HomeMy WebLinkAboutCity Council Meeting - Council - Agenda - 03/02/2010 j n _
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CITY OF KENT
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City Council Meeting
Agenda
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March 2, 2010
Mayor Suzette Cooke
ar Jamie Perry, Council President
_ Councilmembers
Elizabeth Albertson
Ron Harmon
Dennis Higgins
' Deborah Ranniger
Debbie Raplee \ �.
v KENT
WhSMIHOTON
=' Les Thomas CITY CLERK
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KENT CITY COUNCIL AGENDAS
KENT March 2, 2010
Wa1111�GTON Council Chambers
MAYOR: Suzette Cooke COUNCILMEMBERS: Jamie Perry, President
Elizabeth Albertson Ron Harmon Dennis Higgins
Deborah Ranniger Debbie Raplee Les Thomas
**********************************************************************
COUNCIL WORKSHOP AGENDA
5:30 p.m.
Item Description Soeaker Time
1. Intergovernmental Issues Michelle Witham 10 minutes
2. Howard Hanson Dam/Green River Levee Tim LaPorte 30 minutes
**********************************************************************
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. Kent Predators Appearance
D. Economic and Community Development Report
' 5. PUBLIC HEARINGS
None
6. CONSENT CALENDAR
A. Minutes of Previous Meeting - Approve
B. Payment of Bills - None
C. Joint Resolution Requesting Local Voters Pamphlet on the Regional Fire
Authority - Adopt
D. Fiber Optic Installation Projects Resolution - Adopt
E. 2009 Consolidated Annual Performance Evaluation Report - Authorize
F. 2010 City Art Plan and Five-Year Art Plan - Approve
(Continued)
COUNCIL MEETING AGENDA CONTINUED
G. Energy Savings Performance Contract for Centennial Center HVAC
Systems - Authorize
H. Jaswal Dental/Medical Clinic Bill of Sale - Accept
I. Kent Meridian High School Water Upgrades Bill of Sale - Accept
J. Scalzo Intersection Bill of Sale - Accept
K. Clark Lake Estates Improvements - Accept
L. Cambridge Tower Site Lease Amendment - Authorize
M. Goldfinch Communications Telecommunications License Agreement -
Authorize
N. Public Works Board Urban Vitality Grant for James Street at Union
Pacific Railroad Non-motorized Improvements - Accept
0. Water Treatment Chemical Supply Contract - Authorize
7. OTHER BUSINESS
None
8. BIDS
None
' 9. REPORTS FROM STANDING COMMITTEES, STAFF AND SPECIAL COMMITTEES
10. CONTINUED COMMUNICATIONS
11. EXECUTIVE SESSION AND AFTER EXECUTIVE SESSION
None
' 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.
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COUNCIL WORKSHOP
1) INTERGOVERNMENTAL ISSUES
2) HOWARD HANSON DAM/GREEN RIVER LEVEE
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) KENT PREDATORS APPEARANCE
D) ECONOMIC & COMMUNITY DEVELOPMENT REPORT
Kent City Council Meeting
Date March 2, 2010
Item No. 6A - 6B
CONSENT CALENDAR
6. City Council Action:
Councilmember moves, Councilmember
seconds to approve Consent Calendar Items A through O.
Discussion
Action
6A. AvDroval of Minutes.
Approval of the minutes of the regular Council meeting of February 16, 2010.
6B. Approval of Bills.
li No figures were available.
I
Kent City Council Meeting
KENT February 16, 2010
WqS HiNG-ON
The regular meeting of the Kent City Council was called to order at 7:00 p.m. by
Mayor Cooke. Councilmembers present: Albertson, Harmon, Higgins, Perry,
Ranniger, and Raplee. Thomas was excused from the meeting. (CFN-198)
CHANGES TO THE AGENDA
A. From Council, Administration, Staff. (CFN-198) Consent Calendar Item T was
added to the agenda.
B. From the Public. (CFN-198) Nothing was added to the agenda by the public.
PUBLIC COMMUNICATIONS
A. Public Recognition. (CFN-198) Council President Perry recognized Art Wright
who had his 901h birthday this week, and noted that there is a baseball field at Kent
Memorial Park named after Mr. Wright.
B. Community Events. (CFN-198) Ranniger announced upcoming events through
the Parks Department.
C. Veterans Outreach Presentation. (CFN-198) Josh Penner of Valley Cities
Consultation and Counseling explained that his office assists veterans in finding
resources and said the King County Veterans and Human Services levy has been a
success. He outlined what Valley Cities has been able to do utilizing that funding, and
offered to speak to interested persons after the meeting.
D. Kent Arts Commission 2010 Community Arts Support Funding Recipients.
(CFN-839) Cultural Programs Manager Rhonda Billerbeck explained the program and
introduced the recipients of funds. Mayor Cooke presented each with a certificate.
E. Legislative Update. (CFN-198) Community and Public Affairs Manager Michelle
Witham briefed the Council on the status of issues of interest to the City.
F. Public Safety Report. (CFN-122) Police Chief Strachan updated the monthly
statistics, described a pilot program related to having automatic external defibrillators
in each Police car, and gave updates on crime-free rental housing and National Night
Out participation He then presented the Chief's Award for Distinguished Service to
Officer Doug Wescott and a Life-Saving Medal to Officer Ken Clay.
PUBLIC HEARINGS
A. Ballot Proposition No. 1: Approve the Kent Fire Department Regional Fire
Authority. Resolution of Support. (CFN-122) Fire Chief Schneider explained that
>� bringing the Fire Department and Fire District together would result in sustaining
current emergency service delivery, which has been affected by traffic congestion and
increased calls for service. He noted a decrease in revenues in the Fire Department
and that current property tax revenues are not sufficient to support the Fire
Department. He explained that the Regional Fire Authority would be funded by $1.00
� � 1
Kent City Council Minutes February 16, 2010
per $1,000 of assessed value, along with a benefit charge which is based on the use
i
and square footage of the property, and on the number of firefighters sent to the site.
Mayor Cooke opened the public hearing. Assistant City Attorney Kim Adams Pratt
explained the hearing process and noted that proper notice has been given. Arlene
Jensen, 13224 SE 2301h Street, Kent, voiced concern about the fire benefit charge
being based solely on square footage and no other factors, and about the ability of a
regional fire authority to raise taxes without a vote of the people and with no
accountability. Greg Markley, Kent Firefighters Local 1747 and Chair of the Yes-On-
Proposition-1 campaign, 316 W. Meeker, said this is an opportunity to fund the Fire
Department in a different way, and that there would be accountability through a
citizens oversight committee. He urged the Council to endorse Proposition 1.
Chief Schneider responded to Ms. Jensen's concerns, noting that credits are provided
for homes with sprinkler systems, alarm systems, and other forms of mitigation. He
pointed out that the fire benefit charge has to be re-approved every six years, which
provides accountability in addition to the citizens oversight committee. He also
explained how the fire benefit charge can be adjusted up or down in response to
property values to keep revenues at an even level.
There were no further comments and Mayor Cooke closed the public hearing. Harman
moved to adopt Resolution No. 1821 expressing the Kent City Council's support for
Ballot Proposition No. 1: "Kent Fire Department Regional Fire Authority Plan", to be
put before the voters at the April 27, 2010, special election. Perry seconded.
Harmon, Albertson, Ranniger and Higgins spoke in support of the resolution, citing
faster response times, fairness, efficiency and accountability as reasons. The motion
then carried.
CONSENT CALENDAR
Perry moved to approve Consent Calendar Items A through T. Raplee seconded and
the motion carried.
A. Approval of Minutes. (CFN-198) Minutes of the regular Council meeting of
February 2, 2010, were approved.
B. Approval of Bills. (CFN-104) Approval of payment of the bills received through j
January 15 and paid on January 15 after auditing by the Operations Committee on
February 2, 2010.
Approval of checks issued for vouchers:
Date Check Numbers Amount
1/15/10 Wire Transfers 4009-4032 $1,885,409.82
1/15/10 Regular Checks 639491-639940 1,993,578.21
Void Checks 639620 (35,194.04)
Use Tax Payable 1,379.01
$3,845,173.00
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Kent City Council Minutes February 16, 2010
Approval of checks issued for Interim Payroll:
Date Check Numbers Amount
1/5/10 Void Advice 261059 ($84.25)
1/6/10 Check 315907 84 25
1/12/10 Void Check 315206 (710.25)
1/12/10 Check 315908 710.25
$0.00
Approval of checks issued for payroll for January 1 through January 15 and paid on
January 20, 2010:
Date Check Numbers Amount
1/20/10 Checks 315909-316144 $ 180,127.91
1/20/10 Advices 261283-262048 1,910,983 88
$2,091,111.79
C. Subdivision Code Amendment Revising the Definition of Tract, Ordinance.
(CFN-458) Ordinance No. 3944 amending Kent City Code Section 12.04.025 which
clarifies that Future Development Tracts created within subdivisions may later be
considered residential building sites upon application, further review, and approval by
the City, was adopted.
D. 2010 Pre-Annexation Budget Adiustment Ordinance. (CFN-186) Ordinance
No. 3945 amending the 2010 budget for necessary adjustments related to the
Panther Lake pre-annexation costs was adopted.
E. Goods and Service Agreement with Tiburon, Inc. (CFN-1155) The Mayor
was authorized to sign the Goods and Services Agreement between Tiburon, Inc. and
the City of Kent in an amount not to exceed $63,128, to assist the City with the
mandatory upgrade of the current Police and Jail Records system (Tiburon) from
version 7.33 to the latest version (currently 7.6), subject to terms and conditions
acceptable to the City Attorney Negotiations over detailed terms and conditions are
ongoing, but the total cost will not change.
F. Enterprise Storage & Disaster Recovery Capacity Project. (CFN-1155) The
Mayor was authorized to sign the goods and services agreements with Right' Systems
to purchase and install a Storage Area Network System in an amount not to exceed
$480,000, and the Mayor was authorized to sign purchase orders to Hewlett-Packard
Corporation for Servers and Software not to exceed $172,045, subject to all terms
and conditions of the WSCA contract, for a project total not to exceed $717,249.
G. Valley Communications Center Refunding Bonds Ordinance. (CFN-104)
Ordinance No. 3946, which pledges the City of Kent's full faith and credit toward the
payment of its 20% share of the total debt service on refunding the Valley
Communication Center's bonds, estimated at $5.85 million, was adopted, and the
Mayor and Valley Communications were authorized to take all other actions necessary
to issue the refunding bonds.
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Kent City Council Minutes February 16, 2010
H. Contract for E. Fork Soosette Creek Channel Improvements. (CFN-1038) t
The Mayor was authorized to sign the contract with Natural Systems Design in the
amount of $34,310, to evaluate channel improvements on the East Fork of Soosette
Creek, subject to terms and conditions acceptable to the City Attorney and Public
Works Director.
I. East Valley Highway Grant Funds. (CFN-1306) The Mayor was authorized to
sign all documents necessary to accept federal grant monies for construction of the
East Valley Highway Improvements Project (SR 167 to S. 212th Street) in the amount
of $1,815,564, and a budget for the funds to be established was authorized.
J. Contract for Monitoring Lake Fenwick and Lake Meridian. (CFN-1038) The
Mayor was authorized to sign a consultant contract with Tetra Tech, Inc. in an amount
not to exceed $47,144.50 to monitor surface water quality conditions and aquatic
weeds in Lake Fenwick and Lake Meridian during 2010, subject to terms and
conditions acceptable to the City Attorney and Public Works Director.
K. Washington State Department of Ecology Coordinated Prevention Grant.
(CFN-904/738) The Mayor was authorized to sign the Coordinated Prevention Grant
Agreement in the amount of $54,940 for 2010 with the Washington State Department
of Ecology, upon terms acceptable to the City Attorney, the grant funds were
accepted, amendment of the budget was authorized, and expenditure of the grant
funds was authorized.
L. King County Waste Reduction and Recycling Grant. (CFN-904) The Mayor
was authorized to accept the $162,980 Waste Reduction and Recycling (WRR) Grant
for 2010/2011, upon terms and conditions acceptable to the City Attorney, the funds
were accepted, amendment of the budget was authorized, and the expenditure of
grant funds was authorized.
M. Contract for Waste Reduction and Recycling Activities and Programs.
(CFN-904) The Mayor was authorized to sign the Olympic Environmental Resources
(DER) Contract for Waste Reduction and Recycling Activities and Programs for 2010 in
the amount of $63,745, subject to terms and conditions acceptable to the City
Attorney and Public Works Director.
N. Krueger Short Plat Bill of Sale. (CFN-484) The Bill of Sale for Krueger Short
Plat, located at 23423 112th Ave. SE, for 2 sanitary sewer manholes; 255 linear feet
of sanitary sewer line; 224 linear feet of new street; 224 linear feet of frontage
improvements; 2 catch basins; and 206 linear feet of storm sewer line, was accepted.
O. Cedar Pointe Short Plat Bill of Sale. (CFN-484) The Bill of Sale for Cedar
Pointe Short Plat, located at 25231 136th Ave. SE, for 1,240 linear feet of new street;
224 linear feet of frontage improvements; 26 storm catch basins; 148,580 CF of
detention pond storage; and 2,792 linear feet of storm sewer line, was accepted.
P. Command Vehicle Purchase. (CFN-122) The Mayor was authorized to sign a
contract based on the Washington State Bid, to purchase and equip a new command
vehicle not to exceed $74,477
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Kent City Council Minutes February 16, 2010
Q. Vehicle Transfer Agreement. (CFN-122) The Kent Police Chief was authorized
to sign all necessary documents to transfer, by donation, two vehicles from the Kent
School District The Kent School District (KSD) is donating two vehicles to supply the
two School Resource Officers with marked police vehicles.
R. Washington Traffic Safety Commission Grant. (CFN-122) The Kent Police
Chief was authorized to accept a grant from the Washington Traffic Safety
Commission in the amount of $1,800 to fund officer overtime for the Night Time Seat
Belt Enforcement mobilization, amendment of the budget was authorized, and the
Chief was authorized to sign all necessary documents.
S. Panther Lake Annexation Area—Comprehensive Plan and Zoning Map
Public Hearings—Delegate to Economic & Community Development
Committee. (CFN-1309) The Economic & Community Development Committee was
delegated with the responsibility of holding the public hearings regarding
comprehensive plan and zoning designations for the Panther Lake Annexation Area.
ADDED ITEM
T. Excused Absence. (CFN-198) An excused absence from tonight's meeting for
Councilmember Les Thomas was approved.
OTHER BUSINESS
A. Annexation Sales Tax Credit Certification Ordinance. (CFN-104) Finance
Director Nachlinger explained that cities can institute a sales tax credit against the
state's portion of sales tax, and that the City must inform the Department of Revenue
by March 1, 2010, how much money they anticipate needing from the state sales tax
credit for the fiscal year ending June 30, 2011. He estimated that amount to be
$3,772,678. Perry moved to adopt Ordinance No, 3947 which enacts a new Chapter
3.27 of the Kent City Code, entitled "Annexation Sales and Use Tax", to authorize the
transfer of a portion of existing state sales tax and use tax from new annexation
areas, as authorized by state law, as a credit against the state sales tax. Raplee
' seconded. It was clarified that the amount projected is the maximum and the city is
not required to spend that amount. The motion then carried. Mayor Cooke noted
that this program, which transfers taxes the state has already received to the cities,
was put into place as an incentive for cities to annex.
REPORTS
A. Council President. (CFN-198) Perry noted that the Council will hold their annual
retreat on February 19 and 20.
B. Mayor. (CFN-198) Mayor Cooke said she has just attended her first Regional
Policy Committee meeting, and explained that the committee reviews policies the
county is dealing with which impact cities, such as animal control and transit.
C. Operations Committee. (CFN-198) No report was given.
D. Parks and Human Services Committee. (CFN-198) Ranniger noted that the
next meeting is on Thursday, February 24, at 5:00 p.m.
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Kent City Council Minutes February 16, 2010
E. Economic & Community Development Committee. (CFN-198) Perry
announced that the committee is looking at changes to the cottage housing
ordinance, holding hearings on annexation zoning, and has met with the Mill Creek
neighborhood regarding buffers.
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 information about how to deal
with the sand which was provided in case of a flood will be forthcoming. Mayor Cooke
emphasized that the sand must not be put in the river or in drains. Hodgson said
there will be an executive session of approximately 20 minutes dealing with pending
litigation and property negations, with no action anticipated.
EXECUTIVE SESSION
The meeting recessed to Executive Session at 8:30 p.m. and reconvened at 9:17 p.m.
ADJOURNMENT
The meeting adjourned at 9:17 p.m. (CFN-198)
Brenda Jacober, CMC
City Clerk
6
Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 6C
1. SUBJECT: JOINT RESOLUTION REQUESTING LOCAL VOTERS PAMPHLET ON
THE REGIONAL FIRE AUTHORITY - ADOPT
2. SUMMARY STATEMENT: Adopt Resolution No. requesting the
publication and distribution of a Local Voters' Pamphlet for Ballot Proposition
No. 1 requesting the publication and distribution of a Local Voters' Pamphlet for
Ballot Proposition No. 1, which seeks voter authorization for the formation of the
Kent Fire Department Regional Fire Authority and approval of the Regional Fire
Authority Plan at the April 27, 2010, special election.
Ballot Proposition No. 1 is the only ballot measure that will be placed before
voters in the Jurisdictions of the City and King County Fire Protection District
No. 37 at the April 27, 2010, special election. Therefore, the City and District
believe that it is in the best interest of the voters of each Jurisdiction that the
Ballot Proposition be presented to the voters through the publication and
distribution of a Local Voters' Pamphlet. The cost of preparing and distributing
the Local Voters' Pamphlet will be shared between the City and the District.
3. EXHIBITS: Resolution
4. RECOMMENDED BY: Operations Committee
(Committee, Staff, Examiner, Commission, etc.)
5. FISCAL IMPACT
Expenditure? X Revenue?
Currently in the Budget? Yes No X
6. CITY COUNCIL ACTION:
Councilmember moves, Councilmember seconds
DISCUSSION:
ACTION:
3OINT RESOLUTION
CITY OF KENT RESOLUTION NO.
KCFP DISTRICT NO. 37 RESOLUTION NO.
A JOINT RESOLUTION of the City Council
of the City of Kent, Washington, and the Board of
Commissioners of King County Fire Protection
District No. 37, requesting the publication and
distribution of a Local Voters' Pamphlet, in
accordance with Chapter 29A.32 RCW, for Ballot
Proposition No. 1, which seeks voter authorization
for the formation of the Kent Fire Department
Regional Fire Authority and approval of the
Regional Fire Authority Plan at the April 27, 2010
special election.
RECITALS
A. The City of Kent ("City") and King County Fire Protection
District No. 37 ("District") have adopted a Joint Resolution providing for the
submission to qualified electors of the City and the District, at a special
election to be held on April 27, 2010, of a proposition that, pursuant to
Chapter 52.26 of the Revised Code of Washington, approves a plan to form
a Regional Fire Protection Service Authority within the boundaries of the
City and the District, effective July 1, 2010, to be funded by a property tax
levy and a new six-year benefit charge ("Ballot Measure").
B. Because the Ballot Measure is anticipated to be the only ballot
measure before the voters in the Jurisdictions of the City and the District,
the Kent City Council and the District's Board of Commissioners believe
that it is in the best interest of the voters of each Jurisdiction that the
1 Regional Fire Authority
LPrepare Local Voters'Pamphlet
Ballot Measure be presented to the voters through the publication and
distribution of a Local Voters' Pamphlet, in accordance with Ch 29A.32
RCW.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, AND THE BOARD OF COMMISSIONERS OF KING COUNTY
FIRE PROTECTION DISTRICT NO. 37, DO HEREBY RESOLVE AS FOLLOWS:
RESOLUTION
SECTION 1. - Authonzing Production of Local Voters' Pamphlet.
The City Council of the City of Kent Washington and the Board of
Commissioners of King County Fire Protection District No. 37 hereby find
that it is in the best interests of the City and the District to authorize King
County to publish and distribute within the jurisdictions of the City and the
District a Local Voters' Pamphlet for the April 27, 2010, Special Election,
consistent with the requirements of Ch. 29A.32 RCW and King County's
Administrative Rules.
SECTION 2. - Authorizing Payment of Costs of Producing Local
Voters' Pamphlet. The City Council of the City of Kent Washington and the
Board of Commissioners of King County Fire Protection District No. 37
hereby agree to pay the costs of the publication and distribution of the
Local Voters' Pamphlet based on each entity's prorated share as
determined under RCW 29A.32.270.
SECTION 3. - Other Actions. The Mayor of the City, or her
designee, and the Commissioners of the District, or their designees, are
authorized and directed to take all other actions reasonably necessary or
attendant to submitting the Ballot Measure to voters.
SECTION 4. - Severability. If any section, subsection, paragraph,
sentence, clause or phrase of this resolution is declared unconstitutional or
2 Regional Fire Authority
Prepare Local Voters'Pamphlet
invalid for any reason, such decision shall not affect the validity of the
remaining portions of this resolution.
SECTIONS. - Ratification. Any act consistent with the authority
and prior to the effective date of this resolution is hereby ratified and
affirmed.
SECTION 6. - Effective Date. This resolution shall take effect and
be in force immediately upon its passage.
SECTION 7. - Triplicate Oncitnals. Three originals of this resolution
are signed by the City of Kent and King County Fire Protection District No.
37.
PASSED at a regular open public meeting by the City Council of the
City of Kent, Washington, this day of March, 2010.
CONCURRED in by the Mayor of the City of Kent this day of
March, 2010.
ADOPTED by the Board of Commissioners of King County Fire
Protection District No. 37, King County, Washington, at a regular open public
meeting of such Board on the day of 2010, the
below commissioners being present and voting.
SUZETTE COOKE, MAYOR COMMISSIONER
COMMISSIONER
COMMISSIONER
3 Regional Fire Authority
Prepare Local Voters'Pamphlet
ATTEST:
I
BRENDA JACOBER, CITY CLERK KCFPD NO. 37 SECRETARY
APPROVED AS TO FORM:
TOM BRUBAKER, CITY ATTORNEY BRIAN SNURE, KCFPD NO. 37 ATTY
I hereby certify that this is a true and correct copy of Resolution No.
passed by the City Council of the City of Kent, Washington, the
day of March, 2010.
BRENDA JACOBER, CITY CLERK
P\Civil\Resolution\RegionalFreAuthonty-LocalVotersPamphlet doc
4 Regional Fire Authority
Prepare Local Voters'Pamphlet
Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 6D
1. SUBJECT: FIBER OPTIC INSTALLATION PROJECTS RESOLUTION - ADOPT
2. SUMMARY STATEMENT: Adopt Resolution No. , which authorizes the
Mayor to enter into an agreement with other Washington municipalities for the
sharing of fiber optic installation projects.
The Council's adoption of this resolution will allow the City of Kent to join with the
Consortium of Northern Cities/Constituents (Cities of Bellevue, Kirkland, Renton;
the University of Washington; Lake Washington School District; etc.) and the
Consortium of Valley Cities/Constituents (Cities of Auburn, Tukwila, Federal Way,
and Puyallup) to provide for the planning and completion of fiber optic installation
projects.
3. EXHIBITS: IT Director's Memo to Operations Committee, City of Auburn's
Project Description, Resolution, Addendum to General Terms and Conditions or
Sharing Fiber Optic Installation Projects, and General Terms and Conditions -
Interlocal Agreement for Sharing of Fiber Optic Installation Projects
4. RECOMMENDED BY: Operations 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:
Councilmember moves, Councilmember seconds
DISCUSSION:
ACTION:
11
Information Technology Department
Mike Carrington, IT Director
Phone 253-856-4607
KENT Fax. 253-856-4700
WASHINGTON Address. 220 Fourth Avenue S.
Kent, WA 98032-5895
February 16, 2010
TO: Kent City Council Operations Committee
FROM: Mike Carrington, IT Director
THROUGH: n/a
SUBJECT: Kent Agreement to Share in Fiber Optic Installation Projects
MOTION: Move to recommend Council adopt the proposed resolution authorizing
the Mayor to enter into an agreement with other Washington municipalities for the
sharing of fiber optic installation projects.
SUMMARY: Approval of this agreement to join the Consortium of Northern
Cities/constituents (Bellevue, Kirkland, Renton, UW, Lake WA School District, etc.) together
with the Consortium of Valley Cities/constituents (Kent, Auburn, Tukwila, Federal Way and
Puyallup) will provide for the planning and completion of fiber optic installation projects.
DETAILS: In early 2000 the cities and interested parties of Bellevue, Kirkland, UW and
Lake WA School District entered into an interlocal agreement with General Terms and
Conditions that outlined how the parties would work together on fiber optic projects for the
benefit of the participants. That document outlined the general roles and responsibilities for
all the parties including the use of their existing fiber along with any future build-outs.
These municipalities and associated groups have sought to enhance and improve the
distribution of fiber optic runs throughout their cities and ultimately the region as a whole.
Small and manageable Fiber Optic Project Agreements (FOPAs) are entered into by two or
more members of the coalition to help facilitate the planning and construction of a mutually
beneficial fiber run.
Funding for a given FOPA has typically been negotiated by the specific City and/or entities
directly impacted by the fiber project. Grants, in-kind contributions through existing conduit
and/or dark fiber, along with shared maintenance and operations expenses allow for equal
responsibilities amongst those who stand to benefit the most from the projects.
The Valley consortium of South King County and Northeast Pierce County cities looked to
collaborate in a similar way in early 2009 More recently these cities have sought to partner
on efforts between entities like Valley Communications (VCOM), Kent, and Auburn FOPA
#53 would see a fiber run project stretching from VCOM down 277`" connecting with Auburn
and Kent at East Valley/Central Avenue. Funding for this project (approximately $150,000)
has been preliminarily secured through a U S Department of Justice, Office of Community
Oriented Policing Services (COPS) grant and will benefit a multitude of local municipalities
and public safety entities.
Kent Council Operations Committee 1 Share in Fiber Optic Installation Projects
February 16, 2010
12
BUDGET IMPACT: There is no direct budget impact for the City to enter into this
agreement.
Funding for FOPAs under this agreement will be matched by in-kind contributions, grants, or
private funding secured by the City of Kent and its participating partners.
I look forward to talking with you about this motion at your February 16th, 2010 Operations
Committee meeting. If you have questions prior to the meeting, please feel free to contact
me, Mike Carrington, directly at (253) 856-4607
Kent Council Operations Committee 2 Share in Fiber Optic Installation Projects
February 16, 2010
13
AUBURN
Kt11iINaJ ON
The Valley Cities' Regional Broadband Network —
Improving Connectivity and Inter-Operability for a
Regional Public Safety& Emergency Communications System
Request
On behalf of the Valley Cities of Fife, Sumner, Puyallup, Algona, Pacific, Auburn, Kent, Tukwila and Renton and
the City of Federal Way, the City of Auburn respectfully requests $4 3 million in grant funding for a Phase II
broadband capital infrastructure build-out and enhancement of the public safety network, and excess dark fiber
to enable Phase III inter-connections and inter-operability upgrades for other public agencies, schools, hospitals,
libraries, and senior centers to link to this
network
' -fart
Proiect Description
Install a fiber optic communications network to
interconnect all of the Valley Cities to enhance
interagency, law enforcement capabilities
communications and emergency response and t
support further expansion of wireless broadband ;; '
:v r 4•=
Project Background
The Valley Cities Regional Broadband Network t _
is designed to dramatically improve the
connectivity and inter-operability of a public
safety and emergency communications system -
. -
serving apopulation of over 400,000 people
This enhanced broadband infrastructure will
serve and benefit nine cities within Pierce and
King Counties and will provide future inter- ;
connections between three regional Public 3
Safety Access Points (PSAPs) the Valley - tit
Communications Center, NORCOM (the North
� LL
East King County Regional Public Safety
Communication Agency), and LESA(the Law
Enforcement Support Agency -- Pierce County's " A
emergency 9-1-1 center) r _
This fiber network build-out also helps realize
and connect with a larger regional vision put
forth by a "Fiber Consortium" of existing partners
including the University of Washington, cities ofs,
Auburn, Bellevue, Federal Way, Renton and
Kirkland, Evergreen Hospital, Renton, Bellevue,
and Lake Washington school districts, Bellevue
Community College, and the City of Seattle
The Valley Cities protect is a classic example of improving and expanding "access to, and use of, broadband
service by public safety agencies," as envisioned in the National Broadband Plan It also will enable upgrades
of, and enhanced connections with, broadband technology that simply would not be possible but for the grant
funding
Making the system more connected and inter-operable will also help the Valley Cities significantly enhance
technology services to public This type of public safety protect is envisioned as an asset by the State of
Washington's "Governors Broadband Advisory Council,"which, in its final report to the Governor, notes,
"applications that effectively leverage public safety should be actively encouraged and supported" (Pg 4) and,
"In particular, the state should support those broadband infrastructure proposals that 'improve access to, and
use of, broadband service by public safety agencies "' (Pg 12)
� I
14
The Valley Cities segment of the Fiber Consortium project is a natural extension of years of planning,
assessments, studies and analyses of the public safety-based broadband needs in the South King
County/Northeast Pierce County region After securing $98,000 of federal grant funding, agencies involved in
the protect have developed a strategic plan for fiber network build-out, conducted a needs assessment of
broadband technology, executed a Fiber Optic Project Agreement, and have worked on a staff-to-staff basis for
the past three years to accomplish these regional technology improvements
Phase I of the project will be funded with COPS technology grant funds and will build 2 4 miles of fiber backbone ,
in existing conduit from the valley floor to the Valley Communications 911 Center This will allow agencies to
interconnect as a central point for direct secure fiber communications with the 911 system
Phase II of the Valley Cities' Regional Broadband Network involves 1)construction of a fully built-out fiber optic
backbone, 2)connections to a new regional jail facility breaking ground later this year (known as 'SCORE"—
South County Correctional Entity), and 3) enhanced inter-operability between and among the participating cities
of Auburn, Algona, Federal Way, Kent, Pacific, Puyallup, Renton, Sumner, Fife and Tukwila
Along with the Phase II build-out of the public safety network, Phase III of the broadband network project
anticipates opportunities for regional connections to other public agencies, including additional cities, hospitals,
school districts, and the University of Washington Valley Medical Center in Renton, the Auburn Regional
Medical Center, St Francis Hospital in Federal Way, Tukwila Diagnostics Imaging in Tukwila, and the University
of Washington medical clinics could also be inter-woven into the broadband system, as well as the University of
Washington's main Seattle campus and Tacoma branch campus, and the Auburn, Federal Way, Fife, Kent,
Puyallup, Renton, Sumner, and Tukwila school districts (K-12)
Benefits of the Project
It is the objective of the Valley Cities that the regional broadband infrastructure capital improvement initiative will
provide the following benefits
• Enhanced broadband technology to serve the region
• A higher speed network to save seconds, if not minutes, for emergency response at crime scenes, on
medical calls, for mutual aid, and for responses to natural disasters The improvements to the system
are intended to save lives
• Better connectivity and inter-operability of an existing public safety and emergency communications
system
• Future opportunities to connect the system to schools, hospitals, libraries, community centers and
senior centers
• Direct fiber connections to and between agencies, to mobile data terminals operated by police and fire
agencies, and to a regional 911 center
Inter-operability between an emerging jail facility and local law enforcement agencies that will need to
communicate with the jail 24/7
• Enhanced information-sharing among numerous local agencies
• Upgrades in emergency communications, intelligence gathering between agencies, crime prevention,
and crime analysis
• Near-term, high-wage construction jobs to construct nearly a dozen new and inter-connected fiber
segments of the regional network
City of Auburn Contact
Pete Lewis, Mayor, City of Auburn - 253 931 3041 —pewis@auburnwa qov
Carolyn Robertson, Government Relations Manager—253 931 3096—crobertson(a,auburnwa gov
2
RESOLUTION NO.
A RESOLUTION of the City Council of the
City of Kent, Washington, authorizing the Mayor to
enter into an agreement with other Washington
municipalities for the sharing of fiber optic
installation projects.
RECITALS
A. The Cities of Bellevue, Kirkland, Renton and Seattle; the Lake
Washington, Renton, and Bellevue School Districts; the University of
Washington; Bellevue Community College; and Evergreen Hospital entered
rinto an Interlocal Agreement for the sharing of Fiber Optic Installation
Projects. Other cities, including the City of Auburn, the City of Federal
Way, and the City of Puyallup, have adopted resolutions to participate in
planned and future fiber optic projects under the same general terms and
conditions provided for under an interlocal agreement entered into by the
founding municipalities.
B. The City of Kent would also like to have the option to
participate in planned and future fiber optic projects under those same
General Terms and Conditions, and adopts this resolution authorizing the
Mayor to take all action necessary to participate in planned and future fiber
optic projects in accordance with the general terms and conditions of the
founding interlocal agreement.
1 Sharing of Fiber Optic
Installation Projects
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS:
RESOLUTION
SECTION 1. - Mayor Authorized. The Mayor of the City of Kent is
authorized by this resolution to execute an agreement, which will take the
form of an Addendum to the "General Terms and Conditions for Sharing of
Fiber Optic Installation Projects" between the City of Kent and Cities of
Bellevue, Kirkland, Renton, Seattle, Auburn, Federal Way and Puyallup; the
Lake Washington, Renton and Bellevue School Districts; the University of
Washington; Bellevue Community College; and Evergreen Hospital, which
agreement shall be in substantial conformity with the agreement attached '
and incorporated as Exhibit A. The Mayor is further authorized to
implement any administrative procedures and take all other acts necessary
to carry out the directives of this legislation; however, this authorization is
not intended to allow the Mayor to expend funds to carry out the directives
of this legislation except through approved state and local bid and
procurement processes.
SECTION 2. - Severability. If any section, subsection, paragraph,
sentence, clause or phrase of this resolution is declared unconstitutional or ,
invalid for any reason, such decision shall not affect the validity of the
remaining portions of this resolution.
SECTION 3. - Ratification. Any act consistent with the authority
and prior to the effective date of this resolution is hereby ratified and
affirmed.
SECTION 4. - Corrections by City Clerk or Code Reviser. Upon
approval of the City Attorney, the City Clerk and the code reviser are
authorized to make necessary corrections to this resolution, including the
correction of clerical errors; references to other local, state or federal laws,
2 Sharing of Fiber Optic
Installation Projects
codes, rules, or regulations; or resolution numbering and
section/subsection numbering.
SECTIONS. - Effective Date. This resolution shall take effect and
be in force immediately upon its passage.
PASSED at a regular open public meeting by the City Council of the
City of Kent, Washington, this day of March, 2010.
CONCURRED in by the Mayor of the City of Kent this day of
March, 2010.
SUZETTE COOKE, MAYOR
ATTEST:
BRENDA JACOBER, CITY CLERK
APPROVED AS TO FORM:
TOM BRUBAKER, CITY ATTORNEY
I hereby certify that this is a true and correct copy of Resolution No.
passed by the City Council of the City of Kent, Washington, the
day of March, 2010.
BRENDA JACOBER, CITY CLERK
P\Civil\Resolu[ion\Shanng FiberOpticPro)ec[s-ValleyG[iesResolution doc
3 Sharing of Fiber Optic
Installation Projects
EXHIBIT A
Addendum to General Terms and Conditions
for Sharing Fiber Optic Installation Projects
KENT
ADDENDUM TO GENERAL TERMS AND CONDITIONS
For Sharing Fiber Optic Installation Projects
THIS ADDENDUM is made and entered into on the dates signed below by
and among various Participating Agencies and the City of Kent as an addendum to
the General Terms and Conditions for Sharing of Fiber Optic Installation Projects
between the parties for executed on the day of
2010, and most recently amended on
I. RECITALS
1.1 The Cities of Bellevue, Kirkland, Renton, Seattle, Auburn, and
Puyallup; the Lake Washington, Renton and Bellevue School Districts; the
University of Washington; Bellevue Community College; and Evergreen Hospital
("Participating Agencies") have entered into the General Terms and Conditions for
Sharing of Fiber Optic Installation Projects.
1.2 The Participating Agencies and the City of Kent desire to amend the
General Terms and Conditions to add the City of Kent as a Participating Agency.
NOW THEREFORE in consideration of their mutual covenants, conditions and
promises, the Parties agree as follows:
II. AGREEMENT
2.1 As provided for in Section IX, paragraph N, the City of Kent, upon
signing this Addendum, shall become a Participating Agency under the General
Terms and Conditions for Sharing of Fiber Optic Installation Projects.
2.2 The City of Kent acknowledge that it has received the General Terms
and Conditions, including Addenda Numbers I through and agree to be
bound by the same.
ADDENDUM TO GENERAL TERMS AND CONDITIONS
FOR SHARING FIBER OPTIC INSTALLATION PROJECTS - 1
2.3 All other provisions of the General Terms and Conditions shall remain
in full force and effect.
2.4 This Addendum may be executed in any number of counterparts, each
of which shall constitute an original, and all of which will together constitute this
one Addendum.
2.5 Either party may execute and deliver this Addendum by telephone
facsimile or by emailing a PDF version of the original signature page, and that
signature shall have the same force and effect as if executed in original.
IN WITNESS WHEREOF the parties hereto have executed this Addendum
as of the dates.
CITY OF KIRKLAND Approved as to Form:
David Ramsay, City Manager Date City Attorney
CITY OF BELLEVUE Approved as to Form:
City Attorney
Steve Sarkozy, City Manager Date
CITY OF RENTON Approved as to Form:
Denis Law, Mayor Date City Attorney
CITY OF PUYALLUP Approved as to Form:
Date City Attorney
CITY OF AUBURN Approved as to Form:
Date City Attorney
ADDENDUM TO GENERAL TERMS AND CONDITIONS
FOR SHARING FIBER OPTIC INSTALLATION PROJECTS - 2
UNIVERSITY OF WASHINGTON Approved as to Form:
' Date Assistant Attorney General
BELLEVUE COMMUNITY COLLEGE Approved as to Form:
Date Assistant Attorney General
LAKE WASHINGTON SCHOOL DISTRICT
Date
RENTON SCHOOL DISTRICT
Date
BELLEVUE SCHOOL DISTRICT
Date
EVERGREEN HOSPITAL
Date
CITY OF KENT Approved as to Form:
Suzette Cooke, Mayor Date City Attorney
P\Civll\Files\OpenFlles\1404-Regional Hber Optic PmjeR\Addendum-GenlTermsConditiom doc
ADDENDUM TO GENERAL TERMS AND CONDITIONS
FOR SHARING FIBER OPTIC INSTALLATION PROJECTS - 3
GENE RALTERMS and CON DITIONS
Interlocal Agreement
For Sharing of Fiber Optic Installation Projects
TABLE OF CONTENTS ,
I. RECITALS I '
H. PURPOSE OF AGREEMENT I
IIL DEFINITIONS 2
IV. RELATIONSHIPS AMONG PARTICIPA TING AGENCIES 5
A PRINCIPLES 5
B TERM 5
C FIBER OPTIC PROJECT 6
D. GENERAL PLANNING, ENGINEERING AND DESIGN CONSIDERATIONS 6
E CHANGES 8 '
F ALLOCATION AND OWNERSHIP OF FIBER OPTIC CABLE 9
G USE OF FIBERS 9
H SALE OF FIBERS 9
1 PARTICIPATING AGENCIES RIGHT OF FIRST REFUSAL 9
J. FUTURE USE OF FIBER OPTIC CABLE ALREADY OWNED BY INDIVIDUAL PUBLIC
AGENCIES 11
K. TAXES 11
L. PAYMENTS 11
V. LEAD AGENCY RESPONSIBILITIES 12
A. GENERAL RESPONSIBILITY OF LEAD AGENCY 12
B AGREEMENTS,APPROVALS, PERMISSIONS AND PERMITS 12
C. NOTICE OF INSTALLATION AND TESTING 12
D MAINTENANCE AND REPAIR RESPONSIBILITIES 13 '
E FINANCIAL REIMBURSEMENTS AND OTHER PAYMENTS TO BE PROVIDED TO THE
LEAD AGENCY 14
F LEAD AGENCY'S NONCOMPLIANCE 14
G AUDIT 14
VI. FACILITYOWNER RIGHTSAND RESPONSIBILITIES 15
A PRINCIPLES FOR USE OF PARTICIPATING AGENCY FACILITIES 15
B. APPROVALS 15
C ACKNOWLEDGMENT AND ACCEPTANCE OF RISKS 15
D ACCESS TO AND USE OF FACILITIES 16
E. BUILDING ENTRANCES 17
F. MODIFICATIONS TO FACILITIES 17 '
1
Terms and Conditions for Sharing of Fiber Optic Installation Protects February 24,2010
' G. RELOCATION OF FIBER OPTIC CABLE 18
' H. RIGHTS OF PROPERTY 18
I. DEFAULT AND DISPUTE RESOLUTION 19
' VIL RELATIONSHIP BETWEEN LEAD AGENCYAND CONTRACTORS 20
A. RESPONSIBILITY 20
' B. APPROVALS 20
C INSURANCE 20
VIIL INDEMNIFICATIONAND LIMITATION OFLIABILITY 20
A LIMITATION OF LIABILITY AND INDEMNITY—LEAD AGENCY 20
B. LIMITATION OF LIABILITY AND INDEMNITY—FACILITY OWNERS 21
C. LIMITATION OF LIABILITY AND INDEMNITY—PARTICIPATING AGENCIES 22
IX. ADDITIONAL TERUS AND CONDITIONS 23
' A. LAWS,LICENSES,AND PERMITS 23
B PERFORMANCE 23
C SUBJECT TO LAWS 23
D. FORCE MAJEURE 24
' E. NO WAIVER 25
F SEVERABILITY 25
G. RIGHTS CUMULATIVE 25
H. CONTRACTUAL RELATIONSHIP 26
' I. HEADINGS 26
J. APPLICABLE LAW AND VENUE 26
' K BINDING EFFECTS 26
L. ASSIGNMENT 26
M. NOTICES 26
' N. MODIFICATION OR AMENDMENT 27
O EXECUTED IN COUNTERPARTS 27
P SUPERCEDES CITY OF KIRKLAND FRANCHISE 27
Exhibit A I
' u
Terms and Conditions for Sharing of Fiber Optic Installation Protects February 24,2010
I. RECITALS '
WHEREAS, the Lake Washington School District plans to construct a fiber optic
network among its schools for the purpose of improving overall learning and
achievement by increasing the availability and diversity of training and
educational material, and
WHEREAS, the City of Kirkland requires a fiber optic network amongst its'
facilities to provide services to its constituents, for traffic including but not
limited to traffic, SCADA systems, economic development, business support,
and
WHEREAS, the City of Kirkland and the City of Bellevue desire a direct fiber
connection, to enhance internal governmental cooperation and extend
communications to other local governments, achieve efficiencies through shared
resources, and
WHEREAS, the University of Washington desires a path North to South through '
the City of Kirkland, and
WHEREAS, each of the Parties have a portion of what is required to build a fiber '
network but do not want to duplicate efforts, and
WHEREAS, the Parties and their respective `citizens' have a vested interest in
supporting and improving educational opportunities, community communications;
and infrastructure, and
WHEREAS, the City of Kirkland, City of Bellevue, and the University of
Washington have conduit plant available that can serve all the Parties, and
WHEREAS, the Lake Washington School District has signed the City of
Kirkland's Franchise Agreement allowing the Lake Washington School District
use of the City of Kirkland's Right of Way
Therefore the parties agree as below. '
II. PURPOSE OF AGREEMENT
This interlocal agreement outlines how the parties will work together on fiber
optic projects for the benefit of all the Parties. This document also outlines the
roles and responsibilities of all the Parties and use of the fiber cables today and
into the future
Terms and Conditions for Sharing of Fiber Optic Installation Projects 1 '
' IiI. DEFINITIONS
' Whenever used in this Agreement with initial letters capitalized, the following terms shall have the
following specified meanings, unless the context clearly requires a different meaning
A. Agreement
Refers to this document, General Terms and Conditions for sharing fiber optic projects
B. Building Entrance
Conduit or Conduits usually connecting a Vault, Handhole,or Maintenance Hole in the
public nght-of-way to a building.
C. Common Fiber Spares
Fiber strands installed as part of a Fiber Optic Project held in reserve solely for replacement
of disabled fibers
D. Conduit or Duct
' Enclosed runway or tube designed to house cables for their protection.
E. Dark Fiber
An optical fiber strand not coupled to an optical light source.
' F. Demarcation Point
A point agreed to between the facility owner and lead agency that documents where one
party's responsibilities end and the other begin and is required to be documented, agreed to
and approved in the Fiber Optic Project Agreement
G. Indirect Costs
' Indirect costs are costs determined in accordance with a Participating Agency's standard
methodology for computing indirect costs Indirect costs shall include costs of labor,
benefits, equipment usage, miscellaneous materials, material handling, and administrative
and general charges This definition also applies to Facility Owner indirect costs.
H. Facility or Facilities
A structure including but not limited to- Buildings, Vaults, Maintenance Holes, Handholes,
Conduit, Building Entrances.
I. Facility Manager
' The person designated by the Facility Owner to manage the Facility, including granting
access, determining and approving its use and terms and conditions for such use.
' 2
Terms and Conditions for Sharing of Fiber Optic Installation Projects
J. Facility Owner
The Participating Agency that is the legal owner of a Facility or Facilities or the Participating
Agency holding the legal right to grant permission to occupy, use or modify Facilities.
K Fiber Optic Cable ,
A cable installed by the Participating Agencies pursuant to this Agreement that is composed
of strands of glass fiber, each strand which is designed to conduct signals of modulated light
(optical signals) from one end to the other '
L. Fiber Optic Project
The Work associated with the installation of fiber optic transmission materials, pursuant to a
Fiber Optic Project Agreement
M. Fiber Optic Project Agreement
An agreement for a specific Fiber Optic Project with Participating Agencies that specifies the
contractual relationships between and among the participants.
N. Fiber Strand or Strand of Fiber '
A single thin transparent fiber of glass enclosed by a material of a lower index of refraction
that reflects light throughout its length by internal reflections.
O Handhole ,
An underground structure (usually concrete) providing an opening in a Conduit in which
workers may reach into but usually do not enter for the purposes of installation and
maintenance of cable.
P. Lead Agency
The Participating Agency designated by mutual consent in a Fiber Optic Project Agreement
that is responsible for managing Fiber Optic Project related Work, including entering into
construction contracts and overseeing the construction work for the Participating Agencies
and ongoing maintenance of the Fiber Optic Project(s).
Q. Make-Ready Work
Any and all planning, analysis,design,review, adjustment to equipment, construction,
and/or other activities (such as tree trimming) necessary to prepare existing Facilities for use ,
by the Lead Agency as determined by the Facility Owner.
R Participating Agency
A public agency that is a signatory to this Agreement for the purpose of engaging in the
shared Fiber Optic Project(s)
S. Participating Agency Facilities '
Those Facilities owned, managed, occupied, by a Participating Agency Department or
Division. '
T. Pathway
Aerial or underground Facilities used for the purpose of placing fiber optic cables, splice
cases, trace wire, etc ,
U. Project Budget(s)
A required section of all Fiber Optic Project Agreements which identities the total '
3
Terms and Conditions for Sharing of Fiber Optic Installation Projects '
anticipated costs for Work performed as part of that agreement, including contingency, and
allocates responsibility for those costs, including ongoing maintenance, to all parties to that
Fiber Optic Project Agreement.
V. Splice
The point where two separate optical fiber strands are joined together either mechanically or
by fusion to make one continuous optical fiber strand
' W. Telecommunications Service(s)
Telecommunications service(s) is the transmission of information over Fiber Strands from
one location to another(not including services provided between two areas within the same
building) meeting industry accepted transmission standards, their equivalent or replacement
service Such information includes but is not limited to voice, video, data,pictures, and
1 facsimile Telecommunication service(s) does not include Dark Fiber or services other than
transmission services.
X. Work
' All activities related to the planning, right-of-way acquisition, scheduling, analysis, design,
engineering, preparation, construction, installation, evaluation, maintenance,repair and
operation of a Fiber Optic Project as provided for in this Agreement or a Fiber Optic Project
Agreement including Make-Ready Work but not including work done prior to the execution
of a Fiber Optic Project Agreement
i
1
1
i
1
1
1
1
' 4
Terms and Conditions for Sharing of Fiber Optic Installation Projects
IV. RELATIONSHIPS AMONG PARTICIPATING AGENCIES ,
A. PRINCIPLES
Agreements among the Participating Agencies for sharing of Fiber Optic '
Projects shall conform to the following principles.
1. Participation in Fiber Optic Projects is voluntary and can depend on
specific cable routes.
2. Arrangements for cooperation should be fair and equitable among '
Participating Agencies. Any special configuration, such as a routing
change to accommodate a particular Participating Agency, should be paid
for in whole by that Participating Agency
3. If a Facility Owner requires a route change due to the requirements for
optimal Facility access, the costs of such a change shall be considered ,
general project costs of the affected Participating Agencies and not the
sole responsibility of the Facility Owner as a Participating Agency
4. Participating Agencies may have varying amounts of financial and other ,
responsibilities on different projects One or more Fiber Optic Project
Agreement(s) will define and document those responsibilities Asa
general principle Participating Agencies should share maintenance
proportionately based on each Participating Agency's share of the Fiber
Strands deployed or as described in the Fiber Project Agreement(s). '
5. Participating Agencies may, from time to time, act variously and ,
simultaneously as Lead Agencies and/or Facility Owners
6. The Lead Agency for a specific Fiber Optic Project may be changed with '
the mutual consent of all Participating Agencies that are party to that
specific Fiber Optic Project.
B. TERM '
This Agreement shall become effective upon the execution of all
Participating Agencies, and unless terminated sooner in accordance with the
provisions of this Agreement, shall continue for a period of ten(10)years,
and automatically renew for an additional ten(10)years upon the agreement '
of the parties.
As a starting point for negotiations of a renewal Agreement, the Participating
5
Terms and Conditions for Sharing of Fiber Optic Installation Protects
Agencies will use this Agreement as the framework for further negotiations
Under the terms of any renewal agreement, the Participating Agencies shall
continue to make payments as specified in any applicable Fiber Optic Project
Agreement(s)
C. FIBER OPTIC PROJECT
All Fiber Optic Projects among Participating Agencies shall have a Fiber
Optic Project Agreement specifying the following, including contact names
and addresses where appropriate
- Participating Agencies
- Lead Agency and Project Manager
Route
- Facilities to be Used; Facility Owners; and the Facility Manager(s)
- Project Budget, including Contingency and Terms of Cost Sharing
Apportionment of Liability
- Project Schedule
' - Changes or Addenda to General Terms and Conditions
Bond and Insurance Requirements for Contracting and Participating
Agencies
' - Fiber Allocation including Spares.
Maintenance Responsibilities and Costs, including Ongoing
Maintenance and Responsibilities for Moves.
- Points of Demarcation
Each Fiber Optic Project Agreement shall be an attachment to and run
concurrent with this Agreement, General Terms and Conditions For Sharing
of Fiber Optic Installation Projects Interlocal Agreement.
' D GENERAL PLANNING, ENGINEERING AND DESIGN
CONSIDERATIONS
IUpon execution of a Fiber Optic Project Agreement, the Participating
Agencies shall develop, review and/or revise the planning, engineering,
design, installation, and maintenance procedures for the Fiber Optic Project.
The procedures will be subject to the approval of the Participating Agencies
and of the Facility Owners as specified in Section IV and in related Exhibits
' and Addenda The procedures will be substantially similar to the following.
1. Perform Feasibility Review
A Participating Agency with an interest in a shared Fiber Optic
Project will undertake a feasibility review to determine which of the
Participating Agencies has an interest in participating in the Fiber
6
Terms and Conditions for Sharing of Fiber Optic Installation Projects
Optic Project, the possible routes, the availability of Facilities, the
approximate cost and the time frame required for installation.
Prospective Facility Owners shall be included in the feasibility
review process.
2. Execute Fiber Optic Project Agreement
The Fiber Optic Project Agreement must ensure that approval by the ,
appropriate authority is granted for Facilities to be used and shall
specify the information listed in Section IV C.
3. Perform Detailed Engineering Design
The Lead Agency shall work with Facility Owners to complete '
routing, obtain permission for use of Facilities, etc Any changes
exceeding the approved Project Budget(see definitions above) shall
require approval by the Participating Agencies, such approval shall
not be unreasonably withheld
4. Install Project
The Lead Agency shall be responsible to ensure compliance with all '
reasonable requirements of the Facility Owner
Facility Owner staff shall be authorized to stop Work on an '
installation that is being conducted by the Lead Agency and its
contractors on the Fiber Optic Project if Facility Owner or
Participating Agency reasonably determines that the Work in
question is inadequate, unsafe or would or could potentially cause a
problem.
5. Complete Acceptance of Fiber Optic Project ,
The Lead Agency shall formally accept installation of the Fiber Optic '
Project by issuing a formal letter to the contractor(s) and the
Participating Agencies stating that the Work has been completed in '
accordance with contract specifications, final test documentation has
been received, and all punch-list items have been resolved to the
satisfaction of the Lead Agency and Facility Owner(s) Such
acceptance shall authorize final payment(s) to contractor(s). The
Lead Agency shalt also document and identify ownership of Fiber
Strands, providing a copy of such documentation to all Participating
Agencies.
6. Establish Maintenance Plan ,
7 Terms and Conditions for Shanng of Fiber Optic Installation Projects ,
The Lead Agency shall develop a maintenance plan for the Fiber
Optic Project, and upon acceptance of the maintenance plan by the
Participating Agencies, the Participating Agencies will,by mutual
consent, appoint a maintenance manager, usually the Lead Agency
7. Keep Records
The Lead Agency shall provide Participating Agencies and/or
Facility Owners with whatever documents are required by the
Facility Manager(s) so Facility Owner(s) can maintain accurate
records of where and how the Participating Agencies installed
equipment within or on Facilities, and where and how the
Participating Agencies modified any Facility. Among the materials
that must be provided to Facility Owner are computerized records
and archival quality drawings that document installation or
modification Work performed by the Lead Agency or its contractors
The Lead Agency shall not charge the Facility Owner for providing
any necessary documentation required by the Facility Manager Such
costs, however, shall be included as part of the Project Budget(see
definitions above).
