lot D, with the remainder on Lots A, B and C. C. Also, related to the use and maintenance of the parking lots is the Reciprocal Parking Easement, recording number 20030122002929 and any amendments/replacements to the same. Accordingly, p g, the parties are entering into this Lease on the terms and conditions set forth below. AGREEMENT In consideration of their mutual covenants, the parties agree as follows: , 1. Leased Premises. Landlord leases to Tenant and Tenant leases from Landlord the real property legally described on the attached Exhibit 1 (the "Premises") labeled as Lot A and Lot B, which are comprised of approximately seventy-one (71) parking stalls. AUKEEN DISTRICT COURT EXPANSION LEASE Page 89 2. Term. This Lease shall commence upon the last date executed by both parties (the "Commencement Date"), and end on the date that is one day before the Two hundred and forty (240) full calendar months (20 years) following the date on which this Lease is executed by both parties. 3. Rent. a. Base Rent. Tenant shall pay Base Rent equal to the Appraised Rent Value, as 1 determined by Section 3.b., calculated as a monthly amount, for the Premises, which Base Rent shall be due and payable on the first day of each calendar month in advance and adjusted every five (5) years thereafter based on the Seattle Tacoma Bremerton All Urban Consumers' Price Index year ending rate (December). Monthly Rent shall be mailed to: City of Kent, 220 Fourth Avenue South, Kent, Washington 98032, Attention: Facilities Management. b. Appraised Rent Value. The parties have selected Darin Shedd of Allen, Brackett, Shedd as the Appraiser to provide the Appraisal Rent Value just prior to the Commencement Date. In the event he is no longer willing or available to serve as appraiser, the parties shall select another appraiser. In the event the parties cannot agree, they shall each select an appraiser and the two appraisers shall in turn select the Appraiser. The Appraiser shall conduct an appraisal of the Fair Rental Value of a 126 parking stall located on Lots A, B, and C, as near as practicable to a date immediately prior to the Commencement Date. One hundred and twenty- six (126) is the number of parking stalls the Tenant needs in order to have use of two-thirds (2/3) of the parking stalls on Lot A, B and C. The parties shall each pay one-half of the Appraiser's fee. 4. Additional Rent for Repair and Maintenance. Additional Rent shall be payable quarterly in arrears within 30 days of invoicing. Tenant shall pay as Additional Rent a two-thirds share of the total repair and maintenance expenses for the parking lots on Lots A and B. The Reciprocal Parking Easement provides for Tenant/County to pay two-thirds of the repair and maintenance costs for Lots C and D, which obligation is ' exclusive and separate from the obligations contained herein. Landlord shall provide Tenant quarterly with a written statement showing the calculation of said Additional Rent. 5. Use of Premises. a. Tenant shall use the Premises for parking lot purposes in conjunction with use of the Aukeen Court building as constructed at the time of execution of this Lease on Lot D (approximately square feet). The Premises shall be used for no other purposes. b. Use of the Premises by Tenant shall be conclusive evidence the Premises were in good, clean and tenantable condition and delivered in accordance with this Lease. AUKEEN DISTRICT COURT EXPANSION LEASE Page 90 1 6. Normal Maintenance and Repair. a. Unless expressly provided otherwise in this Lease, Landlord shall maintain and repair, suitable for use as a parking lot the Premises. Landlord's maintenance and repair obligations shall include: sweeping monthly, stripping every other year, seal coating every seven (7) to ten (10) years, and re-surfacing every fifteen(15) to twenty (20) years as needed. b. In the event any additional repairs or maintenance are caused by or result from Tenant's excessive or improper use or occupation thereof or which are caused by or result from the negligence or improper conduct of Tenant, its agents, employees or invitees, the cost of such ' repairs or maintenance shall be paid solely by Tenant. 