8. Provide Access to Records
' All Participating Agencies shall provide access to relevant records
with respect to design, installation and maintenance of components of
1 the Fiber Optic System located within or on Facilities to Facility
Owner(s) when requested by the Facility Manager(s). The
Participating Agencies shall not charge the Facility Owner for either
access to, such information or for obtaining copies of any portion of
the information. Such costs, however, shall be included as part of the
Project Budget. The records to which the Participating Agengies
shall provide the Facility Owner access include, but are not limited to
computerized records and design drawings, equipment and fiber
specifications,route maps,manufacturer's test reports on fibers and
' on other equipment, documentation of the installation of Fiber Optic
Cable and other equipment, and documentation of maintenance done
on fibers and other equipment
E CHANGES
Participating Agencies shall have the right to propose changes to the Fiber
Optic Project Agreement which must first be approved by all Participating
Agencies, including replacing the Lead Agency and adjusting Project
' 8
Terms and Conditions for Sharing of Fiber Optic installation Projects
Budgets. Changes that impact Facility Owners shall be subject to approval
by the Facility Owners
The costs of any changes proposed by and beneficial to an individual
Participating Agency made after the signing of a Fiber Optic Project
Agreement shall be bome by that Participating Agency However, if a
Facility Owner requires a route relocation due to the requirements for ,
optimal Facility access, the costs of such a relocation shall be considered
general project costs and not the sole responsibility of the Facility Owner as a
Participating Agency The costs of other changes that are approved by the
Participating Agencies because they are deemed necessary to complete the
Fiber Optic Project shall become part of the total project cost.
F ALLOCATION AND OWNERSHIP OF FIBER OPTIC CABLE ,
All Fiber Optic Cable and Fiber Strands installed as part of a Fiber Optic
Project shall be allocated to the individual Participating Agencies as specified
in the Fiber Optic Project Agreement The Participating Agencies shall own
all right and title to these allocated Fiber Strands
G USE OF FIBERS ,
A Participating Agency shall have complete free and unrestricted use of the
Fiber Strands installed and allocated to it under a Fiber Optic Project
Agreement for any lawful purpose subject to applicable agreements,
approvals, permission and permits
Common Fiber Spares, if provided for in a Fiber Optic Project Agreement, ,
shall be shared in common among the Participating Agencies only
Identified Common Fiber Spares shall be used only as replacements for
disabled Fibers Strands unless documented and agreed to in a Fiber Optic
Project Document. Use of spare fibers shall be implemented by the Lead
Agency,with notification to all Participating Agencies.
H SALE OF FIBERS
Participating Agencies who wish to sell or otherwise transfer their allocated '
fibers to any other party must obtain written and unanimous approval from '
all Participating Agencies, whom are also granted right of first refusal
regardless of circumstances of the sale
I. PARTICIPATING AGENCIES RIGHT OF FIRST REFUSAL
9
Terms and Conditions for Sharing of Fiber Optic Installation Projects '
Before any allocated fibers held by a Participating Agency may be sold or
otherwise transferred (including transfer by gift or operation of law), the
other Participating Agencies, either individually or collectively, shall have a
right of first refusal to purchase the Shares on the terms and conditions set
forth in this section
' (a) Notice of Proposed Transfer The selling Participating Agency shall
deliver to all Participating Agencies a written notice Notice stating (i) the
bona fide intention to sell or otherwise transfer such allocated fibers, (it)the
name of each proposed purchaser or other transferee; (in)the number of
fibers to be transferred to each proposed transferee; (rv)the bona fide cash
price or other consideration for which the selling Participating Agency
proposes to transfer the allocated fibers and the material terms and conditions
of the proposed transfer(the "Offered Terms") and (b) offer the allocated
fibers at the Offered Terms to the other Participating Agencies.
(b) Exercise of Right of First Refusal At any time within 60 days after
receipt of the notice, the other Participating Agencies, either individually or
collectively, may, by giving written notice to the selling Participating
Agency, elect to purchase all, but not less than all, of the allocated fibers
proposed to be transferred to any one or more of the proposed transferees, at
the purchase price and on the terms determined in accordance with
subsection(c)below.
(c) Purchase Price. The purchase of the allocated fibers by the other
Participating Agencies, either individually or collectively, under this section
shall be identical in all material respects to the Offered Terms
(d) Payment. Payment of the purchase price shall be made in accordance
with the Offered Terms, within ninety(90) days after delivery of the written
notice by the other Participating Agencies, either individually or collectively,
as set forth in(b) above.
(e) Right to Transfer. If all allocated fibers proposed in the notice to be
transferred to a given proposed transferee are not purchased by the other
Participating Agencies, either individually or collectively, the Participating
Agency may sell or otherwise transfer such allocated fibers to that proposed
transferee,provided that such sale or other transfer is consummated within
sixty (60) days after the date of the notice and provided further that any such
sale or other transfer is affected in accordance with Offered Terms as
presented to the other Participating Agencies If the allocated fibers
described in the notice are not transferred to the proposed transferee within
such period, a new notice shall be required and the other Participating
Agencies, either individually or collectively, shall again be offered the Right
' of First Refusal before any allocated fibers held by the may be sold or
10
Terms and Conditions for Shanng of Fiber Optic Installation Projects
1
otherwise transferred.
(f) Any entity purchasing the right to use fibers installed under a Fiber ,
Optic Project Agreement must agree to all the terms and conditions of this '
Agreement, including the General Terms and Conditions, Exhibits and
Addenda as specified in this document and shall notify the Facility Owner(s)
of any such purchase.
Participating Agencies may grant the right to use their fiber allocation to any
other party provided the sale or lease is approved by a majority of the other
Participating Agencies. Such approval shall not be reasonably withheld
J FUTURE USE OF FIBER OPTIC CABLE ALREADY OWNED BY
INDIVIDUAL PUBLIC AGENCIES
Nothing in this document precludes Participating Agencies from entering
into separate agreements with other Participating Agencies to utilize fiber
optic cable other than the Fiber Optic Cable installed pursuant to a Fiber '
Optic Project Agreement
K TAXES ,
The Participating Agencies shall pay, before delinquency, all applicable
taxes, levies, and assessments arising from then-joint installations and
undertakings under a Fiber Optic Project Agreement
L. PAYMENTS
Participating Agencies shall pay all amounts owed to the Lead Agency '
within forty-five (45) days of receipt of the billing. If a Participating Agency
cannot or does not make payment for charges owed or if there is a dispute as
to amounts owed the such dispute shall be resolved through the process
identified in this Agreement.
If the Participating Agency fails to make payment as required, then its
allocated Fiber Strands shall become the property of the other Participating
Agencies and those Participating Agencies may either reallocate the Fiber
Strands amongst themselves or sell the Fiber Strands pursuant to the
provision of Section IIl. H and Section III 1 above.
I 1
Terns and Conditions for Sharing of Fiber Optic Installation Protects
V. LEAD AGENCY RESPONSIBILITIES
A. GENERAL RESPONSIBILITY OF LEAD AGENCY
The Lead Agency shall be responsible for the overall management of the
' Work necessary for the successful completion of the Fiber Optic Project, as
the agent of the Participating Agencies in the Fiber Optic Project, pursuant to
the terms and condition of the applicable Fiber Optic Project Agreement
The Lead Agency shall have the authonty and be responsible for negotiating
and entering into such separate contract agreements as are necessary with
Facility Owners for the specific use of their Facilities in furtherance of the
Fiber Optic Project The Lead Agency will also have the authonty to enter
into and manage such separate contract agreements with contractors as are
necessary to perfonn all or part of the Work associated with the Fiber Optic
Project.
The Lead Agency is responsible for ensuring that all applicable terms and
conditions of the Fiber Optic Project Agreement(s), General Terns and
Conditions, exhibits and addenda are included in the contract agreements
with Facility Owners and contractors
Pnor to execution of any contract agreements with Facility Owners or
contractors, the Lead Agency shall provide an opportunity for the
Participating Agencies to review and comment on such agreements. In the
event there is a dispute regarding any of the provisions or lack of provisions
1 of any agreement, such dispute shall be resolved through the process
identified in this Agreement
1 The Lead Agency shall keep the Participating Agencies informed as to the
status of the Fiber Optic Project
tB. AGREEMENTS,APPROVALS,PERMISSIONS AND PERMITS
The Lead Agency shall be responsible for obtaining all necessary
agreements, approvals, permissions and permits and any other documents
required or necessary for the successful completion of the Fiber Optic
Project and to keep them in place and current
C NOTICE OF INSTALLATION AND TESTING
The Lead Agency shall notify the Participating Agencies when initial
installation of the Fiber Optic Cable and acceptance testing of all of the Fiber
12
' Terms and Conditions for Sharing of Fiber Optic Installation Protects
Strands have been completed
D. MAINTENANCE AND REPAIR RESPONSIBILITIES
1. Maintenance and Repair of Fiber Optic Cable, Fiber Strands, and
Pathway ,
Maintenance of the Fiber Optic Cable and Fiber Strands within Fiber
Optic Cable installed pursuant to a Fiber Optic Project Agreement
shall be the responsibility of the Lead Agency as agent for the
Participating Agencies up to the Demarcation Point Lead Agency
maintenance responsibility shall continue for the term of the Fiber
Optic Project Agreement and for any extensions or renewals
In instances where service to any of the Participating Agencies has
been interrupted on the Lead Agency side of the Demarcation Point,
the Lead Agency, at the Participating Agencies' request, will make a
reasonable effort to complete repairs of the Fiber Optic Cable as soon
as practicably possible provided that all necessary permissions to
effect the repairs has been obtained from the Facility Owner(s).
Restoration of telecommunications, traffic control, and public safety
services shall be given the highest priority in the event that any of
these services and the Participating Agencies' telecommunications
services are interrupted at the same time, unless otherwise agreed to
by the Participating Agencies at the time of restoration In the event
of an outage, the Participating Agencies shall promptly work to
restore the functionality of the Fiber Optic Cable as soon as
reasonably possible and practical after restoration of any other
necessary services The Participating Agencies shall not cut or
otherwise damage Fiber Optic Cable unless absolutely necessary for
the safe and prompt restoration of telecommunications, traffic control ,
and street lighting systems.
2. Maintenance and Repair Expenses
The Participating Agencies shall be responsible for the expense of
maintenance and repair of the Fiber Optic Cable and Fiber Strands '
for the duration of the Fiber Optic Project Agreement and any
extensions or renewals thereof on a basis proportional to the
ownership of Fibers Strands allocated to each Participating Agency
or by such other method as may be specified in the applicable Fiber
Optic Project Agreement(s) The designated maintenance manager
shall review ongoing maintenance expenses with Participating
13
Terms and Conditions for Sharing of Fiber Optic Installation Projects '
1
Agencies as reasonably requested,but at least on an annual basis.
The Lead Agency shall contract with a vendor capable of making any
necessary repairs The contract shall provide for around the clock
service, defined response times and supply guarantees
E. FINANCIAL REIMBURSEMENTS AND OTHER PAYMENTS TO BE
PROVIDED TO THE LEAD AGENCY
All reasonable and necessary costs and expenses incurred by the Lead
Agency in performance of any Work to successfully complete a Fiber Optic
Project shall be actual and verifiable. The Lead Agency shall provide
documentation of its methodology for computing any Indirect Costs,
including Indirect Costs for Facility Owners The Participating Agencies
shall reimburse the Lead Agency within forty-five (45) days of receipt of the
Lead Agency's statement of charges.
F. LEAD AGENCY'S NONCOMPLIANCE
The Lead Agency shall make its best good faith effort to adhere to the terms,
condition and requirements of the Work as provided in the Fiber Optic
Project Agreement, and the required record keeping as provided in this
Agreement Absent negligence or other misconduct on the part of the Lead
Agency, any additional Work necessary to conform the Work to
requirements of the Fiber Optic Project Agreement will be a general project
cost allocated to the Participating Agencies Where there has been
negligence or other misconduct on the part of the Lead Agency, and
1 additional Work is necessary to conform the Work to requirements of the
Fiber Optic Project Agreement shall be at the expense of the Lead Agency.
G. AUDIT
The Lead Agency shall permit Participating Agencies or designated agent(s)
thereof from time to time (Including up to five years after the expiration or
termination of a Fiber Optic Project Agreement), to inspect and audit all
pertinent books and records of the Lead Agency, the subcontractors or any
other person or entity in connection with or related to the Fiber Optic Project
with respect to the services provided, costs thereof, and the compensation
paid therefore Such audit shall occur at such reasonable times and at such
reasonable location(s) as mutually agreed to by the Participating Agencies
14
Terms and Conditions for Sharing of Fiber Optic Installation Protects
and the Lead Agency.
VI. FACILITY OWNER RIGHTS AND RESPONSIBILITIES
1
A PRINCIPLES FOR USE OF PARTICIPATING AGENCY FACILITIES
1. Use of and Facilities owned by a Participating Agency shall comply
with all requirements of the Participating Agency that owns them.
Use of a Facility shall be designed and constructed so as to maximize
the reasonable additional future use of such Facility. The general
project costs shall include all fees and charges for the use of the
Facility.
2. This Agreement shall not be construed to authorize any Participating
Agency to make use of any other Participating Agency's Facilities
unless such use is specifically authorized by the Participating Agency
in its capacity as a Facility Owner
3. The Facility Owner has final approval of planning, engineering,
design, material, and maintenance for all portions of a Fiber Optic '
Project on or within its Facilities
B APPROVALS
All contractors hired by the Lead Agency to Work within or on Facilities
shall be subject to approval by Facility Owner(s), such approval not to be
unreasonably withheld. In all agreements with contractors, the Facility
Owner(s) may require the Lead Agency to specify that the contractors attend
one or more pre-construction meetings with the appropriate Participating
Agencies and Facility Owners to review installation requirements for the
Work and any restrictions or other requirements that must be adhered to,
prior to any Work being performed in or on Facilities The contractor
agreement shall state that the Facility Owner or the Participating Agency has
authority to stop inadequate or unsafe Work or require that inadequate or
unsafe Work be corrected, as provided by this Agreement
C ACKNOWLEDGMENT AND ACCEPTANCE OF RISKS 1
I. Risk of Co-location
In choosing to co-locate any components of a Fiber Optic Project in '
15
Terms and Conditions for Sharing of Fiber Optic Installation Projects
o-
any Facilities, the Participating Agencies acknowledge and accept all
risks that are associated with having components of the Fiber Optic
Project co-located with in any such Facility.
2. Easements
Participating Agencies acknowledge that existing easements may not
be sufficient and are not warranted to be available for the purpose of
this Agreement and/or any Fiber Optic Project Agreement
Additional easements may be required.
D ACCESS TO AND USE OF FACILITIES
' The Lead Agency shall obtain access to and use of Facilities from Facility
Owners for the purpose of installing, maintaining and repairing components
of the Fiber Optic Project, including all agreements, approvals, permissions,
and pen-nits required. Such Access shall be subject to Facility availability as
reasonably determined by the Facility Manager, and any and all reasonable
conditions specified by the Facility Owner.
1. Permission to Enter
Access to Facilities shall be allowed only after the Facility Owner has
been notified per item 2., below, and permission has been granted by
the Facility Owner
2. Requests for Access
' All requests for access to Facilities must be made through the
appropriate Facility Manager or designee in writing(facsimile or
I email acceptable), and shall be subject to the restrictions and
conditions in this Agreement.
In the event of an emergency, requests for access may be made in
person or by telephone In such cases, prompt written documentation
of the request will follow
3. Buildings
If the Lead Agency desires to utilize space in any building, the Lead
Agency shall comply with the restrictions and conditions specified by
the designated building manager.
16
Terms and Conditions for Sharing of Fiber Optic Installation Projects
4. Conformance to Regulations
Access to and use of any Facility shall be in conformance with all
codes, regulations and requirements.
E BUILDING ENTRANCES
In the event that an existing Building Entrance that is owned or controlled by ,
one of the Participating Agencies is not usable or is inadequate,unsafe or
would or could potentially cause a problem for either entering a building or
for providing access to the location in a building where the Participating
Agencies have installed Fiber Optic Project components, then the Lead ,
Agency will have the responsibility for making alternative arrangements for
Building Entrance with the Facility Owner
The expense associated with any required alternative Budding Entrance ,
because the Existing Building Entrance is not usable or is inadequate, unsafe
or would or could potentially cause a problem for either entering a building
or for providing access to the location in a building where the Participating
Agencies have installed Fiber Optic Project components shall be borne by the
Participating Agencies utilizing the building as a general project cost.
F. MODIFICATIONS TO FACILITIES ,
At the Lead Agency's request, the Facility Owner shall make reasonable and
necessary modifications to any existing Facilities or the Building Entrance to
facilitate building access for the Fiber Optic Project Any requests by the
Lead Agency for such modifications shall be made to the Facility Owner
and/or Manager Costs for such modifications shall be paid as allocated in
the Fiber Optic Project Agreement
The design and construction of any required modifications to any Facility or ,
Building Entrance shall be subject to the review and approval by the Facility
Owner and Participating Agencies Any unauthorized modifications must be
corrected at the expense of the Lead Agency
17 Terns and Conditions for Sharing of Fiber Optic Installation Projects
G. RELOCATION OF FiBER OPTIC CABLE
LThe Lead Agency will work with the Facility Owner to make a good faith
effort to ensure that the Fiber Optic Cable within or on Facilities is designed
and constructed so as to minimize the likelihood of future relocation
However, upon notice from the Facility Owner that relocation is required, the
Lead Agency shall work with the Facility Owner to ensure timely relocation
' of such Fiber Optic Cable The Facility Owner has the right of pre-approval
and post-construction acceptance of any work required either to remove
cable from within or on Facilities or to place cable within or on alternative
Facilities.
1. All relocations of Fiber Optic Cable, regardless of reason, will be
managed by the Lead Agency All relocations will be managed as a
part of and under the terms and conditions of existing Fiber Optic
Project Agreement that controlled the original construction and
installation
2. Notice
Except for emergency situations, the Facility Owner will give the
Lead Agency at least ninety (90) days notice of the need to relocate
any components of the Fiber Optic Project located within or on
Facilities
2. Relocation
When relocation is required, the Facility Owner shall, when possible,
provide substitute Facilities within or on which the Participating
Agencies may relocate the components of the Fiber Optic Project.
H. RIGHTS OF PROPERTY
Nothing in the General Terms and Conditions, Exhibits and/or Addenda shall
be construed to convey to the Participating Agencies any property rights in
existing Facilities of a Facility Owner. Nothing in the General Terms and
Conditions, Exhibits and/or Addenda shall be construed to compel a Facility
Owner to maintain any of its Facilities for a period longer than is necessary
for its own service requirements In the event that Facilities are abandoned
by the Facility Owner, the Participating Agencies may remain in such
Facilities at their own risk, subject to the approval of the Facility Owner.
Any property rights in Facilities created or constructed as part of a Fiber
Optic Project Agreement will be allocated per the Fiber Optic Project
18
Terms and Conditions for Sharing of Fiber Optic Installation Projects
i
i
Agreement.
I. DEFAULT AND DISPUTE RESOLUTION
The Participating Agencies desire, if possible, to resolve disputes,
controversies and claims("Disputes") arising out of this Agreement or any ,
Fiber Optic Project Agreement without litigation.
To that end, if any Participating Agency believes that another Participating
Agency, whether as a Participating Agency, Facility Owner, or Lead
Agency, has failed to perform any obligation under this Agreement or any
Fiber Optic Project Agreement or has performed such obligation in a manner
inconsistent with this Agreement or any Fiber Optic Project Agreement, then
the Participating Agency shall provide written notice to all Participating
Agencies, stating with reasonable specificity the nature of the Dispute
Thereafter, each Participating Agency shall appoint a knowledgeable,
responsible management representative to meet within thirty (30)days of the
date of the written notice and negotiate in good faith to resolve any
Dispute. The Participating Agencies intend that these negotiations be
conducted by non-lawyer,business representatives. The discussions shall be ,
left to the discretion of the representatives
The Participating Agencies agree that the discussions and correspondence
among the representatives for purposes of these negotiations shall be treated
as confidential information developed for purposes of settlement, shall be
exempt from discovery and production, and shall not be admissible in any
action or proceeding arising under or concerning this Agreement or any Fiber
Optic Project Agreement, without the concurrence of all parties Documents
identified in or provided with such communications, which are not prepared
for purposes of the negotiations, are not so exempted and may, if otherwise
admissible,be admitted in evidence in any such action or proceeding.
If the negotiations between the Participating Agencies do not resolve the
Dispute within sixty (60)days of the initial written request, the Dispute shall
be submitted to non-binding mediation with a mediator chosen by mutual
agreement of the parties or, in the absence of such agreement, with Judicial
Dispute Resolution, LLC.
Each Participating Agency shall bear its own cost of these Dispute resolution
procedures. The Participating Agencies that are party to the mediation shall
equally share the fees of the mediation and the mediator.
Nothing in this paragraph precludes any Participating Agency from seeking
19
Terms and Conditions for Sharing of Fiber Optic Installation Projects '
relief from King County Superior Court should mediation efforts be
unsuccessful
VIL RELATIONSHIP BETWEEN LEAD AGENCY AND CONTRACTORS
A. RESPONSIBILITY
The Lead Agency is responsible for ensuring that the applicable terms and
conditions of the Project Agreement, General Terms and Conditions, exhibits
and addenda are included in Agreements with Facility Owners and
contractors However, each contractor shall be held liable for any negligence
caused by its performance or failure to perform the work under the Project
Agreement or any contracts with the Lead Agency.
B APPROVALS
All contractors hired by the Lead Agency to work within or on Facilities
shall be subject to approval by Facility Owner(s). In all agreements with
contractors, the Facility Owner(s) may require the Lead Agency to require
such contractors to attend a pre-construction meeting with the appropriate
authority to review installation requirements and Work restrictions prior to
any Work being performed in or on Facilities. The contractor's agreement
shall state that the Facility Owner or the junsdiction having rights-of-way has
authority to stop Work or require that inadequate Work be corrected.
C INSURANCE
Prior to undertaking any work under any Fiber Optic Project Agreement, the
Lead Agency shall ensure that all contractors, at no expense to the Lead
Agency, Participating Agencies and Facility Owner(s), have obtained and
filed with the Lead Agency, acceptable evidence of a policy or policies of
insurance as enumerated in the applicable Fiber Optic Project Agreement
1 Vlll. INDEMNIFICATION AND LIMITATION OF LIABILITY
A. LIMITATION OF LIABILITY AND INDEMNITY—LEAD AGENCY
20 Terms and Conditions for Sharing of Fiber Optic Installation Projects
The Lead Agency, when acting in that capacity, shall not be liable, in law or
in equity, to the Facility Owner, Participating Agencies, or any subsequent
user for any damages relating to the interruption of service or interference
with the operation of the Fiber Optic Project, except to the extent caused by
the gross negligence or willful misconduct of the Lead Agency The Facility
Owners and Participating Agencies shall indemnify and save harmless the
Lead Agency, its officers, employees, and agents from all claims, actions,
liability, and damages of any nature arising out of any act or omission, except
in the event of gross negligence or willful misconduct by the Lead Agency in
connection with this Agreement.
If any claim arises to which this indemnification provision may be
applicable, the Facility Owner shall immediately upon learning of such
claim, notify the Lead Agency, and upon such notice, the Lead Agency shall
promptly notify the Participating Agencies. The Participating Agencies may,
at their option, settle or compromise such claim In no event shall the
Facility Owner or Lead Agency have the right to pay, settle or otherwise
compromise such claim without the prior written consent of the Participating
Agencies who shall not unreasonably withhold such consent.
THE LEAD AGENCY SHALL NOT BE LIABLE TO THE FACILITY
OWNER, PARTICIPATING AGENCIES OR THEIR USERS OR ANY
SUBSEQUENT USER UNDER ANY CIRCUMSTANCES FOR
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR
DAMAGES ALLEGED TO HAVE ARISEN DUE TO AN
INTERRUPTION OF SERVICE OR DAMAGE TO ANY FIBER OPTIC
CABLE OR ASSOCIATED EQUIPMENT.
B. LIMITATION OF LIABILITY AND INDEMNITY-FACILITY OWNERS
Facility Owners, when acting in that capacity, shall not be liable, in law or in r
equity, to the Lead Agency, Participating Agencies, or any subsequent user '
for any damages relating to the interruption of service or interference with
the operation of the Fiber Optic Project, except to the extent caused by the
gross negligence or willful misconduct of the Facility Owner. The Lead
Agency and Participating Agencies shall indemnify and save harmless
Facility Owners, their officers, employees, and agents from all claims,
actions, liability, and damages of any nature arising out of any act or
omission, except in the event of gross negligence or willful misconduct by
the Facility Owner in connection with this Agreement.
If any claim arises to which this indemnification provision may be
applicable, the Facility Owner shall immediately upon learning of such
clams, notify the Lead Agency, and upon such notice, the Lead Agency shall
21
Terms and Conditions for Sharing of Fiber Optic Installation Projects '
promptly notify the Participating Agencies The Participating Agencies may,
at their option, settle or compromise such claim In no event shall the
Facility Owner or Lead Agency have the right to pay, settle or otherwise
compromise such claim without the prior written consent of the Participating
Agencies who shall not unreasonably withhold such consent
THE FACILITY OWNER SHALL NOT BE LIABLE TO THE
PARTICIPATING AGENCIES OR THE[R USERS OR ANY
SUBSEQUENT USER UNDER ANY CIRCUMSTANCES FOR
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR
DAMAGES ALLEGED TO HAVE ARISEN DUE TO AN INTER-
RUPTION OF SERVICE OR DAMAGE TO ANY FIBER OPTIC CABLE
OR ASSOCIATED EQUIPMENT.
C LIMITATION OF LIABILITY AND INDEMNITY-PARTICIPATING AGENCIES
iA Participating Agency, when acting in that capacity, shall not be liable, in
law or in equity, to the Lead Agency, the Facility Owners or any other
Participating Agency. or any subsequent user for any damages relating to the
interruption of service or interference with the operation of the Fiber Optic
Project, except to the extent caused by the gross negligence or willful
misconduct of that Participating Agency The Lead Agency, the Facility
Owner and the other Participating Agencies shall indemnify and save
harmless a Participating Agency and its officers, employees, and agents from
all claims, actions, liability, and damages of any nature ansing out of any act
or omission, except in the event of gross negligence or willful misconduct by
that Participating Agency in connection with this Agreement
If any claim arises to which this indemnification provision may be
applicable, the Facility Owner shall immediately upon learning of such
claim, notify the Lead Agency, and upon such notice, the Lead Agency shall
promptly notify the Participating Agencies The Participating Agencies may,
at their option, settle or compromise such claim. In no event shall the
Facility Owner or Lead Agency have the right to pay, settle or otherwise
compromise such claim without the prior written consent of the Participating
Agencies who shall not unreasonably withhold such consent.
22
Terms and Conditions for Sharing of Fiber Optic Installation Projects
A PARTICIPATING AGENCY SHALL NOT BE LIABLE TO THE LEAD
AGENCY, THE FACILITY OWNER, OR OTHER PARTICIPATING
AGENCIES OR THEiR USERS OR ANY SUBSEQUENT USER UNDER
ANY CIRCUMSTANCES FOR INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES OR DAMAGES ALLEGED TO HAVE
ARISEN DUE TO AN INTERRUPTION OF SERVICE OR DAMAGE TO
ANY FIBER OPTIC CABLE OR ASSOCIATED EQUIPMENT.
IX. ADDITIONAL TERMS AND CONDITIONS
A. LAWS,LICENSES,AND PERMITS
1. General Requirement
All Work done under this Agreement or any Fiber Optic Project
Agreement shall comply with all applicable federal, state, and local
laws, and all rules,regulations, orders, and directives of the
administrative agencies and officers thereof
2. Licenses, Permits and Similar Authorizations
The Participating Agencies shall have and maintain in effect at all
times all necessary franchises, licenses, permits, consents and
easements from federal, state and local authorities and the owners of
rights-of-way and private property The Participating Agencies will
comply with all requirements thereof to install, construct, maintain,
operate and remove any fiber optic installation(s).
B PERFORMANCE
Each Participating Agency will perform all of its obligations under this
Agreement or any Fiber Optic Project Agreement in a reasonable and timely
manner. The standard for such performance will be the normal industry
standard in the relevant market. Where any Participating Agency's approval,
satisfaction, authorization, or similar approbation is required, such approval,
satisfaction, authorization, or similar approbation will be forthcoming in a
timely manner and will not be unreasonably withheld ,
C SUBJECT TO LAWS
This Agreement and any Fiber Optic Project Agreements are subject to all
applicable federal, state, and local laws, and regulations.rulings and orders of
23
Terms and Conditions for Sharing of Fiber Optic Installation Projects '
governmental agencies. Any Participating Agency may terminate its
obligations under this Agreement or any Fiber Optic Project Agreement if
ordered to do so by the final order or filing of a court or other governmental
agency or if such order or ruling would make it impossible for any
Participating Agency to carry out its obligations In addition, if at any time
during the teen of this Agreement or any Fiber Optic Project Agreement, the
action of a governmental agency requires modification of any terns and
conditions in order to meet legal requirements, or renders performance by
any Participating Agency unreasonable, the Participating Agencies will enter
into negotiations to achieve an equitable adjustment and accounting of any
increased costs or liabilities incurred by any Participating Agency as a result
of such required modification. The preceding section shall not apply to a
court order determining that the Participating Agencies' use violates a private
easement
The Participating Agencies, in their capacity as Facility Owners,have no
actual knowledge of any restriction in their agreements with third parties
which would prohibit the Participating Agencies' use of Facilities as
contemplated herein. The Participating Agencies recognize that the Facility
Owners have done no special searches or investigations with respect to
restrictions in their agreements with third parties that may affect the use of
Facilities as contemplated this Agreement or by any Fiber Optic Project
Agreement.
D. FORCE MAJEURE
Any Participating Agency may suspend performance under this Agreement
or any Fiber Optic Project Agreement and such non-performance will be
excused where performance is rendered impossible or impracticable for
reasons beyond such Participating Agency's reasonable control, such as, but
not limited to, acts of nature, war or warlike operations, civil commotion,
not, labor dispute including strike, walkout, or lockout, sabotage, or superior
governmental regulation or control Upon removal or termination of the force
majeure event, the Participating Agency claiming force majeure shall
promptly perform the affected obligations in an orderly and expedited
manner or procure a substitute for such obligation The Participating
Agencies shall use all reasonable efforts to eliminate or minimize any delay
caused by a force majeure event.
24
Terms and Conditions for Sharing of Fiber Optic Installation Protects
E. NO WAIVER
No term or provision hereof shall be deemed waived or consented to, and no
breach excused unless such waiver or consent shall be in writing and signed
by the Participating Agency claimed to have waived or consented
Failure of any one more Participating Agencies to insist upon strict
performance of, or that Participating Agency's waiver of, any of the terms,
conditions, or obligations of either the General Terms and Conditions or a
specific Fiber Optic Project Agreement, shall not be a waiver of any other ,
term, condition, covenant or obligation, or of any subsequent default by
breach of the same or other term, condition, covenant or obligation contained
herein by any one or more particular Participating Agencies, nor shall Such
action or inaction by any one or more Participating Agencies be constructed
as to bind or prejudice any other Participating Agency
1
F SEVERABILITY
In the event any section, sentence, clause, or phrase of the General Terms and
Conditions or a specific Fiber Optic Project Agreement is adjudicated to be
invalid or illegal by a court of last resort and of competent junsdiction, the
remainder of the General Terms and Conditions or of a specific Fiber Optic
Project Agreement shall be unaffected by such adjudication and all other
provisions shall remain in full force and effect as though the section, clause,
or phrase so adjudicated to be invalid had not been included herein The
Participating Agencies agree to then negotiate, in good faith, a replacement
section, sentence, clause, or phrase which is legal and most closely represents
the original intent of the Participating Agencies.
G. RIGHTS CUMULATIVE
The rights and remedies of the Participating Agencies provided for under the
General Terms and Conditions or under a specific Fiber Optic Project
Agreement arc in addition to any other rights and remedies provided by law.
The failure to exercise on any occasion any right shall not operate to forfeit
such right on another occasion. The use of one remedy shall not exclude or
waive the right to use another.
25
Terms and Conditions for Sharing of Fiber Optic Installation Projects ,
H. CONTRACTUAL RELATIONSHIP
The General Terms and Conditions do not constitute the Participating
Agencies as the agent or legal representative of a Facility Owner for any
purpose whatsoever The Participating Agencies are not granted any express
or implied right or authority to assume or create any obligation or
responsibility on behalf of or in the name of the Facility Owner or to bind the
Facility Owner in any manner or thing whatsoever.
I. HEADINGS
The titles of sections are for convenience only and do not define or limit the
contents.
J APPLICABLE LAW AND VENUE
This Agreement and any Fiber Optic Project Agreements among the
Participating Agencies shall be construed and interpreted in accordance with
the laws of the State of Washington, and venue of any action brought
hereunder shall be in the Superior Court for King County.
K. BINDING EFFECTS
The provisions, covenants and conditions in the General Terms and
Conditions and in any specific Fiber Optic Project Agreement apply to bind
the Participating Agencies, their legal heirs, representatives, successors, and
assigns.
L ASSIGNMENT
No Participating Agency or Lead Agency shall assign its rights or assign its
duties under this Agreement or any Fiber Optic Project Agreement without
the prior written consent of the other Participating Agencies,which consent
shall not be unreasonably withheld.
M. NOTICES
All notices and other materials to be delivered hereunder, shall be in writing
and shall be delivered or mailed to addresses as identified in Exhibit A to this
Agreement and in any Fiber Optic Project Agreement.
26
Terms and Conditions for Sharing of Fiber Optic Installation Projects
N. MODIFICATION OR AMENDMENT
No modification to or amendment of the provisions of the General Terms and
Conditions or of any specific Fiber Optic Project Agreement shall be
effective unless in writing and signed by authonzed representatives of the
Participating Agencies to this Agreement and the Fiber Optic Project
Agreement The Participating Agencies expressly reserve the nght to modify
any agreement, from time to time, by mutual agreement.
O. EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute but
one instrument.
P SUPERCEDES CITY OF KIRKLAND FRANCHISE
This Agreement and any Fiber Optic Project Agreements supersedes the
Franchise granted to the Lake Washington School Distnct for purposes of its
fiber optic cable to the extent it contains terms and conditions which change,
modify, delete, add to, supplement or otherwise amend the terns and
conditions of the Franchise.
27 Terms and Conditions for Sharing of Fiber Optic Installation Protects
IN WITNESS WHEREOF, the parties hereto have executed these General Terms and Conditions
For Sharing of Fiber Optic Installation Projects on the respective dates indicated below.
Approved as to Form-
David Ramsay Date City Attorney
1 City Manager, City of Kirkland
Approved as to Form.
Steve Sarkozy Date City Attorney
City Manager, City of Bellevue
Weldon lhrig Date
Executive Vice President
University of Washington
Robert Collard Date
Assistant Superintendent Business Services
Lake Washington School District
28 Terms and Conditions for Sharing of Fiber Optic Installation Projects
Exhibit A ,
Participating Agencies, Approvals, and Contacts
Notices under the Agreement shall be as follows:
To the City of Kirkland: ,
Donna Gaw
Network and Operations Division Manager
City of Kirkland
123 5rh Avenue
Kirkland, WA
98033
dQatir�a,ci.kirkland.wa.us
425 828 2227
To the Lake Washington School District:
MIS MANAGER
PO Box 97039
Redmond, WA
98073-9739
To the City of Bellevue:
Gary Clesson
City of Bellevue
Senior Technology Architect
301 116th Ave SE
Suite 450
Bellevue, WA 98004
To the University of Washington:
Weldon 1hrig
Executive Vice President
Office of the Executive Vice President
University of Washington
306 Gerberding Hall
Box 351235
Seattle, WA 98195
t
Any Party may change the person(s) to be notified or the address for the notification by giving
written notice of the change, in writing, to the persons then designated to receive routine notices
i
1
1
Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 6E
1. SUBJECT: 2009 CONSOLIDATED ANNUAL PERFORMANCE EVALUATION
REPORT - AUTHORIZE
2. SUMMARY STATEMENT: Authorize the Mayor to submit the 2009
Consolidated Annual Performance and Evaluation Report to the U.S. Department
of Housing and Urban Development.
The 2009 Consolidated Annual Performance and Evaluation Report (CAPER) for
the City of Kent is a report to the U.S. Department of Housing and Urban
Development (HUD) on the City's activities and accomplishments using
Community Development Block Grant (CDBG) and other funds. The report is
1 required by HUD annually and must be submitted by March 31 of each year. The
report includes information on how CDBG funds were used to further the goals
and strategies of the Consolidated Plan, as well as other activities executed by
the City.
3. EXHIBITS: 2009 Consolidated Annual Performance & Evaluation Report
(CAPER)
4. RECOMMENDED BY: Parks & Human Services Committee
(Committee, Staff, Examiner, Commission, etc.)
5. FISCAL IMPACT
Expenditure? N/A Revenue? N/A
Currently in the Budget? Yes N/A No N/A
6. CITY COUNCIL ACTION:
Councilmember moves, Councilmember seconds
1
DISCUSSION:
ACTION:
Z
009
1 �
IL
M-Plill
tiv[
�� ' City of Kent
� F�_
lk
� CONSOLIDATED
� ANNUAL
1 PERFORMANCE
1 AND
1 EVALUATION
� REPORT
1
� 2009
1 City of Kent
1
Submitted to:
US DEPARTMENT OF HOUSING & URBAN DEVELOPMENT
Office of Community Planning and Development
Seattle Federal Office Building
909 First Avenue, Suite 300
Seattle, WA 98104-1000
Prepared by:
CITY OF KENT
Parks, Recreation & Community Services Department ,_-
Housing and Human Services Division
220 Fourth Avenue South
Kent, WA 98032
CITY OF KENT 2009 CAPER -ii
KENT
WASHINOTON
CITY OF KENT
Suzette Cooke, Mayor
John Hodgson, Chief Administrative Officer
Jeff Watling, Parks, Recreation & Community Services Director
Katherin Johnson, Housing & Human Services Manager
CITY COUNCIL-
Jamie ..
Perry, Council President
1Elizabeth Albertson
Ron Harmon
Dennis Higgins
Deborah Ranniger
Debbie Raplee
Les Thomas
HUMAN SERVICES COMMISSION
Jon Botton, Commission Chair
Elizabeth Albertson, City Council Member
Yadira Brito, Commissioner
Dini Duclos, Commissioner
Brett Hollis, Commissioner
Carla Loux, Commissioner
David Ott, Commissioner
Oriana Pon, Commissioner
LEAD STAFF
Dinah R. Wilson, CDBG Coordinator
r
r
CITY OF KENT 2009 CAPER •iii-
ITABLE OF CONTENTS
I. EXECUTIVE SUMMARY...................................................................................................................................I
STRATEGIES AND OBJECTIVES..................................................................................................1
FUNDING DECISIONS................ ••2
J ..��....4,if..y............l,,.l�.. S
2009 CDBG PROJECTS........................................................... ....................................... • , .
It. GENERAL NARRATIVE..................................................::.............................................::..................................6
A. ASSESSMENT OF OBJECTIVES AND STRATEGIES.....:.:.....................................:..................6
DECENTHOUSING STRATEGIES...........................:............................................................................6
SUITABLE LIVING ENVIRONMENT STRATEGIES.... ..........................................I.........I...........10
ECONOMIC OPPORTUNITIES STRATEGIES,..,,..l..................;.,,...................................................13
B. AFFIRMATIVELY FURTHER FAIR HOUSING.WHAT ACTIVITIES WERE TAKEN........15
C. EVALUATION OF AFFORDABLE HOUSING OBJECTIVES...................................................ILS
D. CONTINUUM OF CARE,.... ....... ............................................................................21
E. LEVERAGING RESOURCES.......................................................................................................23
F. ' CITIZEN COMMENTS................:..:.:....................................................................I.......................23
G. LEAD-BASED PAINT COMPLIANCE........................................................................................23
H. SUB-RECIPIENT MONITORING AND TRAINING..................................................................24
I. SELF-EVALUATION....................................................................................................................24
III: CDBG PROGRAM NARRATIVE....................................................................................................................26
A. 2009 CDBG PROJECTS...............................................................................................................26
B. RELATIONSHIP ASSESSMENT: CONSOLIDATED PLAN PRIORITIES, NATIONAL
OBJECTIVE AND ONE YEAR ACTION PLAN..................................................................................28
C. PROGRAM OBJECTIVE CHANGES...........................................................................................29
D. EFFORTS ASSESSMENT:ONE YEAR ACTION PLAN...........................................................29
CITY OF KENT 2009 CAPER •v-
i
E. EXPLANATION REGARDING ACTIVITIES INVOLVING ACQUISITION,
REHABILITATION,OR DEMOLITION OF OCCUPIED REAL PROPERTY AND HOW
RELOCATION WAS ACCOMPLISHED..............................................................................................32
F. ECONOMIC DEVELOPMENT ACTIVITIES WHERE JOBS WERE NOT TAKEN BY
LOW/MODERATE-INCOME PERSONS..................................................................... .....................32
G. REPORT REGARDING LOAN REPAYMENTS.........................................................................32
CONCLUSION........................................................................................................................................................32
ATTACHMENT A........................................................................................Error! Bookmark not defined.
INFORMATION FROM HUD'S INTEGRATED DISBURSEMENT AND INFORMATION
SYSTEM (IDIS) FOR PROGRAM YEAR 2009.................................................................................?
ATTACHMENT B.................................
................ ....................... ?............................................
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG)AND HUMAN SERVICES
GENERAL FUND ALLOCATIONS FOR PROGRAM YEAR 2009.................................................?
PublicNotice................................................................`...,:,,.............::...................................................
CouncilMinutes.............................. ...... .................... ...........................................................?
City of Kent: 2009CDBG Public Service Allocations....................:.....................................................
2009 CDBG Capital Funding Allocations`.................::..:.::......................................................................
2009 Planning and Administration...........::...........................................................................................?
2009 CDBG Fundi
ng Summary.. ............................:..............................................................................
?
2009 CDBG Public Services Contingency
Plan....................................................................................
2009 CDBG Capital Contingency Plan....................................................................................................7
City of Kent: 2009 General Fund Allocations..................................................................I...................7
PUBLIC NOTICE..............:.................................................................................................................................
?
Human Services Commission Minutes.......................................................................I..........................?
Parks and Human Services Council Committee Minutes...............................................................? i
CouncilMinutes............................................................................................................................. ................? ■
CITY OF KENT 2009 CAPER v1-
I. EXECUTIVE SUMMARY
As a prerequisite for receiving Community Development Block Grant (CDBG)
funding, the City of Kent (hereinafter referred to as the City) developed a
Five-Year Consolidated Plan for Housing and Community Development for the
period of 2008 — 2012. Each year the City executes specific actions to
implement the Strategies and Objectives of the Consolidated Plan; actions
are outlined in the Annual Action Plan. The purpose of this report, which is
called the Consolidated Annual Performance and Evaluation Report (CAPER),
is to inform the U.S. Department of Housing and Urban Development (HUD)
and the community of the activities and accomplishments derived from the
investment of CDBG and other resources for the 2009 program year, which
covers the period January 1, 2009 to December 31, 2009.
In 2009, HUD allocated $786,961 in CDBG funds to the City. (An additional
$821,869 in funds allocated from the City's General Fund budget was used in
conjunction with CDBG funds to provide for a wide range of human services
and affordable housing needs.) The City successfully executed the activities
outlined in the 2009 Action Plan by investing its CDBG funds in the following
activities: public services, rehabilitation, micro-enterprise assistance, and
human services planning and administration. Because the City is cognizant
that collaboration allows for visionary planning and comprehensive
development of services that respond to the needs of City residents and the
regional community,'staff worked closely with regional municipalities, King
County, state government, United Way of King County, and other non-profit
organizations to build a strong community safety net.
STRATEGIES AND OBJECTIVES
The City Strategies and Objectives of the Consolidated Plan are as follows:
DECENT HOUSING STRATEGIES
Objective 1: Enhance availability of decent housing for
low/moderate-income residents.
♦ Strategies
a) Work with public, private and non-private partners to increase
funding and leverage resources to increase access to affordable
housing.
b) Invest in programs that help to maintain the existing stock of
affordable housing.
c) Invest in programs that support the ability of homeowners to stay
in their own homes.
d) Encourage local incentives for developers to create affordable
housing.
Objective 2: Invest in services and facilities that prevent
homelessness and ensure that service-enriched services are provided
when homelessness occurs.
♦ Strategies
a) Actively support regional and sub-regional efforts to provide a
coordinated continuum of housing and services for the homeless
that meet the needs of Kent and South King county residents.
b) Support a variety of appropriate options for individuals with special
needs.
c) Support efforts to move people from 'shelters and transitional
housing to permanent housing when appropriate.
d) Support human services programs that address the needs of
homeless persons.
SUITABLE LIVING ENVIRONMENT STRATEGIES
Objective 1: Enhance a suitable living environment.
♦ Strategies
-: ,a) Increase inclusion of immigrants and refugees and people of color
in the life of the Kent community by supporting efforts to leverage
resources and increase access to services for immigrants and
refugees.
b) Invest fu'nds'in programs that are located in neighborhoods with a
large number of low-income residents.
c) Support collaboration between human services agencies to achieve
efficiency, co-location of services, and reduction in human services
costs.
d) Support programs that enhance or increase culturally appropriate
and culturally specific services.
Objective 2: Create a community that supports healthy individuals
and families.
CITY OF KENT 2009 CAPER .2-
♦ Strategies
a) Support programs that encourage healthy lifestyle behaviors,
including helping children maintain healthy body weight.
b) Increase accessibility to recreational opportunities by encouraging
the location of programs in neighborhoods and neighborhood
centers.
c) Enhance access to low-cost medical services for low/moderate-
income individuals.
ECONOMIC OPPORTUNITIES STRATEGIES
Objective 1: Increase employment opportunities for low/moderate-
income persons and the long-term unemployed.
♦ Strategies
a) Encourage and promote employment opportunities for all residents,
■- including youth.
b) Support programs that remove or decrease barriers to education
and employment for low-income individuals,
c) Support training and counseling programs that teach people how to
start and expand small businesses such as micro-enterprises that
employ five or less employees, one of whom owns the business.
d) Support job readiness and job retraining programs.
e) Encourage services that support employees in maintaining or
advancing their employment opportunities including, but not limited
to, transportation and childcare.
Objective 2: Promote financial well-being.
♦ Strategies
a) Fund programs that educate residents on how to manage money
and establish good credit.
b) Support programs that teach residents how to avoid the pitfalls of
predatory lending practices.
c) Support the financial literacy education to promote and sustain
homeownership.
CITY OF KENT 2009 CAPER -3
FUNDING DECISIONS
The City's nine-member Human Services Commission, a citizen's advisory
body to the City Council, reviews the human service issues of the Kent
community on an ongoing basis and recommends funding allocations based
on the current needs. In 2009, the City funded four (4) capital projects and
five (5) public services projects. The reminder of the City CDBG allocation
was applied to Planning and Administration (P & A) activities. Examples of
P & A activities include staff support to the Kent Immigrant/Refugee Forum
Project and education and outreach to affirmatively further fair housing.
The following is a list of 2009 funded projects:
■
l �
1 '
CITY OF KENT 2009 CAPER •4-
i
2009 CDBG PROJECTS
---------- -------------
PROJECT NAME ACTIVITY CDBG
ALLOCATION
Catholic Community Funds used to provide shelter and case $10,000
Services: Katherine's management services to homeless, single women
House who resided in Kent prior to their homelessness.
City of Kent: Home Rehabilitation: Funds used to rehabilitate housing $429,025
Repair Program that is owned and occupied by low/moderate-
income families residing in the City of Kent.
City of Kent: Fall Rehabilitation: Funds used to install handicap <$10,000>
Prevention Program' accessibility items in low/moderate-income Kent
households.
City of Kent: Kiwanis Public Facilities and Improvements! Funds used $60,000
#1 Playground to replace playground equipment to meet current
Improvement Project safety standards, provide grills at picnic sites,
install accessible walkways, improve landscaping,
resurface the basketball court and install
backboards.
City of Kent: Planning & P &A: Funds used to administer the City of Kent $157,392
Administration CDBG projects and engage in planning activities.
HealthPoint: Healthcare Public Services: Funds used to provide primary $ 10,000
for the Homeless care and nursing services to homeless adults and
children who reside in transitional shelters-
services also available at the Kent Community
'Health Center.
Multi-Service Center; Public Services: Funds used to provide housing $ 56,000
Housing Stability stability grants which are used to prevent
eviction and/or assist low-income individuals with
move-in costs.
Refugee Women's - Public Services: Funds used to connect Kent $ 17,044
Alliance immigrants and refugees to
linguistically/culturally appropriate information
and services.
Washington CASH: Kent _ Micro-enterprise: Funds used to provide business $ 22,500
Micro-enterprise training and business development services to
Initiative low/moderate-income women, people with
disabilities and other under-served individuals.
YWCA: Transitional Public Services: Funds used to provide $25,000
Housing transitional shelter and case management
services to domestic violence survivors.
TOTAL: $786F961
1 This was the second year of a two-year(2008-2009) funding cycle for this project Funding was
allocated through the 2008 Action Plan
2 Formerly known as Community Health Centers of King County.
CITY OF KENT 2009 CAPER -5-
II. GENERAL NARRATIVE
A. ASSESSMENT OF OBJECTIVES AND STRATEGIES
-------------- ------ ----- ---- — -- — -
DECENT HOUSING STRATEGIES
Objective 1: Enhance availability of decent housing for
low/moderate-income residents.
The following initiatives were instrumental in helping the City execute
strategies to obtain Objective 1:
♦ Strategies
a) Work with public, private and nbn-private partners to increase
funding and leverage resources to increase access to affordable
housing.
• Participated in the King County Housing Funders Group. This
group met to discuss new projects or funding sources that were
available for homeless services within King County.
• Participated in.the South King County Human Services Planners
Group. This group collaborated together to ensure that funding
was available for vital human services programs.
b) Invest in programs that help-to maintain the existing stock of
affordable housing.,
• Allocated $400,025 in CDBG funds to the Home Repair Program
to support the existing level of homeownership in Kent.
• Conducted a performance audit and client satisfaction survey to
evaluate the effectiveness of the Home Repair Program.
• Worked regionally to improve home repair policies by
participating on regional policy committees.
c) Invest in programs that support the ability of homeowners to stay
in their own homes.
• Allocated a $10,000 biennial grant to the City of Kent Fall
Prevention Program to install handicap accessibility items in the
homes of low/moderate-income homeowners.
• Continued to actively enforce code provisions requiring mobile
CITY OF KENT 2009 CAPER •6-
home park owners to submit a relocation report and plan to the
Human Services Division prior to issuing eviction notices to
tenants who must relocate due to closure, change of use, or a
zoning re-designation.
Allocated $56,000 in CDBG funds to the Multi-Service Center to
provide housing stability grants to low-income families to
support move-in costs and to prevent eviction.
• Continued to implement recommendations from the Analysis of
Impediments to Fair Housing Choice report.
d) Encourage local incentives for developers to create affordable
housing.
• Staff consulted with affordable '4housing 'planners on local
incentives to encourage developers to create affordable housing.
Objective 2: Invest in services and facilities that prevent
homelessness and ensure that service-enriched services are provided
when homelessness occurs. ,
The following actions were implemented to help the City execute Objective 2:
♦ Strategies
a) Actively support regional and sub-regional efforts to provide a
coordinated continuum of housing and services for the homeless
that meet the needs of Kent and South King county residents.
.', Continued providing staff support to efforts such as Safe
Harbors (a homeless management information system) and the
Committee to End Homelessness.
Continued staff participation in the Regional Affordable Housing
Program application review process.
• Participated in grant review committees that made
recommendations for funding to affordable housing and other
programs that prevent homelessness.
• Staff facilitated the South King County Forum on Homelessness
(SKCFH). The SKCFH is an organization supported by SKC
service providers which promotes networking and the
coordination of activities to end homelessness.
• Staff participated on the following United Way of King County
Impact Councils: Domestic Violence/Sexual Assault,
Strengthening Our Communities, and Out of the Rain. The
CITY OF KENT 2009 CAPER -7-
Impact Councils make human services funding
recommendations to United Way.
• Staff participated on the South County Regional Domestic
Violence Task Force.
b) Support a variety of appropriate options for individuals with special
needs.
• Allocated $30,000 in CDBG funds to Sound Mental Health to '
provide outreach and case management services to homeless
individuals.
• Allocated $35,000 in General Funds to (DAWN to support a i
shelter and crisis line for domestic violence survivors.
• Allocated $30,000 in General Funds --to DAWN for
Community/Safe Havens Advocacy.
• Allocated $25,000 in CDBG funds to the YWCA to provide
transitional and case management services to homeless
domestic violence survivors and their children.
c) Support efforts to move people from shelters and transitional
housing to permanent housing when appropriate.
• South King County (SKC) service providers, representatives of
local government, and funders continued to implement the
South King County Plan to End Homelessness: A Call for Action.
The SKC Plan includes strategies designed to address the unique
issues creating,homelessness in SKC and is guided by the King
County Plan to End Homelessness, which supports efforts to
move people from shelters and transitional housing to
permanent housing when appropriate.
_Participated in grant review committees that recommended
funding to housing programs that move people from shelters
and transitional housing to permanent housing when
appropriate.
d) Support human services programs that address the needs of
homeless persons.
• Allocated $10,000 in CDBG funds to Catholic Community
Services to support a shelter for homeless women with chemical
addictions, while providing case management to help them gain
self-sufficiency, end homelessness and maintain sobriety.
• Allocated $10,000 in CDBG funds to Health Point, Healthcare for
the Homeless Project, to provide primary care and nursing
CITY OF KENT 2009 CAPER S
services to homeless families and individuals living in
transitional housing.
j
1
CITY OF KENT 2009 CAPER •9-
l�
SUITABLE LIVING ENVIRONMENT STRATEGIES
Objective 1: Enhance A Suitable Living Environment
The following actions were taken under strategies that the City used to
achieve Objective 1:
♦ Strategies
a) Increase inclusion of immigrants and refugees and people of color
in the life of the Kent community by supporting efforts to leverage
resources and increase access to services for immigrants and
refugees.