7. INSURANCE. a. The Tenant agrees, at its own expense, to maintain, through its self-funded Self- Insurance program, coverage for all of its liability exposures under this Lease. The Tenant agrees to provide Landlord with at least thirty (30) days prior written notice of any material change in the Tenant's self-funded Self-Insurance program, and will provide Landlord with a certificate of self-insurance as adequate proof of coverage. Landlord further acknowledges, agrees and understands that the Tenant does not purchase Commercial General Liability insurance and is a self-insured governmental entity; therefore the Tenant does not have the ability to add the Landlord as an additional insured. Should the Tenant cease self-insuring its liability exposures and purchase Commercial General Liability insurance, Tenant agrees to add the Landlord (and Landlord's Lender) as an additional insured. , b. The Landlord agrees, at its own expense, to maintain, through its self-funded Self- Insurance program, coverage for all of its liability exposures under this Lease. The Landlord agrees to provide Tenant with at least thirty (30) days prior written notice of any material change in the Landlord's self-funded Self-Insurance Program, and will provide Tenant with a certificate ' of self-insurance as adequate proof of coverage. Tenant further acknowledges, agrees and understands that the Landlord does not purchase Commercial General Liability insurance and is a self-insured governmental entity; therefore the Landlord does not have the ability to add the Tenant as an additional insured. Should the Landlord cease self-insuring its liability exposures and purchase Commercial General Liability insurance, Landlord agrees to add the Tenant as an additional insured. C. The Landlord will carry "All Risk" property insurance in an amount equal to the full replacement value of all improvements located on the Premises. AUKEEN DISTRICT COURT EXPANSION LEASE Page 91 d. Tenant shall maintain "All Risk" property insurance in an amount equal to One Million Dollars ($1,000,000) combined single limit per occurrence and in the aggregate for bodily injury, personal injury and property damage. e. In consideration of the duration of this Lease, the parties agree that the Insurance Requirements Section herein, at the discretion of Landlord, may be reviewed and adjusted with each amendment of the Lease, with each assignment of this Lease, and every five years from Commencement Date. Any adjustments made as determined by Landlord, shall be in accordance with reasonably prudent risk management practices and insurance industry standards and shall be effective upon 90 days written notice by Landlord. 8. Waiver of Subro atg_ ion. Landlord and Tenant release and relieve the other, and waive the entire right of recovery for loss or damage to property located within or constituting a part or all of the Premises to the extent that the loss or damage is actually covered (and claim amount recovered) by insurance, or self insurance, carried by either party and in force at the time of such loss or damage. This waiver applies whether or not the loss is due to the negligent acts or omissions of Landlord or Tenant, or their respective officers, directors, employees, agents, contractors, or invitees. Each of Landlord and Tenant shall have their respective property insurers endorse the applicable insurance policies or self insurance program, to reflect the foregoing waiver of claims, provided, however, that the endorsement shall not be required if the applicable policy of insurance, or self insurance program permits the named insured to waive rights of subrogation on a blanket basis, in which case the blanket waiver shall be acceptable. 9. Damage or Destruction. In the event the Premises shall be destroyed or rendered untenantable, either wholly or in part, by fire or other casualty, Landlord may, at its option, elect to restore the Premises to as near its previous condition as is reasonably possible and in the meantime the Base Rent and Additional Rent shall be abated in the same proportion as the untenantable portion of the Premises bears to the entire Premises, provided, such abatement (i) shall apply only to the extent the Premises are untenantable for the purposes permitted under this Lease and not used by Tenant as a result thereof, and(ii) shall not apply if Tenant or any other occupant of the Premises or any of their agents, employees, invitees, transferees or contractors caused the damage. Unless Landlord, within sixty (60) days after the happening of any such casualty, shall notify Tenant of its election to so restore, this Lease shall thereupon terminate, provided, if in Landlord's estimation the Premises cannot be restored within one hundred twenty (120) days following such destruction, Landlord shall notify Tenant and Tenant may terminate this Lease (regardless of Landlord's intent to restore) by delivery of notice to Landlord within thirty (30) days of Landlord's notice. Tenant agrees if it elects not to terminate the Lease, that the abatement of Base Rent and Additional Rent as provided above shall be Tenant's sole and exclusive recourse in the event of such damage, and Tenant waives any other rights Tenant may have under AUKEEN DISTRICT COURT EXPANSION LEASE Page 92 applicable law or this Lease to perform repairs or terminate the Lease by reason of damage to the Premises. 10. Condemnation. Either party may terminate this Lease if the whole or any material part of the Premises shall be taken or condemned for any public or quasi-public purpose through the exercise of eminent domain. Landlord shall also have the right to terminate this Lease in the event of a Taking of any portion of the Building or Property which would leave the remainder of the Building unsuitable for use as a courthouse in a manner comparable to the use prior to the Taking. In order to exercise its right to terminate this Lease, Landlord or Tenant, as the case may be, must provide written notice of termination to the other within 45 days after the terminating party first received notice of Taking. Any such termination shall be effective as of the date the physical taking of the Premises or the portion of the Building or Property occurs. In addition, Base Rent and Additional Rent for any portion of the Premises taken or condemned , shall be abated during the unexpired term of this Lease effective when the condemner takes possession. Tenant shall hold harmless Landlord for any and all costs incurred by Tenant as a result of a Taking. Tenant's only recourse for compensation in the event of a Taking shall be , against the condemner. Landlord and Tenant agree to cooperate in any condemnation proceeding to determine just compensation. Tenant may file a claim against the condemner at its sole cost and expense, separate from any claim brought against the condemner by Landlord, for just compensation, but only to the extent such claim does not diminish the award which would otherwise be received by Landlord. 11. Assignment and Sublease. Tenant shall not assign this Lease or any part thereof and shall not let or sublet the whole or any portion of the Premises without the written consent of Landlord, which consent shall not be unreasonably withheld by Landlord. This Lease shall not be assignable by operation of law. If consent is once given by the Landlord to a sublease of this Lease, or any interest therein, Landlord shall not be barred from afterwards refusing to consent to any further sublease. The Landlord does agree to provide written consent to assignments from Tenant to a third party that Tenant has sold or otherwise transferred Lot D and Aukeen. 12. Taxes. a. Tenant shall pay all real and personal property taxes (or payments in lieu of taxes) and assessments for the Premises that are directly the result of Tenant's use, if any, which become due and payable during the term of this Lease. All such payments shall be made, and evidence of all such payments shall be provided to Landlord, at least ten (10) days prior to the delinquency date of the payment. AUKEEN DISTRICT COURT EXPANSION LEASE Page 93 b. If the methods of taxation in effect at the Commencement Date of the Lease are altered so that in lieu of or as a substitute for any portion of the property taxes and special assessments now imposed on property there is imposed a tax upon or against the rentals payable by Tenant to Landlord, Tenant shall pay those amounts in the same manner as provided for the payment of real and personal property taxes. 13. Rights Reserved by Landlord. Except to the extent expressly limited herein, Landlord reserves full rights to control the Premises (which rights may be exercised without subjecting Landlord to claims for constructive eviction, abatement of Rent, damages or other claims of any kind), including more particularly, but without limitation, the following rights: a. General Matters. To: (i) change the name or the designation of the Premises (subject to restrictions in Section B.C. below), (ii) install and maintain signs on the Premises, and grant any other person the right to do so, (iii) grant to any person the right to conduct any business or render any service at the Premises, whether or not the same are similar to the use permitted Tenant by this Lease, but only so long as those uses are not incompatible with Tenant's use of the Premises, and(vii) in case of fire, invasion, insurrection, riot, civil disorder, emergency or other dangerous condition, or threat thereof. (a) limit or prevent access to the Premises, (b) shut down services, and(c) otherwise take such action or preventative measures deemed necessary by Landlord for safety or the protection of the Premises (but this provision shall impose no duty on Landlord to take such actions, and no liability for actions taken in good faith). b. Access to Premises. To enter the Premises in order to inspect, maintain and repair, or exercise other rights of Landlord under this Lease or applicable Laws. However, Landlord shall: (i) provide reasonable advance written notice to Tenant's court administrator or other appropriate person for matters which will involve a significant disruption to Tenant's operations (except in emergencies), and(ii) take reasonable steps to minimize any significant disruption to