• Allocated $17,044 in CDBG funds to Refugee-Women's Alliance's
Systems Navigation and Access Project (SNAP) to connect
immigrants/refugees to linguistically and culturally appropriate '
information and services.
• Continued to provide technical assistance and community
linkages to non-profits that provide assistance to immigrants
and refugees who reside in Kent.
• Organized and provided staff-support to,the Kent
Immigrant/Refugee Forum. The Forum consists of service
providers and community members who have cultural and
-language-specific expertise working with immigrants and
refugees. The group meets monthly and works toward
influencing policy, enhancing collaboration, leveraging
resources, developing a closer relationship with the City of Kent,
and serving as a resource within the community.
Allocated $10,OOp in General Funds to the Ukrainian Community
Center to assist refugee families in overcoming barriers to self-
sufficiency by providing immediate assistance to families
through advocacy and case management.
Continued to expand asset building, cultural enhancement,
educational support and communication connection activities by
supporting People of Color in Philanthropy, a countywide
organization that promotes racial equity and social justice for
communities of color through philanthropy.
b) Invest funds in programs that are located in neighborhoods with a
large number of low-income residents.
• Allocated $10,000 in General Funds to the Center for Career
Alternatives to provide job skills training and employment
CITY OF KENT 2009 CAPER •10-
services to public housing residents and other low-income
residents residing in Kent.
c) Support collaboration between human services agencies to achieve
efficiency, co-location of services, and reduction in human services
costs.
• Continued staff support to the Alliance Center, the one-stop
facility for human services programs that is located in Kent.
Facilitated linkages between established agencies and newly
formed/grassroots agencies.
d) Support programs that enhance or increase culturally appropriate
and culturally specific services.
:,..
• Continued to work on implementing recommendations from the
Somali Community Engagement Project; e.g., Kent Housing &
Human Services staff created a providers' group list serve which
is used to disseminate information about programs and services
that impact immigrants/refugees.
• Provided staff support to the South'County Equity and Social
Justice Work Group: Community Engagement Component. The
Group facilitates dialogue and collaboration which promotes
equity in the distribution and the access to resources.
Objective 2- Create a community that supports healthy individuals
and families.
The following actions were taken under strategies that the City used to
achieve Objective 2:
Strategies
a) Support programs that encourage healthy lifestyle behaviors,
including helping children maintain healthy body weight.
• Allocated General Funds in the amount of $60,000 to Kent Food
Sank to provide emergency food bags and emergency
assistance to needy individuals and families residing in Kent.
b) Increase accessibility to recreational opportunities by encouraging
the location of programs in neighborhoods and neighborhood
centers.
• Allocated $60,000 to the City of Kent Kiwanis #1 Playground
Improvement Project to replace playground equipment to meet
current safety standards, provide grills at picnic sites, install
accessible walkways, improve landscaping, resurface the
basketball court and install backboards.
CITY OF KENT 2009 CAPER -11-
c) Enhance access to low-cost medical services for low/moderate-
income individuals.
• Allocated $20,000 in General Funds to Health Point to provide
primary medical services to low/moderate-income individuals.
• Allocated $20,000 in General Funds to HealthPoint to provide
primary dental services to low/moderate-income individuals.
• Staff distributed Lead-Based Paint informational materials to
residents served by the Home Repair Program and used the
Lead-Safe Housing Rule Checklist for General Compliance
Documentation as a guide to ensure compliance with lead-based
paint rules.
• Home Repair Program staff distributed_ English and Spanish
versions of the Healthy Home Informational booklets to Kent
households. The booklet provides tips on how to create and
maintain a healthy and safe home.
• Allocated $10,000 in funds to the City of'Kent Fire Department
Fall Prevention Program to support costs for the installation of
handicap accessibility items in the homes of low/moderate-
income Kent residents. (This was a two-year grant for the
2008-2009 biennium.) The installation of handicap accessibility
items allowed seniors and disabled residents to stay in their
homes and remain self-sufficient.
Comments from residents about the program included the
following:
''This allows people like me to stay half-way
independent.
"I didn't know who to call after my injury and now I
can take a shower and not have to call and find
someone to be here."
i
CITY OF KENT 2009 CAPER -12-
i
ECONOMIC OPPORTUNITIES STRATEGIES
Objective 1: Increase employment opportunities for low/moderate-
income persons and the long-term unemployed.
The following actions were taken under strategies that the City used to
achieve Objective l:
♦ Strategies
a) Encourage and promote employment opportunities for all residents,
including youth.
• Low/moderate-income Kent residents continued to enjoy equal
access to jobs created through the development of the Kent
Station project.
• Low/moderate-income Kent residents'received equal access to
jobs created through the development of the ShoWare Events
Center.
• Continued to partner with Evergreen Community Development
Corporation, a non-profit certified by the Small Business
Administration to make 504 loans, by writing support letters for
existing and new businesses seeking loans to purchase their
own real estate. When local businesses own their own property,
this leads to business stability.
b) Support programs that remove or decrease barriers to education
and employment for low-income individuals.
.:' Facilitated collaboration between manufacturing businesses and
the Kent School District on youth job training and/or internship
programs by helping to mitigate insurance/risk concerns.
c) Support training and counseling programs that teach people how to
start and expand small businesses such as micro-enterprises that
employ five or less employees, one of whom owns the business.
• Allocated $22,500 in CDBG funds to Washington CASH to
provide business training and loan fund services for low-income
women, people with disabilities and other under-served
individuals to develop new micro-enterprise businesses.
d) Support job readiness and job retraining programs.
• Allocated $35,000 in General Funds to Washington Women's
Employment and Education (WWEE) to provide computer
training and a job readiness class to low-income Kent residents.
CITY OF KENT 2009 CAPER -13-
I
e) Encourage services that support employees in maintaining or
advancing their employment opportunities including, but not limited
to, transportation and childcare.
• Allocated $20,500 in General Funds to Child Care Resources to
provide childcare vouchers to low/moderate-income families
who work or pursue education to enhance their job
opportunities.
• The City of Kent partnered with King County Metro Transit to
bring bus service to west Kent residents (The Lakes and
Riverview neighborhoods).
Objective 2: Promote financial well-being.
The following actions were taken under strategies that the City used to
achieve Objective 2:
♦ Strategies
a) Fund programs that educate residents on how to manage money
and establish good credit.
• Supported a financial literacy fair sponsored by the Riverview
Community Church.
• Allocated $10,000 in General Funds to Kent Youth and Family
Services to provide classes using the Powerful Families
curriculum; the curriculum focuses on providing
families/caregivers financial literacy, leadership, and advocacy
skills.
b) Support programs that teach residents how to avoid the pitfalls of
predatory-lending practices.
• Supported a financial literacy fair sponsored by the Riverview
Community Church, which provided resources on how to avoid
the pitfalls of predatory lending practices.
c) Support financial literacy education to promote and sustain
homeownership.
Distributed fair housing materials at community events and
during training provided to landlords.
CITY OF KENT 2009 CAPER -14-
B. AFFIRMATIVELY FURTHER FAIR HOUSING: WHAT ACTIVITIES
WERE TAKEN
The City continues to monitor compliance with the Fair Housing Act
and to respond appropriately to alleged violations; complaints are
referred to the Washington State Human Rights Commission for
resolution.
In 2004, the City hired a consultant to complete its first Analysis of
Impediments to Fair Housing Choice (Al) as a direct entitlement City.
The Fair Housing Consultant identified three impediments and made
two recommendations which fall under the City's authority. The two
recommendations were:
Expand current education and outreach efforts; and
• Target homeownership and lending marketing to African American
and Hispanic households.
The following actions were taken to implement the Fair Housing
Consultant's recommendations and to affirmatively further fair
housing:
• The City provided access to a Fair Housing pamphlet entitled Fair
Housing - It's Your Right via its website.
• Staff distributed fair housing informational materials at City-
sponsored crime prevention training and resource fairs.
• Provided informational materials on predatory lending practices at
the financial literacy fair.
• Developed the Move to Housing`Program (MTH), which is funded
through the HUD Neighborhood Stabilization Program. The City will
purchase, rehabilitate and sell a foreclosed residential property to a
low/moderate-income home owner. The MTH program will also
provide down payment assistance to help a low/moderate-income
Kent resident purchase a foreclosed residential property.
C. EVALUATION OF AFFORDABLE HOUSING OBJECTIVES
As noted in the 2008 - 2012 City of Kent Consolidated Plan, the City of
Kent's comprehensive plan is consistent with the Countywide Planning
Policies that include guidelines to support housing affordability.
The Countywide Planning Policies require that all jurisdictions "provide
for a diversity of housing types to meet a variety of needs and provide
for housing opportunities for all economic segments of the population."
The policies further call on all jurisdictions to participate in an
equitable distribution of low-income and affordable housing throughout
the County.
CITY OF KENT 2009 CAPER 15-
The City adopted a range of strategies to encourage affordable housing '
and to remove barriers to affordable housing development. This
report highlights the following strategies:
• Maintaining the existing stock of affordable housing;
• Increasing housing stabilization for those who are at risk of
becoming homeless; and
• New funds for affordable housing
Maintaining Existing Stock of Affordable Housing
Home Repair Program
a9
The City of Kent has an existing stock of smaller, older, and more
affordable homes. Most are located adjacent to the downtown core.
The City preserved this housing through the Home Repair Program and
other investments. In addition to preserving housing, the City's
investment averted the expenditure of new development costs on the
same location.
Panther Lake Annexation Area
Residents of an area located east of the city limits of Kent, on the east
plateau of Soos Creek, voted to be annexed to the City of Kent. The
area encompasses five square m-iles, and will add 24,000 to the Kent
population. This increases the City's population from 88,380 to
112,380. The Housing and Human Services Division began developing
a process for providing Home Repair Program and other services to the
new area. ;-
Fall Prevention Program
The City of Kent-had a significant number of senior and disabled
residents who were at risk of losing the independence of remaining in
their homes without the installation of fall prevention devices such as
grab bars, transfer benches, elevated toilet seats, bed handles, etc.
To address this, the City made its first two-year investment of $10,000
in the Fall Prevention Program in 2006. This investment was renewed
from 2008-2009. The Program has been hugely successful, helping
residents to feel safer and more self-sufficient.
A client who benefitted from the program commented:
"The shower chair works great. I was able to take a shower
by myself!"
CITY OF KENT 2009 CAPER -16-
Units Preserved Through City of Kent Home Repair Program and City
of Kent Fire Department Fall Prevention: Rehabilitation Assistance
City of Kent: Home Repair City of Kent Fire
Program Department: Fall
Prevention Program
New Households Assisted:
75 New Households Assisted:
38
Outcome/Objective: Outcome/Objective:
Enhanced accessibility to Enhanced accessibility to
decent housing by decent housing by installing
providing rehabilitation handicap accessibility items
assistance and health and in 38 low/moderate-income
safety repairs to 75 Kent households.
low/moderate-income Kent
households.
CITY OF KENT 2009 CAPER •17-
TABLE 3B: ANNUAL HOUSING COMPLETION GOALS
Resources used during 2009
Annual Actual CDBG HOME -E HOPWA
Expected Number S
Number Completed G
Completed
ANNUAL AFFORDABLE
HOUSING GOALS (SEC. 215)
Homeless Households 24 28 X ❑ ❑ ❑
Non-homeless households ❑ ❑ ❑ ❑
Special Needs Households ❑ ❑ p ❑
ANNUAL AFFORDABLE RENTAL
HOUSING GOALS (SEC. 215)
Acquisition of existing units ❑ Q ❑
Production of new units ❑ ❑ ❑
Rehabilitation of existing units ❑ ❑ ❑ ❑
Rental Assistance ❑ ❑ ❑
Total Sec. 215 Affordable ❑ ❑ ❑ ❑ 1
Rental
ANNUAL AFFORDABLE OWNER
HOUSING GOALS (SEC. 215)
Acquisition of existing units .: ❑ ❑
Production of new units ❑ ❑
Rehabilitation of existing units 80 113 X ❑
Homebuyer Assistance ❑ ❑ ❑ �1
Total Sec. 215 Affordable ❑ ❑ ❑ ❑
Owner
ANNUAL AFFORDABLE
HOUSING GOALS (SEC. 215)
Acquisition of existing units ❑ ❑ ❑
Production of new units ❑ ❑ ❑
Rehabilitation of existing units ❑ ❑ ❑ ❑
Homebuyer Assistance ❑ ❑ ❑
Total Sec. 215 Affordable ❑ ❑ ❑ ❑
Housing
ANNUAL HOUSING GOALS
Annual Rental Housing Goal ❑ ❑ ❑ ❑
Annual Owner Housing Goal ❑ ❑ ❑ ❑
Total Annual Housing Goal 104 141 X ❑ ❑ Cl
CITY OF KENT 2009 CAPER -18-
Increasing Housing Stabilization for Those Who are Homeless or at
Risk of Becoming Homeless
Multi-Service Center Housing Stability Program
The City of Kent has an increasing number of residents who experience
i financial emergencies that place them at risk for eviction or who lack
the funds to pay for move-in costs. Through the Housing Stability
Program, residents secure the funds to remain in housing or to pay a
security deposit and other costs to lease a home.
Housing Stability Provided to Individuals Who Were Homeless
or at Risk of Becoming Homeless
2009 2009
Persons Projected to Assist: 49 Persons Actually Assisted: 50
2009 Outcome/Objective
Multi-Service Center Housing Addressed the need to sustain
Stability Program a suitable living environment
and prevent homelessness by
=providing housing stability
grants to 50 low/moderate-
income individuals.
New or Level l=6nds for Affordable Housing - 2009
Neighborhood Stabilization Program
The U.S. Congress passed the Housing and Economic Recovery Act of
2008 (HERA) as a response to the large number of foreclosures
throughout the nation. HERA included funding for the Neighborhood
Stabilization Program. The City of Kent received $475,264 in NSP
funds. Funds will be used to purchase, rehabilitate and sell a
1 foreclosed residential property to an income-eligible homebuyer at or
below 50-120% of area median income. The City will also use a
portion of its funds to provide down-payment assistance to help an
income-eligible homebuyer purchase a foreclosed upon residential
property.
CITY OF KENT 2009 CAPER 19
ESAP and THOR
Emergency Shelter Assistance Program (ESAP) funding and
Transitional Housing, Operating, and Rent (THOR) were maintained at
existing levels.
CITY OF KENT 2009 CAPER •20-
D. CONTINUUM OF CARE
The City of Kent participates regionally with the Seattle/King County
Continuum of Care for the application and distribution of HUD funds for
homeless programs through McKinney funds, Emergency Shelter Grant
(ESG) and HOME funds. In addition to regional participation, the City
takes action on its own to support a continuum of services for
homeless individuals.
In 2009, the City supported a number of programs that provided
assistance to homeless persons and persons requiring supportive
housing. Support for these programs came from a combination of City
General Fund and CDBG resources. Included were:
0 Catholic Community Services/Sound Mental Health: Housing for
Men - emergency shelter for homeless men
0 City of Kent Housing & Human Services Division - resource &
referral services, including bus tickets, and client advocacy/referrals
0 Health Point: Healthcare for the Homeless - nursing services to
homeless individuals residing in transitional and domestic violence
shelters located in the Kent area
0 Catholic Community Services Katherine's House Program - shelter
and case management services to homeless, single women who
resided in Kent prior to their homelessness
0 DAWN Domestic Violence Shelter Program - confidential emergency
shelter, and community/Safe Havens advocacy for victims of
domestic violence and their children
0, Home Repair Program - grants for health and safety-related repairs
for low/moderate-income homeowners
Z Kent Food Bank - emergency financial assistance and food bags
0 Kent Youth and Family Services Watson Manor - transitional
housing for parenting teens
0 King County Sexual Assault & Resource Center - services provided
to sexual assault survivors
0 Multi-service Center Emergency Assistance - emergency assistance
to low-income Kent individuals and families
0 Multi-service Center Housing Continuum Services - emergency
shelter services, transitional housing services, rent assistance, and homeless
prevention services for Kent residents
0 Multi-service Center Housing Stability - grants to prevent eviction
or to assist with move-in costs
' 0 Sound Mental Health - case management and outreach services for
homeless individuals
0 YWCA - transitional shelter and case management services for
domestic violence survivors
CITY OF KENT 2009 CAPER -21-
The City also provided services to persons with disabilities at the Kent
Resource Center and escorted transportation services for seniors living
independently in the community.
CITY OF KENT 2009 CAPER -22-
E. LEVERAGING RESOURCES
In 2009, CDBG funds were used in conjunction with $821,869 in local
funds to address human services needs. Community agencies report
that for every $1 provided by the City of Kent, another $7 is
leveraged. Community agencies receive the balance of their funding
from other federal agencies, the State of Washington, King County,
local municipalities, United Way and other charitable giving campaigns,
foundations, private donations and fundraising. Funding reductions at
federal, state, and local levels continue to seriously impact the stability
of the human services system.
F. CITIZEN COMMENTS
Citizens received a 30-day period to review and comment on the
CAPER. A Public Notice was published in the Kent Reporter on
Saturday, February 13, 2010.
iIn addition, citizens were invited to provide comments at a public
hearing held at the Housing and Human Services Division on February
26, 2010. Over two-weeks advanced notice was provided. No
comments were received.
Notices were provided to People of Color and organizations working
with or who have contacts with ethnic/racial minorities, non-English
speaking persons, and people with disabilities.
G.' LEAD,BASED PAINT COMPLIANCE
The following actions were taken by the City to evaluate and reduce
the number of housing units containing lead-based paint hazards:
• The City provided Lead Based Paint informational materials to all
homeowners served by the Home Repair Program; staff was
available to answer questions.
• Home Repair staff used the Lead-Safe Housing Rule Checklist for
General Compliance Documentation as a guide to verify compliance
with lead-based paint rules; a Lead-Safe Housing Rule Applicability
Form was completed on every Home Repair client.
• Staff adhered to and, when applicable, enforced lead-based paint
abatement regulations.
CITY OF KENT 2009 CAPER -23-
H. SUB-RECIPIENT MONITORING AND TRAINING
The CDBG Program Coordinator monitored CDBG-funded programs
throughout the year by reviewing quarterly reports and consulting with
programs to address issues that needed clarification. While most
issues were resolved satisfactorily, programs were informed that the
failure to comply with contractual requirements and regulations could
result in remedial actions and/or the termination of funding.
The City conducts periodic site visits. Site visits provide an
opportunity for staff to congratulate programs on successes and to
provide technical assistance on challenging issues.
I. SELF-EVALUATION
The preponderance of CDBG and human services expenditures were
used to support the wide continuum of services that are essential to
the Kent community and the South King County region. The City met
its requirements for housing development and affordable housing
pursuant to the King County Growth Management Planning Policies
adopted by the region in ,1993.
The City's nine-member Human S&vices Commission, a citizen's
advisory body to the City Council, reviews the human service issues of
the Kent community on an ongoing basis and recommends funding
allocations based on the urgent needs, along with an eye toward self-
reliance and prevention. Emerging issues during 2009 included an
increase in the demand for job training and workforce development;
middle-income families struggling to maintain housing because of a
loss in employment; emergency and disaster preparedness and
coordination; an increase in the number of immigrant/refugee
residents; an'increase in the requests for transportation assistance;
collaboration in the county-wide goal of ending homelessness by
moving the homeless into permanent housing; and downsizing and
loss of housing and human services programs due to a decrease in
governmental funding. The City's response to emerging issues
included the following initiatives:
• Continued to work with regional partners on the South King
County Plan to End Homelessness.
• Funded the System Navigation and Access Project (SNAP) to
respond to the needs of immigrants and refugees.
• Staff co-facilitated meetings between non-profit agencies and
South King County Cities to discuss how to respond to
downsizing and loss of human services programs.
• Organized the Kent Immigrant/Refugee Forum.
CITY OF KENT 2009 CAPER .24-
Collaborated with seventeen cities from South, North and East
King County to develop a common electronic application to
receive 2011-2012 requests for human services funding.
T
' 1
T
T
CITY OF KENT 2009 CAPER -25-
III: CDBG PROGRAM NARRATIVE ,
A. 2009 CDBG PROJECTS
The City of Kent supports housing and human services agencies with
funds for on-going programming; e.g., feeding programs, medical
services, housing stability; etc., through its CDBG entitlement. It is
the City's policy to support human service programs that meet one of
the City of Kent's funding priorities. A total of $786,961 in CDBG
funds was awarded in 2009. The following organizations were
supported by the CDBG Program (a complete list of agencies
supported by the City's CDBG and General Fund is attached):
Capita/Projects3
Rehabilitation ,
• City of Kent: Home Repair Program-$429,025
Funds used to rehabilitate housing that is owned and occupied by
low/moderate-income families residing in the City of Kent.
• City of Kent: Fall Prevention Program-$10,000
Funds used to install handicap accessibility items in the homes of
low/moderate-income households to prevent falls.
Public Facilities and InJ12i6yehients
• City of Kent: Kiwanis #1 Playground Improvement Project-
$60,000
Funds used to replace playground equipment to meet current safety
standards, provide grills at picnic sites, install accessible walkways,
improve lands taping, resurface the basketball court and install
backboards.
Micro-enterprise Assistance
• Washington CASH: Kent Micro-Enterprise Initiative-$22,500
Funds used to provide business training and business development
services to low/moderate-income women, people with disabilities
and other under-served individuals.
Public Services
Catholic Community Services: Katherine's House-$10,000
3 Funding was approved by City Council October 28, 2008.
CITY OF KENT 2009 CAPER -26-
Funds used to provide shelter and case management services to
homeless, single women who resided in Kent prior to their
homelessness.
• HealthPoint: $10,000
Funds used to provide nursing services to homeless adults and
children who resided in transitional shelters; services also provided
at the Kent Community Health Center.
• Multi-service Center: Housing Stability-$56,000
Funds used to provide housing stability grants to low-income or
homeless individuals to prevent eviction or to assist with move-in
costs.
• Refugee Women's Alliance: Systems Navigation and Access
Project (SNAP)-$17,044 .
Funds used to connect Kent immigrants and refugees to
linguistically/culturally appropriate information and services.
• YWCA: Transitional Housing-$25,000
Funds used to provide transitional shelter and case management
services to domestic violence survivors.
Planning and Administration
• City of Kent: Parks, Recreation and Community Services
Department, Housing and Human Service-$157,392
Funds used to administer City of Kent CDBG projects and to engage in
planning activities.
J r
CITY OF KENT 2009 CAPER -27-
B. RELATIONSHIP ASSESSMENT: CONSOLIDATED PLAN
PRIORITIES, NATIONAL OBJECTIVE AND ONE YEAR
ACTION PLAN
CDBG funds and the $821,869 allocated from the City's General Fund ,
provide the foundation for the City's efforts in public services-related
funded. The combined funds are allocated by the City Council based
on recommendations by the City's Human Services Commission. The
Commission reviews the data from a number of assessments,
demographic reports and plans to develop priorities for funding, and
then calls for applications from the community. Applications for
capital-related needs are also sought from human services agencies;
e.g., renovation of office or counseling space, projects to
acquire/preserve affordable housing, acquisition or property to build a
health facility for low/moderate-income patients, etc. Only CDBG
funds may be expended on capital projects.
i
After a screening process, the City empkoys'the following three-prong
analysis to determine which programs receive CDBG funding: (1)
Does the service or need fall within a City of Kent funding priority4; (2)
Is the service or need an eligible activity; and (3) Does the service or
need meet a national objective? The three national objectives are
activities benefiting low/moderate-income persons, activities which aid
in preventing or eliminating slums or blight, or activities meeting
community development needs that have a particular urgency because
existing conditions pose a serious and immediate threat to the health
or welfare of the community and other financial resources do not exist
to meet such needs. In 2009, all CDBG funds were used exclusively to
meet the national objective of benefiting low/moderate-income
persons.
Rules governing the CDBG program place a fifteen percent (15%) cap
on the amount of funds that may be allocated for public services; the
4The five (5) funding priorities are:
Meeting Community Basics;
Increasing Self-reliance;
Strengthening Children and Families;
Building a Safer Community; and
Improving Health and Well-Being.
P 9
CITY OF KENT 2009 CAPER -28-
City expended the maximum amount. For planning and
administration, the City spent [insert %] of its total CDBG allocation,
which is slightly less than the 20% maximum that is allowed.
C. PROGRAM OBJECTIVE CHANGES
Program objectives were not modified in 2009.
D. EFFORTS ASSESSMENT. ONE YEAR ACTION PLAN
A majority of CDBG public service funded projects met or,exceeded the
performance measures required by contract. Table 3A shows the
objectives/outcomes for 2009 CDBG-funded, projects.
s
CITY OF KENT 2009 CAPER -29-
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E. EXPLANATION REGARDING ACTIVITIES INVOLVING ACQUISITION,
REHABILITATION, OR DEMOLITION OF OCCUPIED REAL PROPERTY AND '
HOW RELOCATION WAS ACCOMPLISHED
No CDBG or City funds were expended for activities that required relocation
actions in 2009.
F. ECONOMIC DEVELOPMENT ACTIVITIES WHERE JOBS WERE NOT
TAKEN BY LOW/MODERATE-INCOME PERSONS
No economic development activities were undertaken involving the
creation/retention of jobs.
G. REPORT REGARDING LOAN REPAYMENTS
The City did not use CDBG funds to enter into loans.
CONCLUSION
The City and its funded programs successfully met the needs of the Kent ,
Community in 2009. The community worked collaboratively to make strategic
community investments, leverage resources and to respond to ongoing and
emerging human services issues. In addition, the City expended a portion of its
CDBG funds on capital projects to increase or enhance services to Kent residents.
CDBG funds, local funds, and funds from other governmental entities were critical
in protecting the safety net in the City and the South King County region. ,
i
1
CITY OF KENT 2009 CAPER -32-
tKent City Council Meeting
' Date March 2, 2010
Category Consent Calendar - 6F
' 1. SUBJECT: 2010 CITY ART PLAN AND FIVE-YEAR ART PLAN - APPROVE
' 2. SUMMARY STATEMENT: Approve the 2010 City Art Plan and Five Year
Plan.
The City Art Plan details projects for 2010 and lists art expenditures planned for
2010-2014 as part of the five-year plan. The Visual Arts Committee worked with
staff to craft the plan which was approved by Kent Arts Commission on
December 15, 2009. This art plan is based upon existing funding levels, with the
understanding that with the July 1, 2010, annexation a budget amendment will
identify any additional appropriation. Please review the attached document for
details.
3. EXHIBITS: 2010 City Art Plan, Five-Year Plan, and Ordinance 2552
4. RECOMMENDED BY: Parks & Human Services 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:
1 CITY OF KENT
1 Parks, Recreation & Community Services
Kent Arts Commission
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2010 CITY ART PLAN
FIVE YEAR CITY ART PLAN, 2010 - 2014
1 Ordinance 2552
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1 Approved:
1 Visual Arts Committee
Kent Arts Commission
1 City Council Sub-Committee:
City Council
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CITY OF KENT
Parks, Recreation & Community Services ,
Kent Arts Commission
2010 CITY ART PLAN '
New Projects 2010
Budget
Capital Project Artwork: Clark Lake Park 10,000
Community Project Artwork: KDP Danny Pierce Murals 10,000
Community Project Artwork: Youth Mural 2,500
Portable Purchases: Summer Art Exhibit Purchase Program 5,000
Earthworks audio tour, interpretive signage, programming 20,000
Collection Maintenance and Programming 12,763 '
Previously Approved Projects In-Motion
Clark Lake Park 2008, 2009 $20,700 '
Subtotal $20,700 $60,263
TOTAL 2010 BUDGET FOR 19026223.66500.4310 $80,963
OTHER EXPENSES
Salary & Administration (supplies, professional services, $114,937 ,
maintenance/repair)
TOTAL 2010 BUDGET FOR 10006223.4310 $114,937
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Total $2 / capita 87,600 x 2 $175,200
TOTAL 2010 Anticipated Expenditures $175,200
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KENT ARTS COMMISSION
2010 CITY ART PLAN NARRATIVE
' Project Title: Clark Lake Park
' Project Description: In 2006, the Kent Arts Commission commissioned an art plan for
Clark Lake Park. This plan recommends funding several projects over multiple years.
' Estimated Costs: $10,000
Funding Source: 2008, 2009 and 2010 City Art Plan
' Location: 121.65 acre park, between SE 240th Street & SE 248th Street at 127th
Avenue SE. Facilities include: Fishing pier, public art, boardwalk, greenbelt, rough trail,
parking.
Project Title: Community Art Project: KDP Danny Pierce murals
Project Description: Kent artist Danny Pierce has created 4 historic murals that are
located in downtown Kent. Danny Pierce's original oil paintings will become part of the
' City Art Portable Collection. In future years, a fabricator could be hired to execute
Danny's original painting as an outdoor mural. Installation is the third step.
' Estimated Costs: $10,000 to commission each painting
' Funding Source: 2010 City Art Plan
Kent Parks Foundation
Background: Danny Pierce is represented in numerous public and private collections
including the Brooklyn Museum of Art, Museum of Modern Art, National Museum of
Sweden, Seattle Art Museum, Princeton University, Huntington Museum and
' Smithsonian Institute.
Location: tbd
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Project Title: Community Art Project: Youth Training artwork ,
Project Description: Mural painted by Kent youth.
Funding Sources: $2,500 2010 City Art Plan ,
$16,140 King County VEST
Background: : In 2009, the King County Youth Training program partnered with the '
Kent Resource Center and Kent Arts Commission to create murals on the East Hill and '
at Glenn Nelson Park, led by teaching artist Louis Chinn. We plan to repeat this project
at new locations in 2010
Location: to be determined ,
Project Title: Portable Collection Purchases ,
Project Description: Purchase quality artworks from area artists that enhance the
value of the City Portable Art collection. The artworks are exhibited in publicly '
accessible areas of City facilities.
Estimated Costs: $5,000
Funding Source: 2010 City Art Plan ,
Background: The City of Kent Arts Commission collection of portable artwork includes '
a variety of two-dimensional artworks. Artwork is acquired through the Kent Summer
Art Exhibit purchase award program. The portable collection introduces art into areas
where the community does business. A work environment that includes amenities such '
as art has been shown to increase productivity and job satisfaction.
Project Title: Earthworks Public Access '
Project Description: Provide audio podcasts; partner with 4Culture and Americans for ,
the Arts on Earth Day at Earthworks, provide interpretive signage onsite.
Estimated Costs: $20,000
Funding Source: 2010 City Art Plan
4Culture Site Specific
Background: The Kent Arts Commission is applying for grant funding to restore the
Earthworks. These grants are for"bricks and mortar" work only, but public access is an
important qualifier.
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1 Project Title: Collection Maintenance and Programming
1 Project Description: Projects in-progress including the City Art Guide, DVD publishing,
outdoor sculpture maintenance, and collection repair.
1 Estimated Costs: $12,763
1 Funding Source: 2010 City Art Plan
Background: This fund may be used for maintaining and providing programming for
1 existing artworks.
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KENT ARTS COMMISSION CITY ART 5 YEAR PLAN '
2010 - 2014
2010 PROJECTS COSTS
Capital Projects Total 60,263 ,
Capital Project Artwork: Clark Lake Park 10,000
Community Project Artwork: KDP Danny Pierce Murals 10,000
Community Project Artwork: Youth Mural 2,500 ,
Portable Purchases: Summer Art Exhibit Portable Collection 5,000
Earthworks audio tour, interpretive signage, programming 20,000
Collection maintenance and programming 12,763
Administration/Maintenance 114,937 ,
Year Total $175,200
2011 PROJECTS COSTS
Capital Projects Total 104,077
Community Project Artwork 39,427 '
Community Project Artwork: Panther Lake Annexation 49,650
Collection maintenance and programming 10,000
Portable Collection Purchases 5,000 '
Administration/Maintenance 120,683
Year Total $224,760
2012 PROJECTS COSTS
Capital Projects Total 98,043
Community Project Artwork 33,403
Community Project Artwork: Panther Lake Annexation 49,650
Collection maintenance and programming 10,000 ,
Portable Collection Purchases 5,000
Administration/Maintenance 126,717
Year Total $224,760
2013 PROJECTS COSTS
Capital Projects Total 91,708
Community Project Artwork 27,058
Community Project Artwork: Panther Lake Annexation 49,650 '
Collection maintenance and programming 10,000
Portable Collection Purchases 5,000
Administration/Maintenance 133,052
Year Total $224,760
2014 PROJECTS COSTS ,
Capital Projects Total 85,056
Community Project Artwork 70,056 '
Collection maintenance and programming 10,000
Portable Collection Purchases 5,000
Administration/Maintenance 139,704 ,
Year Total $224,760
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Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 6G
1. SUBJECT: ENERGY SAVINGS PERFORMANCE CONTRACT FOR CENTENNIAL
CENTER HVAC SYSTEMS - AUTHORIZE
2. SUMMARY STATEMENT: Authorize the Mayor to sign the Energy Savings
' Performance Contract with McKinstry Essention Incorporated in the amount of
$1,435,208, to replace the HVAC system components in the Centennial Center,
subject to final terms and conditions acceptable to the City Attorney.
Two years ago, McKinstry was hired as an Energy Services Company to audit
several city buildings and to provide a guaranteed cost for replacement of HVAC
systems in each building. The proposal was analyzed and a mixed services
approach was adopted. It was decided to contract out for the replacement of 85
heat pumps and associated equipment in Centennial Center, as well as
replacement of the system at the Riverbend 18 Hole Clubhouse with a Ground
Source Heat Pump system.
Funding was requested to complete energy efficient projects at the Centennial
Center and Riverbend and grants were solicited. In November 2009, the city was
awarded a $845,400 Federal grant from the Energy Efficiency Community
Development Block Grant program. Block Grant money cannot be used for golf
courses and swimming pools, so funds were relevant to the Centennial Center
HVAC project. The cost to complete this replacement in the Centennial Center is
' $1,435,208, with the $845,400 from energy grant funds, and $589,808 from the
HVAC project budget in the Capital Plan.
3. EXHIBITS: Energy Savings Company Agreement
4. RECOMMENDED BY: Parks & Human Services 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:
01instry 2/10/201012:48 PM
McKinstry Essention, Inc.
ENERGY SAVINGS PERFORMANCE CONTRACT
Date
THIS AGREEMENT was made and entered into by and between
' Company name, MCKINSTRY ESSENTION, INC
Address- P. O BOX 24567
SEATTLE,WA 98124
Telephone ( )
Fax ( )
Contact
Email:
hereinafter called MCKINSTRY, and
Customer name. City of Kent
Department of Parks, Recreation, &Community Services
Attn• Charlie Lindsey, Facilities Superintendent
Address: 220 Fourth Avenue South, Kent,WA 98032
Telephone (253) 856-5080
Fax. (253) 856-6080
Contact Charlie Lindsey, Facilities Superintendent
Email clindsey@ci.kentwa us
hereinafter called the CUSTOMER, WITNESSETH
In consideration therefore, the parties agree as follows:
1. SCOPE OF THE AGREEMENT. MCKINSTRY agrees to install various energy conservation
measures, facility improvement measures, and operational efficiency improvements, which will result
in energy savings or allow the CUSTOMER to avoid future capital or operational costs as set forth in
detail in the Energy Services Proposal, dated February 5, 2010 ("ESP"), attached and incorporated as
Exhibit A After installation, MCKINSTRY agrees to provide the post construction services identified
in the ESP that are necessary to monitor, measure, and achieve the identified Project Benefits
(savings, cost avoidances, and mutually agreed upon billable usage increases), subject to the terms
of the guarantees set forth in the ESP The CUSTOMER agrees to take all actions identified in this
AGREEMENT that are necessary to achieve the Project Benefits identified As a result, and as
specifically set forth in the ESP, MCKINSTRY will provide all labor, materials, equipment, design
services, and supervision necessary to install the equipment ("Work") as well as provide the post
construction monitoring, measurement, and verification services for a one year period ("Services")
detailed in the ESP Monitoring, measurement, and verification services for Years 2-10 are not part
of this AGREEMENT. MCKINSTRY shall supervise and direct the Work and shall be solely
responsible for all construction means, methods, techniques, sequences, and procedures and for
coordinating all portions of the Work and Services under this AGREEMENT MCKINSTRY shall be
responsible to pay for all labor, materials, equipment, tools, construction equipment and machinery,
transportation, and other facilities and services necessary for the proper execution and completion of
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INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A
SPECIFIC PURPOSE. ,
CUSTOMER understands that MCKINSTRY is a provider of services under this AGREEMENT
MCKINSTRY shall not be considered a merchant or a vendor of goods If MCKINSTRY installs or
furnishes a piece of equipment under this AGREEMENT, and that equipment is covered by a
warranty from the manufacturer, MCKINSTRY will transfer the benefits of that manufacturer's
warranty to CUSTOMER if this AGREEMENT terminates before the equipment manufacturer's
warranty expires
9. CLEANUP. MCKINSTRY shall keep the premises and the surrounding area free from accumulation
of waste materials or rubbish caused by the Work and, upon completion of the Work, MCKINSTRY
shall remove all waste materials, rubbish, tools, construction equipment, machinery, and surplus
materials
10. SAFETY. MCKINSTRY shall be responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with the performance of the Work or Services MCKINSTRY '
shall comply with all applicable laws,�ordlnances, rules, regulations, and lawful orders of public
authorities related to safety of persons or property,
11. HAZARDOUS MATERIALS. Unless specifically noted In the ESP, MCKINSTRY's obligations '
expressly exclude any Work or Services of any nature associated or connected with the identification,
abatement, cleanup, control, removal, or disposal of hazardous materials or substances, including but
not limited to asbestos or PCBs, in or on the premises. The CUSTOMER represents that, to the best
of the CUSTOMER's knowledge, there is no asbestos or hazardous material in the CUSTOMER's
premises that will in any way affect MCKINSTRY's work Should MCKINSTRY become aware of or
suspect the presence of asbestos or hazardous materials, MCKINSTRY shall have the right to stop
work in the affected area immediately and notify the CUSTOMER. The CUSTOMER will be
responsible for doing whatever is necessary to correct the condition in accordance with all applicable
statutes and regulations MCKINSTRY shall assume no responsibility for any claims arising out of or
relating to the presence of asbestos or hazardous materials in the CUSTOMER's budding.
MCKINSTRY shall be entitled to an equitable adjustment to the Substantial Completion Date and/or
Contract Sum caused by encountering asbestos or other hazardous materials or substances on the
premises
12. INSURANCE. Prior to commencing the Work, MCKINSTRY shall provide a certificate of insurance
showing its insurance coverages, and MCKINSTRY shall maintain such insurance in full force and
effect at all times until the Work and Services have been completed, in the following minimum
amounts.
COVERAGES LIMITS OF LIABILITY j
Workmen's Compensation Insurance of self Statutory
insurance, including Employer's Liability ,
Comprehensive General Liability Insurance, $5,000,000 One Occurrence
including Contractual '
$5,000,000 Each Aggregate
Comprehensive Automobile Liability Insurance $5,000,000 Combined Single
� Limit
The above limits are obtained through primary and excess policies
The McKinstry shall be responsible for obtaining builder's risk insurance
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96743.1
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the Work, whether temporary or permanent, and whether or not incorporated or to be incorporated in
the Work
In accordance with Ch 39 35A RCW, MCKINSTRY guarantees that, should the CUSTOMER perrorm
its ongoing responsibilities as required under MCKINSTRY'S proposal, the CUSTOMER will realize a
' utility savings in the amount of $34 486 during the first year following full imp,ementation of the
energy conservation measures, facility improvement measures, and operational efficiency
improvements taken under this AGREEMENT Should the CUSTOMER perform its responsibilities in
accordance with MCKINSTRYs proposal, and should the CUSTOMER not realize the savings
'I projected by MCKINSTRY, MCKINSTRY will remit the difference to the CUSTOMER between the
projected savings and the actual savings, or if MCKINSTRY has not been fully compensated under
this AGREEMENT, then any difference between the projected and actual savings will be deducted
from any further compensation owed to MCKINSTRY.
2. COMPENSATION. This contract is a performance-based contract entered into under Ch. 39.35A
RCW with a guaranteed maximum allowable design and construction cost of $1,310,980, plus
Washington State Sales Tax By executing this AGREEMENT, MCKINSTRY represents and
acknowledges that the Guaranteed Cost is reasonable compensation for all of the work, that the
contract time is adequate for the performance of the work; and that MCKINSTRY has carefully
examined the AGREEMENT, and its referenced documents, the project site, and that it has satisfied
' itself as to the nature, location, character, quality, and quantity of the work, the labor, materials,
equipment, goods, supplies, work, services, and other items to be furnished, and all other
requirements of the contract documents, and equipment and facilities needed preliminary to and at all
times during the performance of the work,
Additional project financial information including total compensation and payment terms is as set forth
in Section 4 of the ESP, attached as Exhibit A.
3. TERM. The Term of this AGREEMENT shall begin on the Commencement Date, which shall be
[date], or, if no date is included the date of last signature of this
AGREEMENT If the Work is divided into phases or individual projects for which individual prices
have been negotiated, then separate Commencement Dates shall apply to each phase or Individual
project The Work shall be completed by the Substantial Completion Date, which shall be the earlier
of
a the date on which the CUSTOMER executes a Certificate of Substantial Completion; or
b. [date], subject to adjustments as set forth in Paragraph
4 below.
If the Work is divided into phases or individual projects for which individual prices have been
negotiated, then Substantial Completion Dates shall apply to each phase or individual project.
Substantial Completion means that MCKINSTRY has provided sufficient materials and services to
permit the CUSTOMER to operate the Equipment for its intended purpose or to achieve the intended
benefit from the Work The Services shall commence on the Substantial Complete Date and shall
continue for twelve (12) months The term of all energy cost savings guarantees as set forth in the
ESP shall coincide with the term of the Services If for any reason, the CUSTOMER cancels or
breaches this AGREEMENT, including but not limited to its obligations pursuant to the Services
portion of the AGREEMENT or other separate agreement, the energy cost savings guarantees in the
ESP shall automatically terminate.
4. DELAYS. If MCKINSTRY Is delayed in the commencement or completion of the Work by causes
beyond its control and without its fault or negligence, including but not limited to fire, flood, labor
disputes, supplier delays, abnormal adverse weather conditions, acts of God, acts of the public
enemy or unusual deliveries caused by any of the foregoing occurrences, or by failure by the
CUSTOMER to perform its obligations under the AGREEMENT or failure by the CUSTOMER to
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86743.1
cooperate with MCKINSTRY in the timely completion of the Work, then MCKINSTRY shall provide
written notice to the CUSTOMER of the existence, extent of, and eason for such delays. An
equitable adjustment in Substantial Completion Date shall be made as a result.
6. CERTIFICATE OF SUBSTANTIAL COMPLETION. The Certificate of Substantial Completion to be
executed by the CUSTOMER shall include ,
a. an acknowledgement by the CUSTOMER of the buildings substantially completed and the
Substantial Completion Date for each building
b. an acknowledgment by the CUSTOMER of receipt of manuals and training provided by
MCKINSTRY under the AGREEMENT
c. an acknowledgement by the CUSTOMER of the warranty start date and warranty period
d. a punchlist of items remaining to be completed by MCKINSTRY.
6. CUSTOMER USE. Upon turnover at Substantial Completion, CUSTOMER acknowledges that: ,
a. changes of fire or alarm control points may significantly alter a life safety system, and
contribute to a dangerous or life-threatening situation, ,
b. changes to fire or alarm points may also require approval of local fire authority; changes to
other control points may be linked to the life safety system and affect it, and after each such
change, the life safety system should be exercised to see that is integrity has not been
violated and it functions properly, as was intended.
c. MCKINSTRY does not warrant against system malfunction caused by improper use, misuse
or wrong entry of data by the CUSTOMER, and MCKINSTRY shall not be liable for situations ,
or damages that are the direct result of user-generated data bases
7. TAXES, PERMITS, AND FEES. MCKINSTRY shall be responsible for obtaining all permits and
i related permit fees associated with the Work and Services MCKINSTRY shall pay sales, consumer,
use, and other similar taxes and shall secure and pay for the building permit and other permits and
! governmental fees, licenses, and inspections necessary for proper execution The CUSTOMER shall
be responsible for real estate and personal property taxes where applicable The CUSTOMER shall
be responsible for securing any necessary approvals, easements, assessments, or zoning changes
MCKINSTRY makes no representations regarding the tax implications or CUSTOMER's accounting
treatment of this AGREEMENT.
6, WARRANTY. MCKINSTRY warrants that materials and equipment furnished by MCKINSTRY will be
of good quality and new; that the Work will be free from defects not inherent in the quality required or
permitted, and that the Work and Services will conform to the requirements of the ESP MCKINSTRY
warrants that the Work shall be free from defects in material and workmanship arising from normal ,
i usage for a period of one year from the date the CUSTOMER accepts MCKINSTRY's work as
complete, and that its Services will be free from defects in workmanship, design, and material until
the end of the Term, or for one year, whichever is earlier Upon written notice from the CUSTOMER, '
MCKINSTRY shall, upon the mutual agreement of the parties, repair or replace the defective Work or
re-perform defective Services These warranties do not extend to any Work or Services that have
been abused, altered, misused, or repaired by the CUSTOMER or third parties without the
supervision of and prior written approval of MCKINSTRY, or if MCKINSTRY serial numbers or
warranty date decals have been removed or altered The CUSTOMER must promptly report any
failure of the installed equipment to MCKINSTRY in writing All replaced equipment or parts become
MCKINSTRY's property.
THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
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86743.1
All deductibles or self—insured retentions (SIR) related to the above insurance requirements,
regardless of size,will remain the responsibility of party causing the claim.
13. PERFORMANCE AND PAYMENT BOND(S). Pursuant to Chapter 39.08 RCW, MCKINSTRY shall
provide the CUSTOMER a payment and performance bond for the full contract amount The
CUSTOMER shall hold back a retainage in the amount of five percent (5%) of any and all payments
made to contractor for a period of sixty (60) days after the date of final acceptance, or until receipt of
all necessary releases from the State Department of Revenue, the State Department of Labor &
Industries, and the state Employment Security Department, and until settlement of any liens fled
under Chapter 60 28 RCW, whichever is later The amount retained shall be placed in a fund by the
CUSTOMER pursuant to RCW 60 28.011(4)(a), unless otherwise instructed by MCKINSTRY within
fourteen (14)calendar days of MCKINSTRY'S signature on the AGREEMENT
14. PREVAILING WAGES. MCKINSTRY shall file a"Statement of Intent to Pay Prevailing Wages,"with
the State of Washington Department of Labor & Industries prior to commencing the work under this
AGREEMENT. MCKINSTRY shall pay prevailing wages in effect on the date the bid is accepted or
executed by MCKINSTRY, and comply with Chapter 39.12 of the Revised Code of Washington, as
well as any other applicable prevailing wage rate provisions The latest prevailing wage rate revision
issued by the Department of Labor and Industries is attached
15. INDEMNITY. MCKINSTRY shall defend, indemnify and hold the CUSTOMER, 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 MCKINSTRY'S
performance of this AGREEMENT, except for that portion of the injuries and damages caused by the
CUSTOMER'S negligence
The CUSTOMER'S inspection or acceptance of any of MCKINSTRY'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 MCKINSTRY and the
CUSTOMER, its officers, officials, employees, agents and volunteers, MCKINSTRY'S liability
hereunder shall be only to the extent of MCKINSTRY'S negligence
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION
PROVIDED HEREIN CONSTITUTES MCKINSTRY'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.
16. LIABILITY AND FORCE MAJEURE. MCKINSTRY shall not be liable under this AGREEMENT in an
amount in excess of its primary general comprehensive policy limits Neither MCKINSTRY nor the
CUSTOMER will be responsible to the other for any special, indirect, or consequential damages
arising in any manner from the Work or Services Neither party will be responsible to the other for
damages, loss, injury, or delay caused by conditions that are beyond the reasonable control, and
without the intentional misconduct or negligence, of that party Such conditions include, but are
limited to- acts of God; acts of Government agencies, strikes, labor disputes, fire, explosions or other
casualties; thefts; vandalism, riots or war, or unavailability of parts, materials or supplies. If this
AGREEMENT covers fire safety or security equipment, the CUSTOMER understands that
MCKINSTRY is not an insurer regarding those services MCKINSTRY shall not be responsible for
any damage or loss that may result from fire safety or security equipment that fails to perform
properly or fails to prevent a casualty loss MCKINSTRY is also not responsible for any injury, loss,
or damage caused by equipment that is not part of the work set forth in the ESP,
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17. MCKINSTRY'S PROPERTY. All materials furnished by and used by MCKINSTRY personnel at the
installation site, including drawings, designs, documentation, schematics, test equipment, software,
and associated media remain the exclusive property of MCKINSTRY The CUSTOMER agrees not
to use such materials for any purpose at any time The CUSTOMER agrees to allow MCKINSTRY
personnel to retrieve and to remove all such materials remaining after installation or maintenance
operations have been completed If applicable, the CUSTOMER acknowledges that all MCKINSTRY
j software included is proprietary and will be delivered only under the provisions of an appropriate
licensing agreement that will limit its use to the system purchased under this AGREEMENT
18. MODIFICATIONS. Additions, deletions, and modifications to this AGREEMENT may be made upon ,
the mutual agreement of the parties The parties contemplate that such modifications may include
but are not limited to the installation of additional energy conservation measures, facility improvement
measures, and operational efficiency improvements or furnishing of additional services within the
identified facilities, as well as other facilities owned or operated by the CUSTOMER These
modifications may take the form of additional phases of work or modifications to the original scope of
Work or Services.
19. NOTICES. All notices or communications related to this AGREEMENT shall be in writing and shall
be deemed served if and when sent by facsimile or mailed by certified or registered mail to the
contact person(s) and address(es) listed on page 1 of this Energy Savings Performance Contract
20. DISPUTE RESOLUTION. 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 CUSTOMER's right to indemnification under Section 15 of this AGREEMENT
21, Non-Discrimination. In the hiring of employees for the performance of work under this ,
AGREEMENT or any sub-contract, MCKINSTRY, its sub-contractors, or any person acting on behalf
of MCKINSTRY 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
MCKINSTRY 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. This policy and the referenced declarations are attached and
incorporated as Exhibit B ,
22. ADDITIONAL TERMS.
A Any failure of MCKINSTRY or the CUSTOMER to require strict performance by the other party, or
any waiver by MCKINSTRY or the CUSTOMER of any requirement under this AGREEMENT,
does not consent to or waive any subsequent failure or breach by the other party.
B If any provision of this AGREEMENT is invalid under any applicable law, that provision shall not ,
apply, but the remaining provisions shall apply as written
C The captions and titles in this AGREEMENT are for convenience only and shall not affect the
interpretation or meaning of this AGREEMENT
D. This AGREEMENT is the full agreement between MCKINSTRY and the CUSTOMER as of the ,
date it is signed All previous conversations, correspondence, agreement, or representations
related to this AGREEMENT (including any Project Development agreement) are not part of the
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86743.1
agreement between MCKINSTRY and the CUSTOMER and are superceded by this
AGREEMENT
E. This AGREEMENT shall be construed in accordance with the laws of the state in which the
Project is located.
F. 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 mall, 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
G. 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
H. 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 CUSTOMER and
MCKINSTRY.
I MCKINSTRY agrees to comply with all federal, state, and municipal laws, rules, and regulations
that are now effective or in the future become applicable to MCKINSTRY'S business, equipment,
and personnel engaged in operations covered by this AGREEMENT or accruing out of the
performance of those operations.
23. AGREEMENT DOCUMENTS. By this reference, the following exhibits are attached hereto and made
a part of this AGREEMENT
Exhibit"A": Energy Services Proposal, dated February 5,2010 ("ESP")
Exhibit"B": Equal Employment Opportunity Policy and Declaration Forms
IN WITNESS WHEREOF of MCKINSTRY and CUSTOMER have executed this AGREEMENT, effective
the date of the last authorized signature unless a different Commencement Date is established in
Paragraph 2
MCKINSTRY ESSENTION, INC. CITY OF KENT
Date Date
Joseph Hagar, Director of Finance Authorized Signature of CUSTOMER
Title
PMyvplF9nbpeMiNe114R7•Enegy8MnpfPefamunaaC"ntrWVNpCVAeNInslry�nargySdNgNnkim"neaC"Mracl CeMenrYNC"MNd"u
Page 7 of 7
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EXHIBIT B ,
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. 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.
I
Dated this day of , 20_
By
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For:
Title:
Date:
EXHIBIT B -
EEO COMPLIANCE DOCUMENTS - 1 ,
1 CITY OF KENT
ADMINISTRATIVE POLICY
NUMBER* 1.2 EFFECTIVE DATE. January 1, 1998
j 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,O00 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
t2. 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.
ZEXHIBIT B -
EEO COMPLIANCE DOCUMENTS - 2
i
CITY OF KENT
1
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: l
i
For.
Title:
Date
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EXHIBIT B -
EEO COMPLIANCE DOCUMENTS - 3
IONS�
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City of Kent
Group 1.1
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' Energy Services Proposal
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1 02 05 10
! Prepared by Mai Foster
Account Executive
I! McKinstry
Prepared for City of Kent
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McKINSTRY FOR THE LIFE OF YOUR BUILDING I
Mechanical&Electrical DeSign/Bulld I Mobile Service I EnergySolutlons I Facility Management
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instrit
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City of Kent Group 1.1 I Energy Seiwces Pioposal 102 05 10
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1 Table of Contents i
Section 1-Executive Summary 4.1 Maximum Project Allowable Cost
+ 1 1 Overview 4.2 Project Cost Table I
1.2 Project Description 4.3 Items included in Maximum Project Cost !
1.3 Summary of Benefits 4.4 Construction Contingency
' 1.4 Maximum Project Cost 4.5 Allowances
1.5 Conclusion 4.6 Ongoing Services
4.7 Accounting Records
Section 2-Scope of Work 4.8 Reconciliation of Labor&Material Costs !
2.1 Facility Improvement Measure Summary 4.9 ESCO Compensation i
22 ESCO Services 4.10 Financing
2.3 Extent of Subcontracting 4.11 Termination Value
i Attachment A- Detailed Scope of Work 4.12 Terms and Conditions
{ Table 4.1-Budget Summary
4 Section 3-Energy Cost Savings and Guarantees Table 4 2-FIM Matrix
3.1 Guarantee Overview
3.2 FIM Specific Performance Assurance
j Methodology
3.3 Utility Rates '
3.4 Standards of Comfort Service j
35 Ongoing Owner Responsibilities
36 Non-Performance
37 Change of Use f !
Table 3 1- Energy Savings Guarantee Summary
Table 3 2 - Performance Assurance Plan Outline
i ! Table 3.3 - Utility Base Rates
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PROJECT City of Kent I Kent,WA GROUP 1.1
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G!mq CLIENT CdyofKent DATE 020510
SECTION Executive Summary PAGE 1 of 2
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Section 1 - Executive Summary
1.1 OVERVIEW
McKinstry Essention (hereafter referred to as McKinstry) is pleased to present this proposal for the
implementation of energy efficiency measures for the City of Kent owned buildings located in Kent,
Washington.
This proposal presents the contractual terms under which McKinstry and the City of Kent will work together
over the terin of the project. The enclosed proposal describes the scope, costs, guarantees, and other
specific details of the project.
The services Included Jn this proposal include design, construction, and system performance verification.
Although the City of Kent will operate and maintain the new equipment, McKinstry will provide an initial
commissioning of the installed systems and will provide commissioning documentation of system operation
and performance,confirming the abilityto realize the guaranteed savings.
1.2 PROJECT DESCRIPTION
This project includes renovations to the existing HVAC, controls, and lighting systems for the City of Kent.
Detailed scopes of work documents are located in Section 2 of this proposal. A summary of key system
Improvements include.
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• Centennial Building: The existing heat pumps are over 20 years old and at the end of their useful
life. Maintenance repairs are becoming more costly and increasing in frequency. This project
includes the replacement of all of the heat pumps in addition to other necessary system
improvements to reduce energy consumption while Improving indoor air quality and comfort,
Riverbend Golf Course, Fire Stations 71, 72,73,74, 75 &76,the Police Station and the Senior Center were
Included in this study These scopes of work and associated project costs are provided in a separate report,
as funding for these projects is not available at this time. The scope of work documents outline energy
efficient solutions to address aging Infrastructure needs which will dramatically improve occupant comfort
while providing more efficient systems overall
1.3 SUMMARY OF BENEFITS
Financial Benefits
Section 4 of the proposal provides information related to specific project financials related to this project.
The proposed energy efficiency measures are projected to generate over$15,458 of annual utility savings
for the City of Kent. Additional savings of $19,028/yr are projected based on a reduced repair costs and
future avoided capital expenditures as agreed upon with the City of Kent Total first year savings Is estimated
jat $34,486 annually. Due to the guaranteed utility savings resulting from this project, Puget Sound Energy
will provide a custom rebate.
Environmental Summary
The energy savings produced will directly reduce the amount of power produced by the Utility. To compute
the environmental impact, McKinstry uses factors from cleanerandgreener.org which provides fossil fuel
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a� PROJECT Cityof Kent Kent,WA GROUP 11
nstryCLIENT City of4<ent DATE 020510
iatmnaNa�"� i
I SECTION Executive Summary PAGE 2of2
generation emission rates and states "that fossil fuel generation only emission factors provide more
accurate estimates of emission reductions from energy efficiency. This is because low operating cost
I generation like hydroelectric generation and nuclear generation will run whenever they are available because
of their low position in the generation loading order, regardless of decreases in overall energy consumption.
i As a result, a decrease in energy consumption from increased energy efficiency will have little or no impact
on the total output of nuclear and renewable-based generation."
On average,one car produces 15,000 pounds of CO2 annually and one acre of trees absorbs 7,333 pounds
Of CO2 annually. By Implementing this building Improvement, CO2 emissions will be reduced by 391,237
pounds annually,which is equivalent to removing 26 cars from the road or planting 53 acres of trees.
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1.4 MAXIMUM PROJECT COST j
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The guaranteed maximum allowable design and construction cost is $1,310,980. The total project cost
including sales tax,before any utility incentives, is estimated at$1,435,208.
1.5 CONCLUSION I
This project represents an excellent opportunity for the City of Kent to greatly improve Its facilities while
saving energy and positively impacting the environment. McKinstry looks forward to working with the City of
Kent in making this project a success.
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PROJECT City of Kent I Kent,WA GROUP 1.1 f
I `jai<°dbyi- S 7, Instry CLIENT City of Kent DATE 02 05 10
Ih 0/Yoer 6vll/Ind
TOPIC Scope of Work PAGE 1 of 2 II
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Section 2 - Scope of Work
j 2.1 FACILITY IMPROVEMENT MEASURE(FIM)SUMMARY
For detailed scope of work descriptions please refer to Attachment A- "Detailed Scope of Work."
2.2 ESCO SERVICES
McKinstry will Include the following services related to this protect:
,+ a. ENERGY AUDIT:The energy audit is complete and is submitted under Exhibit 1 - "Directed Engineering
Study."
b. DESIGN SERVICES: McKinstry will provide a detailed engineering design as needed to obtain Owner
REVIEW and approval of the proposed system and to obtain competitive bids In addition, McKinstry will
also provide construction support services,start-up, testing, as-built drawings of systems installed, and
provide relevant operations and maintenance manuals.
c. CONSTRUCTION. Provide, or cause to be provided, all material, labor,and equipment, Including PAYING
for permits, fees, bonds, and insurance, required for the complete and working installation of
McKinstry's equipment
i. McKinstry will provide a site superintendent who will be responsible for the onsite supervision
and coordination of trades and subcontractors This individual's responsibilities will also include
regular work observations, quality control, site security, enforcement of the site specific safety
plan,as well as coordinating any Impact upon building tenants with the Owner.
II. McKinstry may perform portions of the contraction work or may subcontract portions to qualified
firms. In either case, McKinstry will share information regarding actual costs of the work with
the Owner
Ill. When McKinstry has completed the installation of the Equipment, including start-up,operations
verification, and training in accordance with the Proposal, McKinstry will provide to Owner a
"Notice of Commencement of Energy Savings",
i iv. At the conclusion of the project, McKinstry will submit a "Notice of Substantial Completion" to
the Owner.
II d. CONSTRUCTION MANAGEMENT: McKlnstry will provide a dedicated construction manager who will
1 provide contract administration services for the project.The owner Is expected to coordinate day-to-day
li communications with tenants and any scheduling of tenant relocations in and around occupied areas.
e. OPERATION TRAINING:McKinstry will provide on-going training of budding staff during construction and a i
minimum of 8 hours of training on the energy management control system.
f. PERFORMANCE MAINTENANCE, ESCO will provide ongoing monitoring and support services to help
ENSURE that predicted savings are achieved throughout the term of the agreement. Ongoing services
shall be under separate agreement. Ongoing services shall be at the discretion of the City of Kent to
I terminate.Specific tasks associated with proposed ongoing performance assurance tasks can be found I
In taole 3 1-"Energy Cost Savings Guarantee Summary."
g, EQUIPMENT MAINTENANCE: McKinstry will provide no equipment maintenance or repairs after the
I WARRANTY period. Following the completion of the Installation and Owner acceptance of the Equipment,
the Owner shall provide all necessary service, repairs, and adjustments to the Equipment so that the
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InCjr� PROJECT city aF Kent l Kent,WA GROUP 1,1
;ICriT CLIENT CltyafKent UATE 02 05 10
I TOPIC Scope of WOik PAGE 2of2
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Equipment will oerform in the manner and to the extent set forth in the Proposal. McKinstry shall have I j
no obligation to service or maintain the Equipment after the warranty period.
In. WARRANTY: McKinstry will warrant equipment for one year following Notice of Substantial Completion.
Specific information regarding equipment warranty will be passed on to owner.
I HAZARDOUS WASTE OTHER THAN PCB LIGHTING BALLASTS: Should the project require removal or
disposal of hazardous material,McKinstry may have the hazardous material or substances removed and
DISPOSED of at the request of the Owner. McKinstry,will not assume ownership of the material but may f
act on behalf of the Owner to properly remove and dispose of the material The Owner shall pay
McKinstry for the cost of such work. The Owner agrees and acknowledges that it has not rolled on or
employed McKinstry to analyze or identify the presence of any hazardous substance on the Owner's
premises.The cost of hazardous material abatement and disposal is=included In this proposal.
1. HAZARDOUS WASTE ASSOCIATED WITH PCB LIGHTING BALLASTS:Where PCB ballasts are DISCOVERED
as part of lighting retrofit work, McKinstry shall dispose of PCB ballasts through an approved hazardous
waste vendor. The cost of hazardous material abatement and disposal associated with PCB ballasts is
included in this proposal.
2.3 EXTENT OF SUBCONTRACTING +
McKinstry may subcontract the energy audit, design, construction management, start-up, and training 1
portions of this Contract to qualified firms upon review and approval by owner.Construction subcontracts will
be awarded competitively.McKinstry will endeavor to satisfy the MWBE goals of Washington State
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p PROJECT City of Kent I Kent,WA GROUP 1.1
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CLIENT CIt of Kent DATE 091508
fa T u,ornvern .a TOPIC Detailed Scopes of Work
i I
FIM# 1.01 - CEN
Replace water-source heat pumps and make up air unit
Centennial Center, City of Kent
i FIM 1.01 CEN GENERAL:
This measure includes replacement of heat pumps and the make up air handler. Also Includes re-
commission of controls,
SCOPE OF WORK INCLUDES
A. Mechanical:
1. Replace 83 heat pumps with new single stage 14 EER efficiency heat pumps with Internal I
two way solenoid valve. Basis of design Is the Florida Heat Pump. McKinstry will perform a
detailed equipment decision and selection matrix during design and work with Kent Facilities
to select the best alternative(s). Scope and pricing based on existing equipment being
correctly sized (to confirm with load calculation during design), i
a. Heat Pump sizes(obtained from the Centennial Center control system).
{ 1) 3—9MBH
2) 1— 10MBH
3) 7— 12MBH
4) 1— 14MBH
5) 6— 15MBH
6) 13—19MBH
7) 13 —24MBH
8) 9—30MBH
9) 5—36MBH
10) 13—42MBH
11) 11 —48MBH i
12) 1 — 60MBH J
13) Note: 83 heat pumps are shown on the control system. (44) heat pumps with
277V and (39) heat pumps with 480V. Location, size, and voltage to be
confirmed In the field.
b. Installation of units and supports shall comply with current seismic code
requirements (SMACNA).
C. Replace branch plping back to Isolation valves(approximately 1.5ft of pipe) including
Flex hoses, galvanized fittings if any. Assume (40) HP have 1"dla. branch piping and
(43) have 1.25"dla. branch piping,
d. At each heat pump install union downstream of the isolation valve,
e. At each heat pump Install Isolation ball valve downstream of the existing circuit
setter.
ff. (Note: Owner has communicated that the existing heat pump loop has extensive
residue/contaminants which have caused problems with the system; the
water/system was not treated or serviced for the first 10-15 years of operation.
Owner removed existing strainers due to repeating clogging Issues) A side stream
bag filter will be added to the heat pump loop. The heat pump replacement scope
will include a flush of the heat pump loop to remove existing contaminates in system.
g. Provide bypass valve and flow meter in condenser water loop for minlmum flow
bypass. Install near pumps. Valve to modulate based on flow meter.
h. Rebalance air side and water side for each heat pump (air side Includes balancing
I OSA ventilation to each heat pump),
2. Replace rooftop make up air unit with new packaged Indirect fired gas make up air unit.
Provide new gas pressure regulator,
a. MUA sized at 14,000 cfm, 10 HP motor 460 v, 3 phase.
U, "4.2_si.X;`. ��.....:.:m•"e4`�v�'v"..iw�':a"+,',^>';x a'.'K°.a_.�.,M`:�_.:}'`.'`,'S."Yh :a+ ryry ',�"erd�s:.' o`- `�'`'°^^ I
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e PROJECT City of Kent I Kent,WA GROUP 11
, P I"JtrJ CLIENT City of Kent DATE 09 15 08 W1 It of raw
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TOPIC DetafledScopesofWork I
b. Provide duct to connect MUA to existing plenum.
C. Offset sewer vent away from the MUA unit intake.
1) Add approximately 12'of vent piping. Pipe will extend over to and up 3'above the
existing screen wall.
3. Replace roof mounted condenser water pumps.
a. (2) Pumps at 25 HP, 722 gpm (pump motors are to be Inverter duty rated.) i
b. Provide VFD near each pump In NEMA 3R enclosure.
1) Provide input and output line reactors. (Input line reactors as required to comply
with the total building harmonics distortion).
2) Provide pre and post harmonics testing to verify total harmonic distortion Is in
accordance with IEEE-519-92
4. Roof mounted cooling tower
a. Install (2) two way valves on cooling tower condenser water supply to allow for
bypass.
b. Replace cooling tower 40 HP motor(owner furnished) and provide new motor mount
brackets. Motor is currently located on the roof.
5. Install a condenser water side stream bag fliter. Size for 722 gpm (6"pipe).
B. Controls—
i 1. Reprogram controls with the following additional control strategies.
1 a. Occupied 7:00 a.m. Unoccupied 6.00 p.m. M-F. Off otherwise. Make up air override
1 will provide normal occupancy ventilation to the building for(1)additional hour
(adjustable). See item 2 below.
b. The two rooftop restroom exhaust fans start following morning warm-up and operate
until 1:00 a.m. M-F. Off otherwise.
2, Enable MUA override in 4 locations.
a. The override buttons will be integral with existing DDC room sensors and enabled In
I office spaces that require after hour ventilation (location of these override buttons to
be determined by Kent Facilities). These buttons shall be uniquely displayed In the
control graphics.
3. Continue to allow override In individual zones for heating and cooling after hours. Once
override is pushed it will enable local heat pump to heat or cool the space and only re-
circulate indoor air, This will not provide ventilation air.
a, McKinstry will work with Kent Facilities during design to determine number of zone
! specific heating and cooling override buttons to enable.
4. Disconnect all existing terminations, remove&retain existing field devices&fleld wiring (i.e.
temperature sensors, relays,TECs, etc) from existing heat pumps and reinstall &re-
terminate existing devices on each new heat pump.
S. Update graphics to reflect system conditions.
i 6. Fully Integrate VFD(s) Into control system.
i 7. Integrate control of cooling tower bypass valves Into the DDC system.
1 a. Sequence Is as follows:
1) Flow to bypass cooling tower when condenser loop is tailing for heating and OSA {
temperature is above 37 degrees(Adjustable. Final set point to be determined
during design).
2) Full flow through cooling tower otherwise.
8. Re-commission Siemens DDC.
a. Perform point-to-point verification on replaced equipment. Verify all Siemens DDC
controls are working to design specification.
C. Electrical—
1. Reuse existing fused disconnects(scope and pricing based on all heat pumps having existing
fused disconnects per the 5 heat pumps viewed during site investigations). Remount
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PROJECT City of Kent I Kent,WA GROUP 1.1
i
�nstry CLIENT QtyofKent DATE 091508
TOPIC Detailed Scopes of Work
disconnects. Note: Provide a label on the Inside cover of each disconnect: "Fused disconnect
switches shall not be removed from this instal;ation without first confirming the AIC ratings '
at that connection point In the system and confirming that all devices in the system meet or i
exceed the available AIC fault current," Calculations shall be taken down to 4000 AIC.
i 2. Modify ceiling such that ceiling tile splines are removable within 42"around disconnects.
Cade requires a 42"clearance around disconnects for service and maintenance,
3. Disconnect and connect heat pumps.
4. Connect and test VFDs.
5. Assume new heat pumps are sized equal to the existing units.
D. Structural
1. Provide structural upgrades as required for the replacement of make-up air unit.
a. Install new curb that mates with unit(existing unit weight= 2500 Ibs)
E. Architectural— NA
F. Acoustical
1, McKinstry will not exceed existing sound levels.
G. Specialty
1. Construction staging is limited and must be coordinated with owner.
H. Demolition and re°novai—
1. Remove old heat pumps
2. Remove old make up air unit and associated furnaces.
3. Patch roofing at MUA unit.
4. Reuse existing ceiling tiles.
I. Allotments—NA
J. Scheduling—Work to be performed between the hours of 6:00 p.m. to 6:00 a.m.
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Logistics Note: NA I
EXCLUSIONS
A. Hazardous material abatement.
B. Seismic restraints on existing ductwork.
C. Changes to existing fire dampers or fire smoke control components.
D. Any additional work beyond what is specifically listed In this scope of work that Is necessary to
upgrade to code.
E. Upgrade of existing electrical to meet code.
1
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insfry PROJECT City ofKent I Kent,WA GROUP 1,1
.yr`, 7,jd TW7
CLIENT City of Kent DATE 020510
- rr r.or rov e.iumo
TOPIC Enei gy Cost Savings Guaiantee PAGE 1or4
j
Section 3 - Energy Cost Savings Guarantee
(
i 3.1 GUARANTEE OVERVIEW
i a. Philosophy McKinstry is prepared to guarantee any portion of a protect over which it has direct control.
Where McKinstry does not have direct control (such as burn hours associated with lighting), we are
prepared to work with the customer to devise a method of Measurement and Verification (M&V),which
will provide the highest degree of assurance that the energy cost savings exist.
b. This Project:For this project, McKinstry guarantees the performance of the Installed Initiatives to reduce
energy, consumption. The target energy reductions for the initiatives that will be implemented are as
follows: Refer to Table 3.1. Based upon the stipulated conditions as enumerated by City of Kent I
personnel and the utility rates as described below,the utility cost savings are also shown in Table 3 1.
c. On-going Services.The cost of the first year of Performance Assurance is included In the project scope.
The cost of On-going Performance Assurance in years 2-10 is at the discretion of City of Kent. McKinstry
is prepared to continue the guarantee as long as City of Kent continues the on-going services as 1
described herein. When City of Kent chooses to cancel the ongoing services,the guarantee will also be
terminated at the same point in time.
For this project,City of Kent has elected not to have McKinstry provide on-going performance assurance
services past year one.
3.2 FIM SPECIFIC PERFORMANCE ASSURANCE METHODOLOGY
a. Guarantees: Table 3.1 Energy Savings Guarantee Summary provides the specific energy consumption
savings for each field improvement measure and the guarantee that McKinstry will provide associated
with that measure. Savings calculations are based upon both baseline operating characteristics and
proposed operation criteria.
I. Baseline* "Baseline" refers to the existing operating characteristics that were used to calculate
energy cost savings The baseline operating characteristics, including system performance and
operational expenditures, which were used for this project are provided in Table 3.1. In general, all
parties acknowledge the baseline associated with any specific measure has been derived from the
following sources:
1. Actual operating information gathered through field observation, measurement, micro-data
loggers,and owner's operating log books.
2. Owner provided information concerning stipulated factors such as burn hours, occupancy, or
operational expenditures.
3. In some instances,a modified baseline may have been developed to address areas whereby pre-
retrofit conditions do not reflect a system that is operating per current code or what the client
may deem as normal operation.
a Proposed: The proposed operating criteria, including system performance and operational
expenditures, which were used for sarongs calculations are provided in Table 3.1 Systems
must be operated per the proposed criteria to ensure energy cost savings are realized.
McKinstry will provide the initial start-up, commissioning, and programming of the system to
ensure that the systems operate per the proposed operating criteria City of Kent
acknowledges their responsibility to ensuring that these criteria are maintained and
i associated energy savings are realized. Energy Savings Guarantees are predicated on City of
4
24��;:`•,h'i',
fH�(�}rr PROJECT City of Kent I Kent,WA GROUP 11
I'•Ji!y CLIENT City of Kent DATE 02 05 10
(M
TOPIC Energy Cost Savings Guarantee PAGE 2 of 4
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Kent maintaining their responsibilities as provided below in "On-Going Owner
I ,
Responsibilities "
b. Performance Assurance(PA): Table 3 2-"Performance Assurance Plan Outline"provides the
specific on-going reporting tasks that McKinstry will perform to verify that the systems are
performing as specified. The intent of the verification is to measure and verify leading
Indicators on which the energy savings are based. Once these leading indicators are
measured and are verified to be In accordance with the proposed criteria,the savings due to
the performance of the equipment or measure shall be deemed as met. McKinstry has
proposed measurement of these indicators. The site specific Performance Assurance
Program encompasses the following elements:
I. Closeout Commissioning Report: McKinstry will provide a closeout commissioning report during the
one month period starting three months after the Notice of Commencement of Energy Savings.The
scope of this report consists of the tasks outlined under the"Post-Retrofit"stage of Table 3 2
I I
li. First Year On-going Reporting' For this project, McKinstry proposes reporting of the first year PA tasks
as provided in Table 3.2 on a one-time basis.The scope of this report consists of the tasks outlined
under the "First Year" stage of Table 3,2. The first report shall be provided no later than one year
after last date of Notice of Commencement of Energy Savings However, if additional phases of work
are involved,a single PA Report may be provided at regular interval(s)that reports across all relevant
phases of work.
Ill. Years 2 - 10 On-going Reporting: At this point, this proposal does not contain any guarantee past
Year 1.
3.3 UTILITY RATES
a. Utility Rate:For the purpose of calculating savings,the utility rates used will be the utility rates as paid by
I City of Kent to the utility company during the pertinent period, adjusted for any rate schedule changes
made by the utility company,except that the utility rate used for calculation will never go below the Floor
Rate, or above the Ceiling Rate, as described below. In the event that a building has multiple meters on
different rate schedules, the per-unit cost of the utility will be the average of all the rate schedules in I
effect at that facility.
i. Base Utility Rate:Refer to table 3.3 for the Base Utility Rates(including sales tax).
b. Floor Utility Rate For the purpose of calculation of savings, the utility rate shall never drop below the
base utility rates described above.This shall be known as the Floor Utility Rate.
c. Ceiling Utility Rate: For the purpose of calculation of savings,the utility rate shall never exceed 1.5 times
fthe base utility rate described above.This shall he known as the Ceding Utility Rate.
1 II d Rate Schedule Changes: When the utility company makes a change to the rate schedule, the new rate
will be used for calculating savings realized during a given period If a rate schedule change occurs
partway through a period, an aggregate rate comprised of a weighted average between the old and the
new rate will be used.The weighting will be based upon the portion of the period that each rate applied.
3.4 STANDARDS OF COMFORT SERVICE j
a. The following section provides the standards of comfort,which City of Kent must maintain to ensure the
comfort of the facility occupants and upon which all energy calculations were based.
b. HVAC Comfort
c. Heating,ventilating and air conditioning(HVAC)systems provided by McKinstry will provide comfort and
indoor air quality in accordance with the Standards of Comfort below This standard will pertain only to I
buildings and areas of buildings in which the McKinstry is installing HVAC equipment that has direct
control over space comfort conditions HVAC comfort conditions cannot be guaranteed when operable
windows or doors are open.
— t<'.i 1l1`V I`.n .�.! %y-• - w!-.Y"'. K' -'�-.44-Rn I
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w� `a,,, • PROJECT City ofKent I Kent,WA GROUP 1.1
CLIENT City Of Kent DATE 02 05 10
TOPIC Energy Cost SavingsGuaiantee PAGE 3of4
Indoor Conditions: ! j
jOccupied:
I Winter Heating Minimum Setpoint- 70 degrees F
Winter Heating Maximum Setpoint- 74 degrees F ;
Summer Cooling Minimum Setpoint-72 degrees F(where mechanical cooling systems are employed)
Summer Cooling Maximum Setpoint-78 degrees F(where mechanical cooling systems are employed)
Unoccupied:
Minimum-55 degrees F
Maximum-85 degrees F(where mechanical cooling systems are employed)
Relative Humidity(If humidity control provided):
Minimum-40%
Maximum-60% i
Minimum outside air per occupant:
In accordance with ASHRAE standards and Washington State Ventilation and Indoor Air Quality Code.
Lighting
Illumination Levels Verification: I
I Illumination levels shall be as recommended bythe Illuminating Engineer's Society of North America
(IESNA).
Illumination Levels Design:
i The lighting and Illumination levels for lighting systems provided by the McKinstry will meet or exceed
current recommended practires by the Illuminating Engineering Society of North America for Illumination
II levels for the various tasks that are conducted throughout City of Kent
i 3.5 ON-GOING OWNER RESPONSIBILITIES
(
I City of Kent shall provide the following services as part of this energy services project. In the event that these
1 services are not provided, energy savings and associated guarantees will be modified to reflect the
associated impact
a. Maintain all equipment per manufacturer's recommendations and proposed maintenance schedule.
i b. Maintain all sequence of operations and performance criteria related to installed systems as proposed
and designed.
c. Provide other FIM specific on-going responsibilities as provided in Table 3.2 - "Performance Assurance
Plan Outline."
d. Provide McKinstry with copies of actual monthly utility billing information on a quarterly basis for the
duration of the ongoing service period. This includes electric, natural gas, and fuel oil. For this project,
the ongoing service period shall be one year.The associated facilities where utility information shall be
provided include all meters providing direct or indirect service to all buildings Included In this project
e. Provide McKinstry all internal sub-meter data, including electric and condensate meters, providing direct
or indirect service to all buildings included in this project.
f. Provide McKinstry access to Energy Management and Control Systems for the purpose of collecting and j
logging data overtime as required for performance verification.
g. City of Kent shall notify McKinstry in writing with regards to any changes or alterations to buildings that
will affect energy usage. This notification must be provided within two weeks of the change. This
Includes occupancy or use changes, computer load or other load changes, scheduling changes, and l
sequence of operations changes.
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PROJECT City of Kent I Kent,WA GROUP 1,1
, ��jg instry
i „,�,•„` i<t,A€•t CLIENT City ofKent DATE 020510
�.ar ronr 1rllld) �
TOPIC Energy Cost Savings Guarantee PAGE 4of4 i
t �
� 3.6 NON-PERFORMANCE
a. In the event the equipment performance is not met, McKinstry accepts responsibility for additional
electricity used by the equipment as a result of the reduced performance. McKinstry may, at Its option,
j execute any of the following options:
11 i
I. Repair or replace equipment as required to meet required performance.
ii. Make payments for the extra energy consumption to City of Kent. In the event that the McKinstry
chooses the payment option, McKinstry reserves the right to select either an annual payment for the
duration of the finance term or a one-time lump-sum payment of the same amount In either case,
the payment will be calculated based upon the quantity of additional electricity used and the Base
Utility Rate as described above.
3.7 CHANGE OF USE
i
a. In the event that City of Kent chooses to make changes to the facility that require set point adjustments,
longer operating hours,or continuous equipment operation,City of Kent agrees that:
I. Savings deemed as met described above will continue to be deemed as met.
It. Additional cost of extended equipment operation is a cost of the change, not due to a failure of the
McKinstry or their equipment.
III. McKinstry shall not be responsible for any Increase in energy, maintenance, or any other costs
incurred as a result of the extended equipment operation
iv. McKinstry at its option may make a baseline energy use adjustment to account for a change-of-use at
any facility.
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PROJECT City of Kent I Kent,WA GROUP 1.1 ,
tYGinstry
r.arr..,enror�� CLIENT Ci of Kent DATE 020510
TOPIC PioJectFinancials PAGE lof4
I
s '
Section 4 - Project Financials
fI, 1
1 4.1 MAXIMUM PROJECT COST
IIII McKinstry guarantees that the Maximum Project Cost will not exceed $1,310,980.With sales tax included,
the estimated Total Project Cost will be $1,435,208 (McKinstry does not guarantee the value of sales tax
orthe utility incentive.)
4.2 PROJECT COST TABLE
(SEE TABLE 4.1 - "BUDGET SUMMARY BREAKDOWN"-ALL FEE PERCENTAGES AND COSTS ARE UNIQUE TO
THE PROJECT)
4.3 ITEMS INCLUDED IN MAXIMUM PROJECT COST
Maximum project casts include the following: 1
a. Engineering audit,including the cost for preparation of this proposal. 1
1 b. Engineering design. I
c. Construction management services.
d. Installation of McKinstry equipment including the following costs as specified In the scope of work:
1. All costs paid by McKinstry for the Installation of the equipment This includes costs paid to
subcontractors or directly to McKinstry personnel,when related to Installation or system verification
of McKinstry equipment
2. The portion of reasonable travel,lodging,and meal expenses of officers or employees incurred while
traveling In discharge of duties connected with the Work.
3. Cost of all equipment, materials,supplies, and equipment incorporated In the Work,including costs
of transportation thereof.
4. Cost or rental charges, including transportation and maintenance, of all materials, supplies,
equipment, temporary facilities, and hand tools not owned by the workers, which are consumed in
the performance of the Work and cost less salvage value on such items used but not consumed f
which remain the property of the McKinstry
5. Cost of premiums for all bonds and insurance, which the McKinstry is required to purchase and
maintain.
6. Sales, use or similar taxes related to the Work and for which the McKinstry is liable imposed by a
governmental authority.
7. Permit fees,royalties,and deposits lost for causes other than the McKinstry's negligence.
j 8. Losses and expenses not compensated by insurance or otherwise, sustained by McKinstry in
f connection with the Work,provided they have resulted from causes other than the fault or neglect of
the McKinstry.Such losses shall Include settlements made with the written consent and approval of
the Owner If, however, such loss requires reconstruction and the McKinstry is placed in charge
thereof, he shall be paid for his services a fee. ;
9. Minor expenses such as long distance telephone calls, telephone service at the site, express mail
services,and similar petty cash items.
10. Demolition cost and cost of removal of all debris.
i
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I �' �'� - ----� - - ---------- PROJECT City of Kent I Kent,WA GROUP 1.1
City J'.S n.orrowe.nao-e CLIENT CI of Kent DATE 02 0510
TOPIC Pioject Financials PAGE 2 of 4
I
4
11. Costs incurred due to an emergency affecting the safety of persons and property. j
12, Other costs Incurred in the performance of the Work If and to the extent approved in advance in
i writing by the Owner.
13 The cost of contingency and an allowance for Owner Initiated scope Improvements.
14. Cost of equipment startup,training,system verification and balancing performed by the McKinstry.
e. Construction Bonds (including Performance & Payment and Retention bonds), Liability Insurance, and
Builder's Risk Insurance.
f. McKinstry fee, This includes the McKinstry's remuneration for compensation of personnel, expenses,
risks related to the project,overhead,and profit.'
g McKinstry shall provide a Schedule of Values.The schedule of values will include all costs related to the i
installation of the McKinstry's equipment,
4.4 CONSTRUCTION CONTINGENCY
A construction contingency of the direct construction costs has been established for this project. McKinstry
Is authorized to expend the contingency for Items necessary to complete the original scope of this project
pending review by the Owner. The intent of the contingency is for ESCO requested changes, unforeseen
conditions or latent changes, and owner directed changes beyond what was originally estimated and
seeped by the ESCO.
ESCO mark-ups on contingency funds will be addressed as follows
• ESCO requested changes outside of scope- OH&P and CM only, design to be discussed
• ESCO requested changes inside of scope-CM only,design to be discussed
• Unforeseen or latent conditions-OH&P,CM,and applicable design
• Owner directed changes-All applicable mark-ups
I All unused construction contingency funds shall reduce the overall project cost to the owner.The Owner and
McKinstry will jointly manage any contingency left after the project scope is completed.
4.5 ALLOWANCES
McKinstry may set aside allowances as identified in TABLE 4.1-"Budget Summary Breakdown"for specific
areas of work that have been Identified as a potential cost Impact but cannot be determined at this stage.
Should the allowance not be adequate,the Owner will be advised and McKinstry will be compensated for '
any additional costs.
j 4.6 ONGOING SERVICES i
No On-going Services In years 2-10 have been proposed forthis phase of the project. '
4.7 ACCOUNTING RECORDS
McKinstry shall check all material, equipment, and labor entering Into the Work and shall keep account as I
may be necessary for proper financial management under this Agreement. The Owner shall be afforded
access to all the ESCO's records, correspondence, instructions, drawings, receipts,vouchers, memoranda,
and similar data relating to this Contract, and the Contract shall preserve all such records for a period of
three years,or for such longer period as may be required by law,after the final payment.
4.8 RECONCILIATION OF LABOR&MATERIAL COSTS
The maximum project allowable cost is based on firm and estimated labor and material costs. In recognition
that actual Labor& Material costs may vary from the estimate,the following procedures are established to
reconcile this difference:
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PROJECT City of Kent GROUP 1.1
{ , a
einstry
a.orr...e�iur�l CLIENT CdyofKent DATE 0205
i0
iTOPIC Project Financials PAGE 3 of 4
I
If the total project cost at completion exceeds the estimated amount (plus contingency), the additional
costs will be borne by McKinstry at their expense.
a. If the total protect costs at completion are less than the estimated proposal amount(less contingency),
the savings will be retained by the Owner.
There shall be no cost savings split between the Owner and McKinstry
The following table outlines whether the Labor and Material costs are Estimated or Firm in this Energy
Services Proposal. It further defines the method for providing firm costs during the pre-construction period
(after authorization of this Energy Services Proposal). The table also clearly identifies which items are
subject to reconciliation at the end of the project As a general rule, those costs that are estimated in the `
proposal and bid or quoted during the pre-construction phase are reconciled at the end of the project. i
Those items that are firm in the proposal will be firm throughout the p oject, and not reconciled at the end
of the project End of Project reconcile shall be through subcontractor invoice substantiation
L&M Costs As Proposed in ESP Pre-Construction End of Project- l
Costing Reconciled
Controls Systems Estimated Proposal Yes
Major Equipment Estimated Proposal Yes
Mechanical Estimated Proposal Yes
Electrical Estimated Proposal Yes
i
ESCO Fees Firm-Fee Firm-Fee No
Contingency Estimated Estimated Yes
i
i
4.9 ESCO COMPENSATION
a. Terms:Net 3C days from the date of Invoice,monthly billing as the job progresses.
b. Payments:At a minimum, payments will be made in the amount of 100%, less retention of five percent
per the contract, at the completion and Implementation of any individual Facility Improvement Measure i
(FIM) in the amount of that FIM as delineated In the contract. If more than one FIM is completed in a '
monthly period,all of those FIM's will be paid
t c. Finance Charges on Unpaid balances Payments due and unpaid shall be subject to interest charges per
RCW 39 76
i
d. Construction Period Finance: McKinstry may charge construction period finance for projects whereby the 1
anticipated billing lags the earned schedule of values by more, than 90 days. Table 4 5 provides the
anticipated construction period finance charges for this project based on the estimated earned value
each month vs.the anticipated billing collection schedule.Construction period finance will be calculated 1
on the un-billed balance in excess of three months at the rate of Prime plus 2% per annum. Charges
accrue until balances are paid in full Interest charges will be calculated daily,compounded monthly
e. Substantiation McKinstry will do an accounting of finance charges progressively through the project,
and at contract completion submit a change request itemizing the summary of additional costs for
implementation.The contract will then be increased to reflect the same and finance charges will be paid
within thirty days of the date of approved substantiation.
4 10 FINANCING
McKinstry enjoys 50 years of experience within the engineering and contracting industry and its financial
strength exceeds the industry average. This strength makes it possible to provide and assist with the
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rnstry PROJECT City of Kent l Kent,WA GROUP 11 I
W FNT City of Kent DATE 02 05 10
1r,t;sd 8' uhvfy..NOW,
TOPIC Project Financials PAGE 4or4
I
financing needs of Its customers. Long standing relationships with vendors assures reasonable pricing and
excellent payment terms. i
4.11THIS PROJECT-LONG TERM FINANCING. i
McKinstry has identified several options available to the City of Kent for long term permanent financing,The `
State LOCAL program can provide financing terms up to a twelve-year payment plan.Third Party financing is j
also available through lenders such as Bank of America and AAIG. Current finance rate on long-term,
permanent financing is currently in the range of 4.0- 5.0%, but will vary until a rate has been lacked in.
4.12 TERMINATION VALUE
Refer to program guidelines for information on Termination values
4,13 TERMS AND CONDITIONS
a. TERMS OF AGREEMENT
The Contract shall be effective and binding upon the parties immediately upon its execution and the period
from contract execution until the Commencement Date shall be known as the "Interim Period" All energy
savings achieved during the Interim period will be fully credited to Owner, and may be used to offset any
loss of energy savings;as mutually agreed to by the Owner and McKinstry, i
i
b. INSURANCE AND BONDING
McKinstry shall provide a Payment and Performance bond,Retention bond and Builder's Risk Insurance.
For The Purposes of This Agreement, The "Sum,Amount Of Bond" Shall Be (See Table 4.1 -"Budget
Summary Breakdown").
1. The bond amount consists of Labor and Materials and State Sales Tax.
2. This bond does not include any construction contingencies
3. Certificates of General Liability Insurance will be provided prior to Contract Signing. The State Of
Washington shall be named as An Additional Insured on all Insurance certificates.
McKinstry shall provide a payment and performance bond in the amount of 100%of the construction cost,
as defined in the Energy Services Agreement Addendum, The amount shall include all autho,ized changes
and state sales tax The Bond shall be in the form attached to the Conditions of the Energy Services
Agreement The Contract listed on the bond form shall be the Addendum No. and Agreement No. which
Incorporates the work and the "Contract Date"shall be the date of the Addendum.The full and just sum of
i the Bond shall be as defined above and shall include the actual cost of purchasing and installing
McKinstry's Equipment The Bond shall specifically exclude coverage for those portions of the Energy
Services Agreement and/or Energy Services Agreement Addendum pertaining to design services, energy
cost savings guarantee, maintenance guarantee, utility incentives, efficiency guarantees, and any other
clauses which do not relate specifically to construction management and supervision of work for purchasing
and installing of McKinstry's Equipment, or for work to be accomplished by the Owner The Bond shall be
with a Surety or Bonding Company. J
I �
I
�1
I
lliSiC}I TABLE 4.1 BUDGET SUMMARY FlMN@ Multlplo
—�-- Dale 10/21090e
ar@laa CI of Kent Budg@t Poss@ Post ROM
auumne I Multiple sceaxdo F-Can tennlal EsuKamr
I
A.CONSTRUCTION COSTS Mechanical Electrical I EMCS General Lighting TOTAL
I10. 1-CEN Replace Water-Source host pumps and makeup alrunll $797,437 $0 $0 $62,127 So $849,564
2 Commissioning,Slarl-up TAB&FPT $51 403 $51,483
3 Sale /Site Su er,4slor $747T7 $74,777
Al. SUB-TOTAL CONSL COS7l thru74 Al $791,437 so $n $178307 So ,$976824
Conslructicn Bonds 13% $103B7 $0 $0 E2,319 $0 $1268
A2 TOTAL CONSTRUCTION COST Al+8ond) A2 E907,90-0 40 $0 $40,760 40 $988,510
B PROFESSIONAL FEES
1 Audit Fee $0 tump sum a%0 S.Osa F $
2 Design-Mechlplhg/eledarChIslmcl 100%WNX Al rol.lpess Ighlingendbrn,21hm 7) a%of SeNonF $84,9
4 Costt&Pro}AdmM 6CO4Mt%)xAt TWA s%ofs.NueF $58,54
5OH&Prof 180%es(•A)x A11oW1 12%of So6onF $17564
TOTAL PROFESSIONAL FEES=S $319,153
C. OTHER COSTS
1 Praect Conlmgeruy 0%C1 N x(A21ota1)
6 ESCO M&V Costs(Year 1) $3,317 lurrN num $3,31
7QTAL OTHER COSTS=C $3,317
0, "'-TOTAL GUARANTEED CONSTRUCTION&ESCO SERVICES(A2+9+C)=D
E. , NON GUARANTEED COSTS
1 Sales Tax-Conslrucflon $93,90t
2 Sales Tax-Prof Services 9 5%E2%x a 1.1.1 $30,32
TOTAL NON GUARANTEED COSTS=E ! e' $124,228
F. TOTALPROJECTCOsi(D+E).F $1,435,208
I
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Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 6H
1. SUBJECT: JASWAL DENTAL/MEDICAL CLINIC BILL OF SALE - ACCEPT
2. SUMMARY STATEMENT: Accept the Bill of Sale for the Jaswal Dental/
Medical Clinic, permit #2083712, for 2 watermain gate valves, 2 watermain
hydrants, and 114.6 linear feet of water line.
3. EXHIBITS: Bill of Sale
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:
MAIL TO:
CITY OF KENT
ENGINEERING DEPARTMENT
ATTN
220 — 4TH AVENUE SOUTH
KENT
WAS H I N G T O N KENT, WASHINGTON 98032
Project: I,J (SCE � � LZLCG
11 _s r
Permit #
LocationZLQ .E7 7" v�/per
Parcel #: 0 1-U d d
BILL OF SALE
CITY OF KENT
KING COUNTY, WASHINGTON
THIS INSTRUMENT made this 1 3thday of October 20 09 , by and between
Dr. Uarpreet Jaswal , 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 2 gate valves at $ 200 . 00 each, 2 hydrants at
$ 2, 500. 00 each and/or any other appurtenances thereto.
FROM TO
(street, easement, etc.)
Crossing Military Rd. Between S. 247th St. and S. 248th St.
56. 5 35. 00 6" 0
Including 58. 1 linear feet at $ 30. 00 per LF of 411 0
(size &type) waterline.
B. SANITARY SEWERS:
Together with a total of manholes at $ each and/or any other appurtenances
thereto.
ON FROM TO
(street, easement, etc.)
Including linear feet at $ per LF of
(size &type) sewerhne.
Bill of Sale
1 of 5
t
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed on this
29th day of October , 20 09
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed on this
day of _- , 20
STATE OF WASHINGTON )
) SS
COUNTY OF KING )
On this 2-7--'A day of Oc-tehe2_ 20 0`9' before me, the
undersigned A Notary Public in and for the State of Washington, duly commissioned and sworn, personally
appeared I���ole cc7— c.i,/ ✓4S4- a to me known to be the individual described in and
who executed the foregoing instrument, and acknowledged to me that he/she signed and sealed this
instrument as his/her free and voluntary act and deed for the uses and purposes therein mentioned.
GIVEN under my hand and official seal this day of ac.#)ij e 2 20 _r_ .
iv F• �'� — Notary Public in and for the State of
e>v',6`,\OTAgya .to r Washington, residing at
Po 9j •Y��j �`�;:'�n<<��� My Commission Expires:
Bill of Sale
3of5
i
STATE OF WASHINGTON )
) SS
COUNTY OF KING )
On this e� Z�/?— day of Oc frl�r , 20 , before me, the
undersigned A Notary Public in and for the State of Washington, duly commissioned and sworn, personally
appeared and to me to be the
and _ _______ _ _ _ respectively of
.J;Ise�"a/ 4Bzlgl the that executed the foregoing
instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said
(71r�va t 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.
Notary Public in and for the State of
Washington, residing at
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
r�
Bill of Sale
4of5
KET
WASHINGTON
ENGINEER'S CERTIFICATION
CITY OF KENT
KING COUNTY, WASHINGTON
l Clinict l Dena
The figures used on the Bill of Sale for Jaswa project
dated 1 3th October, 2009 , for the same said Jaswal Dental Clinic
project. Alex Poblete the undersigned
P.E. or land surveyor is the person responsible for the preparation of the Bill of Sale and
is an employee of Daley-Morrow-Poblete, Inc. , the firm
responsible for the preparation of the record drawings.
1 ,
'gnature
(Engineer stamp required) 10
2.8352
Bill of Sale
Sof5
f
Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 6I
1. SUBJECT: KENT MERIDIAN HIGH SCHOOL WATER UPGRADES BILL OF
SALE - ACCEPT
2. SUMMARY STATEMENT: Accept the Bill of Sale for Kent Meridian High
School Water Upgrades, permit #2083936, for 16 watermam gate valves,
7 watermain hydrants, and 2000 linear feet of water line.
3. EXHIBITS: Bill of Sale
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:
KEW
MAIL TO:
^ CIiVkI t�IN{ AF ` I CITY OF KENT
ENGINEERING DEPARTMENT
. ATTN: Jackie Bicknell
220 —4TH AVENUE SOUTH
K�Zi�*
WASH I N 6 T Q N KENT, WASHINGTON 98032
Project: KM Waterline Replacement
Permit#: RECC-2083936
Location: 10020 SE 256th St , Kent, WA 98030
Panel #:2022059066, 1922059164 & 1922059098
BILL OF SALE
CITY OF KENT
KING COUNTY, WASHINGTON
THIS INSTRUMENT made this 29th day of May 20 09 , by and between
—Kent School District No 415 , 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 16 gate valves at$ 1, 500.00 each, 7 hydrants at
$ 4,5 00.00 each and/or any other appurtenances thereto.
ON FROM To-
(street, easement, etc.)
253rd Place 104th Avenue SE SE 256th Street
Including 2000 linear feet at $ 45.00 per LF of 1011
(size &type) 10" DI waterline.
B. SANITARY SEWERS:
Together with a total of manholes at $ each and/or any other appurtenances
thereto.
ON FROM TO
(street, easement, etc.)
Including linear feet at$ per LF of
(size &type) seweriine.
Bill of Sale
1of5
C. NEW STREETS:
Together with curbs, gutters, sidewalks, and/or any other appurtenances
ON FROM TO
(street, easement, etc.)
Including linear feet at $ per LF of
(size &type) (improvement).
D. FRONTAGE IMPROVEMENTS:
Together with lights, trees, landscaping (except residential streets) and/or any other appurtenances
ON FROM TO
(street, easement, etc.)
Including linear feet at$ per LF of
(size &type) (improvement).
E. STORM SEWERS:
Together with a total of manholes at $ each or total of catch
basins at $ each, LF of blofiltration swale or drainage ditch
with a total cost of $ , cubic feet of detention pond storage
with a total cost of$ and/or any other appurtenances thereto.
ON FROM TO
(street, easement, etc.)
Including linear feet at$ per LF of
(size &type) sewerline.
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 materials 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(s).
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. The City accepts the Items subject to staff approval and completion of a 2 year
maintenance period.
Bill of Sale
2of5
IN WITNESS WHEREOF, th/e� undersigned has caused this instrument to be executed on this
day of i i tLi ' , 20 c�
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed on this
day of , 20
J�
STATE OF WASHINGTON )
) SS
COUNTY OF KING )
On this 201, day of YYl C��i1 , 20 n Gl , before me, the
undersigned_A Notary Public in and for the Statg of Washingtoh, duly commissioned and sworn, personally
appeared `�t�/JI n . I'C"nct; Sc'X— to me known to be the individual described in and
who executed the foregoing instrument, and acknowledged to me that he she signed and sealed this
Instrument as his her free and voluntary act and deed for the uses and purposes therein mentioned.
GIVEN under my hand and official seal this�day of �\u11 20 i
J
Uj
���N'A, ,� A'Nbtary Public in and for the State of
°�Y.•'xnaeWashington, residing at �l
at t
i Z f am b My Commission Expires:
ST4t� �—
Bill of Sale
3of5
STATE OF WASHINGTON )
) SS
COUNTY OF KING )
On this day of , 20 before me, the
undersigned A Notary Public in and for the State of Washington, duly commissioned and sworn, personally
appeared and to me to be the
and respectively of
the that executed the foregoing
Instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said
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 afflx the day and year first above written.
Notary Public in and for the State of
Washington, residing at
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
Bill of Sale
4 of 5
KEN TT
WASHINGTON
ENGINEER'S CERTIFICATION
CITY OF KENT
KING COUNTY, WASHINGTON
The figures used on the Bill of Sale for Kent Meridian Campus Water Upgrades project
dated 5/29/09 , for the same said Kent Meridian Campus Water Upgrades
project. Stephen C. Porter the undersigned
P.E. or land surveyor is the person responsible for the preparation of the Bill of Sale and
Is an employee of, Coughlin Porter Lundeen , the firm
responsible for the preparation of the record drawings.
C.
�14� p0 wAsy�tic.P�,
����
Signature �O� y
(Engineer stamp required)
�26577
f��
PaONAL '
Bill of Sale
5of5
Kent School District No.415
Kent,Washington
RESOLUTION NO.1215
Real Estate Transactions
IT IS HEREBY RESOLVED that the Board of Directors of Kent School District No.415, acting by
and through the Kent School District Board of Directors,at a regular scheduled meeting held on
April 26,2006,hereby authorizes and empowers the following district personnel as authorized
individuals of the District to enter into negotiations,execute purchase and sale agreements,
execute deeds,execute any other conveyancing instruments,and finalize real estate transactions
with regard to properties in which the board has authorized the District to purchase or sell real
property by board action. This resolution becomes effective April 27,2006.
This resolution supersedes and cancels Resolution No. 1162 approved on July 28,2004.
AUTHORIZED PERSONNEL: f
Superintendent:
Barbara Grohe,Ph.D.
Assistant Superintendent, '��// G�
Business Services: �/ '
d
Supervisor of Facility Construction:
ed ZA.Long'#Z
ADOPTED by the Board of Directors at a regular open meeting thereof held on the 26a1 of April,
2006;the following Directors being present and voting therefore.
KENT SCHOOL DISTRICT NO.415
BOARD OF DIRECTORS
r
ATTEST:
Barbara Grohe,Ph.D.
Secretary to the Board
Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 61
1. SUBJECT: SCALZO INTERSECTION BILL OF SALE - ACCEPT
2. SUMMARY STATEMENT: Accept the Bill of Sale for the Scalzo Intersection,
permit #2052892, for 1,297.2 linear feet of new street; 2 storm sewer manholes,
2 catch basins, and 431.9 linear feet of storm sewer line.
3. EXHIBITS: Bill of Sale
4. RECOMMENDED BY: Public Works Director
(Committee, Staff, Examiner, Commission, etc.)
5. FISCAL IMPACT
Expenditure? N/A Revenue? N/A
1 Currently in the Budget? Yes No
6. CITY COUNCIL ACTION:
Councilmember moves, Councilmember seconds
DISCUSSION:
1 ACTION:
otp Kr:fNT
AUG 13 10H
aidt:,INE'E-RING DEFT
KENT
W A S H I N G T O N
MAIL TO:
ENGINEERING DEPARTMENT
AT IN- Jim Ausbum
220 4To AVENUE SOUTH
KENT,WASHINGTON 98032
PROJECT- 42na Ave South and Ortllia
Road South Intersection hnmovemelt Plan
LOCATION 42nd Ave SE at S 212th St
TAX ACCT NO 102204-9025
BILL OF SALE SG �
CITY OF KENT Sr ! a
KING COUNTY,WASIINGTON
THIS INSTRUMENT made this I/'- day of 2009 by
and between ST Multi I.LLC t
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. WAT IMAM. together with a total of gate valves at$
each, hydrants at$ each and/or any other appurtenances thereto.
ON FROM TO
(street,esmt,etc)
Including linear feet at$ per LF of
(size&type) waterline.
B. SANITARY SEWERS- Together with a total of manholes at
$ each and/or any other appurtenances thereto.
1 of
Bill of Sale 10494031 dw
ON FROM TO
(street,esmt,etc)
Including linear feet at$ per LF of
(size&type) sewer line.
C. ST_IZF.TS: Together with curbs,gutters,sidewalks,and!or any other appurtenances
thereto.
ON FROM TO
42"d Ave South Sta 13+00 Int'x Road'A'and Ordha
Including 6625 centerline LF at$219 00 per LF of Residential Collector
(type)streets, 11 7'to 20 4' Feet asphalt roadway.
ON FROM TO
Onlha Road Sta_26+00 Sta 30+68 65
Including 4696 centerline LF at$260 00 per LF of Collector Aiterial
(type)streets, 29'to 60' Feet asphalt roadway.
ON FROM TO
Road'A' Sta 10+90 90 Sta 12+47
Including 166 1 centerline LF at$459 00 per LF of Residential Street
(type)streets, 51' Feet asphalt roadway.
D. STORMSTORM SF.WF.RS: Together with a total of 2 Type II-48" manholes at$2 550
each, 1 Tvoe IL catch basins at$ 1 850 each, 1 Type I catch basins at$ 1 650
and 1 or any other appurtenances thereto.
ON FROM TO
42"a Ave South 13+85 Int'x w/Onlha Road
Including 7 linear feet at$87 00 per LF of 12" (size&type) D I sewer line.
ON FROM TO
42"d Ave.South CB#lE CB41D
Including 100 7 linear feet at S 30 00 per LF of 12" (size&type) PVC sewer line.
ON FROM TO
Orillia Road South CB#ID EX CB
Including 80 2 linear feet at$30 00 per LF of 12" (size&type) PVC sewer line.
ON FROM TO
Oidlta Road South New CB @ Sta 30+43 80 CB44 @ Road'A'
Including 244 linear feet at$65 00 per LF of 24" (size&type) D I sewer line.
2of4
Bill of Sale 10484031 duo
i
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;
1 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 undersigned has caused this instrument to be executed on
this ) day of A\.t..t`i va.l` 20 nctAVL*N Ave
TT
STATE OF WASHINGTON )
SS
COUNTY OF KING )
On this day of ) ,20Q,before me,the
undersigned A Notary Publi n and for thhe_State of Washmgton,duly commissioned and
sworn,Personally appeared _ANf2 w'JE'q to me known to be the
individual desci ibed in and who executed the foregoing instrument,and acknowledged to
me that he/she signed and sealed this instrument as his/her free and voluntary act and deed
for the uses and purposes therein mentioned
GIVEN under my hand and official seal this day of 1. C t t 20 Qq_.
jvJ g
�'&'jpa ez Co y tCiA Qu�j
Notary Public in and for the
H State of Wa
s
h
i
ngt
o
n
,
residing at
VAAAAA�yl .t W/� 1� �H` V�y•�`4V'4
O - P My Commission Expires: /
✓e��'I'f��q�OF't'�a�
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
3of4
Dill of Sale 10494 031 doc
ADDENDUM TO BILL OF SALE
CITY OF KENT
The figures used on the Bill of Sale for 42"d Ave. South and Orillia Road South intersection
Improvement plan project dated Aumust 5 2009 , I
were based on the "As-Built" Engineering Plans dated March 24,2009 ,for
the same said 42"d Ave. South and Orillia Road South intersection Improvement Plan project.
Don E.Dawes, P.E. the
undersigned P.E. or land surveyor is the person responsible for the preparation of the Bill
of Sale and is an employee of Barghausen Consulting Engineers,Inc. , the firm
responsible for the preparation of the "As-Built" Engineering Drawings.
Signature
1
i
5 of
Bill of Sale 10484 031 doe
1 Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 6K
1. SUBJECT: CLARK LAKE ESTATES IMPROVEMENTS - ACCEPT
2. SUMMARY STATEMENT: Authorize the Mayor to accept the improvements
to the Clark Lake Estates as complete and cause the transfer of said
infrastructure to the City.
The Clark Lake Homeowners Association (HOA) has met with staff on several
occasions, including the Assistant City Attorney, Utilities Engineer, Development
Engineering Manager and Public Works Director and three representatives of the
HOA.
It is the recommendation of staff that the best course of action is for Council to
accept the work as complete and begin enforcement for parking issues.
3. EXHIBITS: Memo dated February 17, 2010, and map of area
4. RECOMMENDED BY: Public Works Committee
(Committee, Staff, Examiner, Commission, etc )
5. FISCAL IMPACT
Expenditure? N/A Revenue?
Currently in the Budget? Yes _ No
6. CITY COUNCIL ACTION:
Councilmember moves, Councilmember seconds
DISCUSSION:
ACTION:
7
PUBLIC WORKS DEPARTMENT
Timothy J LaPorte, P E , Public Works Director
Phone: 253-856-5500
Fax 253-856-6500
KENT
WASH,„gyro„ Address- 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 17, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date February 22, 2010
From: Timothy J. LaPorte, P.E., Public Works Director
Subject: Clark Lake Estates-Request from Clark Lake Estates Homeowners
Association
Motion: Move to accept the Improvements to Clark Lake Estates as Complete
and cause the transfer of said infrastructure to the City, subject to terms and
conditions acceptable to the City Attorney and the Public Works Director.
Summary:
Clark Lake Estates hereinafter referred to as Sub-division is a 33 lot Sub-division
constructed at the southeast corner of 240th Street and 1201h Avenue just south of Clark
Lake Park. The developer was unable to complete the improvements to this sub-division,
and the City was forced to obtain the proceeds from the bond that was used to secure the
infrastructure improvements to complete the work.
Since a majority of the infrastructure improvements had been made to the Sub-division,
the City as a normal course of action estimated the amount of work that was necessary to
complete the infrastructure improvements and reduced the bond from $150,000 to
$50,000. The remaining work to be completed to the Sub-division should have taken only
months to complete, but due to the slow-down in the economy took years until the
developer was unable to complete the repairs and gave up the bond.
The City Public Works Department completed the remaining work including the asphalt
overlay in this neighborhood using the funds from the bond. Two items remain including
setting survey monuments and the repair of approximately 10 feet of cracked sidewalk at
one location. The survey monuments are to be installed by the Development Surveyor and
the cracked sidewalk section will be replaced by mid summer.
The Clark Lake Homeowners Association (HOA) has met with staff on several occasions.
The most recent meeting took place on January 27th and included 3 representatives of the
HOA as well as Assistant City Attorney Kathy Hardy, Utilities Engineer Dave Brock,
Development Engineering Manager Mike Gillespie and Public Works Director Tim LaPorte.
The HOA remains concerned about a number of items including no parking signage, parking
enforcement and eventual completion of the two temporary cul de sacs.
Staff including our Law Department concur that the best course of action is for Council to
adopt the work as complete and begin enforcement for parking issues.
Budget Impact: None.
9
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e
Q
t
v
a f�v
SE 240th Stpal
»
f
".: i..��.
a7 .a.
: .Orrz'`t' d 51
`r-j--
At
u
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150'Peet 0 y 7
Vmft
t.w
**; W"nna���i. k` Clark Lake Estates Subdivision
j e-adm08A6tpx4
Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 6L
1. SUBJECT: CAMBRIDGE TOWER SITE LEASE AMENDMENT - AUTHORIZE
2. SUMMARY STATEMENT: Ratify the Mayor's execution of an addendum to
Cambridge Tower Site Lease with Valley Communications.
The Water Utility leases ground space to Valley Communications at the
Cambridge Site for a structure and tower for radio communications. The master
lease was amended to allow Valley Communications to sublease a small amount
�\ of space to the Washington State Department of Transportation. The Mayor
executed the addendum at the time it was executed by Valley Communication's
Director. Since this technically involves a property interest, ratification by the
�J Council is required.
3. EXHIBITS: Memo dated 2(2(10 and Cambridge Tower Site Lease Agreement
Addendum
4. RECOMMENDED BY: Public Works Committee
(Committee, Staff, Examiner, Commission, etc.)
5. FISCAL IMPACT
Expenditure? Revenue? X
Currently in the Budget? Yes X No
6. CITY COUNCIL ACTION:
Councilmember moves, Councilmember seconds
DISCUSSION:
ACTION:
11
PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P E , Public Works Director
Phone 253-856-5500
KENT Fax 253-856-6500
WA-I I ` `" Address- 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 2, 2010
LTo: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Timothy J. LaPorte, P.E., Public Works Director
Subject: Cambridge Tower Site Lease with Valley Communications
Addendum
Motion: Recommend ratification of the Mayor's execution of an addendum
to Cambridge Tower Site Lease with Valley Communications, subject to
terms and conditions acceptable to the City Attorney and the Public Works
Director.
Summary:
The Water Utility leases ground space to Valley Communications at the Cambridge
Site for a structure and tower for radio communications. The master lease was
amended to allow Valley Communications to sublease a small amount of space to
the Washington State Department of Transportation ("WSDOT"). The mayor
executed the addendum at the time Valley Com's director executed. Since this
technically involves a property interest, ratification by the Council is required.
Budget Impact:
No budget impact.
13
FIRST ADDENDUM TO LEASE AGREEMENT BETWEEN THE CITY OF
KENT (LESSOR) AND VALLEY COMMUNICATIONS CENTER (LESSEE)
RECITALS
A. The parties entered into a lease agreement effective July 1, 1993,
subject to renewal at five year Intervals with rent to be negotiated and
subject to ultimate expiration June 30, 2013. The original lease (Lease) was
recorded under King County No. 9401040857.
B. Lessor did not Invoice and Lessee did not pay rent for this lease from
its inception due to apparent administrative oversight.
C. Given that Lessor is a member city in Lessee, Lessor will not seek to
collect back rent for Lessee owing prior to December 1, 2009.
D. The parties intend this addendum to set the rental rate for the term
December 1, 2009 through June 30, 2013 and to establish certain terms and
conditions to supplement the original lease.
E. The parties agree that comparable market rent data are not available
for this special use facility and that it is fair to establish the monthly rental
rate by the application of percent increase in CPI-Urban for Seattle-Tacoma-
Bremerton for 1998, 2003 and 2008 (compounded) to the original monthly
rate of $170.00.
IAGREEMENT
Based on the foregoing, it is hereby agreed as follows:
1. SECTION 7 of the LEASE is amended as follows: Lessee shall deliver
rent monthly in the amount of $265.00 payable within ten days of invoice by
Lessor. Checks will be payable to the City of Kent Water Utility and will be
delivered to:
City of Kent
Water Utility Fund
Customer Services
220 Fourth Avenue South
Kent, WA. 98032 1
2. SECTION 26 OF THE LEASE is amended as follows: In addition to ;
subleases permitted by separate subrogation agreement, Lessee may
First Addendum
City of Kent and Valley Communications
Page 2 of 4
14
sublease space to the Washington State Department of Transportation
so long as the purpose of such sublease is the furtherance of public safety.
3. All other terms and conditions of the original LEASE remain in full force
and effect.
LESSEE: 1
Valley CommuniNtions 6riter
By: -
Print Name: Steve einke
Its: Director
Date: ECG
r
STATE OF WASHINGTON )
ss.
COUNTY OF KING )
I hereby certify that I know or have satisfactory evidence that Steve
Reinke 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 Valley Communications Center as its Director, 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 M5 Box- ,
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
NOTA PUB C, in a or th St e
of Washington, residing at >
_ My appointment expires .•
First Addendum
City of Kent and Valley Communications
Page 3 of 4
i 4
' LESSOR:
CITY OF KENT
By' '
Pr, t Na :� uzette Cooke
Its. Ma o �
' Date:--~''
' STATE OF WASHINGTON )
: ss.
COUNTY OF KING )
' I hereby certify that 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 f
instrument on behalf of the City of Kent as its Mayor, and such execution to be the I
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 �
L - NOTARY PU LIC, In end for he/Stake
of Washington, residing at .
My appointment expires
P:\Civtl\Files\OpenFiles\0247-ValleyComGenerai\KentValleyCommAddendum docx
First Addendum
City of Kent and Valley Communications
'- Page 4 of 4
Kent City Council Meeting
' Date March 2, 2010
Category Consent Calendar - 6M
' 1. SUBJECT: GOLDFINCH COMMUNICATIONS TELECOMMUNICATIONS LICENSE
AGREEMENT - AUTHORIZE
2. SUMMARY STATEMENT: Authorize the Mayor to sign a non-exclusive
License Agreement with Goldfinch Communications, LLC for it to construct, install,
' maintain, repair, and operate a telecommunications system using the City's
rights-of-way, subject to final agreement terms and conditions acceptable to the
City Attorney.
Goldfinch Communications, LLC has completed the City's telecommunications
license application and paid the applicable application fee. If granted, this license
' will allow Goldfinch Communications, in accordance with the terms of the License
Agreement, to install a telecommunications system within the City's rights-of-
way. The telecommunications system installed will allow the transmission of
' information through wire, radio, optical cable, electromagnetic, or other similar
means. This License Agreement is non-exclusive and allows the City to terminate
it at anytime with 90 days advance written notice.
1 3. EXHIBITS: Public Works Director's Memo to Public Works Committee and
Telecommunications License Agreement
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:
' Councilmember moves, Councilmember seconds
' DISCUSSION:
' ACTION:
17
PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P E , Public Works Director
Phone 253-856-5500
K E N T Fax, 253-856-6500
' XA"" "GTG" Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 17, 2010
' To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
' From: Timothy J. LaPorte, P.E., Public Works Director
Subject: Goldfinch Communications, LLC Telecommunications License
Motion: Recommend Council authorize the Mayor to sign a non-exclusive License
Agreement with Goldfinch Communications, LLC for it to construct, install,
maintain, repair, and operate a telecommunications system using the City's rights-
of-way as provided for in an agreement substantially similar to that presented to
the Committee, subject to terms and conditions acceptable to the City Attorney and
the Public Works Director.
' Summary:
Goldfinch Communications, LLC (Licensee) has formally completed the application
process for a telecommunications license within Kent, WA This license provides for
' the ability to construct, install, maintain, repair and operate a Telecommunications
System providing telecommunications services using the public rights-of-Way
(ROW).
Details:
Goldfinch Communications, LLC has formally applied for and successfully completed
the City's requirements for provisioning access to the public ROW through a
telecommunications (telecom) license. Furthermore, they have successfully
represented the legal, technical, and financial qualifications to provide the services
authorized through this license.
The Public Works Committee is asked to consider that based on representation and
' information provided by the Licensee, and in response to its request for the grant of
a License, the City Council will determine that the grant of a nonexclusive License,
on the terms and conditions set forth in the associated license agreement (see
attachment) and subject to applicable law, are consistent with the public interest.
This is in full accordance with the Council's right to authorize by applicable law the
granting of nonexclusive Licenses within the boundaries of the City.
"Telecommunications" is the transmission of information by wire, radio, optical
cable, electromagnetic, or other similar means. As used in this definition,
"information" means knowledge or intelligence represented by any form of writing,
signs, signals, pictures, sounds, or any other symbols.
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"Telecommunications System" means collectively the Facilities that together with '
other facilities, appurtenances and equipment of Licensee or other Persons are used
or intended to be used by Licensee to provide a Telecommunications service or
services whether or not such service is provided to the public. '
Budget Impact:
There is no impact to the 2010 budget or any related allocation for negotiations, '
installation, or operations of this telecommunications system. All related costs will
be borne by the Licensee. Furthermore, the City has negotiated for and secured
reimbursement of outside legal fees required in finalizing the license contract. 1
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TELECOMMUNICATIONS LICENSE AGREEMENT
1 BY AND BETWEEN
THE CITY OF KENT AND
' GOLDFINCH COMMUNICATIONS, LLC
THIS LICENSE AGREEMENT ("License"), is made by and between the CITY
OF KENT, a municipal corporation, operating under the laws of the State of Washington
as a non-charter code city, (hereinafter called the "City"), and Goldfinch
Communications, LLC, a limited liability company ("LLC"), doing business in
Washington as ("Goldfinch Communications, LLC") (hereinafter called "Licensee"),
and collectively, the "Parties";
WHEREAS, the Public Rights-of-Way within the City belong to the public and
are built and maintained at public expense for the use of the general public, the primary
purpose of which is public travel, and must be managed and controlled consistent with
that intent, and
WHEREAS, Licensee has made application to the City of Kent for a
telecommunications License to Construct, install, maintain, repair and operate a
Telecommunications System to provide telecommunications using the Public Rights-of-
Way, and
WHEREAS, Licensee represents that it has the legal, technical, and financial
qualifications to provide the Services authorized herein, and
WHEREAS, based on representations and information provided by Licensee, and
in response to its request for the grant of a License, the City Council has determined that
the grant of a nonexclusive License, on the terms and conditions herein and subject to
applicable law, are consistent with the public interest, and
WHEREAS, the City is authorized by applicable law to grant nonexclusive Licenses
within the boundaries of the City,
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
' City and the Licensee hereby agree as follows.
ISMS-LicenseAgmnt-030210CouncilPacket.doe 1
ARTICLE 1. DEFINITIONS
Except as provided at Section 3 7 herein (Order of Precedence), for the purposes of
this License and the Exhibits attached hereto, the following terms, phrases, words and their
derivations where capitalized shall have the meanings given herein Words not defined '
herein shall have the meaning given in the most current version of the City of Kent Design
and Construction Standards as adopted pursuant to Kent City Code ("KCC") Ch 6 02 (the
"Construction Standards"). Words not defined herein or to the Construction Standards shall
have the meaning given pursuant to such federal statutes, rules, or regulations that apply to
and regulate the Services provided by the Licensee. Words not otherwise defined, shall be
given their common and ordinary meaning When not inconsistent with the context, words
used in the present tense include the future, words in the plural include the singular, and
words in the singular include the plural The word "shall" is always mandatory and not
merely directory References to governmental entities (whether persons or entitles) refer
to those entities or their successors in authority If specific provisions of law, regulation
or rule referred to herein be renumbered, then the reference shall be read to refer to the
renumbered provision ,
"Affiliate" when used in connection with Licensee means any Person who owns or
controls, is owned or controlled by, or is under common ownership or control with Licensee
"Breach" shall mean any failure of a Party to keep, observe, or perform any of its
duties or obligations under this License.
"Cable Television Service" means the one-way transmission to subscribers of
video programming and other programming service and subscriber interaction, if any, ,
that is required for the selection or use of the video programming or other programming
service.
"City" shall mean the City of Kent, a municipal corporation organized as a non- '
charter code city, operating under the laws of the state of Washington
"Construct" shall mean to construct, reconstruct, install, reinstall, align, realign,
locate, relocate, adjust, affix, attach, remove, or support.
"Corrective Action" shall mean a Party undertaking action as provided in this
License to perform a duty or obligation that the other Party is obligated to but has failed
to perform
"Design Document(s)" shall mean the plans and specifications for the
Construction of the Facilities illustrating and describing the refinement of the design of
the Telecommunications System Facilities to be Constructed, establishing the scope,
relationship, forms, size and appearance of the Facilities by means of plans, sections and
elevations, typical construction details, location, alignment, materials, and equipment
layouts. The Design Documents shall include specifications that identify utilities, major
ISMS-LicenseAgmnt-030210CouncilPacket.doc 2
' material and systems, Public Right-of-Way improvements, restoration and repair, and
establish in general their quality levels.
"100% Design Submittal" means a Design Document upon which Licensee's
contractors will rely in constructing the Telecommunications System Facilities.
"Direct Costs" shall mean and include all costs and expenses to the City directly
related to a particular activity or activities, including by way of example
1. All costs and expenses of materials, equipment, supplies, utilities,
consumables, goods and other items used or incorporated in connection with and in
furtherance of such activity or activities and any taxes, insurance, and interest expenses
related thereto, including costs for crews and equipment,
ii. All costs and expenses of labor inclusive of payroll benefits, non-
productive time and overhead for each of the labor classifications of the employees
performing work for the activity and determined in accordance with the City's ordinary
governmental accounting procedures; and
tii. All costs and expenses to the City for any work by consultants or
contractors to the extent performing work for a particular activity or activities, including
by way of example and not limitation, engineering and legal services
"Dispute" shall mean a question or controversy that arises between the Parties
concerning the observance, performance, interpretation or implementation of any of the
terms, provisions, or conditions contained in this License or the rights or obligations of
either Party under this License
' "Effective Date" shall mean and refer to that term as it is defined at Section 4.3
herein
"Emergency" shall mean and refer to a sudden condition or set of circumstances
that, (a) significantly disrupts or interrupts the operation of Facilities in the Public Rights-
of-Way and Licensee's ability to continue to provide services if immediate action is not
taken, or (b) presents an imminent threat of harm to persons or property if immediate
action is not taken.
"Environmental Law(s)" means any federal, state or local statute, regulation,
code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in
any way to the protection of human health or the environment, including without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Toxic Substances Control
Act, and any similar or comparable state or local law
"Facility" means any part or all of the facilities, equipment and appurtenances of
Licensee whether underground or overhead and located within the Public Rights-of-Way
as part of the Licensee's Telecommunications System, including but not limited to,
ISMS-LicenseAgmnt-030210CouncilPacket.doc 3
conduit, case, pipe, line, fiber, cabling, equipment, equipment cabinets and shelters, '
vaults, generators, conductors, poles, carvers, drains, vents, guy wires, encasements,
sleeves, valves, wires, supports, foundations, towers, anchors, transmitters, receivers,
antennas, and signage.
"Hazardous Substance" means any hazardous, toxic, radioactive or infectious
substance, material or waste as defined, listed or regulated under any Environmental
Law, and any element, compound, mixture, solution, particle, or substance, which
presents danger or potential danger for damage or injury to health, welfare, or to the
environment, including, but not limited to those substances which are inherently or
potentially radioactive, explosive, ignitable, corrosive, reactive, carcinogenic, or toxic;
those substances which have been recognized as dangerous or potentially dangerous to
health, welfare, or to the environment by any federal, municipal, state, city, or other
governmental or quasi-governmental authority, and/or any department or agency thereof, '
those substances which use, or have a component thereof or therein, asbestos or lead-
based paint, and petroleum oil and any of its fractions
"Law(s)" shall mean all present and future applicable laws, ordinances, rules,
regulations, resolutions, licenses, authorizations, environmental standards, orders, decrees
and requirements of all federal, state, city and municipal governments, the departments,
bureaus or commissions thereof, authorities, boards or officers, any national or local
board of fire underwriters, or any other body or bodies exercising similar functions
having or acquiring jurisdiction over all or any part of the Facilities, including the City
acting in its governmental capacity, or other requirements References to Laws shall be
interpreted broadly to cover government actions, however nominated, and include laws,
ordinances and regulations now in force or hereinafter enacted or amended.
"Legal Action" shall mean filing a lawsuit or invoking the right to arbitration.
"License" shall mean the grant, once accepted, giving general permission to the '
Licensee to enter into and upon the Public Rights-of-Way and to use and occupy the
same for the purposes authorized herein, all pursuant and subject to the terms and
conditions of the License
"Licensee" shall mean Goldfinch Communications, LLC and any of its Affiliates. '
"License Area" shall mean collectively or individually the Public Rights-of-Way
described in attached Exhibit"A"
"Party(ies)" shall mean either the City or the Licensee or both.
"Permit" means a permit issued under the regulatory authority of the City that
provides specific requirements and conditions for work to Construct any part of the
Telecommunications System and includes by way of example and not limitation, a
construction permit, budding permit, street cut permit, and clearing and grading permit
ISMS-LicenseAgmnt-030210CouncilPacket doc 4 ,
"Person" means and includes any individual, corporation, partnership, association,
joint-stock-company, limited liability company, political subdivision, public corporation,
taxing district, trust, or any other legal entity, but not the City or any Person under
contract with the City to perform work in the Public Rights-of-Way
"Public Rights-of-Way" means the surface of, and the space above and below,
any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
1 way, lane, public way, drive, circle, pathways, spaces, conduits, manholes or other public
right-of-way, including any easement now or hereafter held by the City within the
corporate boundaries of the City as now or hereafter constituted for the purpose of public
travel, and over which the City has authority to grant permits, licenses or franchises for
use thereof, or has regulatory authority thereover, excluding railroad rights-of-way,
airports, harbor areas, buildings, parks, poles, conduits, and excluding such similar
facilities or property owned, maintained or leased by the City in its governmental or
proprietary capacity or as an operator of a utility.
"Public Works Director" means and refers to the Public Works Director for the
City or his or her designee or such officer or person who has been assigned the duties of
public works director or his or her designee
"Remedy", "Remediate" and "Remedial Action" shall have the same meaning as
these are given under the Model Toxics Control Act (Chapter 70 105D RCW) and its
implementing regulations at Chapter 173-340 WAC.
"Service" shall mean the service or services authorized to be provided by the
' Licensee under the terms and conditions of this License.
"Telecommunications" is the transmission of information by wire, radio, optical
cable, electromagnetic, or other similar means As used in this definition, `information"
means knowledge or intelligence represented by any form of writing, signs, signals,
pictures, sounds, or any other symbols.
' "Telecommunications System" shall mean collectively the Facilities that together
with other facilities, appurtenances and equipment of Licensee or other Persons are used
or intended to be used by Licensee to provide a Telecommunications service or services
whether or not such service is provided to the public
"Transfer" shall mean any transaction in which all or a portion of the
Telecommunications System is sold, leased or assigned (except a sale or transfer that
results in removal of a particular portion of the Telecommunications System from the
Public Rights-of-Way), or, the rights and/or obligations held by the Licensee under the
License are transferred, sold, assigned, or leased, in whole or in part, directly or
indirectly, to another Person A transfer of control of an operator shall not constitute a
transfer as long as the same person continues to hold the License both before and after the
transfer of control
' ISMS-LicenseAgmnt-030210CouncilPacket.doc 5
"Work" shall mean any and all activities of the Licensee, or its officers, directors, '
employees, agents, contractors, subcontractors, volunteers, invitees, or licensees, within
the Public Rights-of-Way to Construct the Facilities.
ARTICLE 2. LICENSE GRANT
2.1 Public Rights-of-Way Use Authorized Subject to the terms and conditions
of this License, the City hereby grants to Licensee a nonexclusive License authorizing the
Licensee to Construct and operate Facilities in, along, among, upon, across, above, over, and
under the Public Rights-of-Way located within the License Area Licensee shall coordinate
its work within the Public Rights-of-Way with the City's Capital Improvement Plans,
Redevelopment Agency Plans, and Comprehensive Plan.
2.2 Authorized Services. The grant given herein expressly authorizes Licensee ,
to use the Public Rights-of-Way to Construct and operate a Telecommunications System
to provide Telecommunications This authorization is limited and is not intended nor shall
it be construed as granting Licensee or any other Person the right, duty or privilege to use its
Facilities or the Public Rights-of-Way to provide Services not specifically authorized
therein, including but not limited to cable or video programming broadband services This
License shall not be interpreted to prevent the City from lawfully imposing additional
conditions, including additional compensation conditions for use of the Public Rights-of-
Way, should Licensee provide Service other than Service specifically authorized herein
2.3 No Rights Shall Pass to Licensee by Implication. No rights shall pass to the
Licensee by implication. Without ]mntmg the foregoing and by way of example, this
License shall not include or be a substitute for.
2.3 1 Any other authorization required for the privilege of transacting and
carrying on a business within the City that may be lawfully required by the Laws of the
City,
2.32 Any agreement, Permit or authorization required by the City for ,
Public Rights-of-Way users in connection with operations on or in Public Rights-of-Way or
public property, or
2 3 3 Any licenses, leases, easements or other agreements for occupying
any other property or infrastructure of the City or other Persons to which access is not
specifically granted by this License including, without limitation, agreements for placing ,
devices on poles, light standards, in conduits, in vaults, in or on pipelines, or in or on other
structures, public parks, or public buildings
24 Interest in the Public Rights-of-Way. This License does not convey title,
equitable or legal, in the Public Rights-of-Way. The City does not represent or guarantee
that its interest, or other right to control the use of such Public Rights-of-Way, is
sufficient to grant its use for Licensee's purposes This License shall be deemed to grant
no more than those rights which the City may have the undisputed right and power to
ISMS-LicenseAgmnt-030210CouncilPacket.doc 6
1 give This grant does not confer rights other than as expressly provided in this License and
is subject to the limitations in applicable Law This right shall not be Transferred,
subdivided or subleased to a person other than the Licensee
Licensee acknowledges that, where City has an ownership interest in a License
Area, that ownership interest may be a determinable fee, a public right-of-way
dedication, or a right-of-way easement, which may terminate when City either (i) ceases
to use that Public Right-of-Way for Public Right-of-Way purposes, or (n) uses such
Public Right-of-Way for purposes found to be inconsistent with use of the Public Right-
of-Way for Public Right-of-Way purposes, and that in such circumstances, City's right to
License or grant the use of any such Public Right-of-Way, or rights under any License of
any such Public Right-of-Way, may be subject to termination as of the date the
circumstances set forth in either (i) or(n) above, first arise (unless Licensee improves the
quality of title to the applicable License Area, or acquires additional property interests
from other Persons).
Licensee also acknowledges that, where City has ownership rights, those
ownership rights may terminate for other reasons, such as a street vacation Licensee
further acknowledges that Licensee's rights under this License as to any License Area,
are subject and subordinate to all outstanding rights and encumbrances on City's Public
Rights-of-Way (including City Utilities), and any easements, franchise agreements,
licenses, permits, grants or other agreements in effect on or before the Effective Date;
City therefore grants to Licensee no more right, title and interest in any Public Rights-of-
Way than the City holds in such Public Rights-of-Way at the time of grant, and Licensee
hereby releases City from any and all liability, cost, loss, damage or expense in
connection with any claims that City lacked sufficient legal title or other authority to
convey the rights described herein in case of eviction of Licensee or Licensee's
contractors by anyone owning or claiming title to, or any interest in the License Area,
City shall not be liable to Licensee or Licensee's Contractors for any costs, losses or
damages of any Party.
CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR
TO ANY LICENSE AREA NOR UNDERTAKE TO DEFEND LICENSEE IN THE
PEACEABLE POSSESSION OR USE THEREOF NO COVENANT OF QUIET
ENJOYMENT IS MADE
25 Condition of License Area Licensee has inspected or will inspect License
Area, and enters upon each such License Area with knowledge of its physical condition
and the danger inherent in operations conducted in, on or near any License Area
LICENSEE ACCEPTS THE LICENSE AREA IN AN "AS-IS WITH ALL FAULTS"
BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS AND IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR
IMPLIED, OF ANY KIND WHATSOEVER FROM THE CITY AS TO ANY
MATTERS CONCERNING THE LICENSE AREA, including, but not limited to the
physical condition of the License Area, zoning status; presence and location of existing
Iutilities, operating history, compliance by the License Area with Environmental Laws or
' ISMS-LicenseAgmnt-030210CouncilPacket doc 7
other Laws and other requirements applicable to the License Area; the presence of any '
Hazardous Substances or wetlands, asbestos, or other environmental conditions in, on,
under, or in proximity to the License Area; the condition or existence of any of the above
ground or underground structures or improvements, including tanks and transformers in,
on or under the License Area, the condition of title to the License Area, and the leases,
easements, Licenses, orders, licensees, or other agreements, affecting the License Area
(collectively, the "Condition of the License Area").
Licensee represents and warrants to the City that neither the Licensee nor its '
contractors or subcontractors have relied and will not rely on, and the City is not liable
for or bound by, any warranties, guaranties, statements, representations or information
pertaining to the Condition of the License Area or relating thereto made or furnished by
the City, or any agent representing or purporting to represent the City, to whomever made
or given, directly or indirectly, orally or in writing CITY HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO
THE DESIGN OR CONDITION OF THE LICENSE AREA, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE
QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE PUBLIC RIGHT-OF-
WAY, OR THE CONFORMITY OF ANY PART OF THE PUBLIC RIGHT-OF-WAY
TO ITS INTENDED USES. CITY SHALL NOT BE RESPONSIBLE TO LICENSEE
OR ANY OF LICENSEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO
THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PART OF THE PUBLIC
RIGHT-OF-WAY PRESENT ON OR CONSTITUTING ANY LICENSE AREA, OR
THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES.
2.6 License Nonexclusive. This License shall be nonexclusive. Subject to the
terms and conditions herein, the City may at any time grant authorization to others to use the
Public Rights-of-Way for any lawful purpose.
2.7 Transfer. Licensee shall not Transfer this License without the prior
written consent of the Mayor given on behalf of the City. Any Transfer made in violation
of this requirement is voidable at the sole discretion of Mayor without further action by
the City Council or the consent of the Licensee or transferee
Notwithstanding the foregoing, notice to the City shall not be required for a '
mortgage, hypothecation or an assignment of Licensee's interest in the License in order to
secure indebtedness ,
Licensee may, without prior written notice to the City: (t) lease the
Telecommunications System, or any portion thereof, to another Person; (n) grant an
Indefeasible Right of User Interest in the Telecommunications System, or any portion
thereof, to another Person, or (in) offer or provide capacity or bandwidth in its
Telecommunications System to another Person, provided that, Licensee at all times
retains exclusive control over its Telecominum cations System and remains responsible
for Constructing its Facilities pursuant to the terms and conditions of this License, and
provided further that, Licensee may grant no rights to any such Person that are greater ,
ISMS-LicenseAgmnt-030210CouncilPacket.doc 8 '
than any rights Licensee has pursuant to this License; such Persons shall not be construed
to be a third-Party beneficiary hereunder, and, no such Person may use the
Telecommunications System for any purpose not authorized herein
2.8 Street Vacation. If any Public Right-of-Way or portion thereof used by
Licensee is to be vacated during the term of this License, unless as a condition of such
vacation the Licensee is granted the right to continue its Facilities in the vacated Public
Right-of-Way, Licensee shall, upon written demand being made by the City and within
the time period specified in the written notice, remove its Facilities from such Public
Right-of-Way, and restore, repair or reconstruct the Public Right-of-Way where such
removal has occurred, and place the Public Right-of-Way in such condition as may be
required by the City
2.9 Railroad Rights-of-Way In the event that any portion of the Facilities will
be Constructed in the Public Right-of-Way within twenty-five (25) feet of the centerline of
any railroad track, Licensee shall be responsible for coordinating such Work with the
owner/operator of such railroad track to conform the Licensee Work to the design and
construction standards of the owner/operator to the extent Facilities will be installed above
or below the track, and shall be responsible for complying with those workplace safety
requirements that would apply to contractors performing work in the railroad nght-of-way
on behalf of the railroad owner/operator. Licensee may also be required to obtain railroad
protective liability insurance naming the railroad owner/operator as an additional insured.
2.10 Reservation of City Use of Public Right-of-Way. Nothing in this License
shall prevent the City from constructing sanitary or storm sewers; grading, changing grade,
paving, repairing or altering any Public Right-of-Way, laying down, repairing or removing
water mains; or installing conduit or fiber optic cable
ARTICLE 3 COMPLIANCE WITH LAWS/ORDER OF PRECEDENCE
3.1 Compliance With Laws Except as provided herein pursuant to Section
3 3, the Licensee agrees to comply with all applicable Laws as are now or hereafter in
effect, and any lawful orders from regulatory agencies or courts with jurisdiction over
Licensee and its Facilities, or over the City and the Public Rights-of-Way
32 Police Powers Licensee acknowledges that its rights hereunder are
subject to those powers expressly reserved by the City and further are subject to the
police powers of the City to adopt and enforce ordinances necessary to protect the health,
safety and welfare of the public Licensee agrees to comply with all lawful and
applicable general ordinances now or hereafter enacted by the City pursuant to such
power. Such powers include but are not limited to, the right to adopt and enforce
applicable zoning, building, permitting and safety ordinances and regulations, the right to
adopt and enforce ordinances and regulations relating to equal employment opportunities,
and the right to adopt and enforce ordinances and regulations governing work performed
in the Public Rights-of-Way
ISMS-LicenseAgmnt-030210CouncilPacket.doe 9
33 Alteration of Material Terms and Conditions Subject to federal and state ,
preemption, the material rights, benefits, obligations or duties as specified in this License
may not be unilaterally altered by the City through subsequent amendments to any
ordinance, regulation, resolution or other enactment of the City, except within the lawful
exercise of the City's police power. ,
3.4 Reservation of Rights/Wavier The City is vested with the power and right
to administer and enforce the requirements of this License and the regulations and
requirements of applicable Law, or to delegate that power and right, or any part thereof, to
the extent permitted under Law, to any agent in the sole discretion of the City. The City
expressly reserves all of its rights, authority and control arising from any relevant provisions
of federal, state or local Laws granting the City rights, authority or control over the Public
Rights-of-Way or the activities of the Licensee Nothing in this License Agreement shall
be deemed to waive the requirements of the various codes and ordinances of the City ,
regarding Licenses, fees to be paid or manner of Construction Nothing in this License
shall be deemed to waive and Licensee specifically reserves the right to challenge any
City ordinance, regulation or resolution that conflicts with its rights under this License
3.5 Subsequent Action. In the event that after this License becomes effective,
(a) there is a change in or clarification of the Law which changes, broadens or clarifies
the authority or obligations of the City or the Licensee with respect to any act permitted
or authorized under this License, or (b) the State of Washington or any agency thereof or
any agency of the Federal government require Licensee or the City to act in a manner
which is inconsistent with any provisions of this License, or (c) any term, article, section,
subsection, paragraph, provision, condition, clause, sentence, or other portion of this
License, or its application to any person or circumstance, shall be held to be illegal, invalid
or unconstitutional for any reason by any court or agency of competent jurisdiction, or (d)
because of a change in circumstances, the City or the Licensee believe that amendments
to this License are necessary or appropriate, then the City and the Licensee agree to enter
into good faith negotiations to amend this License so as to enable the City and Licensee
to address, in a manner reasonably acceptable to the City and Licensee, such change or
other development which formed the basis for the negotiations. The City and Licensee
recognize that the purpose of the negotiations would be to preserve, to the maximum
extent consistent with Law, the intent, scope and purpose of this License.
If the terms of this License are materially altered due to changes in or
clarifications governing Law or due to agency rule making or other action, then the
Parties shall negotiate in good faith to reconstitute this License in a way consistent with
then-applicable Law in a form that, to the maximum extent possible, is consistent with
the original scope, intent and purpose of the City and Licensee and preserves the benefits
bargained for by each Party. ,
3.6 Change in Form of Government. Any change in the form of government
of the City shall not affect the validity of this License Any governmental unit
succeeding the City shall, without the consent of Licensee, succeed to all of the rights and
obligations of the City provided in this License
ISMS-LicenseAgmnt-0302I OCouncilPacket doc 10 '
t .
I3.7 Order of Precedence.
3.7.1 In the event of a conflict between a provision, term, condition, or
requirement of the City Code or City ordinance in effect upon the Effective Date and a
provision, term, condition, or requirement of this License, the provision, term, condition, or
requirement of the City Code or City ordinance shall control to the extent of such conflict
3.7.2 In the event of a conflict between a provision, term, condition, or
requirement of the City Code or City ordinance enacted subsequent to the Effective Date
1 and a provision, term, condition, or requirement of this License, the provision, term,
condition, or requirement of the City Code or City ordinance shall control, to the extent of
the conflict, subject to Sections 3 3 and 3 4 of this License
3 7 3 In the event of a conflict between a provision, term, condition, or
requirement of this License and a provision, term, condition, or requirement of an Exhibit
incorporated herein, the License shall control, to the extent of the conflict
ARTICLE 4 ACCEPTANCE
4.1 Acceptance Within thirty (30) days after approval of this License by the
City Council, this License shall be accepted by Licensee by tiling with the City Clerk during
regular business hours, or such other person as may be designated by the City, three
originals of this License with its original signed and notarized written acceptance of all of
the terms, provisions and conditions of this License in conformance with Exhibit "B",
together with the following, if required herein
4.1.1 Payment in readily available funds of the administrative costs for
' issuance of the License in conformance with the requirements of Section 5 8 herein.
4.12 Submission of proof of financial security in accordance with
' Section 5 4 herein
4.13 Payment of License Fee in accordance with subsection 5.8 2
herein.
In the event that the thirtieth (30th) day falls on a Saturday, Sunday or legal holiday during
which the City is closed for business, the tiling date shall be extended to include the next
day which is not a Saturday, Sunday, or legal holiday
4.2 Timely Acceptance. Timely receipt of Licensee's acceptance in
conformance with Section 4 1 herein, shall constitute Licensee's offer to enter into this
License and be subject to the terms and conditions hereof upon the Effective Date.
' ISMS-LicenseAgmnt-0302I OCouncilPacket.doc 11
43 Effective Date; Term. '
4.3 1 Effective Date This License shall not be effective until the City has
timely received Licensee's acceptance and the Mayor has executed the License Agreement.
The Effective Date of this License shall be the last date entered by the City on the signature
page(s) of this License. This License and the rights, privileges, and authority granted
hereunder and the contractual relationship established hereby shall take effect and be in
force from and after the Effective Date for the term hereof.
432 Term Subject to Section 6.3 below, the term of this License shall
commence on the Effective Date and shall continue in full force and effect for a period of
ten (10) years, unless sooner terminated, revoked or rendered void, provided that, at the end
of each term, this License shall automatically extend upon the same terms and conditions for
a ten (10) year term, for a total term of no greater than forty (40) years, unless sooner
terminated, revoked or rendered void Nothing in this subsection 4 3.2 shall affect the right
of the City to terminate or revoke this License pursuant to Section 6.3 herein
4.4 Effect of Acceptance. By accepting the License the Licensee:
4.4.1 Accepts and agrees to comply with and abide by all of the lawful
terms and conditions of this License;
4.4 2 Acknowledges and accepts the City's legal right to grant this
License,
4.4 3 Agrees that the License was granted pursuant to processes and '
procedures consistent with applicable Law and that it will not raise any claim to the
contrary,
4.4.4 Agrees that it enters into this License freely and voluntarily, ,
without any duress or coercion, after free and full negotiations, after carefully reviewing
all of the provisions, conditions and terms of this License Agreement, and after
consulting with counsel,
4.4 5 Warrants that Licensee has full right and authority to enter into and
accept this License in accordance with its terms, and by entering into or performing this
License, Licensee is not in violation of its charter or by-laws, or any law, regulation, or
agreement by which it is bound or to which it is subject, and
4.4.6 Warrants that acceptance of this License by Licensee has been duly
authorized by all requisite Board action, that the signatories for Licensee hereto are
authorized to sign the License acceptance, and that the joinder or consent of any other
party, including a court, trustee, or referee, is not necessary to make valid and effective
the execution, delivery, and performance of this License.
4.5 Effect of Expiration/Termination. Upon expiration, revocation or
termination of the License without renewal or other authorization, Licensee shall no
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longer be authorized to operate the Facilities within the License Area and shall, to the
extent it may lawfully do so, cease operation of the Facilities Forthwith thereafter,
except as may be otherwise agreed to in writing between the Parties, Licensee shall
remove its structures or property from the Public Rights-of-Way and restore the Public
Rights-of-Way to such condition as the City may reasonably require all at Licensee's
expense
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Limitation of Liability
51.1 INDEMNITY/RELEASE/DEFENSE EXCEPT AS MAY BE
OTHERWISE PROVIDED PURSUANT TO SECTION 5 2 OF THIS LICENSE WITH
' RESPECT TO ENVIRONMENTAL LIABILITY, TO THE FULLEST EXTENT
PERMITTED BY LAW, LICENSEE SHALL RELEASE, INDEMNIFY, DEFEND,
AND HOLD HARMLESS THE CITY AND THE CITY'S SUCCESSORS, ASSIGNS,
LEGAL REPRESENTATIVES, OFFICERS (ELECTED OR APPOINTED),
EMPLOYEES, AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM,
AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES,
COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS,
JUDGMENTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS, ATTORNEYS' FEES, AND COSTS OF INVESTIGATION, REMOVAL AND
I REMEDIATION, AND GOVERNMENTAL OVERSIGHT COSTS)
ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY
NATURE, KIND, OR DESCRIPTION, OF ANY PERSON OR ENTITY, DIRECTLY
OR INDIRECTLY, ARISING OUT OF, RESULTING FROM, OR RELATED TO (IN
WHOLE OR IN PART)
5.1.1.1 THIS LICENSE;
5.1.1.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT
' TO THIS LICENSE;
5 1.1.3 LICENSEE'S OCCUPATION AND USE OF THE
PUBLIC RIGHTS-OF-WAY,
5.1.1.4 LICENSEE'S OPERATION OF THE UTLITY SYSTEM;
' 5.1.1.5 THE PRESENCE OF THE TELECOMMUNICATIONS
SYSTEM WITHIN THE PUBLIC RIGHT-OF-WAY,
5.1.1.6 THE ENVIRONMENTAL CONDITION AND STATUS
OF THE PUBLIC RIGHT-OF-WAY CAUSED BY, AGGRAVATED BY, OR
CONTRIBUTED TO, IN WHOLE OR IN PART, BY LICENSEE OR ITS
CONTRACTORS, SUBCONTRACTORS, OR AGENTS,
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5 1.1 7 ANY ACT OR OMISSION OF LICENSEE OR '
LICENSEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS AND SERVANTS,
OFFICERS OR EMPLOYEES IN CONNECTION WITH WORK IN THE PUBLIC '
RIGHT OF WAY; OR
5 1.1.8 THE CITY'S PERMITTING LICENSEE'S USE OF THE
CITY'S PUBLIC RIGHTS-OF-WAY OR OTHER PUBLIC PROPERTY.
(EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY OF THE INDEMNITEES THE
ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE
EXTENT PROXIMATELY CAUSED BY THE SOLE NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF AN iNDEMNITEE OR FOR LIABILITIES THAT '
BY LAW THE INDEMNITEES CANNOT BE INDEMNIFIED FOR.)
This covenant of indemnification shall include, but not be limited by this
reference, to Liabilities arising, (1) as a result of the negligent acts or omissions of
Licensee, its agents, servants, officers, or employees in barricading, instituting trench
safety systems or providing other adequate warnings of any excavation, construction, or
work in any Public Right-of-Way or other public place in performance of Work or
Services Permitted under this License, (2) solely by virtue of the City's ownership or
control of the Public Rights-of-Way or other public properties; and (3) solely by virtue of
the City's inspection or lack of inspection of Work in the Public Rights-of-Way.
The fact that Licensee carries out any activities under this License through
independent contractors shall not constitute an avoidance of or defense to Licensee's duties
of defense and indemnification under this Section 5 1
5.1.2 Tender of Defense. Upon written notice from the City, Licensee
agrees to assume the defense of any lawsuit, claim or other proceeding brought against
any Indemnitee by any entity, relating to any matter covered by this License for which
Licensee has an obligation to assume Liability for and/or save and hold harmless any
Indcmnitee Licensee shall pay all costs incident to such defense, including, but not
limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments Further, said indemnification
obligations shall extend to claims that are not reduced to a suit and any claims which may
be compromised prior to the culmination of any litigation or the institution of any
litigation. The City has the right to defend and may participate in the defense of a claim
and, in any event, Licensee may not agree to any settlement of claims financially affecting
the City without the City's prior written approval which shall not be unreasonably withheld
If separate representation to fully protect the interests of both Parties is necessary, such as a
conflict of interest between the City and the counsel selected by Licensee to represent the
City, Licensee shall select additional counsel with no conflict with the City and shall assume
and be responsible for all costs, including attorneys' fees, for such additional counsel.
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5.1.3 Refusal to Accept Tender In the event Licensee refuses the tender
of defense in any suit or any claim, said tender having been made pursuant to the
indemnification clauses contained herein, and said refusal is subsequently determined by
a court having jurisdiction (or such other tribunal that the Parties shall agree to decide the
1 matter), to have been a wrongful refusal on the part of Licensee, then Licensee shall pay
all of the City's costs for defense of the action, including all reasonable expert witness
fees and reasonable attorneys' fees and the reasonable costs of the City, including
reasonable attorneys' fees of recovering under this indemnification clause because there
was a wrongful refusal on the part of Licensee. (They should pay if City prevails)
5.1.4 Title 51 Waiver THE LICENSEE WAIVES IMMUNITY
UNDER RCW TITLE 51 AND AFFIRMS THAT THE CITY AND THE LICENSEE
HAVE SPECIFICALLY NEGOTIATED THiS PROVISION, AS REQUIRED BY RCW
' 4 24 115, TO THE EXTENT IT MAY APPLY.
5 1.5 Inspection Inspection or acceptance by the City of any Work
performed by Licensee at the time of completion of Construction shall not be
grounds for avoidance of any of these covenants of indemnification
5.2 Environmental Liability. See attached Exhibit"C".
5.3 Insurance Requirements See attached Exhibit"D".
5.4 Financial Security. See attached Exhibit "E".
5.5 Parental Guarantee Intentionally Deleted.
5.6 Contractors/Subcontractors. Licensee contractors and subcontractors
performing Work in the Public Rights-of-Way shall comply with such bond, indemnity
and insurance requirements as may be required by City code or regulations, or other
applicable Law. If no such requirements are set forth in the City code or regulations, the
Licensee contractors and subcontractors shall comply with the requirements set forth in
attached Exhibit"F"
5.7 Liens In the event that any City property becomes subject to any claims
for mechanics', artisans', or materialmen's hens, or other encumbrances chargeable to or
through Licensee which Licensee does not contest in good faith, Licensee shall promptly,
and in any event within thirty (30) days, cause such lien claim or encumbrance to be
discharged or released of record (by payment, posting of bond, court deposit, or other
means), without cost to the City, and shall indemnity the City against all costs and
i expenses (including attorneys' fees) incurred in discharging and releasing such claim of
lien or encumbrance. If any such claim or encumbrance is not so discharged and
released, the City may pay or secure the release or discharge thereof at the expense of
j Licensee after first giving Licensee five (5) business days' advance notice of its intention
to do so Nothing herein shall preclude Licensee's or the City's contest of a claim for
lien or other encumbrance chargeable to or through Licensee or the City, or of a contract
or action upon which the same arose
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5.8 Financial Conditions. '
5.8.1 License Fees During the term of this License, should federal
and/or state Law change or the statutory prohibition or limitation upon assessment of
License fees be invalidated, amended, or modified allowing revenues derived by
Licensee from any Services provided by Licensee using the License Area to be subject to
a License fee or other fee in lieu of a License fee that was otherwise prohibited or limited
on the Effective Date, the City and Licensee shall negotiate a reasonable License fee or
other fee in lieu of a License fee, consistent with federal and/or state Law. The fee shall
be comparable to fees received by the City for other similar uses of the Public Rights-of-
Way.
5 8 2 Reimbursement of Direct Costs of Issuance, Renewal. Amendment '
and Administration. Licensee shall reimburse the City for the City's Direct Costs relating to
the issuance, renewal, amendment (if requested by or for the benefit of the Licensee) and
administration of this License. The Parties agree that the present value of the cumulative
costs to the City over the ten (10) -year term of this license associated with the issuance and
administration of this License is $t0,000 (the "License Fee") The Licensee agrees that it
will, at the time of acceptance of this License, make a non-refundable deposit with the City
of$10.000 as payment of the License Fee.
5.8.3 Reimbursement of Direct Costs of Design Review and Inspection
City approvals and inspections, as provided for in this License, are for the sole purpose of
protecting the City's rights as the owner or manager of the Public Rights-of-Way and are
separate and distinct from the approvals and inspections and fees that may be required
pursuant to a Permit Therefore, Licensee shall reimburse to the City, its Direct Costs of
approvals and inspections, to the extent that such Direct Costs are not included in the
costs for issuance of and compliance with the Permit. Approvals and inspection, by way ,
of example and not limitation, include review of Design documents and inspection for
compliance with Standards and 100% Design Submittal.
5 8.4 Reimbursement of Direct Costs of Altering Public Rights-of-Way
Licensee shall reimburse the City for the Direct Costs incurred by the City in planning,
designing, constructing, installing, repairing or altering any City infrastructure, structure,
or facility as the result of the actual or proposed presence in the Public Right-of-Way of
Licensee's Facilities Such costs and expenses shall include, but not be limited to, the
Direct Costs of City personnel and contractors utilized to oversee or engage in any work
in the Public Right-of-Way as the result of the presence of Licensee's Facilities in the
Public Right-of-Way, and any time spent reviewing construction plans in order to either
accomplish the relocation of Licensee's Facilities or the routing or rerouting of any
public utilities or Public Rights-of-Way so as not to interfere with Licensee's Facilities
Upon request as a condition of payment by Licensee, all billing will be itemized so as to
identify specifically the Direct Costs and expenses for each project for which the City
claims reimbursement A reasonable charge for the actual cost incurred in preparing the
billing may also be included in said billing.
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5.8.5 Licensee Responsibility for Costs. Except as expressly provided
otherwise in this License, any act that Licensee, its contractors or subcontractors are
required to perform under this License shall be performed at their sole cost and expense.
5.8.6 Licensee Work Performed by the City. Any work performed by
the City that Licensee has failed to perform as required pursuant to this License and
1 which is performed by the City in accordance with the terms of this License, shall be
performed at the cost and expense of the Licensee Licensee shall be obligated to pay the
Direct Costs to the City of performing such work.
5 8.7 Taxes and Fees. Nothing contained in this License Agreement
shall exempt Licensee from Licensee's obligation to pay any utility tax, business tax, or
ad valorem property tax, now or hereafter levied against real or personal property within
the City, or against any local improvement assessment imposed on Licensee Any fees,
charges and/or fines provided for in the City Code or any other City ordinance, and any
I compensation charged and paid for the Public Rights-of-Way, whether pecuniary or in-
kind, are separate from, and additional to, any and all federal, state, local, and City taxes
as may be levied, imposed or due from Licensee
5.8 8 Itemized invoice. Upon request by the Licensee of, City shall
submit an itemized billing so as to identify specifically the Direct Costs incurred by the
City for each project for which the City claims reimbursement.
5.8.9 Time for Pant. All non-contested amounts owing shall be due
and paid within thirty (30) days of receipt of invoice, provided that, in the event that an
itemized invoice is not provided at the time of receipt of invoice and the City receives a
request from Licensee for an itemized invoice within thirty (30) days of receipt of
invoice, such amounts shall be due and paid within thirty (30) days of receipt of the
itemized invoice.
5.8 10 Overdue Payments. Any amounts payable under this License by
Licensee which shall not be paid upon the due date thereof, shall bear interest at a rate of
twelve percent(12%)per annum.
5.8.11 Contesting Charges Licensee may contest all or parts of amounts
owed within thirty (30) days of receipt of any invoice The City will investigate
Licensee's contest and will make appropriate adjustments to the invoice, if necessary, and
resubmit the invoice to Licensee. Licensee shall pay any amounts, owing as itemized in
the resubmitted invoice, within thirty (30) days of receipt of the resubmitted invoice.
I However, Licensee does not waive its rights to take Legal Action to challenge the amount
of the invoice.
5.8 12 Receivables. Either Party hereto may assign any monetary
receivables due them under this License; provided, however, such transfer shall not
relieve the assignor of any of its rights or obligations under this License.
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ARTICLE 6. ENFORCEMENT AND REMEDIES
6.1 Communication and Discussion. The Parties are fully committed to
working with each other throughout the term of this License and agree to communicate
regularly with each other at all times so as to avoid or minimize Disputes. The Parties
agree to act in good faith to prevent and resolve potential sources of conflict before they
escalate into a Dispute The Parties each commit to resolving a Dispute in an amicable,
professional and expeditious manner.
6.2 Remedies. The Parties have the right to seek any and all available
remedies, including without limitation, the following singly or in combination, in the
event of a Breach.
6.2.1 Specific Performance. Each Party shall be entitled to specific
performance of each and every obligation of the other Party under this Permit without
any requirement to prove or establish that such Party does not have an adequate remedy
at law The Parties hereby waive the requirement of any such proof and acknowledge
that either Party would not have an adequate remedy at law for the commission of a
Breach hereunder.
6.2.2 Imunction. Each Party shall be entitled to restrain, by injunction,
an actual or threatened Breach and to obtain a judgment or order specifically prohibiting
a violation or Breach of this License without, in either case. being required to prove or
establish that such Party does not have an adequate remedy at law. The Parties hereby
waive the requirement of any such proof and acknowledge that the other Party would not
have an adequate remedy at law of a Breach hereunder.
6.2 3 Alternative Remedies. Except as otherwise provided herein,
neither the existence of other remedies identified in this License nor the exercise thereof
shall be deemed to bar or otherwise limit the right of the either Party to commence an
action for equitable or other relief, and/or proceed against the other Party and any
guarantor for all direct monetary damages, costs and expenses arising from the Default ,
and to recover all such damages, costs and expenses, including reasonable attorneys'
fees
6.2 4 Damages Except as otherwise provided or limited herein,
commence an action at law for monetary damages or seek other equitable relief.
Remedies are cumulative; the exercise of one shall not foreclose the !
exercise of others. No provision of this License shall be deemed to bar the City from
seeking appropriate judicial relief Neither the existence of other remedies identified in this
License nor the exercise thereof shall be deemed to bar or otherwise limit the right of either
Party to recover monetary damages, as allowed under applicable law, or to seek and obtain
judicial enforcement by means of specific performance, injunctive relief or mandate, or any
other remedy at law or in equity The City specifically does not, by any provision of this
License, waive any right. immunity, limitation or protection otherwise available to the City,
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its officers, officials, City Council, Boards, commissions, agents, or employees under
i federal, state, or local law
6.3 Termination/Revocation THE LICENSEE UNDERSTANDS AND
ACKNOWLEDGES THAT ISSUANCE OF THIS LICENSE BY THE CITY IS
DISCRETIONARY AND THAT THE LICENSE IS TERMINABLE AT WILL BY THE
CITY. THE CITY RESERVES THE RIGHT TO REVOKE OR TERMINATE THE
1 LICENSE, AND ALL RIGHTS, PERMISSIONS, AND PRIVILEGES GRANTED
HEREIN AND PERTAINING THERETO, WITH OR WITHOUT CAUSE.
REVOCATION OR TERMINATION SHALL BE EFFECTED AFTER NINETY (90)
DAYS' WRITTEN NOTICE TO THE LICENSEE OF THE CITY'S INTENT TO
REVOKE OR TERMINATE THE LICENSE
6.4 Assessment of Liquidated Damages.
6 4 1 The Parties explicitly represent that it will be impractical and/or
difficult to ascertain or quantify the amount of damages which may be incurred by the City
as a result of any failure by Licensee to comply, or maintain compliance, with the provisions
of this License as enumerated below, and further acknowledge and agree that the City will
be damaged as a result of such a Breach(es). Therefore, the City and Licensee agree that the
liquidated damages set forth in subsection 6.4 2 are a reasonable estimate of the damages
resulting from a Breach of those provisions of this License set forth as subsection 6 4.2
i herein Such damages shall be the City's sole and exclusive remedy for recovery of
economic loss resulting from such Breach Nothing in this subsection is intended to
preclude the City from exercising any other right or remedy with respect to other losses not
compensated by liquidated damages, including, without limitation, the right to seek specific
performance
I 6.42 Pursuant to the requirements outlined herein, liquidated damages
shall not exceed the following amounts one hundred dollars ($100 00) per day for failure to
comply with the requirements of the following Sections 4 5 (Expu•ation/Termination), 5 3
(Insurance), 5.4 (Financial Security), 7.5.3 (Work Subject to Inspection), 7.7.2 (Facilities
Subject to Inspection), five hundred dollars ($500) per day for the first two (2) days for
failure to comply with the requirements of 7 5.7 (Stop Work Order), and, one thousand
dollars ($1,000) per day for each day thereafter Payment by Licensee of the liquidated
damages shall be due thirty (30) days after the date of the City's notice assessing such
damages. If the Licensee does not make payment within that period, the City may withdraw
I from or make a claim upon the Licensee's bond or letter of credit or cash deposit, the
amount assessed.
I 6.5 Receivership. At the option of the City, subject to applicable law and lawful
orders of courts of jurisdiction, this License or any Permit may be revoked after the
appointment of a receiver or trustee to take over and conduct the business of Licensee
whether in a receivership, reorganization,bankruptcy or other action or proceeding, unless
6.5.1 The receivership or trusteeship is timely vacated; or
1
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6.5.2 The receiver or trustee has timely and fully complied with all the
terms and provisions of this License, and has remedied all defaults under the License.
Additionally, the receiver or trustee shall have executed an agreement duly approved by the
court having jurisdiction, by which the receiver or trustee assumes and agrees to be bound
by each and every term,provision and limitation of this License
ARTICLE 7 CONDITIONS UPON USE OF PUBLIC RIGHTS-OF-WAY ,
7.1 Permits If Licensee has submitted an application for a Permit to perform
work in the Public Rights-of-Way, the City shall, to the extent practicable, consider such
application contemporaneously with the design review requirements hereunder.
7.2 Submission/Approval of Design Submittal
7.2 1 Submission At the time of application for a Permit, or in the event
that Licensee seeks to alter or change the location of the Facilities in the License Area,
Licensee shall provide the City with 100% Design Submittal for review and approval of
any Telecommunications System Construction, alteration or change of location within the
proposed License Area
7.2.2 Use of Public Rights-of-Way Within parameters reasonably related
to the City's role in protecting the public health, safety and welfare and except as may be
otherwise preempted by Law, the City may require that Facilities be installed at a particular
time, at a specific place or in a particular manner as a condition of access to the proposed
License Area and may deny access if Licensee is not willing to comply with such
requirements, and, may remove, or require removal of, any Facility that is not installed in
compliance with the requirements established by the City or which is installed without
prior City approval of the time, place, or manner of installation.
7.2.3 Approval of Plans. Work may not commence without prior
approval by the City of the 100% Design Submittal submitted by the Licensee. The City
may review and approve the Licensee's 100% Design Submittal with respect to.
7.2 3.1 Location/Alignment/Depth;
7.2.3.2 The manner in which the Facility is to be installed,
7.2.3.3 Measures to be taken to preserve safe and free flow of
traffic;
7.2 3.4 Structural integrity, functionality, appearance,
compatibility with and impact upon roadways, bridges, sidewalks, planting strips, street
lights, signals, traffic control signs, intersections, or other facilities and structures in the
Public Rights-of-Way,
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7.2.3.5 Ease of future road maintenance, and appearance of the
roadway;
7.2.3.6 Compliance with applicable Standards and codes; and
7 2.3.7 Compliance and compatibility with the City's six (6)-year
transportation plan, capital improvements plan, and regional transportation improvement
plans.
7.3 Compliance With Standards/Codes. Except as may be preempted by federal
or state Laws, all Facilities shall conform to and all Work shall be performed in
compliance with the following "Standards" as now or may be hereafter revised, updated,
amended or re-adopted
7.3 1 Construction Standards The applicable provisions of the current and
any subsequent edition of the City of Kent Design and Construction Standards,
7 3 2 Road and Bridge Standards. The current and any subsequent
edition of the Standard Specifications for Road. Bridge and Municipal Construction as
prepared by the Washington State Department of Transportation ("WSDOT") and the
Washington State Chapter of American Public Works Association ("APWA"),
7.3 3 MUTCD The Federal Highway Administration Manual of Uniform
Traffic Control Devices ("MUTCD") as amended by the Washington State Department
of Transportation;
7.3.4 Special Conditions. Requirements and standards set forth as special
conditions;
7.3.5 City Regulations. The Kent City Code, including but not limited to
KCC Ch. 6 06, City ordinances, and regulations adopted by the City Engineer or Public
Works Director establishing standards for placement of Facilities in Public Rights-of-
Way, including by way of example and not limitation, the specific location of Facilities in
the Public Rights-of-Way This shall also include any street design standards that the City
shall deem necessary to provide adequate protection to the Public Rights-of-Way, its safe
operation, appearance and maintenance,
7.3.6 Other Re ug latory Requirements Applicable requirements of
federal or state governmental authorities that have regulatory authority over the
placement, construction, or design of Licensee Facilities;
7.3.7 Industry Standards. All Facilities shall be durable and Constructed
1 in accordance with good engineering practices and standards promulgated by the
government and industry for placement, Construction, design, type of materials and
operation of Licensee Facilities,
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7.3.8 Safety Codes and Regulations Licensee Facilities and Work shall
comply with all applicable federal, state and City safety requirements, rules, regulations,
Laws and practices. By way of illustration and not limitation, Licensee shall comply with
the National Electrical Safety Code and the Occupational Safety and Health Administration
(OSHA) Standards, and
73.9 Butldinc Codes Licensee Facilities and Work shall comply with all
applicable City building codes.
74 Conditions Precedent to Work. Except as may be otherwise required by
applicable City code, rule, regulation or Standards, Licensee shall comply with the
following as a condition precedent to Work.
7 4 1 Permits Required. Prior to performing any Work in the Public
Rights-of-Way requiring a permit, Licensee shall apply for, and obtain, in advance, such
appropriate Permits from the City as are required by ordinance or rule Licensee shall pay
all generally applicable and lawful fees for the requisite City Permits
7.4 2 Compliance With License. Licensee shall be in material
compliance with the License, including by way of example and not limitation, payment
of fees invoiced to Licensee for City reimbursable costs and expenses related to review
and approval of the Permit, proof of insurance and proof of financial guarantees
7.5 Work to the Public Rights-of-Way.
7.5 1 Least Interference Work in the Public Rights-of-Way shall be done
in a manner that does not unnecessarily hinder or obstruct the free use of the Public Rights-
of-Way or other public property and which causes the least interference with the rights and
reasonable convenience of property owners, businesses and residents along the Public
Rights-of-Way Licensee Facilities shall be designed, located, aligned and Constructed so
as not to disturb or impair the use or operation of any street improvements, utilities, and
related facilities of City or City's existing lessees, licensees, franchises, easement
beneficiaries or lien holders, without prior written consent of City or the Parties whose
improvements are interfered with and whose consent is required pursuant to agreements
with the City existing prior to the Effective Date Licensee's Facilities shall be designed,
located, aligned and Constructed in such a manner as not to interfere with any planned
utilities For purposes of this Section, "planned" shall mean utilities which the City
intends to construct in the future, which intent is evidenced by the inclusion of said utility
project in the Capital Improvement Program, a comprehensive utility plan, a
transportation improvement plan, the City's Comprehensive Plan, or other written
construction or planning schedules
7.5.2 Prevent Inlurv/Safety. All Construction Work shall be performed
in a manner consistent with high industry standards.
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7 5 3 Work Subject to inspection. The City may observe or inspect the
Construction Work, or any portion thereof, at any time to ensure compliance with the
Utility License, this License, applicable Law, the applicable approved 100% Design
Submittal, the Standards, and to ensure the Work is not being performed in an unsafe or
dangerous manner
7.5.4 Publicving Work.
i7.5.4.1 Notice to Private Property Owners. Except in the case of an
Emergency, Licensee shall give reasonable advance notice to private property owners and
tenants of Construction Work on or adjacent to such private property if the City or Licensee
reasonably anticipates such Work will materially disturb or disrupt the use of such private
property
7 5 4 2 Notice to the Public. Except in the case of an Emergency,
the Licensee shall notify the public prior to commencing any significant planned
Construction that Licensee reasonably anticipates will materially disturb or disrupt public
property or have the potential to present a danger or affect the safety of the public
generally.
7.5 4.3 Additional Requirements Work shall be publicized as the
City may direct, from time to time, in accordance with written procedures established by
the Public Works Director and on file with the City Clerk The publication of Work may
be used to notify the public and operators of other Telecommunications Systems of the
impending Work, in order to minimize inconvenience and disruption to the public. The
icost of publication shall be borne by the Licensee.
7.5.5 Work of Contractors and Subcontractors. Licensee's contractors
1 and subcontractors performing Work in the License Area shall be licensed and bonded in
accordance with the City's and State's applicable regulations and requirements. Any
contractors or subcontractors performing Work within the Public Right-of-Way on behalf
of the Licensee shall be deemed servants and agents of the Licensee for the purposes of
this License and are subject to the same restrictions, limitations and conditions as if the
work were performed by Licensee Licensee shall be responsible for all work performed
by its contractors and subcontractors and others performing work on its behalf as if the
work were performed by it, and shall ensure that all such work is performed in
compliance with this License and other applicable laws, and shall be jointly and severally
1 liable for all damages and correcting all damage caused by them It is Licensee's
responsibility to ensure that contractors, subcontractors or other Persons performing work
on Licensee's behalf are familiar with the requirements of this License and other
applicable laws governing the work performed by them
7.5.6 Emeriency Permits. In the event that Emergency repairs are
necessary, Licensee shall immediately notify the Public Works Director of the need for such
repairs. Licensee may initiate such Emergency repairs, and shall apply for appropriate
Utility Permits within forty-eight (48) hours after discovery of the Emergency. In the event
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of an Emergency, a Licensee may perform Emergency Work in the Public Rights-of-Way
Yp g Y g Y
without first securing a Permit for such Emergency Work, provided that (1) the
Licensee notifies the City in advance of the performance of such Emergency Work and
the type and location of such Work; (2) the Licensee applies for a Permit on the first
business day following commencement of such Work; and (3) the Licensee, at its sole
cost and expense, makes its Work performed in the Public Rights-of-Way available for
inspection to determine compliance with Laws and Standards.
7.5.7 Stop Work On notice from the City that any Work does not comply
with the License, the approved 100% Design Submittal for the Work, the Standards, or
other applicable Law, or is being performed in an unsafe or dangerous manner as
reasonably determined by the City, the non-compliant Work may immediately be stopped
by the City. The stop work order shall be, in writing, given to the Person doing the Work
and be posted on the Work site, indicate the nature of the alleged violation or unsafe
condition, and Establish conditions under which Work may be resumed If so ordered,
Licensee shall cease and shall cause its contractors and subcontractors to cease such
activity until the City is satisfied that Licensee is in compliance if an unsafe condition is
found to exist, the City, in addition to taking any other action permitted under applicable
Law, may order Licensee to make the necessary repairs and alterations specified therein
forthwith to correct the unsafe condition by a time the City establishes The City has the
right to inspect, repair and correct the unsafe condition if Licensee fails to do so, and to
reasonably charge Licensee.
7.5 8 Dedication of City Utilities/Public Improvements. Upon
substantial completion of Construction of the Facilities and any related restoration of or
improvements to or within the Public Rights-of-Way, including without limitation, curbs,
gutters, sidewalks, underlayment, roadway surface, pipe, connectors, catch basins, or any
part thereof that will be dedicated to City ownership (collectively "Dedicated
Improvements"), and upon satisfaction of other applicable conditions of the City and this
License, Licensee shall submit a written request to the City for a final inspection and
acceptance of dedication of all Dedicated Improvements The written request shall
certify that the Work is substantially complete. The Work will be deemed to be
"substantially complete" when
7.5 8.1 Complete record drawings are provided to the City;
7 5.8.2 Licensee has completely and accurately identified within
the record drawings the Dedicated Improvements,
7.5.8.3 The Dedicated Improvements are functioning to the
satisfaction of the City and, when appropriate, operationally tested,
7 5 8.4 Licensee has warranted in writing that the Work is
completed in conformance with the 100% Design Submittal approved by the City; except
for punch list items which do not substantially prevent the use of the Dedicated
Improvements or any component thereof for the purposes intended;
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a
7 5.8 5 No other acts are necessary to assign ownership of any and
all Dedicated Improvements to the City free and clear of all liens and encumbrances;
7 5.8 6 Licensee has assigned to the City any and all manufacturer
warranties of the Dedicated Improvements, if any, and
7.5 8 7 Licensee, or its contractors or subcontractors, warrant the
Dedicated Improvements to be free from defects in design, manufacture and construction
for a period of two (2) years from the date that such Dedicated improvements are
accepted by the City This warranty shall not operate to waive, alter or diminish any
rights the City may otherwise have under this License, at law, or in equity.
Upon receipt of Licensee's request for final inspection and dedication, the
City shall within twenty (20) business days thereafter arrange for a final inspection. If
the City determines that the Work with regard to the Dedicated Improvements is not
substantially complete. it shall promptly provide Licensee with a written statement
indicating in adequate detail in what respects Licensee has failed to substantially
complete the Work or any component thereof or is otherwise in default and what
measures or acts will be necessary, in the opinion of the City, for Licensee to take or
perform in order to substantially complete such Work. Upon receipt of such detailed
statement from the City, Licensee shall undertake to complete the Work, cure the alleged
default in a manner responsive to the stated reasons for disapproval, or Licensee may
submit to Dispute resolution pursuant to Section 6 1 herein, the issue of whether the City
has unreasonably withheld its acceptance
When the City is satisfied that the Work related to the Dedicated
Improvements is substantially complete, it will by ordinance, resolution or other lawful
means accept ownership of such Dedicated Improvements and thereafter become
responsible for maintenance, repair, and replacement of the same.
7.6 Alterations Except as may be shown in the 100% Design Submittal
approved by the City or the record drawings, or as may be necessary to respond to an
Emergency, Licensee, and Licensee's contractors and subcontractors, may not make any
material alterations to the License Area, or permanently affix anything to the License
Area, without City's prior written consent. Material alteration shall include by way of
example and not limitation, a change in the dimension or height of the above ground
Facilities or the addition of or change in configuration of an antenna If Licensee desires
to change either the location of any Facilities or otherwise materially deviate from the
approved design of any of the Facilities, Licensee shall submit such change to City in
writing for its approval pursuant to Section 7 2 of this License Licensee shall have no
right to commence any such alteration change until after Licensee has received City's
approval of such change in writing.
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77 General Conditions.
7 7 1 Right-of-Way Meetings Subject to receiving advance notice,
Licensee will make reasonable efforts to attend and participate in meetings of the City
regarding Right-of-Way issues that may impact the Telecommuncations System
7.7 2 Compliance Inspection. Licensee's Facilities shall be subject to
the City's right of periodic inspection upon at least twenty-four (24) hours' notice, or, in
case of an Emergency, upon demand without prior notice, to determine compliance with
the provisions of this License or Permit or other applicable Law over which the City has
jurisdiction Licensee shall respond to requests for information regarding its
Telecommunications System as the City may from time to time issue to determine
compliance with this License, including requests for information regarding the Licensee's
plans for Construction and the purposes for which the Facility is being Constructed.
7 7.3 One Call. If Licensee places Facilities underground, Licensee shall,
at its own expense, continuously be a member of the State of Washington one number
locator service under Ch 19 t22 RCW, or an approved equivalent, and shall comply with
all such applicable rules and regulations. The Licensee shall locate and field mark its
Facilities for the City at no charge
7.7 4 Graffiti Removal Within forty-eight (48) hours after notice from
the City, Licensee shall remove any graffiti on any part of its Telecommunications
System, including, by way of example and not limitation, equipment cabinets If
Licensee fails to do so, the City may remove the graffiti and bill the Licensee for the
reasonable cost thereof
7 7.5 Dangerous Conditions, Authority for City to Abate. Whenever
Construction of Facilities has caused or contributed to a condition that appears to
substantially impair the lateral support of the adjoining Public Right-of-Way, street and
appurtenances, or public place, or endangers the public, any utilities, or City-owned
property, the City may reasonably require the Licensee to take action to protect the Public
Right-of-Way, the public, adjacent public places, City-owned property, streets, and
utilities Such action may include compliance within a prescribed time In the event that
the Licensee fails or refuses to promptly take the actions directed by the City, or fails to
fully comply with such directions, or if Emergency conditions exist which require
immediate action, the City may, to the extent it may lawfully do so, take such actions as
are necessary to protect the Public Right-of-Way, the public, adjacent public places, City-
owned property, streets, and utilities, to maintain the lateral support thereof, or actions
regarded as necessary safety precautions; and the Licensee shall be liable to the City for
the reasonable costs thereof.
7.7.6 No Duty. Notwithstanding the right of the City to inspect the
Work, issue a stop work order, and order or make repairs or alterations, the City has no
duty or obligation to observe or inspect, or to halt work on, the applicable Facilities, it
being solely Licensee's responsibility to ensure that the Facilities are Constructed and
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operated in strict accordance with this License, the approved 100% Design Submittal, the
Standards, and applicable Law Neither the exercise nor the failure by City to exercise
any right set forth in this Article 7 shall alter the liability allocation set forth in this
License.
7.7.7 Roadside Hazard. All of Licensee's Facilities shall be kept by
Licensee at all times in a safe and hazard-free condition. Licensee shall ensure that
Facilities within the Public Rights-of-Way do not become or constitute an unacceptable
roadside obstacle and do not interfere with or create a hazard to maintenance of and along
the Public Rights-of-Way In such event, or in the event that the City determines that a
Facility within the Public Rights-of-Way has become or constitutes an unacceptable
roadside obstacle or may interfere with or create a hazard to maintenance of and along
the Public Rights-of-Way, the Licensee shall
7.7.7.1 If the hazard results from disrepair, repair the Facility to a
safe condition;
7.7.7.2 Relocate the Facility to another place within the Public
Right-of-Way or underground,
7.7.7.3 Convert the Facility to a break-away design,
7.7.7.4 Crash-protect the Facility,
7.7.7.5 Relocate the Facility to another location off the Public
Rights-of-Way; or
7.7.7.6 to the event that the Facility is screened from view (i e , not
readily visible from all directions by persons standing at ground level), remove or trim
vegetation in and around the Facility.
Licensee, at all times, shall employ the standard of care attendant to the
risks involved and shall install and maintain in use commonly accepted methods and
devices for preventing failures and accidents which are likely to cause damage, injury, or
nuisance to the public or to Licensee's agents or employees. Licensee, at its own
expense, shall repair, renew, change, and improve its Facilities from time to time as may
be necessary to accomplish this purpose Any activities within the Public Rights-of-Way
shall obtain the appropriate permits per subsection 7 4.1 above Licensee shall use
suitable barricades, flags, flaggers, lights, flares and other measures as required for the
safety of all members of the general public and to prevent injury or damage to any
person, vehicle or property by reason of such Work in or affecting such Public Rights-of-
Way or property. All excavations made by Licensee in the Public Rights-of-Way shall be
properly safeguarded for the prevention of accidents.
7.7.8 Verification of Alignment/Depth. Upon the reasonable request and
prior written notice, in non-Emergency situations at least thirty (30) days notice by the
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City and in order to facilitate the location, alignment and design of Public Improvements,
the Licensee agrees to locate, and if reasonably determined necessary by the City, to
excavate and expose portions of its Facilities for inspection so that the location of same
may be taken into account in the improvement design; PROVIDED that, Licensee shall
not be required to excavate and expose its Facilities unless the Licensee's record
drawings and maps of its Facilities submitted pursuant to Section 7 11 of this License are
reasonably determined by the City to be inadequate for purposes of this paragraph.
7.8 Facility Relocation at Request of the City. 1
7.8.1 Public Project. The City may require Licensee to alter, adjust,
relocate, or protect in place its Facilities within the Public Right-of-Way at Licensee's
sole cost and expense when reasonably necessary for construction, alteration, repair,
expansion, or improvement of any portion of the Public Rights-of-Way for purposes of
public welfare, health, or safety ("Public Improvements"). Such Public Improvements
include, by way of example but not limitation, Public Rights-of-Way construction; Public
Rights-of-Way repair (including resurfacing or widening), change of Public Rights-of-
Way grade; construction, installation or repair of sewers, drains, water pipes, power lines,
signal lines, communication lines, or any other type of government-owned
communications, utility or public transportation systems, public work, public facility, or
improvement of any government-owned utility, Public Rights-of-Way vacation, and the
construction of any public improvement or structure by any governmental agency acting
in a governmental capacity.
7.8.2 Alternatives. If the City requires Licensee to relocate its Facilities
located within the Public Rights-of-Way, the City shall make a reasonable effort to
provide Licensee with an alternate location within the Public Rights-of-Way. The
Licensee may, after receipt of written notice requesting a relocation of its Facilities,
submit to the City written alternatives to such relocation. The City shall evaluate such
alternatives and advise the Licensee in writing if one or more of the alternatives are
suitable to accommodate the Work that would otherwise necessitate relocation of the
Facilities If so requested by the City, Licensee shall submit additional information to
assist the City in making such evaluation The City shall give each alternative proposed
by the Licensee full and fair consideration, within a reasonable time, so as to allow for
the relocation work to be performed in a timely manner In the event the City ultimately
determines, in its sole discretion, that there is no other reasonable alternative, the
Licensee shall relocate its Facilities as otherwise provided in this Section. In the event
that the City reasonably determines that it does not have available resources to evaluate
Licensee's proposal, the City shall not be obligated to further consider such proposal
unless and until the Licensee funds the additional costs to the City to complete its
evaluation
7.8.3 Notice The City shall notify Licensee as soon as practicable of
the need for relocation and shall specify the date by which relocation shall be completed.
Except in case of Emergency such notice shall be no less than ninety (90) calendar days.
In calculating the date that relocation must be completed, City shall consult with Licensee
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and consider the extent of Facilities to be relocated, the Service requirements, and the
construction sequence for the relocation, within the overall project construction sequence
and constraints, to safely complete the relocation Licensee shall complete the relocation
by the date specified, unless the City, or a reviewing court, establishes a later date for
completion, after a showing by the Licensee that the relocation cannot be completed by
the date specified using best efforts and meeting safety and Service requirements
i 7.8 5 Coordination of Work. Licensee acknowledges and understands
that any delay by Licensee in performing the work to alter, adjust, relocate, or protect in
place it's Facilities within the Public Rights-of-Way may delay, hinder, or interfere with
the work performed by the City and its contractors and subcontractors in furtherance of
construction, alteration, repair, or improvement of the Public Rights-of-Way, and may
result in damage to the City, including but not limited to, delay claims Licensee shall
cooperate with the City and its contractors and subcontractors to coordinate such
Licensee Work to accommodate the public improvement project and project schedules to
avoid delay, hindrance of, or interference with such project.
7.8 6 Failure to Comply. Should Licensee fail to alter, adjust, protect in
place or relocate any Facilities ordered by the City to be altered, adjusted, protected in
place, or relocated, within the time prescribed by the City, given the nature and extent of
the work, or if it is not done to the City's reasonable satisfaction, the City may, to the
extent the City may lawfully do so, cause such work to be done and bill the reasonable
cost of the work to the Licensee, including all reasonable costs and expenses incurred by
the City due to Licensee's delay In such event, the City shall not be liable for any
damage to any portion of Licensee's Telecommunications System. In addition to any
other indemnity set forth in this License, the Licensee will indemnify, hold harmless, and
pay the costs of defending the City, from and against any and all claims, suits, actions,
damages, or liabilities for delays on Public Improvement construction projects caused by
or arising out of the failure of the Licensee to adjust, modify, protect in place, or relocate
its Facilities in a timely manner; provided that, the Licensee shall not be responsible for
damages due to delays caused by the City
7.8.7 Assignment of Rights. In addition to any other rights of assignment
the City may have, the City may from time to time assign or transfer to its contractors or
subcontractors its rights under Sections 7 8 or 7 10 of this License to require Licensee to
alter, adjust, relocate, or protect in place its Facilities within the Public Rights-of-Way.
Licensee acknowledges and consents to such an assignment(s)/transfer(s) and agrees that it
is bound by all lawful orders issued by such assignee(s) of the City under color of authority
of such assignment(s)/transfer(s) as though such orders had been issued by the City under
the terms and conditions of this License Such assignment/transfer is an assignment/transfer
of the City's contract rights under this License and shall not in any way be interpreted or
construed as an assignment, transfer, delegation or relinquishment of the City's rights under
its police powers to require Licensee to alter, adjust, relocate, or protect in place its
Facilities within the Public Rights-of-Way.
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7.8.8 Reimbursement for Costs. Notwithstanding the cost allocation
provisions set forth in this License, Licensee does not waive its right(s) to and shall be
entitled to seek reimbursement of its relocation costs as may be otherwise specifically set
forth and authorized in statute.
7.9 Movement of FaClhtles for Others
79.1 Private Benefit If any alteration, adjustment, temporary
relocation, or protection in place of the Telecommunications System is required solely to
accommodate the construction of facilities or equipment that are not part of a Public
Improvement project, Licensee shall, after at least ninety (90) days advance written notice,
take action to effect the necessary changes requested by the responsible entity, provided
that, (a) the Party requesting the same pays for the Licensee's time and material costs
associated with the requested work; (b) the alteration, adjustment, relocation or protection in
place is reasonably necessary to accommodate such work, (c) the Person requesting the
alteration, adjustment, relocation, or protection in place considers alternatives in the same
manner as provided at subsection 7 8 2, and (d) such alteration, adjustment, or relocation is
not requested for the purpose of obtaining a competitive advantage over the Licensee.
7.9.2 Temporary Changes for Other Licensees. At the request of any
Person holding a valid permit and upon reasonable advance notice, Licensee shall
temporarily raise, lower or remove its wires as necessary to permit the moving of a building,
vehicle, equipment or other item The expense of such temporary changes must be paid by
the permit holder Licensee shall be given not less than seven (7) days' advance notice to
arrange for such temporary wire changes.
7.10 Movement of Facilities During Emer ee ncies.
7.10 1 Immediate Threat In the event of an unforeseen event, condition
or circumstance that creates an immediate threat to the public safety, health, or welfare,
the City shall have the right to require Licensee to shut down, relocate, remove, replace,
modify, or disconnect Licensee's Facilities located in the Public Rights-of-Way at the
expense of the Licensee without regard to the cause or causes of the immediate threat.
7.10.2 Emergency. In the event of an Emergency, or where a Facility
creates or is contributing to an imminent danger to health, safety, or property, the City
retains the right and privilege to protect, support, temporarily disconnect, remove, or
relocate any or all parts of the Telecommunications System located within the Public
Rights-of-Way, as the City may determine to be necessary, appropriate or useful in
response to any public health or safety Emergency and charge the Licensee for costs
incurred.
7.10 3 Notice During Emergencies the City shall endeavor to, as soon as
practicable, provide notice to Licensee of such Emergency at a designated Emergency
response contact number, to allow Licensee the opportunity to respond and rectify the
problem without disrupting utility service If after providing notice, there is no immediate
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response, the City may protect, support, temporarily disconnect, remove, or relocate any
or all parts of the Telecommunications System located within the Public Rights-of-Way.
7.10 4 Limitation on Liability. The City shall not be liable for any direct,
indirect, or any other such damages suffered by any person or entity of any type as a
direct or indirect result of the City's actions under this Section.
i 7.11 Record of Installations.
7.11.1 Map/Record Drawinis of Telecommunications System. Upon
request by the City, Licensee shall search for and provide the City with the most accurate
and available maps and record drawings in a form and content prescribed by the City
reflecting the horizontal and vertical location and configuration of its
Telecommunications System within the Public Rights-of-Way and upon City property
and shall include hard copies and digital copies in a format acceptable to the City.
Licensee shall provide the City with updated record drawings and maps upon request.
7.11.2 Planned Improvements. Upon written request of the City,
Licensee shall provide the City with the most recent update available of any planned
improvements to its Telecommunications System to the extent such plans do not contain
confidential or proprietary information or such information can be redacted; provided,
however, any such plan submitted shall be for informational purposes only and shall not
obligate Licensee to undertake any specific improvements, nor shall such plan be
construed as a proposal to undertake any specific improvements.
7.11.3 Maps/Record Drawings of Improvements. After Construction
involving the locating or relocating of Facilities, the Licensee shall provide the City with
reasonably accurate copies of all record drawings and maps showing the horizontal and
vertical location and configuration of all of located or relocated Facilities within the
Public Rights-of-Way These record-drawings and maps shall be signed and stamped by
a licensed professional land surveyor and shall also be provided at no cost to the City,
and shall include hard copies and digital copies in a format specified by the City As to
any such record drawings and maps so provided, Licensee warrants the accuracy thereof.
7.12 Restoration of Public Rights-of-Way, Public and Private Property.
7 12.1 Restoration After Construction. Licensee shall, after completion of
Construction of any part of its Telecommunications System, leave the Public Rights-of-
Way and other property disturbed thereby, in as good or better condition in all respects as
it was in before the commencement of such Construction. Licensee agrees to promptly
complete restoration work to the reasonable satisfaction of the City
7.12.2 Notice. If Licensee's Work causes unplanned, unapproved. or
unanticipated disturbance of or alteration or damage to Public Rights-of-Way or other public
or private property, the Licensee shall promptly notify the property owner within twenty-
four(24) hours
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7 12 3 Duty to Restore If Licensee's Work causes unplanned, unapproved,
or unanticipated disturbance of or alteration or damage to the Public Right-of-Way or other
public property, it shall promptly remove any obstructions therefrom and restore such
Public Right-of-Way and public property to the satisfaction of the City to as good or
better a condition as existed before the Work was undertaken, unless otherwise directed
by the City If the City determines that complete or satisfactory restoration is not
obtainable, the City shall have the right to require compensation for the less than
complete or satisfactory condition of the Public Right-of-Way or public property
Licensee shall complete the restoration work within forty-eight (48) hours or as authorized
by the City's Public Works Director
7.12 4 Temporary Restoration if weather or other conditions do not j
allow the complete restoration required by this Section, Licensee shall temporarily restore
the affected Public Right-of-Way or public property. Licensee shall promptly undertake
and complete the required permanent restoration when the weather or other conditions no
longer prevent such permanent restoration
7 12.5 Survey Monuments All survey monuments which are disturbed or ,
displaced by any Work shall be referenced and restored, as per WAC 332-120, as the
same now exists or may hereafter be amended, and all pertinent federal, state and local
standards and specifications.
7.12.6 Approval. The Public Works Director, or his/her designee, shall be
responsible for observation and final approval of the condition of the Public Rights-of-
Way and City property following any restoration activities therein. Licensee is
responsible for all testing and monitoring of restoration activities.
7.12 7 Warranty. Licensee shall warrant any restoration work performed by
Licensee in the Public Right-of-Way or on other public property for two (2) years, unless a
longer penod is required by City Code or any generally applicable ordinance or resolution of
the City or pursuant to the Construction Standards If restoration is not satisfactorily and
timely performed by the Licensee, the City may, after prior notice to the Licensee, or
without notice where the disturbance or damage may create a risk to public health or safety,
cause the repairs to be made and recover the reasonable cost of those repairs from the
Licensee Within thirty (30) days of receipt of an itemized list of those costs, including the
costs of labor, materials and equipment, the Licensee shall pay the City.
7.12 8 Restoration of Private Property. When Licensee does any Work in '
the Public Right-of-Way that affects, disturbs, alters, or damages any adjacent private
property, it shall, at its own expense, be responsible for restoring such private property to
the satisfaction of the private property owner.
7 13 Approvals Nothing in this License shall be deemed to impose any duty or
obligation upon the City to determine the adequacy or sufficiency of Licensee's Design
Documents or to ascertain whether Licensee's proposed or actual Construction is
adequate or sufficient or in conformance with the 100% Design Submittal reviewed and
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approved by the City No approval given, inspection made, review or supervision
performed by the City pursuant to or under authority of this License shall constitute or be
construed as a representation or warranty express or implied by the City that such item
reviewed, approved, inspected, or supervised, complies with applicable Laws or this
License or meets any particular Standard, code or requirement, or is in conformance with
the approved 100%, Design Submittal, and no liability shall attach with respect thereto.
City approvals and inspections as provided herein, are for the sole purpose of protecting
the Crty's rights as the owner and/or manager of the Public Rights-of-Way and shall not
constitute any representation or warranty, express or implied, as to the adequacy of the
design or Construction of the Facilities or Telecommunications System, suitability of the
License Area for Construction, or any obligation on the part of the City to insure that
Work or materials are in compliance with any requirements imposed by a governmental
entity City is under no obligation or duty to supervise the design, Construction, or
operation of the Telecommunications System.
7.14 Abandonment of Facilities. Except as may be otherwise provided by Law,
Licensee may abandon in place any Facilities in the Public Rights-of-Way by providing
the City written notice of its intent, which notice shall include a description of the
Facilities it intends to abandon, the specific location in the Public Rights-of-Way of such
Facilities, and the condition of such Facilities If the City provides its written approval of
the proposed abandonment, Licensee may, within sixty (60) days of receipt of the City's
written approval to abandon Facilities in place, execute such documents as may be
required to convey such abandoned property to the City free and clear of all
encumbrances Absent such request and conveyance, Licensee shall be and remain
responsible for any Facilities abandoned in the Public Rights-of-Way.
` ARTICLE 8 MISCELLANEOUS
8.1 Headings. Titles to articles and sections of this License are not a part of
this License and shall have no effect upon the construction or interpretation of any part
hereof
82 Entire Agreement. The written provisions and terms of this License,
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 party of or altering in any manner this
License
8.3 Incorporation of Exhibits All Exhibits annexed hereto at the time of
execution of this License or in the future as contemplated herein, are hereby incorporated
by reference as though fully set forth herein
8.4 Calculation of Time. All periods of time referred to herein shall include
Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last
day of any period falls on any Saturday, Sunday, or legal holiday in the State of
Washington, the period shall be extended to include the next day which is not a Saturday,
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i
Sunday, or legal holiday in the State of Washington; provided that, the Effective Date
shall be determined as provided at Section 4.3 of this License
8.5 Time Limits Strictly Construed. Whenever this License sets forth a time for
any act to be performed by Licensee, such time shall be deemed to be of the essence, and
any failure of Licensee to perform within the allotted time may be considered a Breach of
this License
8.6 No Joint Venture. It is not intended by this License to, and nothing
contained in this License shall, create any partnership, joint venture, or principal-agent
relationship or other arrangement between Licensee and the City. Neither Party is
authorized to, nor shall either Party act toward third Persons or the public in any manner
which would indicate any such relationship with the other. The Parties intend that the
rights, obligations, and covenants in this License and the collateral instruments shall be
exclusively enforceable by the City and Licensee, their successors, and assigns No term
or provision of this License is intended to be, or shall be, for the benefit of any Person not
a Party hereto, and no such Person shall have any right or cause of action hereunder,
except as may be otherwise provided herein. Further, the Licensee is not granted any
express or implied right or authority to assume or create any obligation or responsibility on
behalf of or in the name of the City Nothing in this Section 8 6 shall be construed to
prevent an assignment as provided for at subsection 7.8.7 of this License.
8.7 Approval Authority. Except as may be otherwise provided by Law or
herein, any approval or authorization required to be given by the City, shall be given by
the Public Works Director (or his or her successor), or by the Public Works Director's
designee.
88 Binding Effect Upon Successors and Assigns. All of the provisions,
conditions, and requirements contained in this License shall further be binding upon the
heirs, successors, executors, administrators, receivers, trustees, legal representatives and
assigns of the Licensee; and, all privileges, as well as all obligations and liabilities of the
Licensee shall inure to its heirs, successors, and assigns equally as if they were '
specifically mentioned wherever the Licensee is named herein
8.9 Waiver. No failure by either Party to insist upon the performance of any
of the terms of this License or to exercise any right or remedy consequent upon a Breach
thereof, shall constitute a waiver of any such Breach or of any of the terms of this
License None of the terms of this License to be kept, observed or performed by either
Party, and no Breach thereof, shall be waived, altered or modified except by a written
instrument executed by the injured Party. No waiver of any Breach shall affect or alter
this License, but each of the terms of this License shall continue in full force and effect
with respect to any other then existing or subsequent Breach thereof No waiver of any
default of the defaulting Party hereunder shall be implied from any omission by the
injured Party to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the default specified in
the express waiver and then only for the time and to the extent therein stated. One or
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more waivers by the injured Party shall not be construed as a waiver of a subsequent
Breach of the same covenant, term or conditions
8 10 Severabihty If any word, article, section, subsection, paragraph, provision,
condition, clause, sentence, or its application to any person or circumstance (collectively
referred to as '`Tenn"), shall be held to be illegal, invalid, or unconstitutional for any
reason by any court or agency of competent jurisdiction, such Term declared illegal,
invalid or unconstitutional shall be severable and the remaining Terms of the License
shall remain in full force and effect unless to do so would be inequitable or would result
in a material change in the rights and obligations of the Parties hereunder, provided,
however, that if either Licensee or the City prevails in any proceeding seeking a finding
that any Term invalid, illegal or unconstitutional for any reason, this License shall be
declared terminated and all rights and obligations hereunder shall immediately cease and
be of no force and effect except with regard to those provisions that survive termination
of this License pursuant to Section 8 14 herein In the event that such Term shall be held
or otherwise mutually agreed to by the City and Licensee to be illegal, invalid, or
unconstitutional, the Parties shall reform the License pursuant to Section 3 5 herein
8 11 Suns. No signs or advertising shall be permitted in the License Area except
as may be required by Law or as may be required by the City for the protection of the
public health, safety and welfare, to the extent it has authority to do so
8.12 Discriminatory Practices Prohibited. Throughout the term of this License,
Licensee shall fully comply with all equal employment and nondiscrimination provisions of
applicable Law
8.13 Notice Any notice required or permitted to be given hereunder shall be in
writing, unless otherwise expressly permitted or required, and shall be deemed effective
either, (i) upon hand delivery to the person then holding the office shown on the attention
line of the address below, or, if such office is vacant or no longer exists, to a person
holding a comparable office, or (ii) or when delivered by a nationally recognized
overnight mail delivery service, to the Party and at the address specified below, or(in) on
the third business day following its deposit with the United States Postal Service, first
class and certified or registered mail, return receipt requested, postage prepaid, properly
sealed and addressed as follows-
Licensee's address: **
And to: **
1 The City's Address: City of Kent
Attn: Chief Administrative Officer
220 Fourth Avenue South
Kent, WA 98032
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And to the City Attorney: Office of the City Attorney
Attn: City Attorney
220 Fourth Avenue South
Kent, WA 98032
The City and Licensee may designate such other address from time to time by giving ,
written notice to the other, but notice cannot be required to more than two addresses,
except by mutual agreement
8 14 Survival of Terms Upon the expiration, termination, revocation or
forfeiture of the License, the Licensee shall no longer have the right to occupy the
License Area for the purpose of providing Services authorized herein However, the
Licensee's obligations under this License to the City shall survive the expiration,
termination, revocation or forfeiture of these rights according to its terms for so long as
the Licensee's Telecommunications System or any part thereof shall remain in whole or
in part in the Public Rights-of-Way, the Licensee Transfers ownership of all Facilities in
the License Area to a third-Party, or the Licensee abandons said Facilities in place, all as
provided herein Said obligations include, by way of illustration and not limitation,
Licensee's obligations to indemnify, defend, and protect the City, to provide insurance, to
relocate its facilities, and to reimburse the City for its costs to perform Licensee work
8.15 Force Majeure. In the event Licensee is prevented or delayed in the
performance of any of its obligations herein due to circumstances beyond its control or by
reason of a force majeure occurrence, such as, but not limited to, acts of God, acts of
terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes,
unusually severe weather conditions, employee strikes and unforeseen labor conditions '
not attributable to Licensee's employees. Licensee shall not be deemed in Breach of
provisions of this License.
If Licensee believes that circumstances beyond its control or by reason of a force
majeure occurrence have prevented or delayed its compliance with the provisions of this
License, Licensee shall provide documentation as reasonably required by the City to
substantiate the Licensee's claim. Licensee shall have a reasonable time, under the
circumstances, to perform the affected obligation under this License or to procure a
substitute for such obligation which is satisfactory to the City, provided that, the Licensee
shall perform to the maximum extent it is able to perform and shall take reasonable steps
within its power to correct such cause(s) in as expeditious a manner as possible, provided
that the Licensee takes immediate and diligent steps to bring itself back into compliance
and to comply as soon as possible under the circumstances with the License without
unduly endangering the health, safety, and integrity of the Licensee's employees or
property, or the health, safety, and integrity of the public, Public Rights-of-Way, public
property, or private property.
8.16 Attorneys' Fees. In the event a suit, action, arbitration, or other proceeding
of any nature whatsoever, whether in contract or in tort or both, is instituted to enforce
any word, article, section, subsection, paragraph, provision, condition, clause or sentence
ISMS-LicenseAgmnt-0302I OCouncilPacket.doc 36
t
of this License or its application to any person or circumstance, the prevailing Party shall
be entitled to recover from the losing Party its reasonable attorneys, paralegals,
accountants, and other experts fees and all other fees, costs, and expenses actually
incurred and reasonably necessary in connection therewith, as allowed by Washington
law and as determined by the judge or arbitrator at trial or arbitration, as the case may be,
or on any appeal or review, in addition to all other amounts provided by law This
provision shall cover costs and attorneys' fees related to or with respect to proceedings in
Federal Bankruptcy Courts, including those related to issues unique to bankruptcy law.
This provision shall not apply to Dispute resolution proceedings under Section 6 1 of this
License and shall not apply to the extent that the suit, action, arbitration or other proceeding
is brought to interpret any term, condition, provision, section, article or clause of this
License
8.17 Venue/Choice of Law. This License 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 License,
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
8 18 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.
IN WITNESS WHEREOF, this License has been executed by the City as of the last
date set forth below (Effective Date)
CITY OF KENT
Suzette Cooke,Mayor
Dated
Michael Carrington, Director
Information Technology Department
Dated:
ISMS-LicenseAgmnt-0302 I OCouncilPacket.doc 37
Approved as to form:
Chns Bacha,
Kenyon Disend, PLLC
Special Counsel
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1 TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS
ARTICLE 2. LICENSE GRANT
2.1 Public Rights-of-Way Use Authorized
2.2 Authonzed Services
23 No Rights Shall Pass to Licensee v Implication
2.4 Interest in the Public Rights-of-Way
2.5 Condition of License Area
2.6 License Nonexclusive
2.7 Transfer
2.8 Street Vacation
29 Railroad Rights-of-Way
2 10 Reservation of City Use of Public Right-of-Way
ARTICLE 3 COMPLIANCE WITH LAWS/ORDER OF PRECEDENCE
3.1 Compliance With Laws
3.2 Police Powers
1 33 Alteration of Material Terms and Conditions
34 Reservation of Rights/Waiver
3.5 Subsequent Action
3.6 Change in Form of Government
37 Order of Precedence
' ARTICLE 4. ACCEPTANCE
4.1 Acceptance
4.2 Timely Acceptance
4.3 Effective Date Term
44 Effect of Acceptance
4.5 Effect of Expiration/Termination
ARTICLE 5 PROTECTION OF THE CITY AND PUBLIC
5.1 Limitation of Liability
5.2 Environmental Liability- Attached Exhibit C
5.3 Insurance Requirements - Attached Exhibit D
5.4 Financial Security - Attached Exhibit E
5.5 Parental Guarantee - Intentionally Deleted
56 Contractors/Subcontractors - Attached Exhibit F
5.7 Liens
1 5 8 Financial Conditions
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ARTICLE 6. ENFORCEMENT AND REMEDIES
61 Communication and Discussion
62 Remedies
63 Tenn ination/Revocation
6.4 Assessment of Liquidated Daman
6.5 Receivership
ARTICLE 7 GENERAL CONDITIONS UPON USE OF PUBLIC RIGHTS-OF-WAY
7.1 Permits `
7.2 Submission/Approval of Design Submittal
7.3 Compliance With Standards/Codes
74 Conditions Precedent to Work
75 Work in the Public Rights-of-Way
7.6 Alterations
7.7 General Conditions
78 Facility Relocation at Request of the City
7.9 Movement of Facilities for Others
7.10 Movement of Facilities DunngFmergencies
7 11 Record of Installations
7 12 Restoration of Public Rights-of-Way, Public and Private Property
713 Approvals
7.14 Abandonment of Facitties
ARTICLE 8. MISCELLANEOUS ,
8.1 Headings
8.2. Entire Agreement
8.3 Incorporation of Exhibits
8.4 Calculation of Time
8.5 Time Limits Strictly Construed
8.6 No Joint Venture
8.7 Approval Authority
8.8 Binding Effect Upon Successors and Assigns
89 Waiver
8.10 Severabilhty
8.11 Signs
8 12 Disenminatory Practices Prohibited
8.13 Notice
8 14 Sury ival of Terns
8 15 Force Maleure
8.16 Attorneys' Fees
8.17 Venue/Choice of Law
8 18 Recyclable Materials
ISMS-LicenseAgmnt-030210CouncilPacket doe 40
I
EXHIBITS:
A. License Area
B Form of Acceptance of License
C Environmental Indemnity
D Insurance Requirements
E. Financial Security
F. Contractor/Subcontractor Insurance Requirements
ISMS-LicenseAgmnt-030210Counci]Packet.doc 41
EXHIBIT "A"
(License Area)
The License Area shall consist of all of the Public Rights of Way lying with the
jurisdictional boundaries of the City, including any areas annexed by the City during the
term of this License.
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EXHIBIT "B"
(Acceptance of License)
License issued , 20 ,
I, am the
and (am the authorized representative to) accept the above-referenced License on behalf
of . I certify that this License and all terms and
conditions thereof are accepted by , without qualification or
reservation and that unconditionally guarantee(s)
performance of all such terms and conditions
DATED this day of 20
By
Its
Tax Payer ID#
STATE OF
ss.
CITY OF
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it (as the
of I a
corporation,) to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument
Dated this day of
(Signature of Notary)
Print Name
Notary public in and for the state of
, residing at
My appointment expires
ISMS-LicenseAgmnt-0302 I OCouncilPacket.doc 43
EXHIBIT "C"
(Environmental Indemnity)
1 Duty to Indemmfy/Release/Defend Licensee assumes the risk that
Hazardous Substances or other adverse matters may affect the License Area that were not
revealed by Licensee inspection and indemnifies, holds harmless and hereby waives,
releases and discharges forever the City and City's officers, employees and agents
(collectively, Andemnitees") from any and all present or future claims or demands, and
any and all damages, losses, injuries, liabilities, causes of actions (including, without
limitation, causes of action in tort) costs and expenses (including, without limitation
fines, penalties and judgments, and attorneys' fees) of any and every kind or character,
known or unknown, which Licensee might have asserted or alleged against Indemmtees
ansmg from or in any way related to the Condition of the License Area or alleged
presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or
other handling of any Hazardous Substances in, on or under the License Area (the
"Licensee Losses") Licensee Losses shall include without limitation (a) the cost of any
investigation, removal, or Remedial Action (defined below) that is required by any
Environmental Law, that is required by judicial order or by order of or agreement with
any governmental authority, or that is necessary or otherwise reasonable under the
circumstances, (b) losses for injury or death of any person, and (c) losses ansmg under
any Environmental Law enacted after the date hereof Except as may be limited below,
Licensee Losses specifically include losses sustained by Licensee as a result of any
obligation of Licensee to remove, close, Remediate, reimburse or take other actions
requested or required by any governmental agency concerning any Hazardous Substances
! on the License Area Notwithstanding the above, Licensee Losses waived, released, and
discharged hereunder by Licensee shall not include losses as a result of releases or
contamination caused by the acts of the City after the Effective Date The rights, duties
and obligations of the City and Licensee pursuant to Sections 2 and 3 herein apply to the
duty to indemnify and defend as provided in this Section 1.
2. Discovery Within License Area In the event that the Work of the
Licensee in, on, and upon the License Area results in the discovery of the presence of
Hazardous Substances ("Discovered Matters") in, on or upon the areas excavated or
otherwise opened or exposed by Licensee within the License Area (the "Excavated
Areas"), the Licensee shall immediately notify the City and take whatever other
reporting action is required by applicable Environmental Law as it relates to the
Discovered Matters in the Excavated Areas. in the event that, as a result of such
discovery, an agency with jurisdiction to address Hazardous Substances in, on or upon
the License Area ("Environmental Authority") orders, obtains a judgment or court
order requiring, or otherwise exercises its authority to require Remedial Actions to be
taken by the City or Licensee, or Licensee decides to undertake Remedial Actions
independently or enter into a consent order or consent decree with an Environmental
Authority, then in such event, Licensee agrees to indemnify, defend, and hold the City
harmless from and against the cost of all Remedial Actions which are required by the
Environmental Authority within the Excavated Areas under the applicable Environmental
Laws with respect to the Discovered Matters; provided, however, the City, subject to the
ISMS-LicenseAgmnt-030210CouncilPacket doe 44
provisions of Section 3 below, shall be solely responsible for all necessary Remedial
Actions which are required by the Environmental Authority within other portions of the
License Area (outside the Excavated Areas) under the applicable Environmental Laws
with respect to the Discovered Matters
3. Release by Licensee. In the event the Licensee's Work, in, on or upon the
License Area within the Excavated Areas results in a release (as determined under
applicable Environmental Laws) of Hazardous Substances which were, before such
activities, confined to areas within the Excavated Areas, but which after such activities by
Licensee are released beyond the Excavated Areas, and if the release is caused in whole
or in part by the Licensee, then the Licensee shall indemnify, defend and hold the City
harmless from the costs of all necessary Remedial Actions which are required under the
applicable Environmental Laws, to the extent of Licensee's share of the liability for the
release. Licensee's liability for the release may, inter alia, be determined by Licensee's
admission of the same, or as determined by a final non-appealable decision by a court of
competent jurisdiction, or as provided in a final non-appealable administrative order
issued by the Environmental Authority, or by a consent decree entered by Licensee and
the Environmental Authority.
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EXHIBIT "D"
(Insurance Requirements)
1 General Requirement. Commencing upon issuance of the first Permit under
this License, Licensee must have adequate insurance at all times while Licensee owns or
operates Facilities in the Public Rights-of-Way, to protect the City against claims for death
or injuries to Persons or damages to property or equipment which in any way relate to, arise
from or are connected with this License or involve the Facilities, Licensee, its agents,
representatives, contractors, subcontractors and their employees
i2. Minimum Insurance Limits The Licensee shall maintain the following
minimum insurance coverages and limits
2.1 Commercial General Liability insurance to cover liability, bodily
injury, and property damage The Commercial General Liability insurance shall be
written on an occurrence basis, with an aggregate limit location endorsement for the
License Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability and completed operations Such insurance shall include broad
form and blanket contractual coverage, including coverage for the License as now or
hereafter amended and specific coverage for the indemnity provisions set forth herein.
Coverage must be written with the following limits of liability
$2,000,000 per occurrence,
$4,000,000 general aggregate, and
$1,000,000 products"completed operations aggregate.
2.2 Automobile Liability- shall include owned, hired, and non-owned
vehicles on an occurrence basis with coverage of at least $2,000,000 per occurrence.
2.3 Workers Compensation insurance shall be maintained during the
life of this License to comply with statutory limits for all employees, and in the case any
work is sublet, the Licensee shall require its contractors and subcontractors similarly to
provide workers' compensation insurance for all the employees The Licensee shall also
maintain, during the life of this policy, employer's liability insurance with limits of
$1,000,000 each occurrence
2.4 Excess or Umbrella Liability. $5,000,000 each occurrence and
$5,000,000 policy limit.
2.5 Pollution Legal Liability Insurance• (At the option of the City)
$5,000,000 per occurrence and $10,000,000 in the aggregate.
3. Endorsements. Licensee Commercial General Liability insurance policies
are to contain, or be endorsed to contain, the following•
ISMS-LicenseAgmnt-030210CouncilPacket.doc 46
3.1 The Licensee's insurance coverage shall be primary insurance with
respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained
by the City shall be in excess of the Licensee's insurance and shall not contribute to it.
3.2 Licensee, through policy endorsement, shall waive its rights of j
subrogation against the City for all claims and sluts
3.3 That the coverage shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of the insurer's
liability
34 The Licensee's insurance shall name the City as an additional
insured, and other Persons to whom the City is obligated under separate agreement or by
Law, to protect or insure as an additional insured, from and against Liabilities arising out of
work perfonned in the Public Rights-of-Way under a grant of authority of the City
3.5 The Licensee's insurance shall include a requirement that the
"railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG
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36 The insurance coverages and limits provided herein shall not be
canceled or reduced, nor the intention not to renew be stated so as to be out of
compliance with the requirements herein without thirty (30) days written notice, certified
mail, return receipt requested, first being given to the City If the insurance is canceled or
reduced in coverage, Licensee shall provide a replacement policy.
4. Acceptability of Insurers. Each insurance policy obtained pursuant to this
License shall be issued by financially sound insurers who may lawfully do business in the
state of Washington with a financial strength rating at all times during coverage of no less
than an "A" and in a financial size category of no less than "X", in the latest edition of
"Best's Rating Guide" published by AM Best Company. In the event that at any time
during coverage, the insurer does not meet the foregoing standards, Licensee shall give
prompt notice to the City and shall seek coverage from an insurer that meets the
foregoing standards The City reserves the right to change the rating or the rating guide
depending upon the changed risks or availability of other suitable and reliable rating
guides
5. Verification of Coverage. The Licensee shall furnish the City with signed
certificates of insurance and a copy of the amendatory endorsements, including, but not
necessarily limited to, the additional insured endorsement, evidencing the Automobile
Liability, Commercial General Liability and Umbrella or Excess insurance of the Licensee
upon acceptance of this License. The certificate for each insurance policy is to be signed by
a Person authorized by that insurer to bind coverage on its behalf. The certificate for each
insurance policy must be on standard forms or on such forms as are consistent with standard
industry practices. The Licensee hereby warrants that its insurance policies satisfy the
requirements of this License.
ISMS-LicenseAgmnt-030210CouncilPacket.doc 47
6 Deductible. Commercial General Liability Insurance policies and
coverage required herein may include a reasonable deductible not to exceed ten percent
(10%) of the minimum per occurrence commercial general hablity policy limits;
provided, however, that if Licensee elects to include any deductible, Licensee shall itself
directly cover, in lieu of insurance, any and all City Liabilities that would otherwise in
accordance with the provisions of this License be covered by Licensee insurance if
Licensee elected not to include a deductible. Such direct coverage by Licensee shall be
in an amount equal to the amount of Licensee's actual deductible.
7. No Limitation. Licensee's maintenance of insurance policies required by
this License shall not be construed to excuse unfaithful performance by Licensee or limit the
liability of Licensee to the coverage provided in the insurance policies, or otherwise limit the
City's recourse to any other remedy available at law or in equity
8 Modifications of Coverages and Limits The City reserves the right,
during the term of the License, to require any other insurance coverage or adjust the
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures Prior to imposing such additional coverage
or adjusting existing required coverages or limits, the City shall provide reasonable notice
to the Licensee and an opportunity to provide comments, and the City shall review and
consider such comments that are timely made.
9. Public Licensees. Licensee Commercial General Liability, Automobile
Liablity and Umbrella Coverage Insurance policies and coverage required herein for
Public Licensees may include a reasonable self-insured retention; provided, however, that
as to any self-insured retention, Licensee shall itself directly cover, in lieu of insurance,
any and all City liabilities that would otherwise in accordance with the provisions of this
License be covered by Licensee insurance if Licensee elected not to include a self-
insured retention. Such direct coverage by Licensee shall be in an amount equal to the
amount of Licensee's actual self-insured retention "Public Licensee" for purposes of
this Section 9 shall mean and include, any Licensee organized as a political subdivision
of the state of Washington, but shall not mean or include agents, contractors and
subcontractors of Licensee that are not also organized as political subdivisions Licensee
shall be required to provide verification of self-insurance retention coverage in a form
and content acceptable to the City.
ISMS-LicenseAgmnt-03021 OCouncilPacket.doc 48
' EXHIBIT "E"
(Financial Security)
1. Performance Bond.
1.1 Licensee shall provide to the City a faithful performance and
payment bond in the initial amount of$25,000 to ensure the full and faithful performance
of all of its responsibilities under this License and applicable Laws, including, by way of
example and not limitation, its obligations to relocate and remove its Facilities, to restore
the Public Rights-of-Way and other property when damaged or disturbed, and to
reimburse the City for its Direct Costs
1.2 The performance bond shall be in a form with terms and conditions
acceptable to the City and reviewed and approved by the City Attorney.
1.3 The performance bond shall be with a surety with a rating no less
than "A X" in the latest edition of "Bests Rating Guide," published by A M Best
Company.
1.4 The Licensee shall pay all premiums or costs associated with
maintaining the performance and payment bond, and shall keep the same in full force and
effect at all times If Licensee fails to provide or maintain the bond, then the City, in its
sole discretion, may require Licensee to substitute an equivalent cash deposit as described
below in lieu of the bond.
L1.5 Licensee's maintenance of the bond(s) shall not be construed to
excuse unfaithful performance by Licensee, or limit the liability of Licensee to the amount
of the bond(s), or otherwise limit the City's recourse to any other remedy available at law or
in equity
1.6 The amount of the bond may, in the reasonable discretion of the
City, be adjusted by the City to take into account (1) cumulative inflation, (2) increased
risk to the City. (3) the experiences of the Parties regarding Licensee compliance with its
obligations under the License, and (4) issuance of Permits for installation of new
Facilities Prior to adjusting the amount of the bond, the City shall provide reasonable
notice to the Licensee and an opportunity to provide comments, and the City shall review
and consider such comments that are timely made.
2. Cash Deposit/Irrevocable Letter of Credit in Lieu of Bond.
Licensee may, at its election or upon order by the City pursuant to Section 4
herein, substitute an equivalent cash deposit with an escrow agent approved by the City
or an irrevocable letter of credit in form and content approved by the City Attorney,
instead of a performance and payment bond. This cash deposit or irrevocable letter of
credit shall ensure the full and faithful performance of all of Licensee's responsibilities
ISMS-LicenseAgmnt-0302I OCouncilPacket doe 49
hereto under this License and all applicable Laws This includes, but is not limited to,
Licensee's obligations to relocate or remove its facilities, restore the Public Rig
and other property to its original condition, and reimburse the City for its costs.
The City shall notify Licensee in writing, by certified mail, of any default and
shall give Licensee thirty (30) days from the date of such notice to cure any such default
In the event that the Licensee fails to cure such default to the satisfaction of the City, the
City may, at its option, draw upon the cash deposit or letter of credit up to the amount of
the City's costs incurred to cure Licensee's default Upon the City's cure of Licensee's
default, the City shall notify Licensee in writing of such cure.
In the event that the City draws upon the cash deposit or letter of credit, Licensee
shall thereupon replenish the cash deposit or letter of credit to the full amount as
specified herein or provide a replacement performance and payment bond.
3. Restoration Bond.
3 1 Unless otherwise provided in a Permit issued by the City for work ,
within the Public Rights-of-Way, or by City ordinance, code, rule, regulation or
Standards, the City may require Licensee to enter into a performance agreement, secured
by a restoration bond written by a corporate surety acceptable to the City equal to at least
one hundred fifty percent (150 %) of the estimated cost of restoring the Public Rights-of-
Way to their pre-construction condition in accordance with Section 7.12 of the License
Such restoration bond shall be deposited before Construction is commenced Such
restoration bond may be required, when the City determines that the Performance and
Payment Bond or cash deposit/letter of credit is not sufficient to protect the interests of
the City for Permitted Work.
3.2 Said restoration bond, or a separate bond acceptable to the City,
shall warrant all such restoration work for a period of six (_6j years.
3.3 In the event that a bond issued to meet the requirements of this
Section is canceled by the surety, after proper notice and pursuant to the terms of said
bond, Licensee shall, prior to expiration of said bond, be responsible for obtaining a
replacement bond which complies with the terms of this Section.
3.4 The performance agreement shall guarantee, to the satisfaction of
the City: t
3.4 1 Timely completion of Construction,
3 4.2 Construction in compliance with applicable approved '
plans, Utility Permits, technical codes, and Standards;
3.4 3 Proper location of the Facilities as approved by the City;
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' 3 4.4 Restoration of the Public Rights-of-Way and other public
or private property disrupted, damaged, or otherwise affected by the Construction The
performance agreement shall warrant said restoration work for a period of six years
L6 j_years,
1 3.4.5 The submission of "record" drawings after completion of
the Work, and
' 3 4 6 Timely payment and satisfaction of all claims, demands or
liens for labor, material or Services provided in connection with the Work.
4. Security Fund.
4.1 If there is a material Breach by Licensee or a pattern of repeated -
Breaches, then Licensee shall, upon written request of the City, establish and provide to the
City a cash deposit or irrevocable letter of credit from a local financial institution
satisfactory to the City, in a form and content approved by the City Attorney, and in the
amount of five hundred thousand dollars ($ 500,00 00) Such Irrevocable letter of credit
shall be established as security for the full and faithful performance of all of its
responsibilities under this License and applicable Laws, including, by way of example
but not limited to, its obligations to relocate and remove its Facilities, to restore the
Public Rights-of-Way and other property when damaged or disturbed, and to reimburse
the City for its costs
4.2 If a cash deposit or letter of credit is furnished pursuant to Section 2,
the cash deposit or letter of credit shall then be maintained at that same amount throughout
the remaining term of this License
' 4.3 Upon a Material Breach, the cash deposit/letter of credit may be
drawn upon by the City for purposes including,but not limited to, the following
4.3.1 Failure of Licensee to pay the City sums due under the terms
of this License;
' 4.3 2 Reimbursement of costs and expenses borne by the City to
correct License violations not corrected by Licensee; and
' 4.3.3 Monetary remedies or damages assessed against Licensee as
provided in this License.
4.4 Within three (3) days of a withdrawal from the Security Fund, the
City shall mail, by certified mail. return receipt requested, written notification of the
amount. date, and purpose of such withdrawal to the Licensee.
4.5 Within thirty (30) days following notice that a withdrawal from the
cash deposit/letter of credit has occurred, Licensee shall restore the cash deposit/letter of
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credit to the full amount required by Section 4.1 if at the time of a withdrawal from the '
Security Fund by the City, the amounts available are insufficient to provide the total
payment towards which the withdrawal is directed, the balance of such payment shall
continue as the obligation of the Licensee to the City until it is paid.
4.6 Upon termination of the License under conditions other than those '
stipulating forfeiture of the Security Fund, the balance then remaining in the Security
Fund shall be returned to the Licensee within sixty (60) days of such termination,
provided that there is then no outstanding default on the part of the Licensee.
4.7 Failure to maintain or restore the security fund or letter of credit
shall constitute a Breach of this License
4.8 In the event Licensee believes that the letter of credit was drawn '
upon improperly, Licensee shall give notice to the City and the City and Licensee shall refer
the Dispute to the Dispute Resolution process set forth at Section 6.1 of this License.
4.9 The rights reserved to the City herein are in addition to all other
rights of the City, whether reserved herein or authorized by applicable Law, and no
action, proceeding, or exercise of a right with respect to such Security Fund or letter of ,
credit will affect any other right the City may have Neither the filing of a letter of credit
with the City, nor the receipt of any damages recovered by the City thereunder, shall be
construed to excuse faithful performance by the Licensee or limit the liability of the
Licensee under the terms of its License for damages, either to the ful I amount of the letter
of credit or otherwise.
ISMS-LicenseAgmnt-0302I OCouncilPacket.doc 52
i
EXHIBIT "F"
(Contractor/Subcontractor Insurance Requirements)
i1. General Requirement. Prior to commencing and during the period of Work
performed within the License Area, Licensee contractors and subcontractors (hereafter the
"Contractors") must have in place adequate insurance to protect the City against claims for
death or injuries to Persons or damages to property or equipment which in any way relate to,
anse from or are connected with this Work.
' 2. Minimum Insurance Limits The Contractors shall maintain the following
minimum insurance coverages and limits
i2.1 Commercial General Liability- insurance to cover liability, bodily
injury, and property damage. The Commercial General Liability insurance shall be
written on an occurrence basis, with an aggregate limit location endorsement for the
License Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
i damage, products Lability and completed operations Coverage must be written with the
following limits of liability:
i $1,000,000 per occurrence,
$2,000,000 general aggregate, and
$1,000,000 products/completed operations aggregate.
i22 Automobile Liability shall include owned, hired, and non-owned
vehicles on an occurrence basis with coverage of at least $1,000,000 per occurrence
2.3 Workers Compensation Insurance: shall be maintained during the
period of such Work to comply with statutory limits for all employees
3. Endorsements Commercial General Liability insurance policies are to
contain, or be endorsed to contain, the following:
i3.1 The Contractor's insurance coverage shall he primary insurance with
respect to the City Any insurance, self-insurance, or insurance pool coverage maintained
by the City shall be in excess of the Contractor's insurance and shall not contribute to it
3.2 Contractor, through policy endorsement, shall waive its rights of
' subrogation against the City for all claims and suits.
3.3 That the coverage shall apply separately to each insured against
i whom a claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
' ISMS-LicenseAgmnt-0302 I OCouncilPacket doe 53
3.4 The Contractor's insurance shall name the City as an additional
insured, and other Persons to whom the City is obligated under separate agreement or by
Law, to protect or insure as an additional insured, from and against Liabilities arising out of
Work performed to the Public Rights-of-Way under a grant of authority of the City.
3.5 The Contractor's insurance shall include a requirement that the '
"railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG
2417.
3.6 The insurance coverages and limits provided herein shall not be '
canceled or reduced, nor the intention not to renew be stated so as to be out of
compliance with the requirements herein without thirty (30) days' written notice, certified
mail, return receipt requested, first being given to the City. If the insurance is canceled or
reduced in coverage, Licensee shall provide a replacement policy. '
4. Acceptability of Insurers. Each insurance policy required herein shall be
issued by financially sound insurers who may lawfully do business in the state of '
Washington with a financial strength rating at all times during coverage of no less than an
"A-" and in a financial size category of no less than "IX", in the latest edition of`Best's
Rating Guide" published by A M. Best Company In the event that at any time during
coverage, the insurer does not meet the foregoing standards, Contractor shall give prompt
notice to the City and shall seek coverage from an insurer that meets the foregoing
standards The City reserves the right to change the rating or the rating guide depending
upon the changed risks or availability of other suitable and reliable rating guides
5 Verification of Coverage. The Licensee shall furnish the City with '
Contractors' signed certificates of insurance and a copy of the amendatory endorsements,
including, but not necessarily limited to, the additional insured endorsement, evidencing the
Automobile Liability, and Commercial General Liability policies of the Contractors The
certificate for each insurance policy is to be signed by a Person authorized by that insurer to
bind coverage on its behalf. The certificate for each insurance policy must be on standard
forms or on such forms as are consistent with standard industry practices.
6 Deductible. Commercial General Liability Insurance policies and
coverage required herein may include a reasonable deductible not to exceed % of the
minimum per occurrence commercial general liablity policy limits; provided, however, if
Contractor elects to include any deductible, Contractor shall itself directly cover, in lieu
of insurance, any and all City liabilities that would otherwise in accordance with the
provisions of these requirements be covered by Contractor's insurance if Contractor
elected not to include a deductible. Such direct coverage by Contractor shall be in an
amount equal to the amount of Contractor's actual deductible
7 No Limitation. Contractor's maintenance of insurance policies required
herein shall not be construed to excuse unfaithful performance by Licensee or limit the
liability of Licensee or contractor to the coverage provided in the insurance policies, or
otherwise limit the City's recourse to any other remedy available at law or in equity.
ISMS-LicenseAgmnt-030210CouncilPacket.doc 54 '
8. Modifications of Coverages and Limits The City reserves the right,
during the term of the License, to require any other insurance coverage or adjust the
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures. Prior to imposing such additional coverage
or adjusting existing required coverages or limits, the City shall provide reasonable notice
to the Licensee and an opportunity to provide comments, and the City shall review and
consider such comments that are timely made
ISMS-LicenseAgmnt-030210CouncilPacket.doc 55
Kent City Council Meeting
' Date March 2, 2010
Category Consent Calendar - 6N
1. SUBJECT: PUBLIC WORKS BOARD URBAN VITALITY GRANT FOR JAMES
STREET AT UNION PACIFIC RAILROAD NON-MOTORIZED
IMPROVEMENTS - ACCEPT
2. SUMMARY STATEMENT: Authorize the Mayor to sign the agreement with
the Washington State Public Works Board for an Urban Vitality Grant in the
amount of $235,000 for the James Street @ UPRR Non-motorized Improvements
Project, authorize that a capital line item be included in the 2011 budget in the
' amount of $235,000 for City matching funds, and authorize expenditure of the
funds..
' The Public Works Department was successful in obtaining a $235,000 grant from
the Washington State Public Works Board. The estimated cost of the project is
$470,000.
3. EXHIBITS: Memo dated 2/12/10 and Agreement
4. RECOMMENDED BY: Public Works 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
i
DISCUSSION:
' ACTION:
95
PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P E , Public Works Director
Phone 253-856-5500
K E N T Fax 253-856-6500
WAS S"INC
TO
" Address 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 12, 2010
' To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Ken Langholz, Design Engineering Supervisor
Through: Timothy J. LaPorte, P.E., Public Works Director
Subject: Urban Vitality Grant for James Street at UPRR Non-motorized
Improvements Project
Motion:
Move to recommend authorization for the Mayor to sign the agreement with
1 the Washington State Public Works Board for an Urban Vitality Grant in the
amount of $235,000 for the James Street at UPRR Non-motorized
Improvements Project, subject to terms and conditions acceptable to the
City Attorney and the Public Works Director.
Further move to recommend that a capital line item be included in the 2011
budget in the amount of $235,000 for City matching funds.
Summary:
The Public Works Department was successful in obtaining a $235,000 grant from the
Washington State Public Works Board. The estimated cost of the project is
$470,000.
A SEPA requirement of the ShoWare Center is to provide pedestrian improvements
along James Street between the Kent/James Street Park and Ride lot west of the
Union Pacific Railroad (UPRR) tracks and the ShoWare Center. These improvements
include pedestrian gates or flashing lights at the UPRR, additional concrete railroad
crossing sections, and widened sidewalks on both sides of James Street between the
' ShoWare Center and the Park and Ride Lot.
Budget Impact:
The City is required to provide $235,000 in matching funds as a condition of the
grant.
' 97
Washington State
` Public Works Board
906 Columbia Street SW
' Post Office Box 48319
® Olympia,Washington 98504-8319
(360) 725-3150
www pwb.wa.gov
' Capital Agreement between:
' City of Kent
and
' Public Works Board
For:
Project Name: James St. at UPRR Non-motorized Improvements
Contract Number: UV09-951-101
Project Type: 2009-2011 Washington State Capital Budget
Urban Vitality Grant Program
Execution/Start Date: Date of Contract Execution
0 Department of Commerce
Innovation is in our nature.
98
TABLE OF CONTENTS ,
CONTRACTFACE SHEET....................................................................................................... I
CONTRACT TERMS AND CONDITIONS.................................................................................2 '
Part 1. SPECIAL TERMS AND CONDITIONS........................................................................ 2
1 1 DEFINITIONS .. _.._...: ... . 2
12 AUTHORITY ... .2
13 PURPOSE , 2
14 ORDER_'OF PRECEDENCE =;,., 2
15 GRANT_AIaMOUNT- :::...::....... .. :. ` . .... .. . .:,. ... ..... .. ... .. 2
1-6 - TIME OF PERFORMANCE :. . ... .. '3
=1 7 CERTIFICATION OF FUNDS AND LOCAL SHARE FUNDING REQUIREMENTS 3
1 8 -- MODIFICATION TO THE,PKOJECT COSTS 3
-1,9 PROJECT EXPENDITURES ELIGIBLE FOR REIMBURSEMENT . . .. 3
110. BILLING PROCEDURES AND PAYMENT 4
111, CERTIFIED PROJECT COMPLETION REPORT AND FINAL PAYMENT 5 '
112 HISTORICAL AND CULTURAL ARTIFACTS .: 5
113, REPORTS " . .6
1.14, EVALUATION AND MONITORING . ... .a.... . ....... . 6 ,
115 OWNERSHIP OF PROJECT/CAPITAL FACILITIES .. ..,... 6
116 CHANGE OF OWNERSHIP OR USE FOR CONTRACTOR-OWNED PROPERTY 7
117, CHANGE OF USE FOR LEASED PROPERTY 7'
118. SIGNAGE, MARKERS, AND PUBLICATIONS .... . .. . . ....... . . . . . . . 7
119 PREVAILING WAGE LAW 7
120 INSURANCE . . ................... 7 ,
1.21 RECAPTURE PROVISION 8
1 22 REDUCTION IN FUNDS ... ... . 8
123 REAPPROPRIATION . 1....... 8 '
Part 2. GENERAL TERMS AND CONDITIONS...................................................................... 9
21 DEFINITIONS 9
2.2. ALLOWABLE COSTS 9 '
23. ALL WRITINGS CONTAINED HEREIN... .... .. 9
24 AMENDMENTS ....I . . 9
25 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, '
ALSO REFERRED TO AS THE "ADA" 28 CFR PART 35 9
2.6 APPROVAL . . ., . ... 9
27 ASSIGNMENT.. .. ... ......... ... . .. ......... . ..9 '
28 ATTORNEYS' FEES. ..... . . . .. 10
2.9 AUDIT 10
210 CODE REQUIREMENTS..., . . ... . . .. .. 11
211 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION 11
212 CONFORMANCE . .. 1 12
2 13 COPYRIGHT PROVISIONS 12
2 14, DISALLOWED COSTS 12
215 DISPUTES . . . 1 12
2 16 DUPLICATE PAYMENT . . 13 '
City of Kent Page i Table of Contents
UV09-951-101 202010 2009-2011 Urban Vitality Grant Program
' 99
2.17 ETHICS/CONFLICTS OF INTEREST.,... ...... ......... ....................... .......... . ..13
218 GOVERNING LAW AND VENUE . .. .. .. ,. , . .. . . ...... .. . . ..13
219 INDEMNIFICATION .. . . . . . ..... . . ...13
' 220 INDEPENDENT CAPACITY OF THE CONTRACTOR.. .. ..13
221. INDUSTRIAL INSURANCE COVERAGE ....... . „ ... .. 14
2,22 LAWS ...... 14
223 LICENSING, ACCREDITATION AND REGISTRATION 14
224 LIMITATION OF AUTHORITY 14
225 LOCAL PUBLIC TRANSPORTATION COORDINATION............................... 14
226 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS 15
' 2.27 POLITICAL ACTIVITIES--. . . ., .., , . .......... 15
228 PREVAILING WAGE LAW ...., '. :......... .. ................................ 15
229 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION ... ... 15
2130 PUBLICITY-, . .. :.., .. 15
31 RECAPTURE '...... ...... . . .:... ... ..... ......;,...,.. ..'..... . ... .. ., . 15
2 32 -RECORDS MAINTENANCE. : .. .. . .=. .15
_2,33 REGISTRATION WITH DEPARTMENT OF REVENUE,:...:.. . . -.,........ 16
2.34, RIGHT OF INSPECTION 16
2 35 SAVINGS . ..
= . ..... .. . .. 16
-2,36, SEVERABILITY.. . . .. .. ..y.16
237 SURVIVAL. ., 16
2,38 TAXES :. , , 16
1 2.39. TERMINATION FOR CAUSE/ SUSPENSION .: .. . . ... ... ..` ....... .,.:........ . 16
240 TERMINATION FOR CONVENIENCE ;, , ... 17
241 TERMINATION PROCEDURES 17
= `= 242 WAIVER ... . . ... ..... 17
ATTACHMENT I: PROJECT SCOPE OF WORK.................................................................. 18
ATTACHMENT II: CERTIFICATION OF THE AVAILABILITY OF FUNDS TO COMPLETE
THEPROJECT...................................,.................................................................................... 20
ATTACHMENT III: ESTIMATED PROJECT COSTS..............................................................22
ATTACHMENT IV: CERTIFICATION OF THE PAYMENT AND REPORTING OF
PREVAILINGWAGES ............................................................................................................23
ATTACHMENT V: CERTIFICATION OF THE INTENT TO ENTER THE LEADERSHIP IN
ENERGY AND ENVIRONMENTAL DESIGN (LEED) CERTIFICATION PROCESS .............24
City of Kent Page if Table of Contents
UVG9-951-101 2/3/2010 2009-2011 Urban Vitality Grant Program
100 ,
CONTRACT FACE SHEET
Contract Number: UV09-951-101
Washington State Department of Commerce '
PUBLIC WORKS BOARD
2009-2011 URBAN VITALITY GRANT PROGRAM
1. Contractor 2. Contractor Doing Business As (optional)
City of Kent N/A
220 4th Avenue South
Kent, WA 98032 — - .----
3. Contractor Representative -4. Public Works Board Representative
Ken Langholz Isaac-Huang, Special Programs Manager, Public Works Board
220 4th Avenue South -PO Box 48319, Olympia, WA 98504-8319
Kent, WA 98032 Clare Billings, Managing Director, Contracts Administration Unit
PO Box 42525, Olympia, WA-98504-2525
5. Contract Amount G.-Funding Source 7., Contract Start 8. Contract End Date
Date
24 months from ContraI
$235,000.00 Federal* ❑ State: RI-Other ❑ N/A ❑ Contract Execution execution (provided th
Date funds are reappropriated the 2011-2013 bienniu
9. Federal Funds (as applicable) Federal Agency CFDA Number
N/A N/A N/A -
10. Tax ID# 11. SWV# 12. UBI# 13. DUNS#
916001254
14. Contract Purpose
The Board and the Contractor have entered into this Contract to undertake an Urban Vitality Grant Program project that
furthers the goals and objectives of Washington State, as indicated to the Engrossed Substitute House Bill 1216, Section
1050 (4), enacted on May 15, 2009
The Board, defined as the Washington State Public Works Board, and Contractor acknowledge and accept the terms of
this Contract and attachments and have executed this Contract on the date below to start as of the date and year last
written below The rights and obligations of both parties to this Contract are governed by this Contract and the following
other documents incorporated by reference Contract Terms and Conditions including ATTACHMENT I. PROJECT
SCOPE OF WORK, ATTACHMENT Il- CERTIFICATION OF THE AVAILABILITY OF FUNDS TO COMPLETE THE
PROJECT, ATTACHMENT III ESTIMATED PROJECT COSTS, ATTACHMENT IV CERTIFICATION OF THE PAYMENT
AND REPORTING OF PREVAILING WAGES, and ATTACHMENT V CERTIFICATION OF INTENT TO ENTER THE
LEADERSHIP IN ENERGY AND ENVIRONMENTAL DESIGN LEED CERTIFICATION PROCESS
FOR THE CONTRACTOR FOR THE PUBLIC WORKS BOARD
Signature John LaRocque, Executive Director
Print Name Date
APPROVED AS TO FORM ONLY
Title This 7th Day of December, 2009
Rob McKenna
Date Attorney General
Signature on File
Kathryn Wyatt
Assistant Attorney General
City of Kent Page 1 Contract Face Sheet
UV09-951-101 21312010 2009-2011 Urban Vitality Grant Program
101
CONTRACT TERMS AND CONDITIONS
' PUBLIC WORKS BOARD
2009-2011 URBAN VITALITY GRANT PROGRAM
Part 1 . SPECIAL TERMS-AND CONDITIONS
1.1. DEFINITIONS
As used throughout this 2009-2011 Urban Vitality Gran f Program Contract the following terms shall
have the meaning set forth below.-
A "Contract"shall mean this 2009-2011 Urban Vitality Grant Program Contract-
B "Contractor" shall mean the entity identified on the Contract Face Sheet performing service(s)
under this Contract-and who is a party to the Contract, and shall include all employees and
agents of the-Contractor
C the Board"shall mean the Washington State Public Works Board created in Revised Code of.
Washington(RCW)43,155 030,and who is a Party to the Contract
1 1.2. AUTHORITY -
Acting under the authority of Chapter 43 155 RCW, the Board has awarded the Cohtractor a 2009-
-2011 Urban Vitality public works grant for a local government serving high density urban -
communities The Engrossed Substitute House Bill 1216, Section 1050 (4), enacted on May 15,
2009, made an appropriation to support a Temporary Public Works Board Grant Program and
directed the Board to administer those funds
' 1.3. PURPOSE
The Board and the Contractor have entered into this Contract to undertake an Urban Vitality Grant
' Program project that furthers the goals and objectives of Washington State The project will be
undertaken oy the Contractor and will include the activities identified in ATTACHMENT I PROJECT
SCOPE OF WORK. The project must be undertaken in accordance with the Contract terms and
conditions, and all applicable state and local laws and ordinances, which by this reference are
incorporated into this Contract as though set forth fully herein
1.4. ORDER OF PRECEDENCE
In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving
precedence in the following order-
' A Applicable federal and State of Washington statutes and regulations
B Special Terms and Conditions including all the attachments
C. General Terms and Conditions
' 1.5. GRANT AMOUNT
The Board shall pay an amount not to exceed the awarded grant amount of$235,000.00 for the
eligible costs necessary for or incidental to the performance of work as set forth in ATTACHMENT 1
PROJECT SCOPE OF WORK
City of Kent Page 2 Contract Terms and Conditions
UV09-951-101 21312010 2009-2011 Urban Vitality Grant Program
102 '
1.6. TIME OF PERFORMANCE
The Contractor shall begin the activities identified within ATTACHMENT 1. PROJECT SCOPE OF
WORK no later than two (2) months after the date of Contract execution No later than twelve (12)
months after the date of Contract execution the Contractor must begin the construction No later
than twenty-four(24) months after the date of Contract execution the Contractor must reach
project completion Project completion is reached when all activities identified in ATTACHMENT I
PROJECT SCOPE OF WORK are complete.
Failure to meet Time of Performance shall constitute default under this Contract In the event of
extenuating circumstances, the-Contractor may request, in writing, that the Board extend the
deadline for project completion. _
1.7. CERTIFICATION OF FUNDS AND LOCAL SHARE FUNDING REQUIREMENTS
The Contractor must have secured full project funding at the time of Contract execution The
release of grant-funds under this Contract is contingent upon the Contractor certifying that it has
expended or has access to funds from other sources as set forth in ATTACHMENT IP
CERTIFICATION OF THE AVAILABILITY OF FUNDS TO COMPLETE THE PROJECT to complete
all the project activities identified in ATTACHMENT I PROJECT SCOPE OF WORK.
This grant program requires the Contractor to provide local share funding for a minimum of ten
percent (10%) of the total project cost The Contractor pledges to use an amount of local funds as
local protect share of not less than 50.00% of the total project cost as submitted by the Contractor
in the grant application The local share must not be funded by state grants, state loans, federal
grants, or national foundations funds The amount of the local share funds will be verified again at
project completion and must be equal to the percent share of 50.00%as pledged in the grant
application Only expenditures made on or after July 1, 2009, may be used as match for local '
project share
The Contractor shall maintain records sufficient to evidence that it has access to or has expended ,
funds from such sources, and shall make such records available for the Board's review upon
reasonable request
1.8. MODIFICATION TO THE PROJECT COSTS ,
Notwithstanding any other provision of this Contract, the Contractor may, at its discretion, make
modifications not to exceed fifteen percent(15%) of each cost category item in the ATTACHMENT
III ESTIMATED PROJECT COSTS
The Contractor shall notify the Board in writing when making any budget modifications that would
exceed fifteen percent(15%) of any cost category line item as identified in ATTACHMENT III
ESTIMATED PROJECT COSTS, Nothing in this section shall be construed to permit an increase in
the amount of grant funds under this program available for the project as set forth in Section 1 5 of
this Contract
1.9. PROJECT EXPENDITURES ELIGIBLE FOR REIMBURSEMENT
Payments to the Contractor shall be made on a reimbursement basis only For the purposes of this
Contract, eligible costs shall be construed to mean costs incurred and paid, or costs incurred and
payable within thirty (30) days Only costs that have been incurred on or after July 1, 2009, and
which are not counted as local share, are eligible for reimbursement under this Contract
Eligible project costs must consist of expenditures eligible under WAC 399-30-030(3) and be '
related only to the project activities identified in ATTACHMENT I PROJECT SCOPE OF WORK.
City of Kent Page 3 Contract Terms and Con awns '
UV09-951101 202010 2009-2011 Urban vitality Grant Program
103
1.10. BILLING PROCEDURES AND PAYMENT
The Board shall reimburse the Contractor for eligible project expenditures up to the maximum grant
amount under this Contract, as identified in Section 1 5 When requesting reimbursement for costs
incurred or expenditures made, the Contractor shall submit a signed and completed Invoice
Voucher(Form A19), referencing the ATTACHMENT I PROJECT SCOPE OF WORK project
activity performed, and any appropriate documentation such as bills, Invoices, and receipts The
Invoice Voucher must be certified by an official of the Contractor with authority to bind the
Contractor
Each Invoice Voucher must be accompanied by a Project Status Report, which describes, in
narrative form, the progress made on the project since-the last Invoice was submitted, as well as a
report of project status to date The Board will not release payment for any reimbursement request
received unless and until the Project Status Report is received After approving the Invoice Voucher
and the Project Status Report, the Board shall promptly remit a warrant to the Contractor
Requests for-reimbursements for costs related to construction activities will not be accepted until
the Contractor provides proof of compliance with Governor's Executive Order 05-05 or Section 106
of the National Historic Preservation Act, whichever applies to this project, as described in Section
112
A sum of ten percent(10%)of the grant amount will be retained until all project activities as
identified in ATTACHMENT I: PROJECT SCOPE OF WORK are complete and a Certified Project
ICompletion Report is completed and submitted by the Contractor, as described in Section 1 11
The Contractor shall submit all Invoice Vouchers and all required documentation to,
Contracts Administration Unit
Department of Commerce =
PO Box 42525
Olympia, WA 98504-2525
The Board will pay the Contractor upon acceptance of services provided and receipt of properly
completed invoices, which shall be submitted to the Board not more often than monthly.
Payment shall be considered timely if made by the Board within thirty (30) calendar days after
receipt of properly completed invoices Payment shall be sent to the address designated by the
Contractor
The Board may, in its sole discretion, terminate the Contract or withhold payments claimed by the
I Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or
condition of this Contract
No payments in advance or in anticipation of services or supplies to be provided under this Contract
shall be made by the Board
Duplication of Billed Costs The Contractor shall not bill the Board for services performed under this
Contract, and the Board shall not pay the Contractor, if the Contractor is entitled to payment or has
been or will be paid by any other source, including grants, for that service
Disallowed Costs The Contractor is responsible for any audit exceptions or disallowed costs
incurred by its own organization or that of its subcontractors
City of Kent Page 4 Contract Terms and Conditions
UV09-951-101 2612010 2009-2011 Urban Atality Grant Program
104 ,
1.11. CERTIFIED PROJECT COMPLETION REPORT AND FINAL PAYMENT
The Contractor shall complete a Certified Project Completion Report when activities identified in
ATTACHMENT I PROJECT SCOPE OF WORK are complete The Board will supply the
Contractor with the Certified Project Completion Report forms upon request
The Contractor shall provide the following information to the Board.
A A certified statement of the actual dollar amounts spent, from all funding sources, in completing
the project as described in ATTACHMENT]-PRQJECT_SCOPE OF WORK
B A certified statement that the project, as descnbed'in ATTACHMENT] PROJECT SCOPE OF
WORK, is complete_and; if applicable, meets required_standards.
C Certification that alTcosts associated with the project have been incurred and have been
accounted for. Costs are incurred-when goods and services are received and/or contract work
is performed
The amount of the local share funds at-project completion must be equal to the percent share of
50.00%as pledged in the grant�apphcation
The Contractor will submif the Certified Project Completion Report together with the last Invoice
Voucher for a sum not--to exceed the balance of the grant amount including the ten percent (10%)
retainage, as described in Section 1,10. The final Invoice Voucher payment shall not occur prior to
the completion of all project activities identified in ATTACHMENT I -PROJECT SCOPE_-OF WORK
and the Board's receipt of the Certified Project Completion Report
1:12. HISTORICAL AND CULTURAL ARTIFACTS
Governor's Executive Order 05-05 requirements must be fully met prior to commencing
construction Contractor agrees that the Contractor is legally and financially responsible for
compliance with all laws, regulations, and agreements related to the preservation of historical or
cultural artifacts and agrees to hold harmless the Board and the State of Washington in relation to
any claim related to such historical or cultural artifacts discovered, disturbed, or damaged as a
result of Contractor's project funded by this Contract
In addition to the requirements set forth in this Contract, Contractor shall, in accordance with
Governor's Executive Order 05-05, coordinate with the Washington State Department of
Archaeology and Histonc Preservation (DAHP), including any recommended consultation with any
affected tribe(s), during project design and prior to construction to determine the existence of any
tribal cultural resources affected by the proposed project funded by this Contract Contractor ,
agrees to avoid, minimize, or mitigate impacts to the cultural resource as a continuing pre-requisite
to receipt of funds under this Contract
The Contractor agrees that, unless Contractor is proceeding under an approved historical and '
cultural artifacts monitoring-plan or other memorandum of agreement, if historical or cultural
artifacts are discovered during construction, the Contractor shall immediately stop construction and
notify the local historical preservation officer and the state's historical preservation officer at DAHP ,
The Contractor shall require this provision to be contained in all sub-contracts for work or services
related to ATTACHMENT I PROJECT SCOPE OF WORK
In addition to the requirements set forth in this Contract, Contractor agrees to comply with RCW
27 44 regarding Indian Graves and Records, RCW 27 53 regarding Archaeological Sites and
City of Kent Page 5 Contract Terms and Conditions
UV09-951-101 213/2010 2009-2011 Urban Vitality Grant Program
105
Resources; RCW 68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and,
WAC 25-48 regarding Archaeological Excavation and Removal Permits
Contractors such as Native American Tribes that are exempt from Govemor's Executive Order 05-
05 requirements must show proof of exemption and must demonstrate that they have coordinated r
with their Tribal Historic Preservation Office for impacts to above-and below-ground resources
Contractor agrees to furnish to the Board copies of any monitoring plan or agreement arising from
1 Contractor's coordination and consultation with DAHP or any affected tnbe(s)
Completion of the Section 106-of the National-Historic Preservation Act may substitute for
completion of Governor's Executive Order_05-05, if the project involves federal funding or
permitting _
Failure by Contractor to fully comply with the requirements,set forth in this provision-to the
satisfaction of the Board shall result in a suspension of cost reimbursements or termination of this
Contract if not timely cured
In the event that the Contractor finds it necessary to amend ATTACHMENT I PROJECT SCOPE__
OF WORK, the Contractor may be required to re-comply with Governor's Executive Order 05-05 or
Section 106 of the National Historic Preservation Act, whichever applies to this project
1.13. REPORTS
The Contractor shall furnish the Board with Project Status Reports when submitting Invoice
Vouchers (as described in Section 1 10), Quarterly Project Reports at the end of each quarter, a
Certified Protect Completion Report at project completion (as described in Section 1 11), and other
reports as the Board may require Failure to file reports as requested may result in termination of
this Contract
' 1.14. EVALUATION AND MONITORING
The Contractor shall cooperate with and freely participate in any monitoring or evaluation activities
conducted by the Board, including site inspections, if necessary
The Contractor may be asked by the Board to provide photographs, either hard copy or
electronically, which visually depict the progress made on the project
The Board or the State Auditor and any of their representatives shall have full access to and the
right to examine all of the Contractor's records with respect to all matters covered in this Contract
Such representatives shall be permitted to audit, examine, and make excerpts or transcripts from
such records and to make audits of all contracts, invoices, materials, payrolfs, and records of
matters covered by this Contract Such rights last for six (6) years from the date final payment is
' made hereunder
1.15. OWNERSHIP OF PROJECT/CAPITAL FACILITIES
The Board makes no claim to any real property improved or constructed with funds awarded under
this Contract and does not assert and will not acquire any ownership interest In or title to the capital
facilities and/or equipment constructed or purchased with state funds under this Contract This
provision does not extend to claims that the Board may bring against the Contractor in recapturing
' funds expended in violation of this Contract
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1.16. CHANGE OF OWNERSHIP OR USE FOR CONTRACTOR-OWNED PROPERTY
The Contractor understands and agrees that any or all assets acquired, constructed, or otherwise
improved by the Contractor using the funds under this Contract shall be held and used by the
Contractor for the purposes stated in ATTACHMENT I PROJECT SCOPE OF WORK for a period
of at least ten (10) years from the date the final payment is made
For a period of at least ten (10)years from the date the.final payment is made, in the event that the t
Contractor decides to change or transfer ownership of any or all assets acquired, constructed, or
otherwise Improved by the Contractor using the funds under this Contract, the Contractor agrees
that any such decision or action-must be submitted in writing and approved by the Board in writing
at least thirty (30)days prior to the execution of such decision or action
In the event the Contractor is found to be out of compliance with this section,`the Contractor shall
repay the principal amount of the grant as 'stated in Section 1 5,-plus interest calculated at the rate
of interest on State of Washington general obligation bonds issued most closely to the effective
date of the legislation in which this grant program asset was authorized Repayment shall be
made pursuant to Section 1.21. Recapture Provision
1.17. CHANGE OF USE FOR LEASED PROPERTY _
The Contractor understands and agrees that any facility leased by the Contractor that is-
constructed, renovated, or otherwise improved using state funds under this Contract shall be used =
by the Contractor for the purposes stated in ATTACHMENT I, PROJECT SCOPE OF WORK for a
period of at least ten (10)years from the date the final payment is made ,
'In the event the Contractor is found to be out of compliance with this section, the Contractor shall
-repay the principal amount of the grant as stated in Section 1 5, plus interest calculated at the rate
of interest on State of Washington general obligation bonds issued most closely to the effective
date of the legislation in which this grant program was authorized Repayment shall be made
pursuant to Section 1 21 Recapture Provision
1.18. SIGNAGE, MARKERS, AND PUBLICATIONS
If, during the period covered by this Contract, the Contractor displays or circulates any
communication, publication, or donor recognition identifying the financial participants in the project,
any such communication or publication must identify"The Taxpayers of Washington State" as a
participant
1.19. PREVAILING WAGE LAW '
The project funded under this Contract is subject to state prevailing wage law(Chapter 39 12
RCW) The Contractor is advised to consult the Industrial Statistician at the Washington
Department of Labor and Industries to determine the prevailing wages that must be paid The
Board is not responsible for determining the prevailing wages applying to this project or for any
prevailing wage payments that may be required by law
1.20. INSURANCE
All self-insured risk management programs or self-insured/liability pool financial reports must
comply with Generally Accepted Accounting Principles (GAAP) and adhere to accounting standards
promulgated by
1. Governmental Accounting Standards Board (GASB),
li Financial Accounting Standards Board (FASB), and
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' iii. The Washington State Auditor's annual instructions for financial reporting
Contractors participating to joint risk pools shall maintain sufficient documentation to support the
aggregate claim liability information reported on the balance sheet The State of Washington, its
agents, and employees need not be named as additional insured under a self-insured
property/liability pool, if the pool is prohibited from naming third parties as additional insured
Employers Liability ("Stop Gap") Insurance. In addition, the Contractor shall buy employers liability
' insurance and, if necessary, commercial umbrella liability insurance with limits not less than
$1,000,000 each accident for bodily injury by accident_of$1,000,000 each employee for bodily
injury or disease
Unemployment-and Industrial Insurance. The Contractor shall be in full compliance with all state
unemployment and industrial insurance laws while performing work under this Contract The Board
will not be responsible for payment of industrial insurance premiums or for any other claim or
benefit for the Contractor, or any subcontractor or employee of the Contractor, which might arise
under the industrial insurance laws during performance of this Contract
Protection of Project Property Contractor's Assumption of Risk The Contractor shall continuously
maintain adequate protection of all the project work from damage and shall protect the property
from injury or loss arising in connection with this Contract The entire work of the Contractor shall
be at the sole_nsk of the Contractor The Contractor may elect to secure fire, extended coverage,
and vandalism insurance or ail-risk insurance to cover the project work during the course of
construction The Contractor shall take all necessary precautions for the safety of employees
working on the project, and shall comply with all applicable provisions of federal, state, and local
safety laws and building codes to prevent accidents or injuries to persons, on, about, or adjacent to
'the premises where the work is being performed
1.21. RECAPTURE PROVISION
In the event that the Contractor fails to expend state funds in accordance with state law and/or the
provisions of this Contract, the Board reserves the right to recapture state funds in an amount
equivalent to the extent of noncompliance Repayment by the Contractor of state funds under this
recapture provision shall occur within thirty(30) days of demand In the event that the Board is
required to institute proceedings to enforce this recapture provision, the Board shall be entitled to its
cost thereof, including reasonable attorney's fees
1.22. REDUCTION IN FUNDS
In the event state funds appropriated for the work contemplated under this Contract are withdrawn,
reduced, or limited in any way by the Washington State Governor or Legislature during the Contract
period, the parties hereto shall be bound by any such revised funding limitations as implemented at
the discretion of the Board, and shall meet and renegotiate the Contract accordingly.
' 1.23. REAPPROPRIATION
The parties hereto understand and agree that any state funds not expended by June 30, 2011,
including the ten percent(10%) retainage as described in Section 1 10, will lapse on that date
unless specifically reappropriated by the Washington State Legislature or Governor The Board will
make all necessary efforts to seek reappropriation of funds into the 2011-2013 biennium If funds
are so reappropriated, the Board's obligation under the terms of this Contract shall be contingent
upon the terms of such reappropriation
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Part 2. GENERAL TERMS AND CONDITIONS
2.1. DEFINITIONS '
As used throughout this Contract, the following terms shall have the meaning set forth below;
A "Authorized Representative" shall-mean,the Public Works Board Chair and/or the designee
authorized in writing to act on the Chair's behalf -
B "Contractor"shall mean the entity identified on the face sheet performing service(s) under this ,
Contract, and shall include all employees-and agents of the-Contractor
C. "The Board" shall mean the Washington State Public Works Board created in Revised Code of
Washington (RCW)43 155 030, and who is-a Party to the Confract
D. "Personal Information"shall mean information identifiable to any person, mc(uding, but not
limited to, information that-relates to a person's name,-health, finances, education, business,
use or receipt of governmental-services or other activities, addresses, telephone numbers,
social security numbers; driver license numbers, other identifying numbers, and any financial
identifiers =
E "State" shall mean the state of Washington -
--F "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
2.2. ALLOWABLE COSTS
Costs allowable under this Contract are actual expenditures according to an-approved budget up-to
_the maximum amount stated on the Contract Award or Amendment Face Sheet.
2.3. ALL WRITINGS CONTAINED HEREIN '
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
2.4. AMENDMENTS
This Contract may be amended by mutual agreement of the parties Such amendments shall not be
binding unless they are in writing and signed by personnel authorized to bind each of the parties ,
2.5. AMERICANS WITH DISABILITIES ACT(ADA) OF 1990, PUBLIC LAW 101-336, ALSO
REFERRED TO AS THE "ADA" 28 CFR PART 35 ,
The Contractor must comply with the ADA, which provides comprehensive civil rights protection to
individuals with disabilities in the areas of employment, public accommodations, state and local
government services, and telecommunications
2.6. APPROVAL
This Contract shall be subject to the written approval of the Board's Authorized Representative and
shall not be binding until so approved The Contract may be altered, amended, or waived only by a
written amendment executed by both parties
2.7. ASSIGNMENT
Neither this Contract, nor any claim arising under this Contract, shall be transferred or assigned by
the Contractor without prior written consent of the Board
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2.8. ATTORNEYS' FEES
Unless expressly permitted under another provision of the Contract, in the event of litigation or
other action brought to enforce Contract terms, each party agrees to bear its own attorneys fees
and costs
1 2.9. AUDIT
A. General Requirements
1 Contractors are to procure audit services based on the following guidelines
The Contractor shall maintain its records and accounts so as to facilitate the audit requirement
and shall ensure that Subcontractors also maintain auditable records
�mm
The Contractor is responsible for any audit exceptions incurred'by its own organization or that
of its Subcontractors
The Board reserves the right to recover from the Contractor all disallowed costs-resulting from
the audit
As applicable, Contractors required to have an audit must ensure the audits are performed in
1 accordance with Generally Accepted Auditing Standards (GAAS), Government Auditing-
Standards (the Revised Yellow Book) developed by the Comptroller General
Responses to any unresolved management findings and disallowed or questioned costs shall
be included with the audit report The Contractor must respond to the'Board requests for V
information or corrective action concerning audit issues within thirty (30) days of the date of
request
B. State Funds Requirements
Contractors expending$100,000 or more in total state funds in a fiscal year musf have a
financial audit as defined by Government Auditing Standards (The Revised Yellow Book) and
according to Generally Accepted Auditing Standards (GAAS) The Schedule of State Financial
Assistance must be included The schedule includes
Contractor agency name
State program name
BARS account number
Contractor
Agency contract number
' Contract award amount including amendments(total grant award)
Beginning balance
Current year revenues
Current year expenditures
Ending balance
Program total
If the Contractor is a state or local government entity, the Office of the State Auditor shall
conduct the audit Audits of non-profit organizations are to be conducted by a certified public
accountant selected by the Contractor
The Contractor shall include the above audit requirements in any subcontracts.
In any case, the Contractor's financial records must be available for review by the Board
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C. Documentation Requirements
The Contractor must send a copy of any required audit Reporting Package as described in ,
OMB Circular A-133, Part C, Section 320(c) no later than nine (9) months after the end of the
Contractor's fiscal year(s) to
Department of Commerce
ATTN Audit Review and Resolution Office
906 Columbia Street SW, Fifth Floor
PO Box 48300
Olympia WA 98504-8300 = _ ,
In addition to sending-a copy,of the audit, when applicable,the Contractor must include
• Corrective action plan--for-audit-findings within three (3) months of the audit being
received by the Board
Copy of the Management Letter
2.10. CODE REQUIREMENTS
All construction and rehabilitation projects must satisfy the requirements of applicable local, state,
and federal building, mechanical, plumbing, fire, energy and barrier-free codes Compliance with
the Americans with Disabilities Act of 1990 28 C F R Part 35 will be required, as specified by the ,
-localbui€ding Department.
2.11. CON FIDENTIALITYISAFEGUARDING OF INFORMATION '
A "Confidential Information"as used in this section includes
a All-material provided to the Contractor by the Board that is designated as "confidential"
by the Board, ,
b. All material produced by the Contractor that is designated-as"confidential" by the
Board, and
c All personal information in the possession of the Contractor that may not be disclosed
under state or federal law "Personal information" includes but is not limited to
information related to a person's name, health, finances, education, business, use of
government services, addresses, telephone numbers, social security number, driver's
license number and other identifying numbers, and "Protected Health Information"
under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).
B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer, ,
sale, or disclosure of Confidential Information The Contractor shall use Confidential Information
solely for the purposes of this Contract and shall not use, share, transfer, sell or disclose any
Confidential Information to any third party except with the prior written consent of the Board or
as may be required by law The Contractor shall take all necessary steps to assure that
Confidential Information is safeguarded to prevent unauthorized use, shar€rig, transfer, sale or
disclosure of Confidential Information or violation of any state or federal laws related thereto
Upon request, the Contractor shall provide the Board with its policies and procedures on ,
confidentiality The Board may require changes to such policies and procedures as they apply
to this Contract whenever the Board reasonably determines that changes are necessary to
prevent unauthorized disclosures The Contractor shall make the changes within the time
period specified by the Board Upon request, the Contractor shall immediately return to the
Board any Confidential Information that the Board reasonably determines has not been
adequately protected by the Contractor against unauthorized disclosure
C Unauthorized Use or Disclosure The Contractor shall notify the Board within five (5)working ,
days of any unauthorized use or disclosure of any confidential information, and shall take
necessary steps to mitigate the harmful effects of such use or disclosure
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2.12. CONFORMANCE
If any provision of this Contract violates any statute or rule of law of the state of Washington, it is
considered modified to conform to that statute or rule of law.
2.13. COPYRIGHT PROVISIONS
Unless otherwise provided, all Materials produced under this Contract shall be considered "works
for hire" as defined by the U S Copyright Act and shall be owned by the Board The Board shall be
considered the author of such Materials In the event the Materials are not considered "works for
1 hire" under the U S Copyright laws, the Contractor hereby irrevocably assigns all right, title, and
interest in all Materials, including all intellectual property rights, moral rights, and rights of publicity
to the Board effective from the moment of creation of such Materials
1 "Materials" means all items in any format and includes, but is not limited to, data, reports,
documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs,
films, tapes, and/or sound,reproductions "Ownership" includes the right to copyright, patent,
1 register and the ability to-transfer these rights
For Materials that are delivered under the Contract, but that incorporate pre--existing materials not
produced under the Contract, the Contractor hereby grants to_the Board a nonexclusive, royalty-
-free, irrevocable license (with rights to sublicense to others) in such Materials to translate,
reproduce, distribute, prepare derivative works, publicly perform, and publicly display The
Contractor warrants and represents that the Contractor has all rights and permissions, including
intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to
the Board
The Contractor shall exert all reasonable effort to advise the Board, at the time of delivery of
Materials furnished under this Contract, of all known or potential invasions of privacy contained
therein and of any portion of such document which was not produced in the performance of this
Contract The Contractor shall-provide the Board with prompt written notice of each notice or claim
of infringement received by the Contractor with respect to any Materials delivered under this
Contract The Board shall have the right to modify or remove any restrictive markings placed upon
the Materials by the Contractor
2.14. DISALLOWED COSTS
The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own
organization or that of its Subcontractors
2.15. DISPUTES
Except as otherwise provided in this Contract, when a dispute arises between the parties and it
cannot be resolved by direct negotiation, either party may request a dispute hearing with the Chair
of the Board, who may designate a neutral person to decide the dispute
The request for a dispute hearing must
• be in writing,
• state the disputed issues;
• state the relative positions of the parties,
• state the Contractor's name, address, and Contract number, and
• be mailed to the Chair and the other party's (respondent's) Representative within three (3)
working days after the parties agree that they cannot resolve the dispute
The respondent shall send a written answer to the requestor's statement to both the Chair or the
' Chair's designee and the requestor within five(5)working days
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The Chair or designee shall review the written statements and reply in writing to both parties within
ten (10)working days The Chair or designee may extend this period if necessary by notifying the
parties
The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding
The parties agree that this dispute process shall-precede any action in a judicial or quasi-judicial ,
tribunal
Nothing in this Contract shall be construed to Ilimit_the�parhes'choice of a mutually acceptable
alternate dispute resolution'(ADR)�method in addition to the dispute hearing procedure outlined
above
2.16. DUPLICATE PAYMENT
The Contractor certifies that work to be performed_�under this Contract does riot duplicate any work
to be charged against any other contract, subcontract, or other source
2.17. ETHICSICONFLICTs OF'INTEREST
In performing under this Contract, the Contractor shall assure compliance with the Ethics in Public
Service Act(Chapter 42 52 RCW) and any other applicable state or federal law related to ethics or
conflicts of Interest
2.18. GOVERNING LAW AND-VENUE-
This Contract shall be construed and interpreted in accordance with the laws of the state of
Washington, and the venue of any action brought hereunder shall be in the Superior Court for ,
Thurston County.
2.19. INDEMNIFICATION
To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the
state of Washington, the Board, all other agencies of the state and all officers, agents and
employees of the state, from and against all claims or damages for injuries to persons or property
or death arising out of or incident to the Contractor's performance or failure to perform the Contract
The Contractor's obligation to indemnify, defend, and hold harmless includes any claim by the
Contractor's agents, employees, representatives or any Subcontractor or its agents, employees, or
representatives
The Contractor's obligation to indemnify, defend, and hold harmless shall not be eliminated by any
actual or alleged concurrent negligence of the state or its agents, agencies, employees and officers
Subcontracts shall include a comprehensive Indemnification clause holding harmless the
Contractor, the Board, the state of Washington, its officers, employees and authorized agents
The Contractor waives its immunity under Title 51 RCW to the extent it is required to Indemnify,
defend and hold harmless the state and its agencies, officers, agents or employees.
2.20. INDEPENDENT CAPACITY OF THE CONTRACTOR i
The parties intend that an independent contractor relationship will be created by this Contract The
Contractor and its employees or agents performing under this Contract are not employees or
agents of the state of Washington or the Board The Contractor will not hold itself out as or claim to
be an officer or employee of the Board or of the state of Washington by reason hereof, nor will the
Contractor make any claim of right, privilege or benefit which would accrue to such officer or ,
employee under law Conduct and control of the work will be solely with the Contractor
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2.21. INDUSTRIAL INSURANCE COVERAGE
The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If
the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on
behalf of its employees as may be required by law, the Board may collect from the Contractor the
full amount payable to the Industrial Insurance Accident Fund The Board may deduct the amount
owed by the Contractor to the accident fund from the amount payable to the Contractor by the
Board under this Contract, and transmit the deductedamount to the Department of Labor and
Industries, (L&I) Division of Insurance Services This provision does not waive any of L&I's rights to
collect from the Contractor.
2.22. LAWS x x
The Contractor shall comply with all applicable laws, ordinances;'codesjegulations and policies of
local and state and federal governments, as now or hereafter amended including, but not limited to:
Washirrdton State Laws-and Regulations
Affimiative action, RCW 41 06 020 (11)
Boards of directors or officers of non-profit corporations—Liability - Limitations, RCW 4.24 264
Disclosure-campaign finances-lobbying, Chapter 42 17 RCW
Discrimination-human rights commission, Chapter49.60 RCW,_ '
Ethics in public service, Chapter 42 52 RCW,
Housing assistance program, Chapter43,185 RCW
Interlocal cooperation act, Chapter 39.34 RCW
- Noise control, Chapter 70 107 RCW
Office of minority and women's business enterprises, Chapter 39 19 RCW and Chapter 326-02
WAC
Open public meetings act, Chapter 42 30 RCW.
Prevailing wages on public works, Chapter 39 12 RCW =
Public records act, Chapter 42 56 RCW
Relocation assistance- real property acquisition policy, Chapter 8,26 RCW .
Shoreline management act of 1971, Chapter 90 58 RCW
State budgeting, accounting, and reporting system, Chapter 43 88 RCW
State building code, Chapter 19.27 RCW and Energy-related building standards, Chapter 19.27A
RCW, and Provisions in buildings foraged and handicapped persons, Chapter 70 92 RCW
State Coastal Zone Management Program, Publication 01-06-003, Shorelands and
Environmental Assistance Program, Washington State Department of Ecology
State environmental policy, Chapter 43 21 C RCW
State Executive Order 05-05 Archeological and Cultural Resources.
2.23. LICENSING ACCREDITATION AND REGISTRATION
The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and
registration requirements or standards necessary for the performance of this Contract
2.24. LIMITATION OF AUTHORITY
' Only the Authorized Representative or Authorized Representative's designee by writing
(designation to be made prior to action) shall have the express, implied, or apparent authority to
alter, amend, modify, or waive any clause or condition of this Contract.
2.25. LOCAL PUBLIC TRANSPORTATION COORDINATION
Where applicable, Contractor shall participate in local public transportation forums and implement
1 strategies designed to ensure access to services
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2.26. NONCOMPLIANCE WITH NONDISCRIMINATION LAWS
During the performance of this Contract, the Contractor shall comply with all federal, state, and
local nondiscrimination laws regulations and policies In the event of the Contractor's non- ,
compliance or refusal to comply with any nondiscrimination law, regulation or policy, this Contract
may be rescinded, canceled or terminated in whole or in part, and the Contractor may be declared
ineligible for further contracts with the Board The Contractor shall, however, be given a reasonable
time in which to cure this noncompliance Any dispute may be resolved in accordance with the
"Disputes" procedure set forth herein
2.27. POLITICAL ACTIVITIES
Political activity of Contractor employees-and officers are limited by the State Campaign Finances
and Lobbying provisions of Chapter 42 17 RCW and the Federal Hatch Act, 5 USC 1501 - 1508
No funds may be used for working'fior or against ballot measures or for or,against the candidacy of
any person for public office
2.28. PREVAILING WAGE LAW
The Contractor certifies that all contractors and subcontractors performing work on-the Project shall
comply with state Prevailing Wages-on Public Works, Chapter 39.12 RCW, as applicable to the
-Project funded by this Contract, including but not limited to the filing of the"Statement of Intent to
Pay Prevailing Wages" and "Affidavit of Wages Paid" as required by RCW 39 12 040, The
Contractor shall maintain records sufficient to evidence compliance with Chapter 39 12 RCW, and
shall make such records available for the Board's review upon request.
2.29. PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION
The funds provided under this Contract shall not be used in payment of any bonus or commission
for the purpose-of obtaining approval of the application for such funds or any other approval or
concurrence under this Contract provided, however, that reasonable fees or bona fide technical
consultant, managerial, or other such services, other than actual solicitation, are not hereby
prohibited if otherwise eligible as project costs
2.30. PUBLICITY
The Contractor agrees not to publish or use any advertising or publicity materials in which the state
of Washington or the Board's name is mentioned, or language used from which the connection with
the state of Washington's or the Board's name may reasonably be inferred or implied, without the
prior written consent of the Board
2.31. RECAPTURE
In the event that the Contractor fails to perform this Contract in accordance with state laws, federal
laws, and/or the provisions of this Contract, the Board reserves the right to recapture funds in an
amount to compensate the Board for the noncompliance in addition to any other remedies available
at law or in equity ,
Repayment by the Contractor of funds under this recapture provision shall occur within the time
period specified by the Board In the alternative, the Board may recapture such funds from
payments due under this Contract
2.32. RECORDS MAINTENANCE
The Contractor shall maintain all books, records, documents, data and other evidence relating to
this Contract and performance of the services described herein, including but not limited to
accounting procedures and practices which sufficiently and properly reflect all direct and indirect
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costs of any nature expended in the performance of this Contract Contractor shall retain such
records for a period of six years following the date of final payment
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records
shall be retained until all litigation, claims, or audit findings involving the records have been finally
Iresolved.
2.33. REGISTRATION WITH DEPARTMENT OF REVENUE
If required by law, the Contractor shall-complete registration with the Washington State Department
of Revenue
2.34. RIGHT OF INSPECTION
At no additional cost to the Board, all records relating to the Contractor's performance under this
Contract shall be subject at all reasonable times to inspection, review, and audit by the Board, the
Office of the State Auditor, and federal and state officials so authorized by law, in order to monitor
and evaluate performance, compliance, and quality assurance under this Contract The Contractor
shall provide access to its facilities for this purpose.
2.35. SAVINGS
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 Board may
terminate the Contract under the "Termination for Convenience"clause, without the ten business
day notice requirement In lieu of termination, the Contract may be amended to reflect the new
funding limitations and conditions
2.36. SEVERABILITY
If any provision of this'Contract or any provision of any document incorporated by reference shall
be held invalid, such invalidity shall not affect the other provisions of this Contract that can be given
effect without the invalid provision, if such remainder conforms to the requirements of law and the
fundamental purpose of this Contract and to this end the provisions of this Contract are declared to
be severable.
2.37. SURVIVAL
The terms, conditions, and warranties contained in this Contract that by their sense and context are
intended to survive the completion of the performance, cancellation or termination of this Contract
shall so survive
2.38. TAXES
All payments accrued on account of payroll taxes, unemployment contributions, the Contractor's
income or gross receipts, any other taxes, insurance or expenses for the Contractor or its staff shall
be the sole responsibility of the Contractor
2.39. TERMINATION FOR CAUSE/SUSPENSION
In event the Board determines that the Contractor failed to comply with any term or condition of this
Contract, the Board may terminate the Contract in whole or in part upon written notice to the
Contractor Such termination shall be deemed"for cause " Termination shall take effect on the
date specified in the notice
IIn the alternative, the Board upon written notice may allow the Contractor a specific period of time
in which to correct the non-compliance During the corrective-action time period, the Board may
suspend further payment to the Contractor in whole or in part, or may restrict the Contractor's right
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to perform duties under this Contract. Failure by the Contractor to take timely corrective action
shall allow the Board to terminate the Contract upon written notice to the Contractor.
"Termination for Cause" shall be deemed a "Termination for Convenience"when the Board
determines that the Contractor did not fail to comply with the terms of the Contract or when the
Board determines the failure was not caused by the Contractor's actions or negligence
If the Contract is terminated for cause, the Contractor shall be liable for damages as authorized by
law, including, but not limited to, any cost difference between the original contract and the
replacement contract, as we0_as all costs associated with entering into the replacement contract
(i e , competitive bidding; mailing; advertising, and staff time)
2.40. TERMINATION FOR C_ONVENIENC�E.
Except as otherwise provided in this Contract the Board may, by ten (10)business days written
notice, beginning on the second day after the mailing, terminate this Contract, in whole or in part If
this Contract is so terminated, the Board shall beJiable only for payment required under the terms
of this Contract for services rendered or goods delivered prior to the effective date of termination
2.41. TERMINATION PROCEDURES
After receipt of a notice of termination, except as-otherwise directed by the Board, 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_, or facilities related to the
Contract,
C. Assign to the State all of the rights, title, and interest of the Contractor under the orders and
subcontracts so terminated, in which case the Board has the right, at its discretion, to settle or
pay any or all claims arising out of the termination of such orders and subcontracts Any
attempt by the Contractor to settle such claims must have the prior written approval of the
Board; and
D Preserve and transfer any materials, Contract deliverables and/or the Board property in the
Contractor's possession as directed by the Board
Upon termination of the Contract, the Board shall pay the Contractor for any service provided by the
Contractor under the Contract prior to the date of termination The Board may withhold any amount
due as the Board reasonably determines is necessary to protect the Board against potential loss or
liability resulting from the termination The Board shall pay any withheld amount to the Contractor if
the Board later determines that loss or liability will not occur
The rights and remedies of the Board under this section are in addition to any other rights and
remedies provided under this Contract or otherwise provided under law
2.42. WAIVER '
Waiver of any default or breach shall not be deemed to be a waiver of any 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 and signed by Authorized Representative of the Board
City of Kent Page 17 Contract Terms and Conditions
UV09951-101 21312010 2009.2011 Urban Vitanty Grant Program
117
ATTACHMENT 1:
1 PROJECT SCOPE OF WORK
PUBLIC WORKS BOARD
2009-2011 URBAN VITALITY GRANT PROGRAM
Contractor: City of Kent
Contract Number: UV09-951-101
Project Title: James St. at UPRR Non-motorized Improvements
1 The project's scope of worlds comprised of the following activities:
- Install an eight-foot wide.minimum width concrete sidewalk along the north side of
James Street between the Showare Center and the Interurban Trail -approximately 150
feet in length;
- Install a-seven-foot'miniMum width concrete sidewalk along the south side of James
1 'Street between the Kent/James Street Park& Ride and the King County Regional Justice
Center(KCRJC)-approximately 250 feet in length;
Widen James Street on both sides to provide five-foot wide bike lanes between the
Interurban Trail and the east side of the Union Pacific Railroad (UPRR)tracks;.
-Install pedestrian gates or flashing lights at all four quadrants of the UPRR crossing;
- Install concrete railroad crossing sections for the UPRR pedestrian crossing.
If the above scope of work Includes engineering, planning, or design activities, the Contractor shall make
all plans and documents funded In whole or In part by this Contract available for the Board's review upon
reasonable request.
The project will be considered complete when all the activities Identified in the above scope of work are
complete. Additionally, the project performance measures listed below must be accomplished by the end
of August 2014
Patrons of the Showare Center are allowed to use the 790 parking stalls at the Kent/James
Street Park& Ride (P&R). Patrons who park at the P&R have to cross the Union Pacific
Railroad (UPRR)tracks to reach the Showare Center and to return to their vehicles. To aid
pedestrians crossing the UPRR tracks, the City of Kent has dedicated one on-duty police
officer stationed at the UPRR crossing before and after each event.
At project completion,the number of pedestrian-train incidents will remain at 0 through
the four-year period beginning in 2010.
The Showare Center is estimated to host 80 events in 2010.With this project, the City
would realize a savings of approximately $14,400 (80 events, 4 hours each @$451hr)
because they would no longer have to dedicate an extra officer to aid pedestrians.
Measurements will be taken by the number of accident reports submitted to the City of
Kent involving Pedestrians-Trains at the UPRR crossing at the Showare Center.
In 2010, the City of Kent would no longer dedicate an extra officer stationed at the UPRR
track crossing to aid pedestrians for the Showare Center events.
City of Kent Page 18 Attachment I Protect Scope of Work
UV09-951-101 213/2010 2009-2011 Urban Vitality Grant Program
c _.
118
The Contractor, by Its signature below, certifies that the project's scope of work and performance
measures set forth above have been reviewed and approved by the Contractor's governFng body as of
the date and year written below
SIGNATURE
NAME
TITLE
DATE
i
City of Kent Page 19 Attachment I Project Scope of Work
UV09-951-101 2/312010 2009.2011 Urban Vitality Grant Program
119
ATTACHMENT II:
1 CERTIFICATION OF THE AVAILABILITY OF FUNDS TO
COMPLETE THE PROJECT
1 PUBLIC WORKS BOARD
2009-2011 URBAN VITALITY GRANT PROGRAM
Contractor: City of Kent
Contract Number: UV09-951-101. h
'���7�F�'�1'�n Fill Yti[�f� •`b — �- F »r p"`= ._.< . -_ �_ .x*„-,,m.�:v
This Urban Vitality-Grant 3 Washington State Public Works Board $235,000.00
Rop
NEM
- -- _
Grant#1' $0 00
Grant#2 _ - _ $0 00
Grant#3 $0 00
Total Grants Imo' $0.00
Non Match Loan #1 _ s0 UO
Non-Match Loan #2 $0 00 E
Total Non-Match Loans .�..�*,Y.�r ��'�_ �-,s.�- ��. _— - -� $0.00
G p „_ .- __ -`;+Y Irv• _
AVOW, + s`.3
Loan #1 $0 U0
Loan #2 -� _ $0 00
Loan #3 $0,00
xy - 4-:
Total Loans- x� � wm a=: - r: ._ $0.00
_ .
Local Revenue#1 Street Funds $235,000 00
Local Revenue#2 $0 00
Local Revenue#3 $0 00
Total Local Revenue i $235,000.00
Other Funds#1 pu 00
Other Funds#2 $0 00
Total Other Funds _ _ _ $0.00
TOTAL PROJECT FUNDING $470,000.00
LOCAL PROJECT SHARE (MATCH FUNDS PERCENT) 50.00%
City of Kent Page 20 Attachment 11 Availability of Funds Certification
UV09-951-101 213010 2009-2011 Urban Vitality Grant Program
120
The Contractor, by its signature below, certifies that project funding from sources other than those
provided by this Contract and identified above has been reviewed and approved by the Contractor's
governing body or board of directors, as applicable, and has either been expended for eligible project
expenses, or is committed in writing and available and will remain committed and available solely and
specifically for carrying out the activities described in ATTACHMENT I PROJECT SCOPE OF WORK, as
of the date and year written below The Contractor shall maintain records sufficient to evidence that it has
expended or has access to the funds needed to cbmplete the activities described in ATTACHMENT I
PROJECT SCOPE OF WORK, and shall make such records available for the Board's review upon
reasonable request
SIGNATURE _
NAME
TITLE
DATE =
1,
ICI
City of Kent Page 21 Attachment 11 Availability of Funds Certification
UV09-951-101 2/312010 2009-2011 Urban Vitality Grant Program
I 121
ATTACHMENT III:
ESTIMATED PROJECT COSTS
PUBLIC WORKS BOARD
2009-2011 URBAN VITALITY GRANT PROGRAM
Contractor; City of Kent
Contract Number:-UV09-951-101
atL'l�0 m, ti - z,
•',y-_ w sC� r
i Engineering Report -H SO 00
Cu�turai &Historical=ResoutcesReviev% Sect%or1:.146_or=£O'05-05
Environmental Review $0 00
stand%Rt hf`-of-V�la`Ac `u'isition,_~ _ - = , " ='--=t_ _ - "` 17 0d0 (0
_ _ --
9 y- Q ',$
Permits $0 00 j
t hformaon"= := >> ;�$0"00�
I Bid Documents $0 00
zGons#ructiomv._-�.._
Other Fees (Sales or Use Taxes) $0 00 1
G6ntingen6y'_`10 00%- -- r ;$,43,000.00`
Other Railroad Signal and Crossing Upgrades $250,000 00
01(
i Other, $0 00
It;Other'
_ -$0 00 1
Other - ----- -----. __ 0 00 A
- - � - - — �i
Other, $0 001.
TOTAL ESTIMATED PROJECT COSTS
The Contractor, by its signature below, certifies that the Estimated Project Costs set forth above have
been reviewed and approved by the Contractor's governing body or board of directors, as applicable, as
of the date and year written below
SIGNATURE
NAME
TITLE
DATE
I City of Kent Page 22 Attachment III Estimated Protect Costs
UV09-951-101 213/2010 2009-2011 U rba n Vitality G rant Program
122 t
ATTACHMENT IV:
CERTIFICATION OF THE PAYMENT AND REPORTING OF
PREVAILING WAGES
PUBLIC WORKS BOARD
2009-2011 URBAN VITALITY°GRANT PROGRAM
Contractor: City of Kent
Contract Number: UV09-951-101 _
The Contractor, by,-its signature belQvr,certifies that all contractors and subcontractors performing work
on the project as described'in ATTACHMENT-1 PROJECT SCOPE OF WORK-shall comply with
prevailing wage laws set forth in Chapter 39 12 RCW, as applicable to the-project funded by this Contract,
including but not Ilmiteclto-the filing of the"Statement of Intent to Pay Prevailing Wages" and "Affidavit of
Wages Paid" as required by RCW 39 12 040. The Contractor shall maintain records sufficient to
evidence compliance with Chapter 39 12 RCW_ , and shall make such-records available for the Board's
review upon request -
If any state funds are used by the Contractor for the purpose of construction, applicable State Prevailing -
Wages must be paid.
The Contractor, by its signature below, certifies that the declaration set forth above has been reviewed
and approved by the Contractor's governing body as of the date and year written below
SIGNATURE
NAME
TITLE
DATE
i
City of Kent Page 23 Attachment IV Prevailing Wages Certification
UV09 951-101 2612010 2009-2011 Urban Vitality Grant Program
123
ATTACHMENT V:
CERTIFICATION OF THE INTENT TO ENTER THE LEADERSHIP IN
ENERGY AND ENVIRONMENTAL DESIGN (LEED)
CERTIFICATION PROCESS
PUBLIC WORKS BOARD
2009-2011 URBAN VITALITY GRANT PROGRAM
Contractor: City of Kent
Contract Number: UV09-951-101
The Contractor, by its signature below, certifies that it will enter into the Leadership in Energy and
Environmental Design (LEED)certification process, as stipulated in RCW 39 35D, as applicable to the
project described in ATTACHMENT I. PROJECT SCOPE OF WORK funded by this Contract The
Contractor shall, upon receipt-of-LEED certification by the United States Green Building Council, provide
documentation of such certification to the Board
The Contractor, by-its signature below, certifies that the declaration set forth above has been reviewed
and approved by the Contractor's governing body or board of directors, as applicable, as of the date and
year written below
SIGNATURE
PPLICAP
NOT 04
NAME el
ect)
er
TITLE
DATE
City of Kent Page 24 Attachment V LEED Certification
UV09-951-101 202010 2009-2011 Urban Vitality Grant Program
Kent City Council Meeting
Date March 2, 2010
Category Consent Calendar - 60
1. SUBJECT: WATER TREATMENT CHEMICAL SUPPLY CONTRACT - AUTHORIZE
2. SUMMARY STATEMENT: Authorize the Mayor to sign the 2010 Water
Treatment Chemical Supply Agreement between the City of Kent and Cascade
Columbia Distribution for Sodium Fluoride in the amount of $37,705.
Sodium Fluoride is used to fluoridate the drinking water in an effort to help
prevent dental cavities in young children.
3. EXHIBITS: Memo dated 2/1/10 and Goods & 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
i 6. CITY COUNCIL ACTION:
■ Councilmember moves, Councilmember seconds
DISCUSSION:
ACTION:
j »
PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P E , Public Works Director
Phone 253-856-5500
Fax 253-856-6500
KENT
was"'"`T°" Address. 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 1, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Bradley Lake, Water Superintendent
Through: Timothy J. LaPorte, P.E., Public Works Director
Subject: 2010 Water Treatment Chemical Contract with Cascade
Columbia Distribution
Motion: Move to recommend Council authorize the Mayor to sign the 2010
Water Treatment Chemical Supply Agreement between the City of Kent and
I Cascade Columbia Distribution for Sodium Fluoride, subject to terms and
conditions acceptable to the City Attorney and the Public Works Director.
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
j obtain drinking water quality that meets State and Federal Regulations for drinking
water standards.
This treatment chemical is required to supply potable drinking water to the City's
water customers. Sodium Fluoride is used to fluoridate the drinking water in an
effort to help prevent dental carries in young children.
Budget Impact:
No Unbudgeted Fiscal/Personnel Impact as the funding ($37,705.00) would come
from the 2010 operating budget.
i
79
KENT
'NA sr ING*on
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, WA 98108, Phone: (206) 763-2350/Fax: (206) 762-5995, Contact: Keith
Weisenburg (hereinafter the "Vendor").
IAGREEMENT
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
chemical (bid item 6) according to the bid proposal submitted October 30, 2009,
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.
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, 2010.
III. COMPENSATION. The City shall pay the Vendor an amount not to exceed Thirty
Seven Thousand, Seven Hundred Five Dollars ($37,705.00), 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:
iGOODS & SERVICES AGREEMENT - 1
(Over$10,000.00, indudIng WSST)
so i
Delivery will be scheduled upon execution of this agreement. Vendor shall be paid
after submittal of invoice.
If the Cityobjects to all or an ects� y 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. By their execution of this
Agreement, and in accordance with Ch. 51 08 RCW, the parties make the following
representations:
A. 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.
B. The Vendor maintains and pays for its own place of business from which ,
Vendor's services under this Agreement will be performed.
C. The Vendor has an established and independent business that is eligible for a
business deduction for federal income tax purposes that existed before the
City retained Vendor's services, or the Vendor is engaged in an
independently established trade, occupation, profession, or business of the
same nature as that involved under this Agreement.
D. The Vendor is responsible for filing as they become due all necessary tax
documents with appropriate federal and state agencies, including the Internal
Revenue Service and the state Department of Revenue.
GOODS & SERVICES AGREEMENT - 2
(Over$10,000.00, including WSST)
t 81
E. The Vendor has registered its business and established an account with the
state Department of Revenue and other state agencies as may be required
by Vendor's business, and has obtained a Unified Business Identifier (UBI)
number from the State of Washington.
F. The Vendor maintains a set of books dedicated to the expenses and earnings
of its business.
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
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
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
accordance with the applicable provisions of this Agreement.
1 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
iGOODS & SERVICES AGREEMENT - 3
(Over$10,000,00, including WSST)
82
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 li
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.
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
GOODS & SERVICES AGREEMENT - 4
(Over$10,000,00, including WSST)
83
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.
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 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.
GOODS & SERVICES AGREEMENT - 5
(Over$10,000,00, including WSST)
84
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.
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
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.
I
GOODS & SERVICES AGREEMENT - 6 '
(Over $10,000.00, including WSST)
85
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 Weisenburg Timothy J. LaPorte, P.E.
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)
APPROVED AS TO FORM:
Kent Law Department
Cascade Columbla-2010 Water Chemical(6)(Bauer '
GOODS & SERVICES AGREEMENT - 7
(Over$10,000.00, including WSST)
86
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 j
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. 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 , 20_.
By:
For:
Title:
Date:
EEO COMPLIANCE DOCUMENTS - 1 of 3
87
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.
1 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
88
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 , 20
By:
For:
Title:
Date:
EEO COMPLIANCE DOCUMENTS - 3 of 3
89
Exhibit A
I
I
1
1
1
WATER TREATMENT CHEMICAL SUPPLY FOR 2010 90
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: (� { ` 1^ p `�, ,�{ 1 f�
1 Bidder' Name: CASCAOC (ot✓ AAAP� ��� VQU itU!J Q0
Item Estimated Description Bid Unit Total
Annual Unit Prices
Usage �i
6 60,000 Sodium Fluoride in 50 Lb. Bags $ f 62d $3� �M 00
LBS FOB Clark Springs LB
Total $ 32 70 7 ° 00
WCAO( (0t.0Pg -\ nlmmloo (0 .
Company Submitting Proposal
r
A h ize �gnatur
Note contractor must submit a firm proposal for the contract term(s).
91
.... .._ �.. ..... ----------
WEGO CBEMICAL & MMRAL CORP.
269 GRrAT NJEcac ROAD . GREAT NILM NY 11021
TEL, f5 f.)487-3310
PAX. IS a)487-7794
E-411AM: Wiles 4)wrgl llem.cgttt
Wets{te: www.wegocht"tcal.Com
SPECIFICATION
SODIUM FLUORIDE
TYPICAL ANALYSIS
Coarse Crysial
NaF 97% Mill.
Water Insoluble 0.3%Max
Moisture (k,20) 0.5%Max.
Heavy Metal (Pb) 0.04%Max.
F 43.8% Max
Na2StiF6 1.5% Max.
'Free NaCO3 0.5% Max.
PH 7.2-8.0 Max.
Mesh Analysis
+32 Mesh 0-5%
32-60 Mesh 45-75%
60-200 Mesh 20-40%
I00-325 Mcsh, 0-8%
-325 Mesh 00/0
Product meets A.W.W.A.standards-ANSI/NSF 60 appro ved
1—no informasion eet fords hcmia la offered as a service m our ctwomcm and is Cue imendeti to relieve tl evswmer froth N respownbitity to deb r...inc
IUc susr�tfity of thiy tet'omn;ion or oftfre matrrlals dt3cr+bcd hercia forpurct+ascr s puryosn,to itfvzifi��te othcrsourcec oCittfnrma[ion.to cnr vty
zoom t64CL8b9;ST0o Yd3 MOT 211t 9Ur_0/Z0
92
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.
93
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 j
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.
REPORTS FROM STANDING COMMITTEES AND STAFF
' A. COUNCIL PRESIDENT
' B. MAYOR
C. OPERATIONS COMMITTEE
' D. PARKS AND HUMAN SERVICES COMMITTEE
' E. ECONOMIC AND COMMUNITY DEVELOPMENT COMMITTEE
F. PUBLIC SAFETY COMMITTEE
G. PUBLIC WORKS COMMITTEE
H. ADMINISTRATION
IREPORTS FROM SPECIAL COMMITTEES
1
KENT
W A 9 M I N O T O N
OPERATIONS COMMITTEE MINUTES
FEBRUARY 2, 2010
Committee Members Present: Debbie Raplee, Jamie Perry, and Les Thomas
The meeting was called to order by Les Thomas at 4:10 p.m.
1. APPROVAL OF MINUTES DATED JANUARY 19, 2010
Raplee moved to approve the minutes of the January 19, 2010 Operations Committee
meeting. Perry seconded the motion, which passed 3-0.
2. APPROVAL OF VOUCHERS DATED JANUARY 15, 2009
Finance Director, Bob Nachlinger presented the vouchers for January 15, 2010 for approval.
Perry moved to approve the vouchers dated January 15, 2010. Raplee seconded the
motion, which passed 3-0.
3. MOVE TO AUTHORIZE THE MAYOR TO SIGN A GOODS AND SERVICES
AGREEMENT WITH TIBURON, INC. NOT TO EXCEED $63128 TO ASSIST
THE CITY WITH UPGRADING THE POLICE AND JAIL RECORDS SYSTEM
(TIBURON).
IT Manager Kim Clements presented an agreement to perform the mandatory upgrade of our current Tiburon
system from version 7 33 to the latest version (currently 7.6) pending agreement on terms and conditions.
BUDGET IMPACT. Not to exceed $63,128 goods and services agreement. Funding for this project was
budgeted in the Information Technology Plan as adopted by City Council and will not impact the general fund.
BACKGROUND. The Tiburon system was implemented in September of 2004 This upgrade is mandatory to
maintain compliance with our annual maintenance and support contract This goods and services agreement is
for the costs associated with upgrading custom interfaces, converting the Oracle database to SQL Server, user
' training and upgrading the Tiburon training system. ATTACHMENTS: Scope of Work for upgrade of the
Tiburon System. The Committee raised questions which Clements responded to.
Raplee moved to recommend Council authorize the Mayor to sign A Goods and
Services Agreement with Tiburon, Inc. not to exceed $63,128 to assist the City with
upgrading the Police and Jail Records system (Tiburon). Perry seconded the motion,
which passed 3-0.
City Attorney Tom Brubaker noted that the City is still negotiating some of the final
details with Tiburon on this contract and would like to ask that the motion be
amended to add "subject to the approval of final terms and conditions by the City
Attorney."
4. MOVE TO AUTHORIZE THE MAYOR TO ENTER INTO GOODS AND SERVICES
AGREEMENTS WITH RIGHT! SYSTEMS TO PURCHASE TAND INSTALL A
STORAGE AREA NETWORK WYWTEM IN AN AMOUNT TNOT TO EXCEED
$480,000 INCLUDING APPLICABLE STATE TAXES, AND TO AUTHORIZE
THE MAYOR TO AUTHORIZE PURCHASE ORDERS TO HEWLETT-PACKARD
CORPORATION FOR SERVERS AND SFTWARE NOT TO EXCEED
2
Operations Committee Minutes '
January 19 2010
Page: 2
$172,04SUNDER THE WSCA CONTRACT, FOR A PROJECT TOTAL NOT TO
EXCEED $717,249. '
IT Manager Paul Dunn provided Committee members with an amendment to the Goods
& Services Agreement between the City of Kent and Right' Systems, Inc. Dunn
explained that as part of the Information Technology Planning process the need for '
integrated and expandable disc storage architecture was identified. Today, the IT
Department manages disc storage on its servers in a collection of small Storage Area
Networks (SANs), and server-attached disc arrays. During the first half of 2009, the
City's Information Technology Department conducted an in-depth study, to better
understand business drivers and requirements behind the growing need for disc storage.
The results of this study were used to inform the planning for an Enterprise Level
Storage Capacity and Disaster Recovery Readiness Project. The Enterprise Storage
Capacity project addresses the identified needs for disc storage and defines the
architecture to support the City's storage and Disaster Recovery and Restoration ,
requirements. Dunn further explained that this project is an element of the Tech Plan
that has already been approved. Have added disaster recovery that was also a part of
the Tech plan. The City Information Technology Department issued an RFP for the ,
Storage Area Network System in September, 2009. The chosen responsive vendor was
Right' Systems of Lacey, WA. Other elements of the project will be purchased under
State or Interlocal Contracts. BUDGET IMPACT. The budget for this project is included in ,
the Information Technology Tech Plan Budget. BACKGROUND. During the first half of
2009, the City Information Technology Department conducted a comprehensive survey
of data storage usage and virtualization opportunities as part of the foundation for this ,
initiative. The Committee raised questions which Dunn responded to.
Perry moved to authorize the Mayor to enter into Goods and Services Agreements with
Right! Systems to purchase and install a Storage Area Network System in an amount
not to exceed $480,000 including applicable State Taxes, and to authorize the Mayor to
authorize purchase orders to Hewlett-Packard Corporation for Servers and Software
not to exceed $172,045 under the WSCA contract, for a project total net to exceed
$717,249. Raplee seconded the motion, which passed 3-0.
5. RECOMMEND THE KENT CITY COUNCIL ADOPT TOE PROPOSED '
ORDINANCE THAT PLEDGES THE CITY OF KENT'S FULL FAITH AND ,
CREDIT TOWARD THE PAYMENT OF ITS 200/a SHARE OF THE TOTAL DEBT
SERVICE ON FREFUNDING VALLEY COMMUNICATIONS'S BONDS,
ESTIMATED AT 5.85 MILLION, AND AUTHORIZING THE MAYOR AND '
VALLEY COMMUNICATIONS TO TAKE ALL OTHER ACTIONS NECESSARY
TO ISSUE THE REFUNDING BONDS.
SUMMARY:
City Attorney Tom Brubaker noted that in April 2000, the City of Kent, along with the cities of
Auburn, Federal Way, Renton, and Tukwila, entered into an interlocal agreement to reorganize
Valley Communications Center, whose purpose is to provide improved police, fire, and medical
aid service communications within the boundaries of the member cities.
At the same time, the member cities, through the City of Kent, formed the Valley
3
tOperations Committee Minutes
January 19 2010
Page: 3
Communications Center Development Authority (PDA). The PDA issued bonds in order to
finance the construction, equipping, and improvement of a new Valley Communications
facility Pursuant to the April 2000 Interlocal Agreement, each member city agreed to
contribute to paying 20% toward the financing of the costs of the new facility, less
contributions from grants, other agencies, or other sources.
The market currently allows these bonds to be refunded at a lower interest rate through the
issuance of refunding bonds, which would result in a savings to both Valley Communications
and its member cities The total amount of the refunding bonds is currently estimated at
$5.85 million, but the actual amount will not be known until the time the refunding bonds
issue.
In order to authorize issuance of the refunding bonds, each member city has been asked to
reaffirms its pledge on the original loan by adopting an ordinance that pledges the city's full
' faith and credit toward the payment of its 20% share of the total debt service on the
refunding bonds to be issued by the Valley Communications Center Development Authority.
The Committee raised questions which Brubaker and Finance Director Bob Nachlinger.
Raplee moved to recommend the Kent City Council adopt the proposed ordinance that
pledges the City of Kent's full faith and credit toward the payment of its 20% share of
the total debt service on refunding Valley Communications' bonds, estimated at $5.85
million, and authorizing the Mayor and Valley Communications to take all other actions
necessary to issue the refunding bonds. Perry seconded the motion,which passed 3-0.
The meeting ad3ourned at 4:33 p.m. by Les Thomas.
Pamela Clark
Operations Committee Secretary
Page 1
City of Kent
_g Parks and Human Services Committee Meeting
KENT Minutes of January 21, 2010
Ai wC 6N
Council Committee Members Present: Debbie Ranniger and Dennis Higgins
1 Call to Order: Debbie Ranniger called the meeting to order at 5:03 p.m. and
introduced new City Council Member Dennis Higgins, Elizabeth Albertson arrived at
5:08 p.m.
' Additions to Agenda
Citizens requesting to speak
Larry Tukes
21439 96`h Ave. So.
Kent, WA 98031
Victor Jones
8341 Wolcott Ave. So.
ISeattle, WA
1. Minutes of November 19, 2009 - Approve
1 Dennis Higgins moved to approve the minutes of November 19, 2009. Debbie
Ranniger seconded and accepted for Elizabeth Albertson in absence. The motion
passed.
Added Item
Mr. Tukes introduced himself saying that since 2005, he has managed the Douglass
' Youth Golf Club, a grant funded program designed to help low income kids of color
have golfing opportunities. He's worked with staff at Riverbend and since 2006. Mr.
Tukes stated that he wanted to express his frustration and concern about the
Washington Junior Golf Association. After expressing those concerns, he went on to
share his dissatisfaction with some events that have occurred at Riverbend Golf
Complex. Jeff expressed surprise in hearing of this, since Jeff and Larry have
communicated with frequency over the last few months. Jeff suggested that they
meet face-to-face to address the specifics of his concerns and work toward
resolution. Everyone agreed that would be best. Elizabeth Albertson offered to
attend the meetings and represent the Committee. Jeff offered to provide a
progress report at the next Parks and Human Services Committee meeting in
February.
2. Kind County Contract for Jail Transition Services - Authorize
Katherin Johnson reported that this agreement covers relationships and operational
agreements for purposes of providing Jail transition services to defendants with re-
f
Page 2 '
occurring mental health and substance abuse disorders who are being released
from the Kent Municipal Jail. A collaborative effort to assist eligible and appropriate
offender-clients and defendants with mental illness transitioning from the Kent City
Jail in applying for Department of Social and Health Services (DSHS) entitlements
and publicly funded benefits for the purposes of accessing mental health
counseling, medications management, and case management services in the
community.
Funds will also pay for the dedicated office space for one full-time equivalent (1.0 1
FTE) DSHS financial application worker to be sited within the Kent City Hall building
and reimbursement for a seven-day supply of medications prescribed to persons
exiting Jail for the purposes of relieving psychiatric symptoms. This effort is
sponsored and supported by HB1290 Jail Services funds.
Elizabeth Albertson moved to recommend Council authorize the Mayor to sign the '
Memorandum of Understanding between King County and the City of Kent for Jail
Services. Dennis Higgins seconded and the motion passed3-0.
3. Northwest Playgrounds Proposal Agreement - Authorize
Park Planner Brian Levenhagen notified the Committee that Parks staff are adding a
third of an acre of park land to Wilson Playfields. This space will serve as a play
and picnic area for families and teams using Wilson Playfields, as well as the
surrounding neighborhoods. Adding these facilities at this community park has
been identified as a need by staff and park users. The project is being funded
primarily by fee-in-lieu money from surrounding developments. Design and
construction are being done in-house to save money at approximately 30-50%.
Dennis Higgins moved to recommend Council authorize the Mayor to sign the
proposal from Northwest Playgrounds to purchase play equipment for $41,707.37
and approve the expenditure from fee-in-lieu funds. Elizabeth Albertsons seconded
and the motion passed 3-0.
4. Community Athletics Programs Sexual Discrimination Policy - Adopt '
During its 2009 session, the state legislature adopted Engrossed Substitute Senate
Bill 5967 (ESSB 5967), which prohibits sex discrimination in public community
athletics programs. The bill provides that no city may discriminate against any
person on the basis of sex in the city's operation, conduct, or administration of
youth and adult community athletics programs. Additionally, other groups who
lease or permit city facilities for community athletics programs must agree to this
policy against discriminating on the basis of sex for youth or adult community
athletics programs. Finally, the city must publish the name, office address, and
office telephone number of the city employee responsible for its efforts to comply
with and carry out its responsibilities under ESSB 5967.
The City's Parks, Recreation, and Community Services Department is currently
working to revise its rental forms and program descriptions to clearly identify that
no group may discriminate in program participation on the basis of sex. Because
chapter 4.01 of the Kent City Code sets forth various rules and regulations '
2
t Page 3
applicable to park property, it is appropriate to amend that chapter to include a new
section setting forth the non-discrimination policy required by RCWs 35A.21.350,
49.60.500, and 49.60.505.
Elizabeth Albertson moved to recommend adopting the proposed ordinance, which
amends Chapter 4.01 of the Kent City Code to add a new section 4.01.015, which ,,
prohibits the City or groups who use City facilities for adult or youth community
athletics programs from discriminating against participants on the basis of sex.
Dennis Higgins seconded and the motion passed 3-0.
' S. Enerciv Efficiency and Conservation Block Grant Agreement -
Authorize
In June, 2009, Jeff reported to the Committee that the Department of Energy
announced stimulus funds available through The American Recovery and
Reinvestment Act of 2009. These formula-based grants under the Energy Efficiency
and Conservation Block Grant (EECBG) Program are provided through the DOE.
Staff proceeded to evaluate two large city projects for funding eligibility and the
Centennial Building HVAC Upgrade Project was chosen. Staff applied for the grant in
July and received notice of award on November 25, in the amount of $845,400.00.
The agreement arrived electronically from the DOE in mid December. We were
asked to sign and return that agreement within five days. After confirming with the
City Attorney's office, the Mayor signed the agreement with the understanding that
ratification would be sought by the Parks Committee and Council in 2010.
Expenditure of these funds will not occur until late first quarter. Dennis Higgins
questioned the need for quick turnaround and the Mayor signing prior to Council
approval. He asked that this does not set precedent.
Dennis Higgins moved to recommend Council ratify the Mayor's signature on the
Energy Efficiency and Conservation Block Grant Agreement with the US Department
of Energy for $845,400.00 and approve the expenditure of funds in the Facilities
Budget. Elizabeth Albertson seconded and the motion passed 3-0.
6. Human Services Application Process - Informational
Human Services Planner Merina Hanson reported that in 2008, nine North and
Eastside cities participated in an eCityGov product called the HS Portal. One
component of the portal, HSCONNECT.net served as the venue for human services
providers to apply for city grant dollars. In Spring 2009, human services staff from
the South King County cities approached eCityGov and the North/East Human
Services Planners to discuss the possibility of joining the HS Portal Over the
' course of the succeeding four to six months, both groups separately approved the
joining process. As a result, the conglomerated 18 cities now comprise the newly
formed "Human Services Funders Collaborative," or HSFC. In 2010, human services
providers will be able to submit one application online to any of the participating 18
cities.
3
Page 4 '
The combined work of the two groups will provide benefits to both the participating
cities and the partner human service agencies, including:
• Increased proposal review efficiency by building on the existing HSCONNECT.net
product, adapting the existing offline MS Word narrative portion for the web,
leading to a completely online web-based proposal submission process.
• Increased contracting and monitoring efficiencies, including the possibility of a
Jointly used online quarterly reporting process, adapting existing reporting
documents (in MS Word and Excel) for the web.
• Continued ability for non-profit agencies to direct more time and resources to
service delivery and less time to administrative burdens associated with local
government grant contracting and reporting
• Improved ability of the HSFC cities to coordinate in response to sub-regional and
regional human services needs and initiatives
7. Severe Weather Shelter at Kent Lutheran Church - Informational '
Human Services Planner Jason Johnson stated that after the winter snow of 2008-
09, concerned members from Kent Lutheran Church lead an effort with the City of
Kent and Catholic Community Services to open a Severe Weather Shelter (SWS)
this winter at their church facility (336 2"d Ave South in Kent).
This groups goal was to help provide Kent's homeless residents with safe, warm
shelter from extreme weather, to provide those at the SWS a hot meal, and stretch ,
the funding normally used for motel vouchers during cold weather emergencies
Staff researched local SWS models (City of Federal Way, City of Seattle and City of
Bellevue) and drafted a MOU with between Kent Lutheran Church and the City of
Kent that outlined roles and activation procedures. Using emergency funds Kent
City Council set aside after the winter storms of 2007-08, a contract with Catholic
Community Services for $10,000 was signed to provide the staffing when the SWS
was activated.
It was agreed by all parties that the role of the City of Kent would be to activate the
SWS when low temperatures fall below 32 degrees for 24 or more consecutive
hours AND/OR snow accumulation exceeding or expected to exceed 3 inches in
depth AND/OR other conditions deemed severe enough to present a substantial
threat to life or health of homeless persons in Kent. When activated, the SWS will
be open from 9:OOPM to 7:OOAM. Priority is given to homeless families with
children who are living on the streets or in vehicles, but the SWS will also be
available for single women and men. Kent Lutheran Church has multiple buildings
for use if/when populations need to be separated. The activation notice is given via
email to the Mayor's Office, Kent Police, Kent Emergency Management, Kent and ,
Federal Way School Districts, King County Crisis Clinic, South King County Forum
on Homelessness, and Kent funded service providers 12 hours before the SWS
opens its doors.
During the month of December, the SWS was activated four times serving 12
unduplicated men and women each night. The total cost to the City of Kent to open
4
Page 5
the SWS these four nights was $2000. The cost had we opted to instead issue a
motel vouchers to these individuals would have been a minimum of $3600 (this
excludes administrative costs for an agency to issue a voucher).
S. Park Plan Uudate - Informational
Jeff stated that an update to the Kent Park & Open Space Plan is underway and a
draft plan has been completed. The update process is an opportunity to re-
examine our vision for Kent Parks and prioritize our next steps for the short and
long-term future. The City's previous plan was adopted in June 2000 and is due for
an update. During the spring and fall of 2009, public input was gathered and used
to gauge changing community needs and priorities. Since then, specific
implementation strategies have been identified and incorporated into a draft plan.
The updated plan will be used to direct future development, acquisition and
renovation of parks and open spaces.
The draft plan allows us to take a detailed look at specific elements and
recommendations. The plan analyzes the most recent census information, provides
an updated park and open space inventory, updates level of service and goals and
policies and recommends long and short-term capital projects. The draft plan
includes the four core themes that we have previously discussed: Kent's Legacy,
Athletic Fields, Green Kent and Connectivity.
In addition to this plan, staff is updating the Parks & Open Space Element and the
Capital Facilities Element of the Comprehensive Plan to ensure consistency.
Pursuant to the Growth Management Act, the Parks & Open Space Plan must be
incorporated into the City's Comprehensive Plan in order for it to be used as a
policy document for implementation purposes.
9. Fourth Ouarter Report
Jeff reported that even though there were painful budget and staff reductions in
2009, Park's staff held their focus and he is very proud of them. Their focus is
evidenced by the successes shown in the fourth quarter report. A few items of note
I are in the Senior Center section and their innovative approach to the lunch
program. By partnering with Panera Bread, the lunch number quota as outlined in
the Food Services contract, and now we are saving money for the city.
In the Cultural division, the Christmas Fun Run was a huge success. The entire run
was re-routed from the Green River Trail, due to the location of sand bags along
the trail. Instead of cancelling the run, Mark Hendrickson, along with city staff, re-
routed the event to begin at Riverbend. Proof of the success was a record 1,800
runners this year.
IGood news for the Holiday Bazaar at Kent Commons. The city had to make tough
decisions on budget reductions and had to eliminate the Holiday Bazaar in the 2010
budget. Recently, a private entity approached staff with interest in taking over the
Bazaar. After negotiations, an agreement was executed and beginning December
2010, the Holiday Bazaar will continue to be held at Kent Commons.
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10. Contributions Report
The Contributions Report reflects all cash and in-kind donations less than $5,000
each in value and not required to be presented to Council for approval to expend.
Jeff noted that over $40,000.00 in cash and in kind donations were received from
local businesses and citizens in the fourth quarter, making a grand total of over
$100,000 for 2009.
11. Director's Report
Jeff stated that staff innovation is evident in how staff worked to keep the Holiday
Bazaar going and to find creative ways to fund the new Wilson Play Area.
Over 150 volunteers assisted in the Martin Luther King Clean Up Event at Lake ,
Fenwick. In 1.5 hours, two tons of debris was removed.
The Off Leash Dog Area Committee held a meeting last week. A group was created
to organize the building and management of a temporary dog area in Kent. An on-
site meeting is scheduled for next week. Sub committees will be created to develop
fund raising and construction plans.
The meeting adjourned at 6:10 p.m.
Respectfully submitted, ,
Teri Petrole
Council Committee Secretary
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PUBLIC WORKS COMMITTEE MINUTES
Monday, February 1, 2010
COMMITTEE MEMBERS PRESENT: Committee Chair Debbie Raplee and committee
members Ron Harmon and Dennis Higgins were present. The meeting was called to order
at 4:06 p.m.
Item 8 moved up and was heard as Item 5. The rest of the items followed in order.
ITEM 1 — Approval of Minutes Dated January 25, 2010:
Committee Member Harmon moved to approve the minutes of January 25, 2010.
The motion was seconded by Higgins and passed 3-0.
ITEM 2 — Contract w/Natural Systems Design for E. Fork Soosette Creek Channel
Improvements:
Toby Hallock, Environmental Engineer stated that the East Fork of Soosette Creek, which
is south of Lake Meridian, flows to the west under 1441h Avenue SE. The creek floods over
144`h Avenues SE during ram events, causing standing water on the road The contract
will have Natural Systems Design investigate the site, prepare alternative drainage
solutions, and analyze a selected design to determine if creating a new channel will
improve creek flows.
Higgins moved to recommend Council authorize the Mayor to sign a Consultant
Services Contract with Natural Systems Design to evaluate channel
1 improvements on the East Fork of Soosette Creek in the amount of $34,310 upon
concurrence of the language therein by the Public Works Director and City
Attorney. The motion was seconded by Harmon and passed 3-0.
ITEM 3 — East Valley Highway (84"' Ave. S.) Fund Authorization:
Chad Bieren, Engineering Supervisor stated that staff applied for and was awarded several
federal grants to construct the East Valley Highway Improvements Project (Local
Improvement District 362) between 2004 and 2009. A total of $3,870,145 was awarded
on three separate federal grant applications. The largest grant in the amount of
$2,000,000 was accepted last summer and design funds totaling $95,755 were accepted
in 2006. The remaining $1,815,564 is available and needs to be accepted by Council.
Harmon moved to recommend council accept Federal grant monies for
construction of the East Valley Highway Project in the amount of $1,815,564,
establish a budget for the funds, and authorize the Public Works Director to sign
all necessary documents. The motion was seconded by Higgins and passed 3-0.
ITEM 4 — Contract w/Tetra Tech for Lake Monitoring:
Matt Knox, Environmental Ecologist noted that Lake Fenwick is currently not meeting
water quality thresholds established by the Washington State Department of Ecology and
the Environmental Protection Agency for total phosphorus. Water quality is also a concern
at Lake Meridian, with the lake being listed on the 303d list (the national list of"impaired
waters") for two parameters (fecal coliform and total phosphorus) and proposed for listing
for six others.
The City has enacted a number of measures to improve water quality at both lakes; in
order to assess progress in meeting standards, water quality and aquatic weed monitoring
needs to continue. This contract will meet these goals and help prioritize future lake
management decisions.
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PUBLIC WORKS COMMITTEE MINUTES t
Monday, February 1, 2010
Higgins moved to recommend Council authorize the Mayor to sign a consultant
services agreement with Tetra Tech, Inc. in the amount of $47,144.50 to monitor
surface water quality conditions and aquatic weeds in Lake Fenwick and Lake
Meridian during 2010, upon concurrence of the language therein by the City
Attorney and the Public Works Director. The motion was seconded by Harmon
and passed 3-0.
ITEM 6 6 - WA State Department of Ecology Coordinated Prevention Grant
CPG :
Gina Hungerford, Conservation Specialist explained that the Washington State Department
of Ecology CPG grant will be used to fund Residential and Commercial Waste Reduction
and Recycling Programs in 2010-2011. Tasks will include special recycling and collection
events (three) for residents and businesses and education for residents to participate in
the City's expanded food scrap collection services to improve public recycling rates and
improve waste diversion The City will receive $54,940 from the Washington State
Department of Ecology for 2010 Gina stated that the next recycling event will be held on
March 20, 2010 from 9:00 a.m. - 3.00 p m. at Russell Road Park, 24400 Russell Road.
Harmon moved to recommend Council authorize the Mayor to sign the
Coordinated Prevention Grant Contract for $54,940 for 2010. The motion was
seconded by Higgins and passed 3-0.
ITEM 6 7 - King County Waste Reduction and Recycling Grant (WRR):
Gina Hungerford, Conservation Specialist explained that the King County WRR Grant funds
special recycling events for residents and businesses to collect hard-to-recycle materials,
purchase, distribute and promote products made from recycled materials. The City will
receive $162,980 over a two year period. No matching funds are required.
Higgins moved to recommend Council authorize the Mayor to accept the
$162,980 Waste Reduction and Recycling Grant for 2010/2011. The motion was
seconded by Harmon and passed 3-0.
Item -7 8 - Contract w/Olvmpic Environmental Resources for Waste Reduction
and Recycling Activities and Programs:
Gina Hungerford, Conservation Specialist explained that Olympic Environmental Resources
(OER) will assist with organizing and implementing the City of Kent's Waste Reduction and
Recycling Programs. The Consultant Contract is funded entirely through various grants.
There is no budgetary impact.
Harmon moved to recommend Council authorize the Mayor to sign the Olympic
Environmental Resources Contract Agreement for Waste Reduction and Recycling
Activities and Programs for 2010 in the amount of $63,745, upon concurrence of
the language therein by the City Attorney and the Public Works Director. The
motion was seconded by Higgins and passed 3-0.
Item 8 5 - Information Only/Solid Waste Update:
Gina Hungerford, Conservation Coordinator, gave an informative PowerPoint Presentation
on all functions performed within the Solid Waste Utility These functions include
customer service, code enforcement, education, inter-agency coordination, contract
administration, litter control and addressing illegally dumped materials throughout the
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PUBLIC WORKS COMMITTEE MINUTES
Monday, February 1, 2010
City. Following the presentation, Councilmember Higgins asked about staffing levels for
the solid waste utility. Councilmember Harmon asked if the solid waste utility is an
enterprise fund, which was confirmed by Tim LaPorte, Public Works Director.
No Motion Required/Information Only
Item 9 - Cancel Public Works Committee Meeting of February 15, 2010:
Tim LaPorte, Public Works Director asked that the Public Works Committee Meeting of
February 15, 2010 be cancelled due to the President's Day Holiday.
There was no formal motion made. It was agreed that the meeting would be
cancelled due to the President's Day Holiday.
Item 10 - Special Public Works Committee Meeting - Set Date:
Tim LaPorte, Public Works Director requested that there be a Special Public Works
Committee meeting to be held on Monday, February 22, 2010, at 4:00 p.m
No formal motion was made. Committee members concurred with LaPorte that a
Special Public Works Committee meeting will be held on Monday, February 22,
2010 at 4:00 p.m.
Added Item:
There was a question from Committee about how the permit process works. Mike
Gillespie, Development Manager explained the process and answered questions from
committee members.
Adiourned•
The meeting was adjourned at 5:18 p.m.
tUpcoming Meetings:
February 15, 2010 was cancelled due to the Presidents Day Holiday.
Special Meeting scheduled for February 22, 2010 at 4.00 p.m. in Chambers East
Cheryl Viseth,
Public Works Committee Secretary
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