Tenant's operations. If Tenant requests that any such access occur before or after Landlord's regular business hours and Landlord approves, Tenant shall pay all overtime and other additional costs in connection therewith. C. Changes to the Premises. To: (i) perform repairs or maintenance; (ii) make ' replacements, restorations, renovations, alterations, additions and improvements, otherwise in _ and to the Premises or any part thereof, including changes relating to the connection with or entrance into or use of the Premises; (iii) erect barricades and take such other actions as Landlord deems appropriate; (iv)provide the 71 parking stalls on Lot A and B in another location or configuration on Lot A, B, C, or other adjacent real property. Provided that Landlord shall have no right to reduce the number of parking stalls provided below the 71 parking stalls provided on Lot A and B; and, Landlord shall take reasonable steps to minimize or avoid any denial of access to the Premises except when necessary on a temporary basis. AUKEEN DISTRICT COURT EXPANSION LEASE Page 94 14. Release and Indemnity. a. Tenant Indemnity. Tenant shall indemnify, defend (using legal counsel reasonably acceptable to Landlord) and save Landlord harmless from all claims, suits, losses, damages, fines, penalties, liabilities and expenses (including Landlord's reasonable attorneys fees incurred in connection with claims prior to Tenant's acceptance of its indemnity and defense ' obligations hereunder, regardless of whether such claims involve litigation) resulting from any actual or alleged injury (including death) of any person or from any actual or alleged loss of or damage to any property occurring during the Term of this Lease and arising out of or in connection with (i) Tenant's occupation, use or improvement of the Premises, (ii) Tenant's breach of its obligations hereunder or (iii) any negligent act or omission of Tenant or any subtenant, licensee, assignee or concessionaire of Tenant, or of any officer, agent, employee, or contractor of Tenant. Nothing in this Section 14.a. shall require Tenant to protect, defend and indemnify Landlord to the extent of Landlord's negligence. This indemnity with respect to acts or omissions during the term of this Lease shall survive termination or expiration of this Lease. The foregoing indemnity covers actions brought by Tenant's own employees and it is specifically and expressly intended to constitute a waiver of Tenant's immunity, as respects the Landlord only, under Washington's Industrial Insurance Act, RCW Title 51, only to the extent , necessary to provide Landlord with a full and complete indemnity from claims made by Tenant and its employees, to the extend provided herein. Tenant shall promptly notify Landlord of casualties or accidents occurring in or about the Premises. LANDLORD AND TENANT , ACKNOWLEDGE THAT THE INDEMNIFICATION PROVISIONS OF SECTION 14 WERE SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM. b. Landlord Indemnity. Landlord shall indemnify, defend (using legal counsel reasonably acceptable to Tenant) and save Tenant harmless from all claims, suits, losses, damages, fines, penalties, liabilities and expenses (including Tenant's reasonable attorneys fees incurred in connection with claims prior to Landlord's acceptance of its indemnity and defense obligations hereunder, regardless of whether such claims involve litigation) resulting from any actual or alleged injury (including death) of any person or from any actual or alleged loss of or damage to any property occurring during the Term of this Lease and arising out of or in connection with (i) Landlord's occupation, use or improvement of the Property, or that of its , employees, agents or contractors, (ii) Landlord's breach of its obligations hereunder, or (iii) any negligent act or omission of Landlord or any subtenant, licensee, assignee or concessionaire of Landlord, or of any officer, agent, employee, or contractor of Landlord. Nothing in this Section 14.b. shall require Landlord to protect, defend and indemnify Tenant to the extent of Tenant's negligence. This indemnity with respect to acts or omissions during the term of this Lease shall survive termination or expiration of this Lease. The foregoing indemnity covers actions brought by Landlord's own employees and it is specifically and expressly intended to constitute a waiver of Landlord's immunity, as respects the Tenant only, under Washington's Industrial Insurance Act, RCW Title 51, only to the extent necessary to provide Tenant with a full and complete indemnity from claims made by Landlord and its employees, to the extend provided herein. LANDLORD AND TENANT ACKNOWLEDGE THAT THE INDEMNIFICATION AUKEEN DISTRICT COURT EXPANSION LEASE Page 95 PROVISIONS OF SECTION 14 WERE SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM. C. Release. Landlord and Tenant hereby fully and completely waives and releases all claims against each other for any losses or other damages sustained by the other party or any person claiming through the other party resulting from any accident or occurrence in or upon the Property, Building, and Premises, or any act, omission or negligence of co-tenants, licensees or any other persons or occupants of the Building; provided only, that the releases contained in this Section shall not apply to claims for actual damage to persons or property resulting from the negligence or willful misconduct of the party making the claim. d. Limitation on Indemnity. In compliance with RCW 4.24.115 as in effect on the date of this Lease, all provisions of this Lease pursuant to which Landlord or Tenant(the "Indemnitor") agrees to indemnify the other(the "Indemnitee") against liability for damages arising out of bodily injury to persons or damage to property relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, I road, or other structure, project, development, or improvement attached to real estate, including the Premises, (i) shall not apply to damages caused by or resulting from the negligence of the Indemnitee, its agents or employees, and(ii) to the extent caused by or resulting from the ' concurrent negligence of(a) the Indemnitee or the Indemnitee's agents or employees, and(b) the Indemnitor or the Indemnitor's agents or employees shall apply only to the extent of the Indemnitor's negligence. e. Definitions. As used in any Section of this Lease establishing indemnity or release of Landlord, "Landlord" shall include Landlord, its directors, elected officials, agents, employees and contractors, and"Tenant" shall include Tenant and any person or entity claiming through Tenant. 15. Expiration of Lease Term. Upon the expiration of the Lease Term, unless Landlord has i approved the Tenant Holding Over as provided in Section 16 Tenant shall vacate the Premises ■ leaving them in good condition, ordinary wear and tear excepted. 16. Holding Over. If the Tenant shall, with the written consent of Landlord, holdover after the expiration of the term of this Lease, such tenancy shall be for an indefinite period of time on a month to month tenancy, such tenancy may be terminated as provided by the laws of the State of Washington. During such tenancy Tenant agrees to pay to the Landlord the same rate of rental as set forth herein, unless a different rate is agreed upon, and to be bound by all of the terms, covenants, and conditions as herein specified, so far as applicable. 17. Default. It shall be a default if: AUKEEN DISTRICT COURT EXPANSION LEASE Page 96 a. Tenant defaults in the payment of Base Rent, Additional Rent, or any other sums payable to Landlord when due, and does not cure such default within fifteen (15) calendar days after written notice from Landlord. b. Tenant abandons or vacates the Premises for a period longer than thirty (30) days; or C. Either party defaults in the performance of any other covenant or condition of this Lease and does not cure such other default within thirty (30) calendar days after written notice from the non-defaulting party specifying the default at issue. 18. Cure by Landlord. In the event of any default of this Lease by Tenant, the Landlord may at any time, after notice, cure the default for the account of and at the expense of the Tenant. If Landlord is compelled to pay or elects to pay any sum of money or to do any act which will require the payment of any sum of money or is compelled to incur any expense, including reasonable attorney fees in instituting, prosecuting or defending any action to enforce the Landlord's rights L under this Lease, the sums so paid by Landlord, with all interest, costs and damages shall be deemed to be Additional Rent and shall be due from the Tenant to Landlord on the first day of the month following the incurring of the respective expenses. If Tenant disputes the appropriateness of the Additional Rent in good faith, Tenant will nay such Additional Rent "under protest". Any payment under protest by Tenant shall not be considered an; admission of liability or a waiver of Tenant's rights under this Agreement, and such payment shall be subject to refund if Tenant's position is upheld by a court. 19. Damages and Attorney's Fees. i In the event of an instance of Tenant's default as identified in Section 17, Landlord shall , be entitled to the amount of unpaid rent accrued through the date of termination; and liquidated damages in the amount of six (6) months rent. If it becomes necessary for the Landlord to use an attorney and/or bring suit for damages or possession, or if Tenant shall bring any action for any relief against Landlord, declaratory or otherwise, arising out of this Agreement, the prevailing party shall have and recover against the other party in addition to the cost allowed by law, such sum as the court may adjudge to be reasonable attorney's fees. 20. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested; to the following addresses: If to Landlord, to: City of Kent j Attn: Facilities Manager AUKEEN DISTRICT COURT EXPANSION LEASE Page 97 j 220 Fourth Avenue South Kent, WA 98032 If to Tenant, to: King County Real Estate Services Section Attn: Leasing Supervisor King County Administration Building 500 Fourth Avenue, Room 500 Seattle, WA 98104 21. Hazardous Substance Indemnification. Tenant represents and warrants that its use of the Premises herein will not generate any hazardous substance, and it will not negligently or intentionally store or dispose on the Premises nor transport to or over the Premises any hazardous substance in violation of any federal or state law. Tenant further agrees to hold Landlord harmless from and indemnify Landlord against any release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release including all attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the negligence of Landlord, its employees or agents. Similarly, Landlord warrants that the Premises are free of any hazardous substances and agrees to indemnify and hold Tenant harmless from the Landlord's negligent or intentional introduction of any hazardous substance by Landlord. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 22. Subordination to Mortgage. Any mortgage now or subsequently placed upon any property of which the Premises are a part shall be deemed to be prior in time and senior to the rights of the Tenant under this Lease. Tenant subordinate all of its interest in the leasehold estate created by this Lease to the lien of any such mortgage. Tenant shall, at Landlord's request, execute any additional documents necessary to indicate this subordination within ten (10) days of written request by Landlord. 28. Estoppel Certificate. Tenant shall, at any time and from time to time upon not less than thirty (30) days prior request by Landlord, deliver to Landlord a statement in writing certifying that (a) the Lease is unmodified and in full force (or if there have been modifications, that the Lease is in full force as modified and identify the modifications); (b) the dates to which rent and other charges have been paid; (c) so far as the person making the certificate knows, Landlord is not in default under any provisions of the Lease; and (d) such other matters as Landlord may reasonably request. AUKEEN DISTRICT COURT EXPANSION LEASE Page 98 1 29. Non-Waiver. Failure of Landlord to insist on strict performance of any of the conditions, covenants, terms or provisions of this Lease or to exercise any of its rights hereunder shall not waive such rights, but Landlord shall have the rights to enforce such rights at any time and take such action as might be lawful or authorized hereunder, either in law or equity. The receipt of any sum paid by Tenant to Landlord after a breach of this Lease shall not be deemed a waiver of such breach unless expressly set forth in writing. 30. Miscellaneous. a. This Lease constitutes the entire agreement and understanding of the Parties and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Lease must be in writing and executed by both parties. b. This Lease shall be construed in accordance with the laws of the State of Washington. Venue and jurisdiction of any lawsuit arising out of the performance or obligations of this lease shall be in the King County Superior Court, Norm Maleng Regional Justice Center, Kent,Washington. C. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. THIS LEASE IS EXECUTED and shall become effective on the last date indicated below. 1 1 1 1 1 1 AUKEEN DISTRICT COURT EXPANSION LEASE Page 99 1 t TENANT: KING COUNTY BY: 1 Ronald Sims, King County Executive APPROVED AS TO FORM: BY: Timothy Barnes, Sr. Deputy Prosecuting Attorney LANDLORD: CITY OF KENT BY: Suzette Cooke, Mayor APPROVED AS TO FORM: BY: Kent City Attorney's Office AUKEEN DISTRICT COURT EXPANSION LEASE Page 100 1 EXHIBIT G [Legal descriptions for Lot B parking] 1 1 1 1 1 t i 1 AUKEEN DISTRICT COURT EXPANSION LEASE Page 101 Kent City Council Meeting Date December 9, 2008 Category Consent Calendar - 6V 1. SUBJECT: 72ND AVENUE LEFT TURN LANE - ACCEPT AS COMPLETE ' 2. SUMMARY STATEMENT: Accept the 72"d Avenue Left Turn Lane Project as complete and release retainage to Road Construct NW, upon receipt of standard releases from the state and release of any liens. The original contract amount was $527,353.96. The final contract amount was $413,742.07. 3. EXHIBITS: None 4. RECOMMENDED BY: Public Works Director (Committee, Staff, Examiner, Commission, etc.) f5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds DISCUSSION: ACTION: