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HomeMy WebLinkAboutCity Council Meeting - Council - Agenda - 06/01/2010 CITY OF KENT CityCouncil Meeting g Ai a "n x Pa rk P Agenda „as 'a BOOM June 1 , 2010 4 Mayor Suzette Cooke �s Jamie Perry, Council President t Councilmembers V Elizabeth Albertson Ron Harmon Dennis Higgins r Deborah Ranniger Debbie Raplee KENT WASHINGTON ;I Les Thomas CITY CLERK wawoo iti KENT CITY COUNCIL AGENDAS KENT June 1, 2010 WAS MINftON Council Chambers MAYOR: Suzette Cooke COUNCILMEMBERS: Jamie Perry, President Elizabeth Albertson Ron Harmon Dennis Higgins Deborah Ranniger Debbie Raplee Les Thomas ********************************************************************** I COUNCIL WORKSHOP AGENDA 5:30 p.m. Item Description Speaker Time 1. Panther Lake Annexation Planning Division Director 40 minutes Interlocal Agreement Satterstrom ********************************************************************** 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. Drinking Driver Task Force Poster Contest Awards D. Yangzhou Sister City Gift Presentation E. National Trails Days in Kent at Clark Lake Park Proclamation F. Economic and Community Development Report G. Public Safety Report and Awards 5. PUBLIC HEARINGS A. Goldfinch Communications LLC Cable Television Franchise 6. CONSENT CALENDAR A. Minutes of Previous Meeting - Approve B. Payment of Bills - Approve C. One Regional Card for All (ORCA) Agreement - Authorize (Continued) COUNCIL MEETING AGENDA CONTINUED 7. OTHER BUSINESS A. Temporary Flood Protection Structures Ordinance B. Deferral of Development Fees, Ordinance and Resolution 8. BIDS None 9. REPORTS FROM STANDING COMMITTEES, STAFF AND SPECIAL COMMITTEES 10. CONTINUED COMMUNICATIONS 11. EXECUTIVE SESSION AND AFTER EXECUTIVE SESSION 12. ADJOURNMENT T i i NOTE: A copy of the full agenda packet is available for perusal in the City Clerk's Office and the Kent Regional Library. The Agenda Summary page and complete packet are on the City of Kent web site at www.choosekent.com An explanation of the agenda format is given on the back of this page. I 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. a av000Q ° avEm�E � vcmvc; � a`o � omoc u o w =' i°p ¢�--umivc yvvv-mp 5gaci °nusa� m u N�� E� E m a tO u T ° c09a1°, mc S E-osN � yv m > jgNa u • ��� b o� n>o0cvS ° °_M- o � Ops � JT°° v A ? O m • vv-Uo ouo c-- V vv ocmE vyoa.c 1O3 ouryao-;Nc� vEc `° J-N0�c� c v a c 1y m `o E N J Y v o b E ' J� Y v uo f E 0 o E �o E Viz- v o f Q q .T.Q m > ey dL.+ .O. 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O N N O y 9:: Y U v, caiE � 3 • o� u °' w o o v E E Ev C3 J Y J c -6 Q �bJct L3E °:- .. � yvou « '-,_ vm0 � °m `o c mL m 3 ° o o� c � _roN m� c rscv oa Ero cco � Tim `vEvwrov �U vo,=� o NaE y3 m � m o.u'- cu ov m � ctl0 u v vc_ yyoaum.•_. �n v0 ro �' a noe v,u ro QU> a. E 4 E Q m0 COUNCIL WORKSHOP 1) PANTHER LAKE ANNEXATION INTERLOCAL AGREEMENT i t Z i i i i 1 1 r ECONOMIC and COMMUNITY DEVELOPMENT Ben Wolters, Director PLANNING DIVISION • Fred N Satterstrom, AICP, Planning Director KENT W"5"'"G T G" Phone: 253-856-5454 Fax 253-856-6454 Address- 220 Fourth Avenue S Kent, WA 98032-5895 June 1, 2010 TO: Council President Jamie Perry and Councilmembers FROM: Fred N. Satterstrom, AICP, Planning Director RE: Draft Interlocal Agreement - Panther Lake Annexation Area When the Panther Lake annexation area becomes a part of the City of Kent on July 1st, the City will take ownership of the roads, parks, and certain other properties, as well as be responsible for providing municipal services to Panther Lake residents. To make the transition process as seamless as possible, the City and King County have been discussing the details of an interlocal agreement for several weeks. While we have not reached final agreement on language and details, staff wants to familiarize the Council with the outline and issues of the emerging agreement(s). The interlocal agreement (ILA) on the Panther Lake annexation is likely to consist of two separate agreements: Governance and Property Transfer. The separation of documents is at the behest of the County. The Governance ILA will cover the following topics: • Records transfer • Development permit processing • Jail services Police services • District court services • Status of County employees • Other general and legal provisions The Property Transfer ILA will cover the following topics: • Transfer of road-related properties Environmental mitigation sites • Greenbelts and open space properties • Parks 0 Other general and legal provisions MEMORANDUM: Kent City Councilmembers June 1, 2010 Page: 2 Staff will present a broad overview of these sections and highlight the issues that have been Identified In our discussions with the County. It should be mentioned here that there are not major, substantive Issues over which we have disagreement; the major issue at this time is related to the sheer size of the annexation and ensuring that we identify all of the properties and other assets that will transfer as a result of annexation. cc Ben Wolters ECD Director Tom Brubaker, City Attorney Kim Adams-Pratt,Assistant City Attorney File AZ-2009-1 P\Planning\Annex_PantherLake\Lnterlocal Agreements\0601DCouncil PacketMemo doc i 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 i i t I PUBLIC COMMUNICATIONS A) PUBLIC RECOGNITION tB) COMMUNITY EVENTS C) DRINKING DRIVER TASK FORCE POSTER CONTEST AWARDS D) YANGZHOU SISTER CITY GIFT PRESENTATION E) NATIONAL TRAILS DAYS IN KENT AT CLARK LAKE PARK PROCLAMATION F) ECONOMIC AND COMMUNITY DEVELOPMENT REPORT ' G) PUBLIC SAFETY REPORT AND AWARDS PROCLAMATION WHEREAS, National Trails Day@ evolved from the 1987 report of President Ronald Reagan's President's Commission on Americans Outdoors, which recommended that all Americans be able to go out their front doors and within fifteen minutes, be on trails that wind through their cities or towns and bring them back without retracing steps; and WHEREAS, that recommendation helped launch National Trails Day® in 1993 to bring awareness to trails and the many partners, including volunteers, who plan, develop and maintain them; and WHEREAS, America's 200,000 miles of trails allow us access to the natural world for recreation, education, exploration, solitude, inspiration, and much more; and WHEREAS, Kent Parks, Recreation and Community Services Department is dedicated to enriching lives by providing safe and inviting parks, open spaces and facilities; and WHEREAS, connecting with others and working together through volunteer service unite the diverse groups in our community to undertake and complete a successful project; and iWHEREAS, the City of Kent and hundreds of volunteers have participated in National Trails Day since 2001; and WHEREAS, Clark Lake Park provides 130 acres of walking trails through forested areas, meadows and around its sparkling lake; NOW THEREFORE; I, Suzette Cooke, Mayor of the City of Kent, do hereby proclaim June 5, the first Saturday in June, 2010 as National Trails Days in Kent at Clark Lake Park And encourage all citizens to join me in recognizing that every citizen can play a role in the stewardship of our environment. In witness whereof, I have hereunto set my hand and caused the seal of Kent to be affixed this 1st day of June, 2010. May, r �luzette Cooke 40 q, TNT '♦' WAS HINGTON Kent City Council Meeting Date June 1, 2010 Category Public Hearings - 5A 1. SUBJECT: GOLDFINCH COMMUNICATIONS LLC CABLE TELEVISION FRANCHISE 2. SUMMARY STATEMENT: Today has been set as the date of the first introduc- tion and public hearing of the proposed cable television franchise agreement between the City of Kent and Goldfinch Communications, LLC State law provides that a cable television franchise may not be granted by the City the same day that it is introduced to the City Council At tonight's hearing, the Council will consider all views expressed in writing or in person regarding the franchise. Additionally, the Council will consider all written comments received up until the fifth business day following the close of the public hearing, but those written comments will only be considered if they are responsive to written or oral statements made at the public hearing. At the close of the public hearing, no action will be taken by Council regarding the franchise, though Council may discuss the franchise agreement and the public comments received. The franchise agreement will then be brought back before Council on June 15, 2010, for action. Before Council opens the public hearing, staff will make a brief presentation to Council regarding the proposed franchise terms and conditions and will be available to answer Council questions. 3. EXHIBITS: Memorandum from IT Director, draft Ordinance, and draft Franchise Agreement 4. RECOMMENDED BY: Staff (Committee, Staff, Examiner, Commission, etc.) 5. FISCAL IMPACT Expenditure? N/A Revenue? N/A Currently in the Budget? Yes _ No 6. CITY COUNCIL ACTION: A. Councilmember moves, Councilmember seconds to close the public hearing. B. Councilmember moves, Councilmember seconds DISCUSSION: ACTION: INFORMATION TECHNOLOGY DEPARTMENT Mike Carrington, Director Phone: 253-856-4607 Fax: 253-856-4700 KENT WASHINGTON Address: 220 Fourth Avenue S. +� Kent, WA 98032-5895 June 1, 2010 TO: Kent City Council FROM: Mike Carrington, Information Technology Director THROUGH: n/a SUBJECT: Goldfinch Communications, LLC Cable Franchise SUMMARY: On February 16, 2010 the City received a cable television franchise application from Goldfinch Communications, LLC to construct, operate and maintain a cable communications system in the City of Kent. The Information Technology Department in concert with the Law Department contracted with Kenyon Disend, PLCC to lead franchise negotiations on the City's behalf. DETAIL: Currently, Comcast is the only cable television provider in the City's Rights-of- Way (ROW). If the franchise request is granted, Goldfinch Communications, LLC would be able to construct a cable television system in Kent. Federal law requires the City to expeditiously consider this application. As part of the franchise negotiations, extensive consultation and consensus was achieved between the City's IT, Legal, Public Works, Economic & Community Development, Finance, 1 Risk Management and Mayor's Offices. Tonight has been set as the date of the first introduction of the proposed cable television 1 franchise agreement between the City and Goldfinch Communications, LLC. RCW 35A.47.040 provides that a cable television franchise may not be granted by the City the same day that it is introduced to the City Council. This public hearing has also been set as required by KCC 7.12.070, and notice of the public hearing was posted in the Kent Reporter two (2) weeks prior to tonight's public hearing Before Council opens the public hearing, staff will make a brief presentation to Council regarding the proposed franchise and will be available to answer Council questions. As provided for under KCC 7.12 080, the Council will consider at the public hearing all views expressed by the public in writing or in person regarding the franchise. Additionally, the Council will consider all written comments received up until the fifth business day following the close of the public hearing, but those written comments will only be considered if they are responsive to written or oral statements made at the public hearing. At the close of the public hearing, no action will be taken by Council regarding the franchise, though Council may discuss the franchise agreement and the public comments received. The franchise agreement will then be brought back before Council on June 15, 2010, for action. Kent City Council 1 Goldfinch Communication, LLC Cable Franchise June 1, 2010 E. Based on representations and information provided by Applicant, and in response to its request for the grant of a franchise, the City Council has determined that the grant of a nonexclusive franchise, on the terms and conditions set forth in the franchise agreement and subject to applicable law, are consistent with the public interest. F. The City is authorized pursuant to RCW 35A.47.040 to grant nonexclusive Franchises within the boundaries of the City. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. - Adoption. The cable franchise agreement between the City of Kent and Goldfinch, a copy of which is attached and incorporated as Exhibit "A", is hereby granted, and the appropriate City officials are hereby authorized to execute the same on behalf of the City upon acceptance thereof by the Applicant in accordance with the terms and conditions set forth therein. SECTION 2. - Severability. If any one or more section, i subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 3. - 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 ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section/subsection numbering. 2 Cable Franchise Agreement Authorized with Goldfinch Communications, LLC SECTION 4. - Effective Date. This ordinance shall take effect and be in force ninety (90) days from and after its passage. However, as provided in KCC 7.12.120, the franchise granted by this ordinance shall not take effect until the Applicant has filed a written acceptance within sixty (60) days following the effective date of this ordinance. All costs incurred by the City to develop and negotiate the franchise granted by this ordinance shall be due on the date of Applicant's written acceptance of the franchise. Should the Applicant fail to timely file its written acceptance of this franchise, the Applicant will be deemed to have rejected and repudiated the franchise and the franchise will be void and will terminate immediately. SUZETTE COOKE, MAYOR ATTEST: BRENDA JACOBER, CITY CLERK APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY r t 3 Cable Franchise Agreement Authorized with Goldfinch Communications, LLC PASSED: day of , 2010. APPROVED: day of , 2010. PUBLISHED: day of , 2010. r I hereby certify that this is a true copy of Ordinance No. passed by the City Council of the City of Kent, Washington, and approved by the Mayor of the City of Kent as hereon indicated. r (SEAL) BRENDA JACOBER, CITY CLERK r P\0v6\0rd i na nce\Goldfinch-Authon zeF ranch iseAg reement docx i r r 1 i i l 4 Cable Franchise Agreement Authorized with Goldfinch Communications, LLC r EXHIBIT A Goldfinch Communications, L.L.C. Cable Franchise Agreement i � 1 i 1 i 5 Cable Franchise Agreement Authorized with Goldfinch Communications, LLC tFRANCHISE AGREEMENT BY AND BETWEEN THE CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC THIS FRANCHISE AGREEMENT (the "Franchise"), 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, doing business in Washington as 1 "Goldfinch Communications, LLC" (hereinafter called "Franchisee"), 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, the City is a Franchising authority within the meaning of Title VI of the Communications Act(47 U.S.0 § 522(10)); and WHEREAS, cable services are currently being provided within the City by an Iincumbent cable services provider; and WHEREAS, Franchisee has made application to the City of Kent for a cable 1 Franchise to Construct, install, maintain, repair, and operate a cable communications system using an FTTP network and is a Competitive Franchise Applicant as that term is defined at 47 C F R. § 76.41; and WHEREAS, Franchisee represents that it has the legal, technical, and financial qualifications to provide the Cable Services authorized herein, and WHEREAS, based on representations and information provided by Franchisee, and in response to its request for the grant of a Franchise, the City Council has 1 determined that the grant of a nonexclusive Franchise, on the terms and conditions herein and subject to applicable law, are consistent with the public interest; and WHEREAS, the City is authorized pursuant to RCW 35A.47.040 to grant nonexclusive Franchises within the boundaries of the City, NOW, THEREFORE, in consideration of the mutual promises contained herein, the City and the Franchisee hereby agree as follows FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMLNICATIONS,L L C - I ARTICLE 1. DEFINITIONS Except as provided at Section 3.7 herein (Order of Precedence), for the purposes of this Franchise 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 in the Construction Standards shall have the meaning given pursuant to the Communications Act (as hereinafter defined) 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 entities) refer to those entities or their successors in authority If specific provisions of law, regulation, or rule referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision "Access Channel" shall mean a video Channel, which Franchisee shall make available to the City without charge for non-commercial public, educational or governmental use for the transmission of video programming as directed by the City, or its designees, as applicable. "Affiliate" when used in connection with Franchisee, means any Person who owns or controls, is owned or controlled by, or is under common ownership or control with Franchisee. "Annexation Service Area" and "Annexation Area" shall mean and refer to that ' same term as it is defined at Section 8.1 4 herein. "Basic Service" or "Basic Service Tier" means any service tier that includes the ' retransmission of all signals of domestic television broadcast stations provided to any subscriber (except a signal secondarily transmitted by satellite carver beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system); any public, educational, and governmental programming required by the Franchise to be carried on the basic service tier, and any additional video programming signals or service added to the basic service tier by Franchisee. "Breach" shall mean any failure of a Party to keep, observe, or perform any of its duties or obligations under this Franchise. "Buildout" means the permitting, design, Construction and activation of a fully operational Cable System throughout the Franchise Area. "Cable Operator" shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U S C § 522(5), but does not include direct broadcast satellite providers. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -2 t t "Cable Service" shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U S C § 522(6), which currently states the one-way transmission to Subscribers of video programming or other programming service, and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, and shall mean and include IPTV "Cable System" or"System" shall be defined herein as defined under Section 602 of the Communications Act, 47 U S C § 522(7), which currently states a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way, (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter 11 of this chapter, except that such facility shall be considered a cable system (other than for purposes of section 541(c) of this title) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on- demand services, (D) an open video system that complies with section 573 of this title, or (E) any facilities of any electric utility used solely for operating its electric utility system. "Channel" shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S C § 522(4), which currently states a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel (as television channel is defined by the FCC by regulation) "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. "Communications Act" shall mean the Communications Act of 1934, as amended by, among other things, the Cable Communications Policy Act of 1984, the Cable Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996 as it may be further amended from time to time "Construct" or "Construction" 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 Franchise 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 Cable System Facilities to be Constructed, establishing the scope, relationship, forms, t FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -3 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 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 Franchisee's contractors will rely in Constructing the Cable 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 and not limitation 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, n 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 In. 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 Franchise or the nghts or obligations of either Party under this Franchise "Economically and Technically Feasible" shall mean and refer to the following- capable of being provided through technology that has been demonstrated to be feasible for its intended purpose, in an operationally workable manner, and in a manner whereby the Cable System has a reasonable likelihood of being operated on reasonably profitable and commercially practicable terns "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 Franchisee'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. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -4 "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 1 Act, and any similar or comparable state or local law "Extended Service Area" shall mean that portion of the Service Area outlined and iidentified as such in Exhibit H attached hereto and made a part hereof. "Facility" means any part or all of the facilities, equipment and appurtenances of Franchisee whether underground or overhead and located within the Public Rights-of- Way as part of the Franchisee's Cable System, including but not limited to, conduit, case, pipe, line, fiber, cabling, equipment, equipment cabinets and shelters, vaults, generators, conductors, poles, carvers, drams, vents, guy wires, encasements, sleeves, valves, wires, supports, foundations, towers, anchors, transmitters, receivers, antennas, and signage. "FCC" shall mean and refer to the United States Federal Communications Commission or successor governmental entity thereto "Franchise" shall mean the grant, once accepted, giving general permission to the Franchisee to enter into and upon the Franchise Area and to use and occupy the same for the purposes authorized herein, all pursuant and subject to the terms and conditions of this Franchise Agreement "Franchise Fee" shall have the same meaning as that same term as it is defined in Section 5.8 l 1 of this Franchise. 1 "Franchise Ordinance" shall mean and refer to the Ordinance enacted by the City Council authorizing the grant of this Franchise. "Franchisee" shall mean Goldfinch Communications, LLC and any of its Affiliates. "Franchise Area" shall mean collectively or individually the Public Rights-of- Way located in the corporate boundaries of the City, as now constituted or as may hereinafter be expanded through annexation or consolidation. "Gross Revenue" shall mean and refer to any and all cash, credits, property, or consideration of any kind or nature that constitutes revenue which is derived directly or indirectly from Subscribers for Cable Services Gross Revenue shall include, by way of example and description but not by way of limitation, the following• all Subscriber revenues earned or accrued, net of bad debts, including revenue for (i) Basic Service, digital service tiers, pay-per-view services, expanded services and premium services; (n) all fees charged to any Subscribers for any and all Cable Service provided by Franchisee over the Cable System in the Service Area, including without limitation Cable Service related program guides, the installation, disconnection, or reconnection of Cable Service; FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -5 revenue from late or delinquent charge fees, cable franchise fees passed through to Subscribers paid by Subscribers to Franchisee, Cable Service related or repair calls; the provision of converters, remote controls, additional outlets, and/or other similar Cable Service related Subscriber premises equipment, whether by lease or fee and whether characterized as a lease or other similar fee, (in) revenue from the collection of bad debts previously written off against Gross Revenue (which items shall be included for the period in which the bad debt is recovered), (iv) any revenue generated by Franchisee or by any Affiliate through any means that has the effect of avoiding the payment of compensation that would otherwise be paid to the City for the Franchise granted in this Agreement. Gross Revenue SHALL NOT INCLUDE: , Revenues received by any Affiliate or other Person in exchange for supplying goods or services used by Franchisee to provide Cable Service over the Cable System including professional service fees and insurance and/or bonding costs, Bad debts written off by Franchisee in the normal course of its business, provided, however, that bad debt recoveries shall be included in Gross Revenue during the period collected, Refunds, rebates, or discounts made to Subscribers or other third parties, such as leased access providers, to the extent such refunds, rebates, or discounts represent ' an actual refund or rebate of or a reduction in the price paid by Subscribers or other third parties, Any revenues generated by services that are NonCable Services; Any revenue of Franchisee or any other Person which is received from the sale of merchandise through any Cable Service distributed over the Cable System, except for that portion of such revenue which is paid to Franchisee as a commission or a fee for cablecasting such programming, Revenue from the sale of Cable Service on the Cable System in a resale with respect to which the buyer is obligated to collect and pay a franchise fee to the City, Any tax of general applicability imposed upon Franchisee or upon Subscribers by a city, state, federal, or any other governmental entity and required to be collected by Franchisee from Subscribers and remitted to the taxing entity (including, but not limited to, sales/use tax, gross receipts tax, excise tax, utility users tax, public service tax, communication taxes, and noncable franchise fees), The provision of Cable Services to customers without charge, including, without limitation, the provision of Cable Services to public institutions as required or permitted herein, provided, however, that such foregone revenue which Franchisee FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -6 ' 1 chooses not to receive in exchange for trades, barters, services, or other items of value shall be included in Gross Revenue, Sales of capital assets or sales of surplus equipment, 1 Program launch fees and other programmer reimbursements; Revenues from the sale or lease of access channel(s) or channel capacity; Compensation received by Franchisee that is derived from the operation of Franchisee's Cable System to provide Cable Service with respect to commissions that are paid to Franchisee as compensation for promotion or exhibition of any products or services on the Cable System, such as "home shopping" or a similar channel; Directory or Internet advertising revenue including, but not limited to, yellow page, white page, banner advertisement, and electronic publishing; Investment income, and Any fees or charges collected from Subscribers or other third parties for PEG/iNET Grant payments and FCC regulatory fees "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 asbestos or lead-based paint or have a component thereof or therein, and petroleum oil and any of its fractions. "Initial Service Area" shall mean and refer to that part of the Franchise Area outlined and identified as such in Exhibit H attached hereto and incorporated herein by reference, in which Franchise shall initiate its Buildout "Internet Access" shall mean and refer to dialup or broadband access service that enables Subscribers to access the Internet. "IPTV" or "Internet Protocol Television" shall mean and refer to the delivery of video programming via a broadband connection using Internet protocols. "KCC" shall mean the Kent City Code. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -7 "Law(s)" shall mean all present and future applicable laws, ordinances, rules, regulations, resolutions, franchises, 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. "Material Breach" shall mean any of the following circumstances. • Breach of a Party's obligation to defend or indemnify the other Party; • If a Party in bad faith attempts to evade any material provision of this Franchise or engages in any fraud or deceit upon the other Party, • If Franchisee becomes insolvent, or if there is an assignment for the benefit of Franchisee's creditors; • If Franchisee fails to provide or maintain the insurance, bonds, security fund, or other security required by this Franchise, • Refusal to enter into good faith negotiations in accordance with Section 3.5 (Subsequent Action); • Breach of Section 7 14 (Abandonment of Facilities); • Any Breach that cannot practicably be cured, • Any Non-Material Breach that is not cured as required pursuant to Section 6.3, or • A pattern of Non-Matenal Breaches, i.e., three (3) or more in any one year period "Middle Service Area' shall mean that portion of the Service Area outlined and identified as such in Exhibit H attached hereto and made a part hereof "Network Access Point" shall mean and refer to the location where a physical network services connection point has been designated as a Network Access Point and has been designed into the networks construction build out to physically connect via a network connection device to provide a network access point to the public services network The network access point could be designed at a building's minimum point of entry ("MPOE"), a building's intermediate cross-connect ("IC"), any given point of presence ("POP"), Splice-less Network Access Closure ("SNAC"), a network splice enclosure where network connectivity is available, or a fiber distribution connection panel located within a building or structure located within any given Service Area of the municipal and/or public network. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -8 r "NonCable Services" shall mean and include any service that does not constitute a Cable Service including, but not limited to, information services and telecommunications services, as those terms are defined in the Communications Act. "Non-Material Breach" means any Breach that does not constitute a Material Breach "Noticed Party" shall mean the Party in receipt of notice of a Material or Non- Material Breach "Party(ies)" shall mean either the City or the Franchisee 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 Cable System and includes by way of example and not limitation, a Construction Permit, building Permit, street cut Permit, and clearing or grading Permit "Person" means and includes any individual, corporation, partnership, association, joint-stock-company, limited liability company, political subdivision, public corporation, 1 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" and "Public Right-of-Way" mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, 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, dedicated but un-opened right of way, and 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 "Resident" shall mean and refer to any occupant who resides in a residential dwelling in the City, including, without limitation, occupants of single and multi-family dwellings,rooming houses, condominiums, town homes, or mobile home parks "Residential Subscriber" shall mean and refer to a Resident who is a Subscriber FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -9 i 1 "Service" shall mean the service or services authorized to be provided by the Franchisee under the terms and conditions of this Franchise "Service Area" shall mean collectively the Initial Service Area, the Middle Service Area, the Extended Service Area, and the Annexation Service Areas. "Service Date" shall mean and refer to the date that the Franchisee first provides Cable Service on a commercial basis directly to multiple Subscribers ni the Franchise Area The Franchisee shall memorialize the Service Date by notifying the City in writing of the same, which notification shall become a part of this Franchise. "Subscriber" shall mean and refer to a Person who legally receives Cable Service within the Service Area over the Cable System. "Technology Fee" shall have the same meaning as that same term as it is defined at Section 5.8 1.2 of this Franchise "Transfer" shall mean any transaction in which all or a portion of the Cable System is sold, leased or assigned (except a sale or transfer that results in removal of a particular portion of the Cable System from the Public Rights-of-Way), or, the rights and/or obligations held by the Franchisee under the Franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another Person A transfer of control of Franchisee shall not constitute a transfer as long as the same person continues to hold the Franchise both before and after the transfer of control The term "control" (including "controlled by") means the power or authority, either de facto or de jure, to direct the management or operations of the Franchisee "Video Programming" shall mean and refer to that term as it is defined under Section 602 of the Communications Act, 47 U S C. § 522(20), which currently states programming provided by, or generally considered comparable to programming provided by, a television broadcast station "Video Serving Office" shall mean and refer to a facility of the Franchisee (usually a central office associated with the Public Switched Network for voice services, but includes other similar facilities designated by the Franchisee for this purpose) for which a portion has been equipped with the appropriate equipment to enable Cable Service to be provisioned to Subscribers "Work" shall mean any and all activities of the Franchisee, or its officers, directors, employees, agents, contractors, subcontractors, volunteers, invitees, or franchisees, within the Public Rights-of-Way to Construct the Facilities. i FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L L C - 10 i ARTICLE 2. FRANCHISE GRANT 2.1 Public Rights-of-Way Use Authorized Subject to the terms and conditions of this Franchise, the City hereby grants to Franchisee a nonexclusive Franchise authorizing the Franchisee to Construct and operate Facilities in, along, among, upon, across, above, over, and under the Public Rights-of-Way located within the Franchise Area. Franchisee shall coordinate its work within the Public Rights-of-Way with the City's Capital Improvement Plans, Transportation Improvement Plan ("Plan"), and Comprehensive Plan 2.2 Authorized Services The grant given herein expressly authonzes Franchisee 1 to use the Public Rights-of-Way to Construct and operate a Cable System to provide Cable Services. This authorization is limited and is not intended nor shall it be construed as granting Franchisee or any other Person the right, duty, or privilege to use its Cable System or the Public Rights-of-Way to provide NonCable Services or any other services not specifically authorized herein, including but not limited to telecommunications or information services This Franchise 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 Franchisee provide service other than Service ispecifically authorized herein 23 No RgZhts Shall Pass to Franchisee by Implication No rights shall pass to the Franchisee by implication Without limiting the foregoing and by way of example, this Franchise shall not include or be a substitute for i 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, 2.3.2 Any agreement, Permit or authonzation required by the City for Public Rights-of-Way users in connection with operations on or in Public Rights-of-Way or ipublic property, or 2.3.3 Any Franchises, 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 Franchise 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 2.4 Interest in the Public Rights-of-Way This Franchise 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 Franchisee's purposes. This Franchise shall be deemed to ' grant no more than those rights which the City may have the undisputed right and power to give. This grant does not confer rights other than as expressly provided in this Franchise 1 FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L L C - I I and is subject to the limitations in applicable Law This right shalt not be Transferred, subdivided or subleased to a person other than the Franchisee Franchisee acknowledges that, where City has an ownership interest in a Franchise 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 franchise or grant the use of any such Public Right-of-Way, or rights under any franchise 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 Franchisee improves the quality of title to the applicable Franchise Area, or acquires additional property interests from other Persons). Franchisee also acknowledges that, where City has ownership rights, those ownership rights may terminate for other reasons, such as a street vacation Franchisee further acknowledges that Franchisee's rights under this Franchise as to any Franchise Area, are subject 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 Franchisee 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 Franchisee 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 Franchisee or Franchisee's contractors by anyone owning or claiming title to, or any interest in, the Franchise Area, City shall not be liable to Franchisee or Franchisee's Contractors for any costs, losses, or damages of any Party. CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR TO ANY FRANCHISE AREA NOR UNDERTAKE TO DEFEND FRANCHISEE IN THE PEACEABLE POSSESSION OR USE THEREOF NO COVENANT OF QUIET ENJOYMENT IS MADE 2.5 Condition of Franchise Area. Franchisee has inspected or will inspect Franchise Area, and enters upon each such Franchise Area with knowledge of its physical condition and the danger inherent in operations conducted in, on, or near any Franchise Area. FRANCHISEE ACCEPTS THE FRANCHISE 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 FRANCHISE AREA, including, but not limited to: the physical condition of the Franchise Area, zoning status; presence and location of existing utilities, operating history, compliance by the Franchise Area with Environmental Laws or other Laws and other requirements applicable to the Franchise Area; the presence of FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26.2010) AND GOLDFINCH COMMUNICATIONS,L L C - 12 any Hazardous Substances or wetlands, asbestos, or other environmental conditions in, on, under, or in proximity to the Franchise 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 Franchise Area, and the condition of title to the Franchise Area, and the leases, easements, franchises, orders. Permits, or other agreements affecting the Franchise Area (collectively, the "Condition of the Franchise Area"). Franchisee represents and warrants to the City that neither the Franchisee 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 Franchise 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 FRANCHISE 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 FRANCHISEE OR ANY OF FRANCHISEE'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 FRANCHISE AREA, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. 2.6 Franchise Nonexclusive. This Franchise 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. ' 27 Transfer Franchisee may Transfer this Franchise after prior written notice to and approval by the City and Transferee's written commitment, in substantially the form of the agreement attached hereto as Exhibit "G", delivered to the City, that Transferee shall thereafter be responsible for all obligations of Franchisee with respect to the Franchise and guaranteeing performance under the terms and conditions of the Franchise and that Transferee shall be bound by all the conditions of the Franchise and will assume all the obligations of its predecessor Such a Transfer shall relieve the Franchisee of any further obligations under the Franchise, including any obligations not fulfilled by Franchisee's Transferee, provided that, the Transfer shall not in any respect relieve the Franchisee, or any of its successors in interest, of responsibility for acts or omissions, known or unknown, or the consequences thereof, which acts or omissions occur prior to the time of the Transfer. This Franchise may not be Transferred without filing or establishing with the City the insurance certificates, security fund, and performance bond as required pursuant to this Franchise and paying all Direct Costs to the City related to the Transfer The Parties agree that it would not be unreasonable for the City to withhold its consent to a Transfer to an incumbent Cable Operator. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L L C - 13 Notwithstanding the foregoing, notice to the City shall not be required for a mortgage, hypothecation, or an assignment of Franchisee's interest in the Franchise in order to secure indebtedness. Franchisee may, without prior written notice to the City (i) lease the Cable System, or any portion thereof, to another Person, (u) grant an indefeasible right of user interest in the Cable System, or any portion thereof, to another Person, or (in) offer or provide capacity or bandwidth in its Cable System to another Person, provided that, Franchisee at all times retains exclusive control over its Cable System and remains responsible for Constructing its Facilities pursuant to the terms and conditions of this Franchise, and provided further that, Franchisee may grant no rights to any such Person that are greater than any rights Franchisee has pursuant to this Franchise, such Persons shall not be construed to be a third-Party beneficiary hereunder; and, no such Person may use the Cable System for any purpose not authorized herein Notwithstanding the foregoing, nothing herein shall operate to prevent Franchisee from conveying all or a portion of the Cable System to the City. 2.8 Street Vacation. If any Public Right-of-Way or portion thereof used by Franchisee is to be vacated during the term of this Franchise, unless as a condition of such vacation the Franchisee is granted the right to continue its Facilities in the vacated Public Right-of-Way, Franchisee 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, Franchisee shall be responsible for coordinating such Work with the owner/operator of such railroad track to conform the Franchisee 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 right-of-way , on behalf of the railroad owner/operator Franchisee 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 Franchise , 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 FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C - 14 ARTICLE 3 COMPLIANCE WITH LAWS/ORDER OF PRECEDENCE 3.1 Compliance With Laws. Except as provided herein pursuant to Section 3.3, the Franchisee 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 Franchisee and its Facilities, or over the City and the Public Rights-of-Way Specifically, Franchisee understands that at the time of the Effective Date of this Franchise, the City will be undertaking to review and revise Chapter 712 (Cable Television Communications) of the Kent City Code Franchisee agrees it shall be subject to the provisions of Chapter 7.12 as revised, provided however, in addition to the right of the Franchisee pursuant to Section 3 5 to enter into good faith negotiations to amend this Franchise, in the event that the provisions of Chapter 7 12 KCC as amended shall operate to materially and detrimentally impact Franchisee's operations, cost of operations, or cost of service, and the City and Franchisee are unable, through good faith negotiations, to agree upon mutually acceptable terms and conditions of an amendment to the Franchise, Franchisee may, upon reaching such an impasse and giving written notice thereof to the City, elect to (a) shorten the term of the Franchise, provided that the remainder of the term is no less than three (3) years, or (b) extend the time period remaining for Buildout in each of the remaining Service Areas by up to two (2) years. ' 3.2 Police Powers. Franchisee 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. Franchisee 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. 3.3 Alteration of Material Terms and Conditions. Subject to federal and state preemption, the material rights, benefits, obligations, or duties as specified in this Franchise 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 34 Reservation of Rights/Waiver. The City is vested with the power and right to administer and enforce the requirements of this Franchise 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 ansing 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 Franchisee Nothing in this Franchise Agreement shall be deemed to waive the requirements of the various codes and ordinances of the City regarding Franchises, fees to be paid, or manner of Construction. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS, L L C, - 15 Nothing in this Franchise shall be deemed to waive, and Franchisee specifically reserves the right to challenge, any City ordinance, regulation, or resolution that conflicts with its rights under this Franchise. ' 3.5 Subsequent Action. In the event that after this Franchise 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 Franchisee with respect to any act permitted or authorized under this Franchise, or (b) the State of Washington or any agency thereof or any agency of the Federal government require Franchisee or the City to act in a manner which is inconsistent with any provisions of this Franchise, or (c) any term, article, section, subsection, paragraph, provision, condition, clause, sentence, or other portion of this Franchise, 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) the Construction, maintenance, repair, and/or operation of the Cable System within the Public Right-of-Way causes or results in (i) degradation of the Public Right-of-Way in a way, or to an extent, that was not reasonably foreseen by the City prior to the Effective Date, or was known by the Franchisee, but not disclosed to the City on or before the Effective Date, or (n) harm or the threat of imminent harm to the public health or safety that was not known by the City upon the Effective Date, or (e) because of a change in circumstances or advancement in technology, the City or the Franchisee believe that amendments to this Franchise are necessary or appropriate, then the City and the Franchisee agree to enter into good faith negotiations to amend this Franchise so as to enable the City and Franchisee to address, in a manner reasonably acceptable to the City and Franchisee, such change or other development which formed the basis for the negotiations The City and Franchisee 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 Franchise Except as may be otherwise provided herein, if the terms of this Franchise 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 Franchise 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 Franchisee, 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 Franchise. Any governmental unit succeeding the City shall, without the consent of Franchisee, succeed to all of the rights and obligations of the City provided in this Franchise. 3.7 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 Franchise, the provision, term. condition, or requirement of the City Code or City ordinance shall control to the extent of such FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C - 16 , conflict; provided that, the fact that a provision, term, condition, or requirement contained in the Franchise may be more iestrctive than a provision, term, condition, or requirement in the City Code or a City ordinance shall not constitute a 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 and a provision, term, condition, or requirement of this Franchise, 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 Franchise; provided that, the fact that a provision, term, condition, or requirement contained in the Franchise may be more restrictive than a provision, term, condition, or requirement in the City Code or a City ordinance shall not constitute a conflict Franchisee agrees it shall be subject to the provisions of Chapter 7 12 KCC as revised subsequent to the Effective Date 3 7 3 In the event of a conflict between a provision, term, condition, or requirement of this Franchise and a provision. term, condition, or requirement of an Exhibit incorporated herein, the Franchise shall control, to the extent of the conflict. ARTICLE 4. ACCEPTANCE 4.1 Acceptance Within sixty (60) days after the effective date of the Franchise Ordinance, this Franchise shall be Accepted by Franchisee. For purposes of this Franchise, "Accepted" or "Acceptance" shall mean tiling with the City Clerk during regular business hours, or such other person as may be designated by the City, three (3) originals of this Franchise with Franchisee's original signed and notarized written acceptance of all of the terns, provisions, and conditions of this Franchise in conformance with Exhibit "B" At the time of Acceptance of the Franchise, Franchisee shall also file with the City Clerk, or such other person as may be designated by the City, the following, if required herein. ' 4 1.1 The insurance certificate in conformance with the requirements of Section 5.3 herein 4.1.2 The performance and payment bond in conformance with the requirements of Section 5 4 herein 4 1 3 The security fund deposit or letter or credit in conformance with the requirements of Section 5.4 herein. 4.1.4 Payment in readily available funds of the administrative costs for issuance of the Franchise in conformance with the requirements of Section 5.8.2 herein. ' 4.1.5 Payment of the costs of publication of this Franchise in conformance with the requirements of Section 5 8.2 herein FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C - 17 In the event that the sixtieth day falls on a Saturday, Sunday, or legal holiday during which the City is closed for business, the filing date shall fall on the last business day before such Saturday, Sunday, or legal holiday ' 4.2 Failure to Timely File Acceptance The failure of Franchisee to timely file its written Acceptance shall be deemed a rejection by Franchisee of this Franchise, and this Franchise shall then be void. In the event that Franchisee timely files its written Acceptance but fails to timely comply with the applicable requirements of Sections 4.1 1 through 4 15, this Franchise shall be voidable in the sole discretion of the Mayor without further action required by the City Council or the consent of the Franchisee. The Franchise shall be voidable until such time as Franchisee complies with all of the applicable requirements of Sections 4.1 1 through 4.15. No opportunity to cure or public hearing is required to void the Franchise pursuant to this Section 4 2. 4.3 Effective Date/Term/Extension 4.3.1 Effective Date The Effective Date of this Franchise shall be 12 01 a.m. on the first day following Acceptance timely filed pursuant to Section 4.1 herein This Franchise 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 of this Franchise. 4.3 2 Initial Term. Subject to Section 6 3 below, the initial term of this Franchise shall commence on the Effective Date and shall continue in fulll force and effect for a period of twenty (20) years, unless sooner terminated, revoked, or declared void. Nothing in this subsection 4 3 shall affect the right of the City to terminate or revoke this Franchise pursuant to Section 6 3 (Termination,,Revocation) herein 4.3.3 Renewal. Any renewal of the Franchise shall conform to the , requirements of 47 USC § 546 4 3.4 Extension. Franchisee may, in lieu of renewal pursuant to Section , 4.3 3 above, request an extension of the initial term of this Franchise for an additional term of ten(i0) years, provided that, Franchisee shall have complied with the conditions set forth in this Section and shall have notified the City of the request for the extension no less than three (3) years prior to the expiration of the then-current term, unless such notice is waived by the 'Mayor in writing The City may deny the extension of the term if Franchisee has failed to comply with the conditions set forth in this Section Franchisee may request a second ten (10) year extension subject to the same conditions as the first extension, for a maximum cumulative term of forty (40) years Franchisee shall have a right to obtain such extensions only if Franchisee is- (1) in ' substantial compliance with the material terms and conditions of this Franchise, (2) Franchisee provides timely written notice to the City that it seeks a ten (10) year extension (and agrees not to give formal renewal notice under 47 U.S.0 546(a), before such time); (3) Franchisee and the City mutually agree upon payment of PEG Capital Fees as a condition of FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS, L L C - 18 such extension; and (4) Franchisee's Cable Service performance is consistent with current overall industry technical practices and range and level of services, existing and planned for Cable Systems in communities in Washington State comparable to the City, taking into account, size, location, and population Such a survey of technical practices and range and level of services shall include due consideration of the then current practices and trends in the industry and whether or not Franchisee has the ability and agrees to perform consistently with the industry practice in the ten (10) year extension periods by implementing improvements that are commercially feasible An expert or experts in the area of cable television shall be designated by the Mayor, after consultation with Franchisee, to conduct a survey, to assess the survey results, in full consultation with Franchisee, and to advise the City whether Franchisee meets these requirements of item number 3 of this paragraph. 44 Effect of Acceptance. By accepting the Franchise the Franchisee: 4 4 1 Accepts and agrees to comply with and abide by all of the lawful terms and conditions of this Franchise, 4 4 2 Acknowledges and accepts the City's legal right to grant this Franchise; 4.4.3 Agrees that the Franchise was granted pursuant to processes and procedures consistent with applicable Law and that it will not raise any claim to the contrary, 4.44 Agrees that it enters into this Franchise 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 Franchise Agreement, and after consulting with counsel; ' 445 Warrants that Franchisee has full right and authority to enter into and accept this Franchise in accordance with its terms, and by entering into or performing ' this Franchise, Franchisee 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 Franchise by Franchisee has been duly authorized by all requisite Board action, that the signatories for Franchisee hereto are authorized to sign the Franchise 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 Franchise 4.5 Effect of Expiration/Termination Upon expiration, revocation, or termination of the Franchise without renewal or other authorization, or upon the Franchise being declared Void pursuant to Section 4 2 herein, Franchisee shall no longer be authorized to operate the Cable System within the Franchise Area and shall, to the extent it may lawfully do so, cease operation of the Cable System Forthwith thereafter, except as may be otherwise agreed to in writing between the Parties, Franchisee shall remove its structures or property from the Public Rights-of-Way and restore the Public FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) ' AND GOLDFINCH COMMUNICATIONS,L L C - 19 Rights-of-Way to such condition as the City may reasonably require all at Franchisee's ' expense. ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC 5.1 Limitation of Liability. 5.11 INDEMNITY/RELEASE/DEFENSE. EXCEPT AS MAY BE OTHERWISE PROVIDED PURSUANT TO SECTION 5 2 OF THIS FRANCHISE WITH RESPECT TO ENVIRONMENTAL LIABILITY, TO THE FULLEST EXTENT PERMITTED BY LAW, FRANCHISEE 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 ' 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 FRANCHISE, 5.1.1.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS FRANCHISE; 5.1.1.3 FRANCHISEE'S OCCUPATION AND USE OF THE , PUBLIC RIGHTS-OF-WAY, 5.11.4 FRANCHISEE'S OPERATION OF THE CABLE SYSTEM; 5.1.1 5 THE PRESENCE OF THE CABLE 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 FRANCHISEE OR ITS CONTRACTORS, SUBCONTRACTORS, OR AGENTS; 5.1.17 ANY ACT OR OMISSION OF FRANCHISEE OR ' FRANCHISEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS AND FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -20 , SERVANTS, OFFICERS OR EMPLOYEES IN CONNECTION WITH WORK IN THE PUBLIC RIGHT OF WAY, OR 5.1 1.8 THE CITY'S PERMITTING FRANCHISEE'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 FRANCHISEE'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 Franchisee, 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 Franchise, (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 rn the Public Rights-of-Way ' The fact that Franchisee carries out any activities under this Franchise through independent contractors shall not constitute an avoidance of or defense to Franchisee's duties of defense and indemnification under this Section 5.1. 5 12 Tender of Defense Upon written notice from the City, Franchisee agrees to assume the defense of any lawsuit, claim, or other proceeding brought against any Indemmtee by any entity, relating to any matter covered by this Franchise for which Franchisee has an obligation to assume Liability for and/or save and hold harmless any Indemnitee Franchisee 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, Franchisee 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 Franchisee to represent the City. Franchisee 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 FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) ' AND GOLDFINCH COMMUNICATIONS,L L C -21 5.1 3 Refusal to Accept Tender In the event Franchisee 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 matter), to have been a wrongful refusal on the part of Franchisee, then Franchisee 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 Franchisee 514 Title 51 Waiver THE FRANCHISEE WAIVES IMMUNITY UNDER RCW TiTLE 51 AND AFFIRMS THAT THE CITY AND THE FRANCHISEE 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 Franchisee 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. Franchisee 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 Franchisee 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 liens, or other encumbrances chargeable to or through Franchisee which Franchisee does not contest in good faith, Franchisee shall promptly, and in any event within thirty (30) days, cause such hen 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 indemnify the City against all costs and expenses (including attorneys' fees) incurred in discharging and releasing such claim of hen 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 Franchisee after first giving Franchisee five (5) business days' advance notice of its intention to do so Nothing herein shall preclude Franchisee's or the City's contest of a claim for lien or other encumbrance chargeable to or through Franchisee or the City, or of a contract or action upon which the same arose FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -22 5.8 Financial Conditions. 5.8.1 Franchise Fees. 5.8 1.1 Franchise Fee Commencing upon the Effective Date, Franchisee shall pay to the City quarterly, on or before the thirtieth (30th) day of each January, April, July, and October, a sum equal to five percent (5%) or greater of Gross Revenues, as defined herein (the "Franchise Fee") Franchise Fees associated with the Gross Revenues in annexed areas shall be paid to the City starting on the effective date of annexation, provided that, the City may, in its sole discretion, agree to accept a reasonable estimate of such Franchise Fees, subject to adjustment, in the event that Franchisee has not identified and correctly associated all service addresses with the Franchise Service Area within the Annexation Area. Revenues that are derived as a portion of a national or regional service shall be computed on a per Subscriber basis if such determination cannot be achieved by other means The City may raise the Franchise Fee, if so permitted by federal and state law Prior to implementation of any increase in Franchise Fees, the Franchisee may request, and shall be granted, a public hearing by the City Council to discuss the benefits of said increase to the citizens of Kent Upon a finding of the City Council that such increase is reasonably required to meet community needs, taking into consideration the cost of providing such increase, the City Council may require the implementation of such increase in accord with the provisions of this Franchise. 5 8.1 2 Technology Fees. The Parties acknowledge and understand that- (a) the proposed Cable System and the anticipated methods for Construction (micro-trenching) are relatively new technologies and methods. (b) the City has no experience with such a Cable System or the proposed Construction methods, and is unaware of the short or long term viability of providing cable and other services using such a Cable System, or the short or long term impacts of such Construction methods upon the Public Right-of-Way and the City's obligations to manage and maintain the Public Right-of-Way; (c) the Franchisee has not previously deployed such a Cable System in the continental United States, (d) the Franchisee will receive significant benefit from deploying its Cable System and establishing its ability to deliver cable and other services to Subscribers, (e) the City has the right to deny a cable franchise to an applicant that cannot show that it has the legal, technical, and financial qualifications to Construct and maintain a Cable System, (f) the City has agreed to a narrow definition of Gross Revenues to include only Subscriber revenues and to exclude from this definition certain other gross revenues from Subscribers that may be subject to Franchise Fees, such as revenues collected for payment of FCC regulatory fees, and accordingly the City has agreed to reduce its potential Franchise Fee assessment, and, (g) the Franchisee as well as the City will benefit from a City investment in, and use and promotion of, communications technology and infrastructure, and the maintenance and operation of the same, and that toward that end, the Parties will benefit from a consistent and stable source of revenue FRANCHISE AGREEMENT BETWEEN CITY OF I ENT (May 26,2010) ' AND GOLDFINCH COMMUNICATIONS, L L C -23 In consideration of the foregoing, Franchisee agrees that, , commencing upon the Effective Date, Franchisee shall, at the same time its pays its Franchise Fees, pay to the City a sum equal to five percent (5%) of all gross revenues ' derived directly or indirectly from NonCable Services provided over the Cable System (the "Technology Fee") For purposes of this Section 5 8.1 2, "gross revenue" shall mean and refer to any and all cash, credits, property, or consideration of any kind or nature that constitutes revenue Technology Fees associated with the gross revenues in annexed areas shall be paid to the City starting on the effective date of annexation, provided that, the City may, in its sole discretion, agree to accept a reasonable estimate of such Technology Fees, subject to adjustment, in the event that Franchisee has not identified and correctly associated all service addresses within the Franchise Service Area within the Annexation Area. The City agrees that between forty percent (40%) and forty-five percent (45%) of the revenues derived from the Technology Fee will be restricted to funding City investment in, and use and promotion of, information technology and infrastructure, and the maintenance and operation of the same. The Parties agree that the Franchisee's obligations set forth in this Section 5.8 1 2 (Technology Fees) are material terms and conditions of this Franchise, and the Franchise cannot be reformed in the event that the Franchisee's obligations hereunder are held to be illegal, invalid, or unconstitutional for any reason by any court or agency of competent jurisdiction. 5.8 1.3 Late Payment Any quarterly Franchise Fee, Technology Fee, or PEG Fee not paid by the Franchisee within thirty (30) days of the end of a quarter shall bear interest as set forth at Section 5.8.10 herein. 5.8.1.4 Financial Reports Each Franchise Fee, Technology Fee, and PEG Fee payment shall be accompanied by a legible financial report consisting at a minimum of Franchisee's Franchise Fee, Technology Fee, and PEG Fee payment worksheet and year-to-date totals worksheet showing the bases for the Franchisee's computation and separately indicating revenues received by the Franchisee within the City from Basic Service, pay TV service, NonCable Services, other applicable sources of revenue, and such other information directly related to confirming the amount of the Franchisee's Gross Revenues (including gross revenues from NonCable Services) as may be reasonably required by the City. The financial report shall also be provided to the City electronically in Excel format, or another electronic format acceptable to the City. The City shall have the right to require further supporting information for each Franchise Fee, Technology Fee and PEG Fee payment, or in connection with a City audit pursuant to Section 5.8 1.4 below, and, in that event, Franchisee shall provide such information within fourteen (14) calendar days of receipt of the request, unless extended by mutual agreement of the Parties. The Franchisee shall be responsible for providing the City all FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L L C -24 ' records necessary to confirm the accurate payment of Franchise Fees, Technology Fees, and PEG Fees The Franchisee shall maintain such records for six (6) years 5 8 1.5 Audit by City The City shall have the right, upon reasonable notice of no less than five (5) working days, to inspect, examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records (collectively the "Records") of Franchisee pertaining to all revenue derived by Franchisee and Affiliates from the operation of the Cable System in order to verify the accuracy of payments under this Article 5 (hereinafter "Audit"). Franchisee shall fully cooperate in making available its Records and otherwise assisting in these activities Any Records that are not available to the City, or its agents conducting the Audit, within fifty (50) miles of the City, shall be made available at City offices, or in the alternative, the Franchisee can fund the cost to the City of accessing such Records at another location reasonably agreed to by the Parties. The City shall extend the time for the provision of such Records upon a reasonable showing by Franchisee that such extension is justified In the event that such Audit discloses a discrepancy of more than five percent (5%) between the financial report submitted by the Franchisee with a quarterly payment and the actual Gross Revenues collected by the Franchisee that are subject to the Franchise Fees, Technology Fees, or PEG Fees, the Franchisee agrees to pay to the City the costs of such Audit, provided that, (a) the City will not be entitled to reimbursement of such Audit costs more than once in any five (5) year period, and (2) the total reimbursement to the City in any five (5) year period for the Audit costs shall not exceed one hundred and fifty percent (150%) of the amount of the discrepancy. In the event that such Audit results in a determination that additional Franchise Fees, Technology Fees, or PEG Fees are due the City, the Franchisee further agrees to pay interest as required for late payment on such additional fees computed from the date on which such additional Franchise Fees, Technology Fees, or PEG Fees were due and payable. 5.8.1.6 Non-waiver. Acceptance of any fee payment by the City shall not be construed as an agreement by the City that the fee paid is in fact the correct amount, nor shall acceptance of payment by the City be construed as a release or waiver of any claim the City may have for further or additional sums payable under the provisions of this Franchise. 5.817 Taxes. Nothing in this section shall limit the Franchisee's obligation to pay applicable local, state, or federal taxes. 5.8 1.8 Bundled Services. If Franchisee bundles Cable Service with NonCable Services, Franchisee agrees that it will not intentionally or unlawfully allocate such revenue for the purpose of evading the franchise fee payments under this Agreement In the event that the Franchisee or any Affiliate shall bundle, tie, or combine Cable Services (which are subject to the franchise fee) with NonCable Services (which are not subject to the franchise fee), so that Subscribers pay a single fee for more than one class of service or receive a discount on Cable Services, a reasonable pro rata share of the revenue received for the bundled, tied. or combined services shall be allocated to Gross Revenues for purposes of computing the franchise fee To the extent that charges can be FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -25 calculated on a stand alone rate and it is practicable to do so, the pro rata share shall be computed on the basis of the published charge for each of the bundled, tied, or combined services, when purchased separately. However, in the event that legislation or regulations require same, the Parties agree that tariffed telecommunications services that cannot be discounted under state or federal law or regulation are excluded from the bundled discount allocation obligations in this Section. Nothing in this Section 5 8 1 8 is intended to or shall be construed as constituting a waiver of the City's right to require Franchisee to seek and obtain a franchise, license, or other agreement from the City to use the Cable System or any part thereof to provide NonCable Services 5 8 2 Reimbursement of Direct Costs of Issuance, Renewal, Amendment and Administration Franchisee 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 Franchisee) and administration of this Franchise; provided that, to the extent that Franchisee considers such fees, or any portion thereof, to be franchise fees, Franchisee shall give notice and a detailed explanation in writing of such determination by the Franchisee and the basis therefore at the time of acceptance of this Franchise. Franchisee's obligations hereunder shall not exceed 5200,000 except as provided at Section 5.8.13 (Adjustment for Inflation) herein. 5 8 3 Reimbursement of Direct Costs of Design Review and Inspection. Franchisee shall reimburse the City its Direct Costs of design review and approvals, inspections, and other Direct Costs associated with processing a Permit application, to the extent that such Direct Costs are not included in the costs for issuance of and compliance with a 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 Franchisee agrees that such costs are incidental costs. Except as provided pursuant Section 5.8.13 (Adjustment for Inflation), Franchisee's obligations hereunder shall not exceed $200,000 for each permit application, provided that, for a master ' permit, the obligations over the life of the master permit shall not exceed$1,000,000 5.8.4 Reimbursement of Direct Costs of Altenng Public Rights-of-Way. Franchisee shall reimburse the City for the Direct Costs incurred by the City in planning, designing, constructing, installing, repairing, maintaining, or altering any City infrastructure, structure, or facility as the result of the actual or proposed presence in the Public Right-of-Way of Franchisee'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 required as the result of the presence of Franchisee's Facilities in the Public Right-of-Way, and any time spent reviewing Construction plans in order to either accomplish the installation, Construction, or relocation of Franchisee's Facilities or the changes to any public utilities or Public Rights-of-Way so as not to interfere with Franchisee's Facilities Upon request, as a condition of payment by Franchisee, 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 Franchisee agrees that such costs are incidental costs. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C. -26 5.8.5 Franchisee Responsibility for Costs. Except as expressly provided otherwise in this Franchise, any act that Franchisee, its contractors, or subcontractors are required to perform under this Franchise shall be performed at their sole cost and expense. 5.8 6 Franchisee Work Performed by the City Any work performed by the City that Franchisee has failed to perform as required pursuant to this Franchise and which is performed by the City in accordance with the terms of this Franchise, shall be performed at the cost and expense of the Franchisee Franchisee 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 Franchise Agreement shall exempt Franchisee from Franchisee'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 Franchisee Any fees, charges, and/or tines provided for in the City code or any other City ordinance, and any compensation charged and paid for the Public Rights-of-Way, whether pecuniary a 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 Franchisee 5 8 8 Itemized Invoice. Upon request by the Franchisee, 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 Pam Except as provided at Section 5 8 1 1 (Franchise Fees) for payment of franchise fees, 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 Franchisee 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 Franchise by Franchisee which shall not be paid upon the due date thereof, shall bear interest at a rate of eight percent (8%) per annum or whatever maximum amount is allowed under state law, whichever is greater, from the due date until paid 5 8.11 Contesting Char;es Franchisee may contest all or parts of amounts owed within thirty (30) days of receipt of any invoice The City shall investigate Franchisee's contest, make appropriate adjustments to the invoice, if necessary, and resubmit the invoice to Franchisee Franchisee shall pay any amounts owing as itemized in the resubmitted invoice within thirty (30) days of receipt of the resubmitted invoice However, Franchisee does not waive its rights to take Legal Action to challenge the amount of the invoice. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L.L.0 -27 5.8.12 Receivables. Either Party hereto may assign any monetary receivables due them under this Franchise, provided, however, such assignment shall not relieve the assignor of any of its rights or obligations under this Franchise. 5.8.13 Adjustment for Inflation The amounts specified in Sections 5 8.2 and 5 8.3 herein shall be adjusted for inflation on March 1, 2015 and every five (5) years thereafter, e.g , 2020, 2025, etc., throughout the term of this Franchise, including each extension thereof Said inflationary adjustment shall be based upon the cumulative annual average increase in the all urban consumers consumer price index ("CPI-U") for the Seattle/Tacoma/Bremerton area, as published by the United States Bureau of Labor Statistics, for the preceding five (5) years For example, if the annual average inflation for 2010 was 0 9%, 2011 was 1 5%, 2012 was 2 2%, 2013 was 3 1%, and 2014 was 3.3%, the rate of inflationary adjustment applicable on March 1, 2015 would be the sum of 0 9 + 1.5+ 2 2+ 3 1 + 3 3 = 11% The adjustment shall apply regardless of when a Permit was applied for and shall apply, in the future, to the adjusted amounts. 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 Franchise 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 comma to resolving a Dispute in an amicable, professional, and expeditious manner. 62 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 Injunction 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 Franchise 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, and/or 6.2.3 Alternative Remedies Except as otherwise provided herein, neither the existence of other remedies identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of 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 FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS. L L C -28 and to recover all such damages, costs, and expenses, including reasonable attorneys' fees. 6.2.4 Damages Except as otherwise provided or limited herein, each Party shall be entitled to 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 Franchise shall be deemed to bar the City from seeking appropriate judicial relief Neither the existence of other remedies identified in this Franchise 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, mandate, or any other remedy at law or in equity. The City specifically does not, by any provision of this Franchise, waive any right, immunity, limitation or protection otherwise available to the City, its officers, officials, City Council, Boards, commissions, agents, or employees under federal, state, or local law 6.3 Termination/Revocation. in addition to the remedies available to the City as provided at Law, in equity, or in this Franchise, upon a Material Breach, the City may terminate this Franchise in accordance with the procedures set forth in Ch. 7 12 KCC If for any reason no such procedures are specified to Ch. 7.12. KCC, the following procedures shall be implemented 6.3.1 Notice. Prior to termination of the Franchise, the City shall give written notice to the Franchisee of its intent to terminate the Franchise and the proposed effective date of such termination, which date shall be no less than sixty (60) days following the effective date of the notice. The notice shall set forth the exact nature of the Material Breach. If Franchisee objects to such termination, Franchisee shall object in writing within fifteen (15) business days of the effective date of the notice, and state its reasons for such objection and provide any explanation and mitigating circumstances The Mayor shall consider the Franchisee's objections and may, in his or her sole discretion, either, (1) deny the objection, in which case the termination shall be effective upon the date set forth in the notice, (2) modify the notice of termination, (3) rescind the notice of termination, or(4) set a public hearing for the City Council's consideration in accordance with the procedures set forth below. 6.32 Hearin In the event the Mayor determines that a public hearing should be held, the City may then seek a termination of the Franchise in accordance with this subsection. 6 3 2.1 The City Council shall conduct a public hearing to determine if termination of the Franchise is warranted 6.3 2 2 At least thirty (30) days prior to the public hearing, the City Clerk shall issue a public hearing notice that shall establish the issue(s) to be addressed in FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -29 the public hearing, provide the time, date, and location of the hearing; provide that the City Council shall hear any Persons interested therein, and provide that the Franchisee shall be afforded a fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to be represented by counsel, and to question witnesses 6 3.2 3 Within thirty (30) days after the close of the hearing, the City Council shall issue a written decision regarding the termination of the Franchise. 6.3 3 Decision to Terminate. The City Council may, by way of example and not limitation, consider the following factors when determming whether or not to terminate 6 3.3.1 The history of non-compliance by Franchisee with material terms and conditions of this Franchise, 6.3 3.2 Whether other remedies will achieve compliance with this Franchise; 6.3.3 3 Whether the Franchisee has acted in good faith; 6 3.3.4 Whether the type of services provided by the Franchisee will be available to the general public through other providers; and 6.3.3.5 Whether the City and Franchisee have exercised reasonable and diligent efforts to engage in good faith negotiations in an attempt to resolve the Dispute. 6.4 Right to Cure Breach. 6 4.1 Notice. If a Party believes that the other Party is in Non-Matenal Breach, such Party shall give written notice to the Noticed Party stating with reasonable specificity the nature of the alleged Non-Matenal Breach. The Noticed Party shall have thirty (30) days, or such lesser or greater time as specified in the notice, from the receipt of such notice to, 6.4 1.1 Cure the Breach to the reasonable satisfaction of the non- breaching Party; or 6.4.1 2 Notify the other Party that the Noticed Party cannot cure the Breach within the time provided in the notice, because of the nature of the Breach In the event the Breach cannot be cured within time provided in the notice, the Noticed Party shall promptly take all reasonable steps to cure the Breach to the satisfaction of the non-breaching party and notify the other Party in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the other Party may set a meeting to determine whether additional time beyond the time provided in the notice is indeed needed, and whether the Noticed Party's proposed completion schedule and steps are reasonable FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -30 6.5 Assessment of Liquidated Damages. 6.5 1 The Public Rights-of-Way are critical to the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens, are used by the City to provide critical services to its citizens, including electric, water, and sewerage services, services to protect public safety, and other public utilities, and are often used by the City to provide communications and other services to itself and other government agencies. Further, Public Rights-of-Way are a valuable and scarce community resource physically limited in dimension requiring the City to manage them for the most efficient and best use and to minimize the costs to the taxpayers arising from secondary uses, to protect against foreclosure of future economic expansion because of premature exhaustion of the Public Rights-of-Way as an economic resource, and to minimize the inconvenience to and negative effects upon the public from such Facilities' Construction, emplacement, relocation, and maintenance in the Public Rights-of-Way. The failure of service providers, including Cable Service operators, to abide by Public Rights-of-Way management standards, customer service standards, public access requirements, and Cable System requirements, as set forth in franchise agreements and local codes, and the failure of local government to adequately control Public Rights-of- Way, can lead and has led to damage to the use of the Public Rights-of-Way and other property interests, such as- (a) Explosion of facilities in the Public Rights-of-Way, (b) Forced evacuation of homes; (c) Spillage of raw sewage, (d) Broken water mains resulting in flooding and damage to property; (e) Severing of communications and power Imes, (f) Interruption of emergency services, including emergency communications systems; (g) Damage to public streets and sidewalks; (h) Hazards from improperly installed overhead facilities; (1) Excavations made without notice to the City, �) Excavations and restorations done to violation of community standards; (k) Use of improper materials and methods in restoring utility street cuts; (1) Slow repairs that inconvenience the traveling public; (m) Poor workmanship in trench reinstatement and pavement restoration; (n) Public dissatisfaction with traffic delays and interrupted utility service; (o) Disruption of adjoining public facilities, such as gutters and sidewalks, (p) Damage to adjoining utility facilities disturbed by improper excavation; FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS, L L C -31 (q) Increased maintenance costs from pavements repeatedly cut to access utilities, (r) Increased danger to the public and excavators, l� (s) Street cuts into the Public Rights-of-Way that significantly reduce the average life of the street; (t) Unnecessary reduction in capacity of the Public Rights-of-Way for other public service utilities; (u) Inferior, poor quality, and discriminatory provisioning of Service to customers and rate-payers, and (v) Unreasonable rates for services charged to consumers. 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 Franchisee to comply, or maintain compliance, with the provisions of this Franchise 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 Franchisee agree that the liquidated damages set forth in subsection 6 5 3 are a reasonable estimate of the damages resulting from a Breach of those provisions of this Franchise set forth therein. If the City exercises its right to impose liquidated damages, such damages shall be the City's sole and exclusive remedy for recovery of the 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 6.5.2 Pursuant to the requirements outlined herein, liquidated damages shall not exceed the amounts set forth in Section 6 5.3 653 If the Franchisee has failed to cure in accordance with Section 6.4 herein, or otherwise in the event of a Material Breach without opportunity to cure, liquidated damages may be imposed by the City as set forth below for each day beyond the cure period, or the effective date of notice of Material Breach without opportunity to cure, that the Franchisee is in Material Breach- 6 5 3 1 Failure to comply with the Cable Service Requirements in Section 8.1: $500 per day for each separate violation, 6.5 3 2 Failure to comply with the System Facility Requirements in Section 8.2. $500 per day for each separate violation; 6.5.3 3 Failure to comply with the PEG requirements of Section 8.3. S500 per day for each separate violation, i 6 5.3.4 Failure to meet customer service requirements set forth in Section 8 6 $250 per day for each separate violation, provided that, such failure does not anse from an event of Force Majeure or through the fault of the City, FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -32 t 6 5 3 5 Failure to timely respond to any request by the City for information pursuant to Section 5.8 1.5 of this Franchise Timely response shall mean that the Franchisee has provided the requested records within the time period set forth at Section 5.8 L5 of this Franchise, or, to the extent that any such records are not immediately available, providing such requested records within a time frame approved to by the City $100 per day or part thereof A violation will continue to occur until the City is satisfied with the information provided by Franchisee, 6.5.3 6 Failure to comply with a material requirement of the following Sections of this Franchise 2 7 (Transfer), 4.5 (Effect of Expiration/Termination); 5 3 (Insurance Requirements), 5.4 (Financial Security), 7.4.1 (Permits Required). 7.5 3 (Work Subject to Inspection), 7 7 5 (Dangerous Conditions, Authority for City to Abate); 7 5 6 (Emergency Permits), 7 5 7 (Stop Work), 7 8 (Facility Relocation at Request of the City), and 7 11 (Record of Installations), all in the amount of$500 per day for each separate and continuing failure to timely comply, and 6.5 3 8 All other violations of the Franchise which constitute an imminent threat to the public health, safety or welfare, $500 per day per occurrence for each day or part thereof that such violation occurs or continues The Franchisee and the City agree that any of the above described violations, unless excused,would constitute failure to comply with a material provision of the Franchise The liquidated damage amounts listed in this Section shall be adjusted as necessary to compensate for inflation based upon the Consumer Price Index customarily used by the City for such purposes No penalty, bond, forfeiture, or termination shall be imposed for delays where such delays are the result of causes beyond the control and/or without fault or negligence of the Franchisee, as determined by the City The Franchisee shall be entitled to an extension of time if compliance with the Franchise is suspended or delayed by the City, or where unusual weather, acts of God (e.g, earthquakes, floods, etc), extraordinary acts of third parties, or other circumstances that are beyond the control of the Franchisee delay progress, provided that the Franchisee has not, through its own actions or inactions, substantially contributed to the delay. The amount of time allowed shall be determined by the City and the Franchisee. The extension of time in any case shall not be less than the extent of the actual non-contributory delay experienced by the Franchisee if payment of any of these penalties is delinquent by three (3) months or more, the City may require partial or total forfeiture of performance bonds or other surety. In addition, and without waiving any other remedies provided by Law, the City may prosecute any violation of this Franchise as a civil violation under Kent City Code Chapter 104 for which a monetary penalty may be assessed and abatement may be required and/or otherwise enforced as provided therein. 66 Receivership. At the option of the City, subject to applicable Law and lawful orders of courts ofjunsdretion, this Franchise or any Permit may be revoked after the FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -33 appointment of a receiver or trustee to take over and conduct the business of Franchisee whether in a receivership, reorganization,bankruptcy, or other action or proceeding, unless. 6.6 1 The receivership or trusteeship is timely vacated; or 6 6 2 The receiver or trustee has timely and fully complied with all the terms and provisions of this Franchise, and has remedied all defaults under the Franchise 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 Franchise. ARTICLE 7. CONDITIONS UPON USE OF PUBLIC RIGHTS-OF-WAY 71 Permits If Franchisee 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 72 Submission/Approval of Design Submittal. 72.1 Submission At the time of application for a Permit, or in the event that Franchisee seeks to alter or change the location of the Facilities in the Franchise Area, Franchisee shall provide the City with 100% Design Submittal for review and approval of any Cable System Construction, alteration, or change of location within the proposed Franchise Area. 7.2 2 Use of Public Rights-of-Wav Within parameters reasonably related to the City's role in protecting the public health, safety, and welfare and management of the Public Rights-of-Way, 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 Franchise Area, and may deny access if Franchisee 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 Franchisee The City may review and approve the Franchisee'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; FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -34 7 2.3 4 Structural integrity, functionality, appearance, and compatibility with and impact upon roadways, bridges, sidewalks, planting strips, street lights, signals, traffic control signs, intersections, or other facilities and structures; 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 improvement plan, transportation master plan, comprehensive water plan, comprehensive sewer plan, drainage master plan, comprehensive master plan and related documents, 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 enacted or as may be hereafter revised, updated, amended, or re-adopted: 73.1 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; 1 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 Regulatory Requirements. Applicable requirements of federal or state governmental authorities that have regulatory authority over the placement, Construction, or design of Franchisee Facilities, FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -35 7 3 7 Industry Standards All Facilities shall be durable and Constructed in accordance with good engineering practices and standards promulgated by the government and industry for placement, Construction, design, type of materials. and operation of Franchisee Facilities, 7 3 8 Safety Codes and Regulations Franchisee Facilities and Work shall comply with all applicable federal, state, and City safety requirements, rules, regulations, Laws,and practices Byway of illustration and not limitation, Franchisee shall comply with the National Electrical Safety Code and the Occupational Safety and Health Administration (OSHA) Standards. and all regulations enforced by the Department of Labor and Industry, and 7 3 9 Building Codes. Franchisee Facilities and Work shall comply with all applicable City building codes 7.4 Conditions Precedent to Work. Except as may be otherwise required by applicable City code, rule, regulation, or Standards, Franchisee 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, Franchisee shall apply for, and obtain, in advance, such appropriate Permits from the City as are required by ordinance or rule Franchisee shall pay all generally applicable and lawful fees for the requisite City Permits, and 7.4.2 Compliance With Franchise Franchisee shall be in material compliance with the Franchise, including by way of example and not limitation, payment of fees invoiced to Franchisee for City reimbursable costs and expenses related to review and approval of the Permit, proof of insurance, and proof of financial guarantees Nothing herein shall prevent the Franchisee from seeking expedited approval from the City for issuance of required Permits in the manner and in accordance with the processes and fee schedules as set forth in the Kent City Code or in City policies or procedures for expediting Permit approval. In the event expedited review is granted, the City shall use its best efforts to expedite the review required herein to the extent that such review is independent of issuance of a Permit 7.5 Work in 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. Franchisee 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, franchisees, franchises, easement beneficiaries or hen holders, without prior written consent of the City or the parties FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,20I0) AND GOLDFINCH COMMUNICATIONS,L L C. -36 whose improvements are interfered with and whose consent is required pursuant to agreements with the City existing prior to the Effective Date Franchisee'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 Injury/Safety All Construction Work shall be performed in a manner consistent with high industry standards. 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 applicable Permits, this Franchise, 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 Publicizing Work. 7 5 4 1 Notice to Private Property Owners Except in the case of an Emergency, Franchisee 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 Franchisee 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 Franchisee shall notify the public and the City prior to commencing any significant planned Construction that Franchisee and/or the City 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 reasonably direct, from time to time The publication of Work may be used to notify the public and operators of other Cable Systems of the impending Work, in order to minimize inconvenience and disruption to the public The cost of publication shall be borne by the Franchisee. 7.5.5 Work of Contractors and Subcontractors. Franchisee's contractors and subcontractors performing Work in the Franchise Area shall be Franchised 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 Franchisee shall be deemed servants and agents of the Franchisee for the purposes of this Franchise and are subject to the same restrictions, limitations and conditions as if the Work were performed by Franchisee. Franchisee shall be responsible for all Work performed by its contractors and subcontractors and others FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C - 37 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 Franchise and other applicable laws, and shall be jointly and severally liable for all damages and correcting all damage caused by them it is Franchisee's responsibility to ensure that contractors, subcontractors or other Persons performing Work on Franchisee's behalf are familiar with the requirements of this Franchise and other applicable laws governing the Work performed by them 7 5 6 Emergency Permits In the event that Emergency repairs are necessary, Franchisee shall immediately notify the Public Works Director of the need for such repairs. Franchisee may initiate such Emergency repairs, and shall apply for appropriate Permits within forty-eight (48) hours after discovery of the Emergency. In the event of an Emergency, a Franchisee may perform Emergency Work in the Public Rights-of-Way without first securing a Permit for such Emergency Work, provided that: (1) the Franchisee notifies the City in advance of the performance of such Emergency Work and the type and location of such Work, (2) the Franchisee applies for a Permit on the first business day following commencement of such Work, and (3) the Franchisee, 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 Franchise, 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, 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, Franchisee shall cease the non-compliant Work and cause its contractors and subcontractors to cease such activity until the City is satisfied that Franchisee 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 Franchisee to make the necessary repairs and alterations specified therein forthwith and to permanently correct the unsafe condition by a time established by the City The City has the right to inspect, repair, and correct the unsafe condition if Franchisee fails to do so, and to reasonably charge Franchisee all associated costs 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 Franchise, Franchisee 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 shall be deemed to be "substantially complete" when 7.5.8.1 Complete record drawings are provided to the City, FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -38 7 5.8.2 Franchisee 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 8A Franchisee 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, 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 hens and encumbrances, 7.5.8.6 Franchisee has assigned to the City any and all manufacturer warranties of the Dedicated Improvements, if any, and 7 5.8 7 Franchisee, 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 Franchise, at Law, or in equity Upon receipt of Franchisee'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 Franchisee with a written statement indicating in adequate detail in what respects Franchisee has failed to substantially complete the Work, or any component thereof, or is otherwise in default, and what measures or acts are necessary, in the opinion of the City, for Franchisee to take or perform in order to substantially complete such Work. Upon receipt of such detailed statement from the City, Franchisee shall undertake to complete the Work, cure the alleged default in a manner responsive to the stated reasons for disapproval 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, Franchisee, and Franchisee's contractors and subcontractors, may not make any material alterations to the Franchise Area, or permanently affix anything to the Franchise Area, without City's prior written consent Material alteration shall include, by FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,20 10) AND GOLDFINCH COMMUNICATIONS, L L C -39 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 Franchisee desires to change either the location of any Facilities or otherwise materially deviate from the approved design of any of the Facilities, Franchisee shall submit such change to City in writing for its approval pursuant to Section 7 2 of this Franchise Franchisee shall have no right to commence any such alteration change until after Franchisee has received City's approval of such change in writing. 77 General Conditions. 77 1 Right-of-Way Meetings Subject to receiving advance notice, Franchisee shall make reasonable efforts to attend and participate in meetings of the City regarding issues that may impact the Cable System 7 7.2 Compliance Inspection. Franchisee'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 Franchise or Permit or other applicable Law over which the City has jurisdiction Franchisee shall respond to requests for information regarding its Facilities as the City may from time to time issue to determine compliance with this Franchise, including requests for information regarding Franchisee's plans for Construction and the purposes for which the Facility is being Constructed. 7.7 3 One Call If Franchisee places Facilities underground, Franchisee shall, at its own expense, continuously be a member of the State of Washington one number locator service under Ch. 19 122 RCW, or an approved equivalent, and shall comply with all such applicable rules and regulations The Franchisee shall locate and field mark its Facilities for the City, or its agents or contractors, at no charge. 7 7 4 Graffiti Removal Within forty-eight (48) hours after notice from the City, Franchisee shall remove any graffiti on any part of its Cable System, including, by way of example and not limitation, equipment cabinets. If Franchisee fails to do so, the City may remove the graffiti and bill the Franchisee 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, or appurtenances, or public place, or endangers the public, any utilities, or City-owned property, the City may reasonably require the Franchisee to take action to protect the Public Right-of-Way, the public, adjacent public places, and City-owned property, streets, and utilities Such action may include compliance within a prescribed time In the event that the Franchisee 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 Rights-of-Way, the public, adjacent public places, and City-owned property, streets, and utilities, to maintain the lateral support FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -40 thereof, or actions regarded as necessary safety precautions; and the Franchisee shall be liable to the City for the reasonable costs thereof. 7.7.6 No Dutv 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 Franchisee's responsibility to ensure that the Facilities are Constructed and operated in strict accordance with this Franchise, 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 Franchise 7.7.7 Roadside Hazard. All of Franchisee's Facilities shall be kept by Franchisee at all times in a safe and hazard-free condition. Franchisee 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 Franchisee 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; 1 7.7.7.5 Relocate the Facility to another location off the Public Rights-of-Way; or 7.7.7.6 In 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 to and around the Facility Franchisee, 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 Franchisee's agents or employees. Franchisee, at its own expense, shall repair, renew, change, and improve its Facilities from time to time as may be necessary to accomplish this purpose Franchisee shall obtain the appropriate permits, per subsection 7.41 above, for any activities within the Public Rights-of-Way Franchisee shall use suitable barricades, flags, flaggers, lights, flares, and other measures FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -41 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 Franchisee in the Public Rights-of-Way shall be properly safeguarded for the prevention of accidents 7 7 8 Verification of Alu4nment/Depth. Upon the reasonable request and prior written notice, in non-Emergency situations with at least thirty (30) days' notice by the City and in order to facilitate the location, alignment, and design of Public Improvements, the Franchisee 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, Franchisee shall not be required to excavate and expose its Facilities unless the Franchisee's record drawings and maps of its Facilities submitted pursuant to Section 7 11 of this Franchise are reasonably determined by the City to be inadequate for purposes of this Subsection 7.8 Faci I ity Relocation at Request of the City 7.8 1 Public Project The City may require Franchisee to alter, adjust, relocate, or protect in place its Facilities within the Public Right-of-Way at Franchisee'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 sanitary sewers, storm drains, water utility 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 l governmental agency acting in a governmental capacity 78.2 Alternatives. If the City requires Franchisee to relocate its Facilities located within the Public Rights-of-Way, the City shall make a reasonable effort to accommodate alternative locations for the Franchisee's Facilities within the Public Rights-of-Way. The Franchisee 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 Franchisee in writing if one or more of the alternatives are suitable. If so requested by the City, Franchisee shall submit additional information to assist the City in making such evaluation The City shall give each alternative proposed by the Franchisee 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 Franchisee shall relocate its Facilities as otherwise provided in this Section 7 8 In the event that the City reasonably determines that it does not have available resources to evaluate Franchisee's proposal, the City shall not be FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -42 obligated to further consider such proposal unless and until the Franchisee funds the additional costs to the City to complete its evaluation, provided that, the City has sufficient opportunity and time available to evaluate such proposals within the project schedule. 7.8 3 Notice. The City shall notify Franchisee as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. Franchisee shall respond in writing to such notice within fourteen (14) calendar days of receipt thereof, acknowledging receipt thereof, and stating its acceptance of the proposed relocation date or proposing an alternate schedule. Failure of Franchisee to timely respond shall be deemed an acceptance of the date specified in the notice upon which the relocation must be complete Except in case of Emergency, such notice shall be given no less than ninety (90) calendar days prior to the date the relocation must be completed In calculating the date that relocation must be completed, the City shall consult with Franchisee 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 Franchisee 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 Franchisee that the relocation cannot be completed by the date specified using best efforts and meeting safety and Service requirements. i7 8 4 Coordination of Work Franchisee acknowledges and understands that any delay by Franchisee in performing the Work to alter, adjust, relocate, or protect inn place its 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 Franchisee shall cooperate with the City and its contractors and subcontractors to coordinate such Franchisee Work to accommodate the public improvement project and project schedules to avoid delay, hindrance of, or interference with such project. 7.8.5 Failure to Comply. Should Franchisee 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 Direct Costs of the work to the Franchisee, including all reasonable costs and expenses incurred by the City due to Franchisee's delay In such event, the City shall not be liable for any damage 1 to any portion of Franchisee's Cable System In addition to any other indemnity set forth in this Franchise, the Franchisee 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 Franchisee to adjust, modify, protect in place, or relocate its i FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L L C -43 Facilities in a timely manner; provided that, the Franchisee shall not be responsible for damages due to delays caused by the City 7 8 6 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 Franchise to require Franchisee to alter, adjust, relocate, or protect in place its Facilities within the Public Rights-of-Way Franchisee 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 ass i gn ment(s)/transfer(s) as though such orders had been issued by the City under the terms and conditions of this Franchise Such assignment/transfer is an assignment/transfer of the City's contract rights under this Franchise 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 Franchisee to alter, adjust, relocate, or protect in place its Facilities within the Public Rights-of-Way 7.8.7 Reimbursement for Costs. Notwithstanding the cost allocation provisions set forth in this Franchise, Franchisee 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 79 Movement of Facilities for Others 7 9 1 Private Benefit tf any alteration, adjustment, temporary relocation, or protection in place of the Cable System is required solely to accommodate the construction of facilities or equipment that are not part of a Public Improvement project, Franchisee shall, after at least ninety (90) days advance written notice from the responsible party, take action to effect the necessary changes requested by the responsible entity; provided that, (a) the Party requesting the same pays for the Franchisee'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 Franchisee. 7.9 2 Temporary Changes for Other Franchisees. At the request of any Person holding a valid pen-nit and upon reasonable advance notice Franchisee 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 Franchisee shall be given not less than seven (7) days' advance notice to arrange for such temporary wire changes. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -44 7.10 Movement of Facilities During Emergencies. 710.1 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 Franchisee to shut down, relocate. remove, replace, modify, or disconnect Franchisees Facilities located in the Public Rights-of-Way at the expense of the Franchisee 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 Cable 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 Franchisee for costs incurred 7 10.3 Notice. During Emergencies the City shall endeavor to, as soon as practicable, provide notice to Franchisee of such Emergency at a designated Emergency response contact number, to allow Franchisee the opportunity to respond and rectify the problem without disrupting utility service If after providing notice there is no immediate response, the City may protect, support, temporarily disconnect, remove, or relocate any or all parts of the Cable 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. j7.11 Record of Installations. 7.11.1 Map/Record Drawing of Cable System. Upon request by the City, within fourteen (14) calendar days, Franchisee 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 Cable 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 Franchisee shall provide the City with updated record drawings and maps upon request. 7.11 2 Planned Improvements Upon written request of the City, within fourteen (14) calendar days, Franchisee shall provide the City with the most recent update available of any planned improvements to its Cable 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 Franchisee 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 Franchisee shall provide the City with reasonably accurate copies of all record drawings and maps showing the horizontal FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -45 and vertical location and configuration of all located or relocated Facilities within the Public Rights-of-Way These record drawings and maps shall be signed and stamped by a professional land surveyor, shall 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, Franchisee warrants the accuracy thereof 7.12 Restoration of Public Rights-of-Way. and Public and Private Property. 7.12.1 Restoration After Construction Franchisee shall, after completion of Construction of any part of its Cable 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 Franchisee agrees to promptly complete restoration work to the reasonable satisfaction of the City 7 12 2 Notice. If Franchisee'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 Franchisee shall promptly notify the property owner within twenty-four(24) hours. 7.12 3 Duty to Restore. If Franchisee'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 Franchisee shall complete the restoration work within forty-eight (48) hours of notification or as authorized by the City's Public Works Director. 7 12.4 Temporary Restoration If weather or other conditions do not allow the complete restoration required by this Section, Franchisee shall temporarily restore the affected Public Right-of-Way or public property Franchisee 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 pursuant to 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 Franchisee is responsible for all testing and monitoring of restoration activities. FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -46 7.12 7 Warranty Except as provided in Section 7 12 8 below, Franchisee shall warrant any restoration work performed by Franchisee in the Public Right-of-Way or on other public property for two (2) years, unless a longer period is required by City code, 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 Franchisee, the City may, after prior notice to the Franchisee, 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 Franchisee Within thirty (30) days of receipt of an itemized list of those costs, including the costs of labor, materials, and equipment, the Franchisee shall pay the City 7.12.8 Maintenance of Micro-Trench. In the event that the Franchisee uses low-impact deployment methodology in which fiber and conduit are inserted into a slot-cut trench, or such other similar methods, in lieu of more traditional trenching methods, Franchisee agrees that it shall be responsible for inspecting, maintaining, and repairing the integrity of the backfill material to prevent penetration of water and other material that will degrade the useful life of the Public Right-of-Way remaining at the time of the installation Franchisee further agrees that where the micro-trench exists within the travelled way of the Public Right-of-Way, Franchisee shall be responsible for that portion of the Direct Costs of repair or replacement of any portion of the Public Right-of-Way that, as determined in the sole discretion of the Public Works Director, during its useful life becomes unsuitable for public travel, but only to the extent caused by the presence, or lack of maintenance or repair to, of the micro-trench. The Parties shall agree upon a reasonable inspection and maintenance schedule 7.12 9 Restoration of Private Property When Franchisee 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 Franchise shall be deemed to impose any duty or obligation upon the City to determine the adequacy or sufficiency of Franchisee's Design Documents or to ascertain whether Franchisee's proposed or actual Construction is adequate, sufficient, or in conformance with the 100% Design Submittal reviewed and approved by the City. No approval given, inspection made, review, or supervision performed by the City pursuant to or under authority of this Franchise 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 Franchise, 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 City'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 Cable System, suitability of the Franchise 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 FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -47 governmental entity. City is under no obligation or duty to supervise the design, Construction, or operation of the Cable System 7.14 Abandonment of Facilities. Except as may be otherwise provided by Law, Franchisee 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, Franchisee 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, Franchisee shall be and remain responsible for any Facilities abandoned in the Public Rights-of-Way. 7 15 Undergrounding and Relocation Obligations This Section clarifies the Franchisee's obligations when relocating or undergrounding its Facilities The following obligations are in addition to and supplement Kent City Code Sections 7.12 190, 7.12 200 (3), (4), and (6), and Kent City Code Chapter 7 10, as now or may be hereinafter amended. 7.15.1 Location of Facilities New Facilities shall be Constructed in accordance with the following terms and conditions 7.15.1.1 Facilities shall be installed within the Franchisee's existing underground duct or conduit whenever excess capacity exists, 7.15.1.2 Overhead Facilities shall be installed on pole attachments to existing utility poles only, and then only if space is available; 7.15.1 3 Whenever all existing telephone and electric utilities are located underground within Public Rights-of-Way, the Franchisee must also locate its Facilities underground, and 7 t5 14 Whenever all new or existing telephone and electric utilities are located or relocated underground within Public Rights-of-Way, the Franchisee that currently occupies the same Public Rights-of-Way shall concurrently relocate its Facilities underground at its expense 7.15 2 In instances wherein conversion from aenal to underground is caused by the City, the Franchisee shall pay for costs directly associated with labor and materials utilized in the placement of its Facilities 7.15.3 In instances wherein the City takes the lead in a joint relocation project, the Franchisee shall pay for all costs directly associated with engineering, coordination, labor, and materials utilized in the placement of its Facilities. Trenching and backfill cost allocation shall be based on the proportionate number of ducts FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -48 ■ attributable to the Franchisee as that number relates to the total number of ducts being placed, and such other factors that may relate to an equitable allocation of costs among the Franchisee and those Persons with facilities that will be relocated within the joint trench. However. the City shall be responsible for all costs related to surface restoration of any Public Rights-of-Way within the project area as defined by the City's prolect engineering plans 7 15 4 Nothing herein shall preclude the City and Franchisee from entering into a separate agreement between the Parties, or among the Parties and other Persons with facilities in the Public Right-of-Way, for the City to undertake on behalf of the Franchisee the work to relocate Franchisee's Facilities within the Public Right-of- Way as part of a Public Improvement project ARTICLE 8 CABLE REQUIREMENTS 8.1 Cable Service Buildout. 81.1 Initial Service Area. Franchisee shall offer Cable Service to significant numbers of Residential Subscribers in residential areas of the Initial Service Area. and may make Cable Service available to NonResidential Subscribers in the Initial Service Area, within twenty-four (24) months of the Service Date, or within thirty-six (36) months if providing FTTP within the Initial Service Area, and shall offer Cable Service to all residential areas in the Initial Service Area within three (3) years of the Service Date, or within four (4) years of the Service Date if providing FTTP within the Initial Service Area, except (A) for periods of Force Majeure, such time period will be tolled, (B) for periods of delay caused by the City, such time period shall be tolled, (C) for periods of delay resulting from Franchisee's inability to obtain authority to access Public Rights-of-Way in the Service Area, such time period shall be tolled, (D) in areas where developments or buildings are subject to claimed exclusive arrangements with other providers, such obligation shall be inapplicable, (E) in areas, developments, or buildings where Franchisee cannot access, under reasonable terms and conditions, after good faith negotiation, as reasonably determined by Franchisee, such obligation shall be inapplicable, and, (F) in areas, developments, or buildings where Franchisee is unable to provide Cable Service for technical reasons or which require nonstandard Facilities which are not available on a commercially reasonable basis, until such technical reasons are no longer applicable or such nonstandard Facilities are available on a commercially reasonable basis 81.2 Middle Service Area. Franchisee shall offer Cable Service to significant numbers of Residential Subscribers in residential areas of the Middle Service Area, and may make Cable Service available to Non Residential Subscribers in the Middle Service Area, within four (4) years of the Service Date, or within five (5) years of the Service Date if providing FTTP in the Middle Service Area, and shall offer Cable Service to all residential areas in the Middle Service Area within six (6) years of the Service Date, or within seven (7) years of the Service Date if providing FTTP in the Middle Service Area, subject to the conditions of Subsection 8 1 1 above and other terms set forth in this Franchise j FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -49 8.1 3 Extended Service Area. Franchisee shall offer Cable Service to significant numbers of Residential Subscribers in residential areas of the Extended Service Area, and may make Cable Service available to NonResidentnal Subscribers in the Extended Service Area, within seven (7) years of the Service Date, or within eight (8) years of the Service Date of offering FTTP to all residential areas in the Extended Service Area, and shall provide Cable Service to all residential areas within the Extended Service Area within nine (9) years of the Service Date, or within ten (10) years if providing FTTP within the Extended Service Area, subject to the conditions of Subsection 8.1 1 above and the other , terms set forth in this Franchise 8.1.4 Annexation Areas Except as maybe otherwise agreed to in writing by the Parties, any areas annexed to or consolidated with the City after the Effective Date shall constitute an"Annexation Service Area". In the event that Franchisee does not operate a Cable System within all or part of the Annexation Service Area, Franchisee shall offer Cable Service to significant numbers of Residential Subscribers in residential areas of the Annexation Service Area, not already being served by Franchisee, within twenty-four (24) months of the date of Annexation, or Service date, whichever is the later, or within thirty-six (36) months if providing FTTP for all of its customers within the Annexation Service Area, and shall offer Cable Service to all residential areas in the Annexation Service Area within three (3) years of the date of Annexation, or Service date, whichever is the later, or within four (4) years of the date of annexation, or Service date, whichever is the later, if providing FTTP, provided that, to the extent that any portion of the Annexation Service Area is within the Initial Service Area, the Middle Service Area, or the Extended Service Area, and the Buildout is not complete for that service Area, the Buildout within the Annexation Area shall be completed within the longer of the Buildout period as provided in this Section 8 1.4 or as the remaining Buildout period applicable to the particular service area(s) in which the Annexation Area, or any part thereof, is located 8 1 5 Availability of Cable Service. Franchisee shall make Cable Service available to all residential dwelling units, and may make Cable Service available to businesses, within the Service Area in conformance with Sections 8 1, 8 2, 8 3 and 8 4, and Franchisee shall not disenminate between or among any individuals in the availability of Cable Service In the areas in which Franchisee shall provide Cable Service, Franchisee shall be required to connect, at Franchisee's expense, other than a standard installation charge, all residential dwelling units that are within one hundred twenty-five feet(125') of a network access point not otherwise already served by Franchisee's FTTP network. Franchisee shall be allowed to recover from a Subscnber that requests such connection, actual costs incurred for residential dwelling unit connections that exceed one hundred twenty-five feet(125'), and actual costs incurred to connect any Non-residential Subscriber 8 1.6 FTTP Standard For purposes of this Article 8, providing "FTTP" or "Fiber to the Premises" shall mean and refer to providing a form of fiber-optic communication delivery in which an optical fiber is run from the central office all the way to the premises of each residential dwelling unit within the Service Area Unless a different standard is mutually agreed to by the Parties in wasting, the phrase "to the premises" shall FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C. -50 t mean that the optical fiber connecting to the central office is available within that portion of the Public Rights-of-Way abutting the property boundary of each such residential dwelling unit 8.1.7 Notice of Election. Franchisee shall not be granted the extensions of time for a Buildout of FTTP, as provided in Section 8 1.1, 8.11 8 1 3, and 8 1.4. unless Franchisee first gives written notice to the City of such intent at least twelve (12) months prior to the completion date applicable to a Buildout that does not meet the standard for FTTP. For example, if Franchisee intends to Buildout FTTP in the Initial Service Area. Franchisee shall not be entitled to the thirty-six (36) month Buildout period unless it gives written notice of its intent to provide FTTP in the Initial Service Area no later than twelve (12) months after the Service Date. 82 System Facilities The City and the Franchisee acknowledge that the City should be provided with a Cable System that has the same general capabilities and capacity as those provided other cities served by the Franchisee in the King-Pierce-Snohonush County area of the State of Washington The City may, at its discretion, require the Franchisee to provide such interactive services as addressability, security, computer interaction, banking, shopping, or other such relevant technologies In addition, Franchisee's Cable System shall meet or exceed the following requirements 8.2 1 Shall have a modern design when built, utilizing an architecture that will permit additional improvements necessary for high quality and reliable service throughout the term of this Franchise, 8.22 Shall have protection against outages due to power failures, so that backup power is available at a minimum for at least twenty-four (24) hours at each Video Serving Office, 8.2.3 Shall be comprised of facilities and equipment of good and durable quality, generally used in high quality, reliable, systems of similar design; 8 2.4 Shall have personnel, facilities, and equipment sufficient to cure violations of any applicable FCC technical standards and applicable codes, 82.5 Shall have personnel, facilities, and equipment as necessary to maintain, operate, and evaluate the Cable System to comply with any applicable FCC technical standards, as such standards may be amended from time to time, 8.2 6 Shall have facilities and equipment designed to be capable of continuous twenty-four (24) hour daily operation in accordance with applicable FCC standards, except as caused by a Force Majeure event, I 8.2 7 Shall have facilities and equipment designed, built, and operated in such a manner as to comply with all applicable FCC requirements regarding (1) consumer FRANCHISE AGREEMENT BETWEEN CiTY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L L C -51 electronic equipment, and (n) interference with the reception of off the air signals by a Subscriber, 8 2 8 Shall have facilities and equipment designed, built and operated in such a manner as to protect the safety of the Cable System workers and the public, 829 Shall have available sufficient trucks, tools, testing equipment, monitoring devices and other equipment and facilities and trained and skilled personnel required to enable Franchisee to substantially comply with Applicable Law including applicable customer service standards and including requirements for responding to System outages; 8 2 10 Shall have all facilities, equipment, and qualified technical personnel available as required to properly test the Cable System and conduct an ongoing and active program of preventive maintenance and quality control, and to quickly respond to customer complaints and resolve System problems. Upon request, Franchisee shall provide the County with available copies of its Cable System maintenance and quality control plan, 8.2.11 Shall be designed to be capable of interconnecting with other Cable Systems in the Franchise Area; 8 2 12 Shall, if applicable, have antenna supporting structures (i e , towers) designed in accordance with all applicable state and local building codes, as amended, and shall be painted, lighted, erected, and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration, the FCC, and all other applicable codes and regulations, 8 2.13 Shall have all facilities and equipment at the headend allowing Franchisee to transmit or cablecast signals in substantially the same form received, without substantial alteration or deterioration For example, the headend should include equipment that will transmit color video signals received at the headend in color, stereo audio signals received at the headend in stereo, and a signal received with a secondary audio track with both audio tracks Similarly, all closed captioned programming retransmitted over the Cable System shall include the closed captioned signal in a manner that renders that signal available to Subscriber equipment used to decode the captioning, 8 2 14 Shall transmit in high definition on the digital tier any signal carried by the Cable System which is transmitted to Franchisee in a high definition format and three (3) dimensional format, 8.2.15 Shall provide adequate security provisions in its Subscriber site equipment to permit parental control over the use of Cable Services on the System. Such equipment shall at a minimum offer as an option that a Person ordering programming must provide a personal identification number or other means provided by Franchisee only to a Subscriber, provided, however, that Franchisee shall bear no responsibility for the exercise FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L L C -52 t of parental controls and shall incur no liability for any Subscriber's or viewer's exercise or failure to exercise such controls, 8 2 16 Shall conform to or exceed all applicable FCC technical performance standards, as amended from time to time, and any other future applicable technical 1 performance standards, which the County is penmitted by a change in law to enforce and shall substantially conform in all material respects to applicable sections of the following standards and regulations to the extent such standards and regulations remain in effect and are consistent with accepted industry procedures Proof-of-performance shall meet or exceed the minimum requirement set forth in FCC Rules & Regulations Part 76, SubPart K "Technical Standards." There shall be a test point located at the extremities of each node; 8 2 17 Shall include optional equipment so that any pay-per-view programming can only be activated by the positive action of a Subscriber using, for example, a private identification number or other individual selection procedure, and 8.2 18 Shall comply with all requirements of Applicable Law, including, but not limited to, the Americans with Disabilities Act. Franchisee shall comply with FCC rules on transmission of closed captioning for the heanng impaired For heanng impaired Subscribers, Franchisee shall provide information concerning the cost and availability of equipment to facilitate the reception of all basic services for the hearing impaired In addition, Franchisee must provide infonnatton (upon request) regarding TDDlTTY (or equivalent) equipment, and a publicly listed telephone number for such equipment, that will allow hearing impaired Subscribers to contact Franchisee. 8 2 19 Franchisee shall design the Cable System so that it can be interconnected with other cable systems or any open video systems in the area or within the City at suitable locations as determined by Franchisee Interconnection capabilities shall be provided for the exchange of all PEG signals designated in Section 8 3 herein tamed on the Cable System Interconnection of systems may be made by direct cable connection, microwave link, satellite,or other appropriate methods 8 2.20 At the request of the City, the Franchisee shall, to the extent permitted by Applicable Law and its contractual obligations to third parties, use every reasonable effort to negotiate an interconnection agreement with any other franchised cable system in the Franchise Area for the PEG channels on the Cable System, provided, however, that the Persons seeking to interconnect shall bear all reasonable costs of such interconnection. The Franchisee shall notity the City prior to any interconnection of the Cable System with any other cable system in the City; 8 2.21 Franchisee shall comply with the Emergency Alert System ("EAS") requirements of applicable federal or state laws or regulations in order that emergency messages may be distributed over the Cable System. 8 2.22 Franchisee shall ensure that all Service addresses are identified and are correctly associated with the Franchise Service Area through the use of a Geographic FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C. -53 Information System, electronic file format, or equivalent system acceptable to the City In the event of annexation or consolidation. Franchisee shall ensure that all Service addresses are identified and are correctly associated with the Franchise Service Area within the Annexation Area within sixty (60) days following the later of the effective date of notice given to Franchisee of the annexation date or the annexation date, but no later than the first quarterly payment of Franchise Fees following the date of annexation 8 2 23 Emergency Override. The Franchisee shall make provisions for an emergency alert system from City Hall or any one of the primary police or fire facilities. The Franchisee shall establish a process that will provide a character generated scroll and make its best effort to furnish a voice override notifying viewers and listeners of the emergency This emergency alert system shall be compatible with applicable federal, state, and local regulations. Franchisee shall further be obligated to make provisions for interconnection of the Cable System with the Emergency Alert System of King County for the override of cable programming and distribution of emergency messages over the Cable System within the Franchise Area Subject to federal and state laws and regional planning authorities, control of these emergency override facilities shall be the responsibility of the City The City shall hold the Franchisee, its agents, employees, officers, and assigns harmless from any claims arising out of the emergency use of its transmitting facilities by the City. The City, at its option, may elect to share this service with adjoining communities 8.3 Public Educational and Government Channels("PEG"). 8.3 1 The City shall be provided with, at a minimum, one (1) 6 MHz analog or IPTV video Access Channel. eleven (11) 6 MHz analog/digital or IPTV video Access Channels, and three (3) High Definition digital or IPTV video Access Channels capable of live broadcasts from City Hall and two (2) other sites to be determined by the City. The City may share a common public Access Channel with other communities, however, the City may elect, at its option, to provide programming over an individual public Access Channel for the City's sole use. The City agrees that Franchisee may use two (2) of the High Definition digital video Access Channels to cablecast programming for any Lawful purpose until the City gives six (6) months written notice requesting return of control and use of such channel to the City. 8 3 2 Additional channels over and above those set forth in Section 8.3 1 above shall be made available for City purposes when any of the fifteen (15) designated channels is in use for access purposes with programming during fifty percent (50%) of the hours between 10 00 a.m. and 10 00 p m during any consecutive ten (10) week period Programming for additional required channels shall be distinct and non-repetitive of the previous channel. The Franchisee shall, within six (6) months following a request by the City, provide another designated Access Channel to the City 8.3 4 The Franchisee shall continue to provide additional channels under the same conditions. If additional channels are designated for community use but, after one FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -54 (1)year, such channel(s) are not programmed at least twenty-five percent(25%) of the hours between 10.00 a in and 10 00 p in with programming, the access users shall within six (6) months of receiving written notice from the Franchisee, group their programming into one (1) contiguous block of time of their choosing The remaining broadcast time on such channel(s) shall then revert to the Franchisee for its unrestricted use within the terms and conditions of this Franchise Agreement 8.3 5 Contributions to Public, Educational, and Government ("PEG") taccess shall not be considered in lieu of a Franchise Fee or other obligations to the City. 8 3 6 Cable Feed to Public Access Facility Franchisee shall at no cost to the City or Puget Sound Access, provide connectivity with optical fiber and necessary electronics between the City of Kent Public Access Facility (currently located at the Puget Sound Access Center ("PSA")) and the nearest Franchisee Hub. The Construction shall be completed within sixty (60) days of the effective date of notice of the City's request Franchisee shall provide, at no cost to the City, all end-user equipment necessary to send and receive digital signals at both the public access site and Franchisee's Hub, including all end-user equipment necessary to transmit and receive TV 21 programming over Franchisee's Cable System. 8.3.7 HD PEG Channels, All residential subscribers who receive all or any part of the total services offered on the Franchisee's system shall be eligible to receive all fifteen(15) Access Channels at no additional charge 8.3.8 On-Demand PEG Programming. Franchisee shall provide to the City video-on-demand ("VOD") government access with up to sixty (60) hours of government, education, and public access programming stored on the Franchisee's server at no cost to the City starting on or before the Service Date and continuing through the term of this Franchise The City may change the video programming stored on the Franchisee's server on a regular basis. 8 3 9 PEG Location and Signal Quality. Franchisee shall continue to cablecast City PEG channels in analog, digital, or 1PTV format. 8.3.10 Upon the Service Date, the Franchisee shall use commercially reasonable efforts to establish its initial PEG Channel assignments consistent with PEG Channel assignments previously assigned by other Cable System operators within the Franchise Area. No PEG Channel assignment shall be relocated thereafter without the mutual consent of the City and Franchisee Unless mutually agreed otherwise, if Franchisee and the City agree to change the location of a PEG Channel, Franchisee must >� provide at least six (6) months notice to the City prior to implementing the change, and shall reimburse the City, and its PEG operator (Puget Sound Access or its successor), for any reasonable costs incurred as a result of the relocation of the Channel assignment Franchisee will use reasonable efforts to minimize the movement of City-designated PEG Channel assignments and maintain common Channel assignments for compatible PEG programming Franchisee shall include all PEG Channels in its TV-Guide listings l FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -55 8.3 11 If Franchisee makes changes in the System and related equipment and Facilities or in signal delivery technology, which change directly causes the signal quality or transmission of PEG Channel programming or PEG services to fall below technical standards under applicable Law, Franchisee shall, at its own expense, provide technical assistance, transmission equipment, and all other assistance so that PEG facilities may be used as intended, provided that, such amount shall not exceed thirty thousand dollars ($30,000) in any twelve (12) month period All PEG Channels shall be transmitted in the same format and in the same quality as all other basic Cable Service Channels and shall be caned on the Basic Service Tier. All signal quality issues shall be resolved within twenty- four(24) hours of notice from the City. 8 3.12 PEG Support. Upon the Service Date of this Franchise, the Franchisee shall, to accordance with the schedule below, pay to the City on a quarterly basis, at the same time as the franchise fee, a per Subscriber per month fee (the "PEG Fee") from all Subscribers receiving and paying for Cable Service To the extent permitted by applicable Law, the PEG Fee may be itemized on subscriber billing statements. The schedule for PEG Fees shall be as follows: 15`year—Five(5) cents per Subscriber per month; 2°d year- Fifteen (15) cents per Subscnber per month; 3`d year—Twenty-five (25) cents per Subscriber per month; 4`h year—Thirty-five (35) cents per Subscriber per month, 5`h year—Seventy-five(75)cents per Subscriber per month, and 6`h year—One (1) dollar per Subscriber per month. At the conclusion of the 6`h year, the PEG Fee shall be adjusted on an annual basis each January by the all urban consumers consumer price index (`CPI-U") for the Seattle/Tacoma/Bremerton area as published by the United States Bureau of Labor Statistics The adjustment shall be based upon the change in the CPI-U for the months of July and August in the year prior to the adjustment, provided that, in no event shall the PEG Fee be adjusted down. The PEG Fees shall not be treated as Franchise Fees for purposes of 47 U S C § 542 or any other purpose, and shall at no time be offset or deducted from Franchise Fee payments made to the City under this Franchise or applicable Law. 8.3 13 Initial PEG Capital Grant. Five (5) years from the Service Date, Franchisee shall provide an unrestricted and non-recoverable initial PEG capital grant of one hundred thousand dollars ($t00,000 00) to be used for PEG capital purposes. In the alternative, Franchisee may make an earlier payment, on or after the Service Date, by deducting two percent (2%) from the above amount for each full year that payment is received earlier than the date set forth above. For example, if payment is made on or before the Service Date. the PEG capital grant shall be $90,000 A payment made during the first year following the Service Date would be $92,000 A payment during the second year following the Service Date would be $94,000 r FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -56 1 1 The PEG capital grant shall not be treated as Franchise Fees for purposes of 47 U.S C § 542 or any other purpose, and shall at no time be offset or deducted from Franchise Fee payments made to the City under this Franchise or applicable Law. 8.3 14 Additional PEG Grant Obligations. The Parties agree that Franchisee shall be obligated to make additional PEG capital grants on each ten (10) year anniversary of the Effective Date of the Franchise throughout the term of the Franchise, including any extensions thereof, i.e , years 10, 20 and 30 The City shall provide a PEG capital grant request based upon a needs assessment supporting the PEG capital grant, as a pre-condition of Franchisee's obligation to pay each such additional PEG capital grant The Parties shall mutually agree upon the amount of each such additional PEG capital grant. Such capital grant shall be no more than twenty percent (20%) of Franchise Fees paid (or due and owing) to the City for the twelve (12) month period prior to the date upon which the PEG capital grant becomes due In the event that the Parties are unable to mutually agree upon such PEG capital grant prior to the date upon which the PEG capital grant becomes due, the Parties agree that the PEG capital grant shall be set automatically at the lesser of the amount requested by the City,based upon its needs assessment, or the twenty percent (20%) cap as set forth above Such additional PEG capital grants shall be paid in full at the time the payment becomes due and owing 8 3 15 Government Programming Grant The Parties desire to establish a grant program to provide a potential source of funding for government programming that will benefit the residents of the City and will provide an opportunity for Franchisee to support local government programming The Parties agree, therefore, that Franchisee may, but is not obligated to, establish a local government programming grant program The City agrees that it will participate with the Franchisee in a local government programming grant program upon the following terms and conditions 1. Administration The City will administer and manage each grant or series of grants and act as a conduit through which the grant funds would be disbursed from Franchisee to recipient. At no time shall such funds be considered to be funds of the City. 2. Grant Recipients Recipients of the grant shall be limited to those persons that are contracted by the City to provide government programming for cablecast upon any one or more of the City government access channels. 3 Editorial Control. The City shall retain editorial control over all programming funded through the grant funds 4. Franchise Fees The grant funds shall not be treated as franchise fees for purposes of 47 U.S C § 542 or any other purpose, and shall at no time be offset or deducted from franchise fee payments made to the City under this Franchise or applicable Law FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -57 5 Off-Set Commencing upon the Service Date, any funds committed by Franchisee to the programming grant program contemporaneous with the payment of the PEG capital grant may, at the request of the Franchisee, be off-set, at a two- to-one ratio, against the PEG capital grant to be paid by the Franchisee during the period in which the grant funds are committed, provided that, the total off-set may not exceed fifty percent (50%) of the total PEG capital grant obligation For example, if Franchisee pays its initial PEG capital contribution of ninety thousand dollars ($90,000) at the commencement of the Service Date, the maximum off-set to be applied during the period from the Service Date until the commencement of the I Ot" year (the commencement of the next PEG capital grant obligation) would be forty-five thousand dollars ($45,000) Thus, if Franchisee committed eighty thousand dollars ($80,000) to the programming grant program contemporaneously with the payment of the initial PEG capital grant, the off-set to be applied against the initial PEG capital grant would be forty thousand dollars ($40,000) 8.3 16 In the event any payment required by this Section 8 3 is not made on or before the required date, the Franchisee shall pay, during the period such unpaid amount is owed, additional compensation and interest charges computed from such due date, at an annual rate of eight percent (8%) or the statutory maximum, whichever is less Any interest or penalties imposed hereunder shall not be treated as Franchise Fees for purposes of 47 U S C. § 542 or any other purpose, and shall at no time be offset or deducted from Franchise Fee payments made to the City under this Franchise or applicable Law 8.3.17 Institutional Network(the "City I-Net"). Reserved. 84 Public Buildings The Franchisee shall provide without charge for installation or a monthly rate, Basic Service and outlets at such public buildings and schools as specified in Appendices "A" and "B", as well as other such buildings that may be constructed during the period of the Franchise that are passed by cable and within 150 feet of the think or distribution system The Franchisee shall make its best efforts to provide regional interconnection of all schools at the appropriate time 8.5 Customer Pnvacy. Franchisee shall comply with the Subscriber privacy regulations set forth in 47 U.S.C. § 551 and any lawful state or local laws pertaining to privacy 86 Customer Service. Within seven (7) days of receipt of a customer inquiry or complaint that is referred to the Franchisee, in writing by the City, the Franchisee shall notify City in writing of the resolution or disposition of the inquiry or complaint If a complaint is not resolved within seven (7) days, the Franchisee shall inform City in writing of the plan to resolve the complaint expeditiously or the reason why it cannot be resolved Franchisee shall further comply with the minimum customer services standards adopted by the FCC, the customer service standards set forth in this Franchise, the customer service standards in Ch. 7.12 KCC, as amended, and the minimum customer service standards adopted by the City FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26, 2010) AND GOLDFINCH COMMUNICATIONS,L L C -58 8.7 Telephone Response. The Franchisee shall maintain an adequate force of customer service representatives as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. The Franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of Subscriber concern. A copy of such procedures and/or policies shall be made available to the City Under normal operating conditions, seconds, average speed of answer, and busy signals shall not occur more than three percent (3%) of the time. This requirement shall be met at least ninety percent (90%) of the time, measured over any consecutive ninety (90) day period. The Franchisee shall use an answering service or be capable of receiving service complaints and System malfunction reports when the business office is closed In order that the City may be informed of a Franchisee's success in achieving satisfactory customer relations in its telephone answering functions, the Franchisee shall routinely, but no less than quarterly, provide the City with a summary that will provide, at a minimum, the following- 1. Number of calls received in a reporting period; 2. Time taken to answer; 3. Average talk time, 4. Number of calls abandoned by the caller; 5. Average hold time; 6. Percentage of time all lines busy; and 7. An explanation of all abnormalities This data shall be compared to minimum standards of the NCTA incorporated herein by reference, or any amendment thereto increasing such standards, and shall be monitored by the City. Calls for service generated during periods of System outages, as defined by the FFC, due to Emergency affecting more than twenty-five (25) customers may be excluded from the service response calculations. The City shall have the sole determination as to what constitutes a System failure due to Emergency and which calls shall be excluded from the service level calculations 8 8 Outages. The Franchisee shall render repair service to restore the quality of the signal at the same or higher standards existing prior to the failure or damage of the component causing the failure, and make repairs promptly and interrupt service only for good cause and for the shortest time possible Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the System A log of all service interruptions shall be maintained and kept on file by Franchisee The City, after two (2) working days, upon notice to Franchisee of such a request, may inspect such logs. Installation work shall be perforined in a timely manner The Franchisee shall offer a choice of morning, afternoon, or late afternoon appointments, within a four (4) hour time period Franchisee may not cancel an appointment with a Subscriber after the close of business on the business day prior to the scheduled appointment If Franchisee is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the Subscriber shall be contacted. The appointment shall be rescheduled, as necessary, at a time which is FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C. -59 convenient for the Subscriber. If the Franchisee fails to keep a scheduled appointment with a Subscriber, and fails to give notice to the Subscriber at least two (2) hours prior to the scheduled appointment time, the Franchisee shall give a service credit to that Subscriber unless failure of notice is caused by acts of God An employee of Franchisee shall answer and respond to all individual complaints received prior to 5 00 p m. weekdays Franchisee may use an answering service to receive complaints after 5 00 p m weekdays and on weekends and holidays and shall promptly respond to any System outage 8.9 Senior Citizen/Disabled Person Low-income Discount Reserved 8.10 Technical Audit Franchisee shall annually provide to the City a certification signed by its Vice President of Engmeenng for the State of Washington, or other senior engineer as agreed upon by the City, certifying that its policies and procedures comply with all applicable Laws and codes, and that all known maintenance issues have been repaired in compliance therewith. In addition, upon reasonable notice by the City, Franchisee shall provide all technical testing and certification matenals to the City, or its technical consultant, for audit purposes 8 11 Live Feeds. Franchisee shall provide, where technically feasible, the ability for live feeds from City Hall, as well as four (4) other sites within the Kent city limits to be designated by the City. The City intends to locate these sites for the purpose of live broadcasting of community meetings and other information as follows: one (1) on the East Hill, one (1) on the West Hill; one (1) additional site in the Valley, and one (1) at Puget Sound Access ' ARTICLE 9. MISCELLANEOUS 91 Headings Titles to articles and sections of this Franchise are not a part of this Franchise and shall have no effect upon the Construction or interpretation of any part hereof 92 Entire Agreement. The written provisions and terms of this Franchise, 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 Franchise 9.3 Incorporation of Exhibits All exhibits attached hereto at the time of execution of this Franchise, or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein 9.4 Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays, and legal holidays to 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 FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -60 Washington, the period shall be extended to include the next day which is not a Saturday, 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 Franchise 95 Time Limits Stnctly Construed. Whenever this Franchise sets forth a time for any act to be performed by Franchisee, such time shall be deemed to be of the essence, and any failure of Franchisee to perform within the allotted time may be considered a Breach of this Franchise 9.6 No Joint Venture. It is not intended by this Franchise to, and nothing contained in this Franchise shall, create any partnership, joint venture, or principal-agent relationship or other arrangement between Franchisee 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 Franchise and the collateral instruments shall be exclusively enforceable by the City and Franchisee, their successors, and assigns No I term or provision of this Franchise 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 Franchisee 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 9 6 shall be construed to prevent an assignment as provided for at Subsection 7.8 6 of this Franchise. 9.7 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 the Public Works Director's designee. 9.8 - Binding Effect Upon Successors and Assigns All of the provisions, conditions, and requirements contained in this Franchise shall further be binding upon the heirs, successors, executors, administrators, receivers, trustees, legal representatives, and assigns of the Franchisee; and, all privileges, as well as all obligations and liabilities of the Franchisee shall inure to its heirs, successors, and assigns equally as if they were specifically mentioned wherever the Franchisee is named herein 9.9 Waiver. No failure by either Party to insist upon the performance of any of the terms of this Franchise 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 Franchise. None of the terms of this Franchise 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 Franchise, but each of the terms of this Franchise shall continue in full force and effect with respect to any other then existing or subsequent Breach thereof No waiver of I 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 FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -61 the express waiver, and then only for the time and to the extent therein stated. One or more waivers by the injured Party shall not be construed as a waiver of a subsequent Breach of the same covenant, term, or conditions 910 Severability. 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 Franchise 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 Franchisee or the City prevails in any proceeding seeking a finding that any Term is invalid, illegal, or unconstitutional for any reason, this Franchise 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 Franchise pursuant to Section 9 14 herein In the event that such Term shall be held or otherwise mutually agreed to by the City and Franchisee to be illegal, invalid, or unconstitutional, the Parties shall reform the Franchise pursuant to Section 3 5 herein. 9.11 Signs. No signs or advertising shall be permitted upon Facilities in the Franchise 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, or as may be necessary to identify the ownership of such Facilities. 912 Discnmmatory Practices Prohibited. Throughout the term of this Franchise, Franchisee shall fully comply with all equal employment and nondiscrimination provisions of applicable Law. 9 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 (n) when delivered by a nationally recognized overnight mail delivery service, to the Party and at the address specified below, or (m) 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 Franchisee's address: ** And to: ** The City's Address: City of Kent Attn: Chief Administrative Officer 220 Fourth Avenue South Kent, WA 98032 FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS,L L C -62 And to the City Attorney: Office of the City Attorney Attn: City Attorney 220 Fourth .Avenue South Kent, WA 98032 The City and Franchisee 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 (2) addresses, except by mutual agreement. 9 14 Survival of Terms Upon the expiration, termination, revocation, or forfeiture of the Franchise, the Franchisee shall no longer have the right to occupy the Franchise Area for the purpose of providing Services authorized herein However, the Franchisee's obligations under this Franchise to the City shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's Cable System or any part thereof shall remain in whole or in part in the Public Rights-of-Way, the Franchisee Transfers ownership of all Facilities in the Franchise Area to a third-Party, or the Franchisee abandons said Facilities in place, all as provided herein. Said obligations include, by way of illustration and not limitation, Franchisee'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 Franchisee work t915 Force Maieure In the event Franchisee 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 Franchisee's employees, Franchisee shall not be deemed in Breach of provisions of this Franchise. If Franchisee 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 Franchise, Franchisee shall provide documentation as reasonably required by the City to substantiate the Franchisee's claim. Franchisee shall have a reasonable time, under the circumstances, to perform the affected obligation under this Franchise or to procure a substitute for such obligation which is satisfactory to the City; provided that, the Franchisee 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, and provided that the Franchisee takes immediate and diligent steps to bring itself back into 1 compliance, as soon as possible under the circumstances, with the Franchise without unduly endangering the health, safety, and integrity of the Franchisee's employees or property, or the health, safety, and integrity of the public, Public Rights-of-Way, public property, or private property FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010) IAND GOLDFINCH COMMUNICATIONS, L L.0 -63 916 Attorneys' Fees In any claim or lawsuit for damages arising from a Party's performance of this Agreement, each Party shall pay all its legal costs and attorneys' 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 Section shall be construed to limit either Party's right to indemnification or either Party's duty to defend the other Party under this Franchise 9 17 Venue/Choice of Law This Franchise 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 Franchise, 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. 9 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 Franchise 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: Approved as to form- Chris Bacha Kenyon Disend, PLLC Special Counsel FRANCHISE AGREEMENT BETWEEN CITY OF I ENT (May 26,2010) AND GOLDFINCH COMMUNICATIONS, L L C -64 1 r TABLE OF CONTENTS ARTICLE 1. DEFINITIONS ARTICLE 2. FRANCHISE GRANT 2.1 Public Rights-of-Way Use Authorized 2.2 Authorized Services 2.3 No Rights Shall Pass to Franchisee by Implication 24 Interest in the Public Rights-of-Way 2.5 Condition of Franchise Area 2.6 Franchise Nonexclusive 2.7 Transfer 2.8 Street Vacation 2.9 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 3.3 Alteration of Matenal Terms and Conditions 3.4 Reservation of Rights/Waiver 3.5 Subsequent Action 3.6 Change in Fonn of Govemment 3.7 Order of Precedence ARTICLE 4. ACCEPTANCE 4.1 Acceptance 42 Failure to Timely File Acceptance 4.3 Effective Date/Term/Extension 4.4 Effect of Acceptance 4.5 Effect of Expiration/Temmnation ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC r5.1 Limitation of Liability 5.2 Environmental Liability - Attached Exhibit C I 5.3 Insurance Requirements - Attached Exhibit D 5.4 Financial Security - Attached Exhibit E 5.5 Parental Guarantee - Intentionally Deleted I 5.6 Contractors/Subcontractors - Attached Exhibit F 5.7 Liens 5.8 Financial Conditions TABLE OF CONTENTS-i r ARTICLE 6. ENFORCEMENT AND REMEDIES 61 Communication and Discussion 62 Remedies 6.3 Termination/Revocation 6.4 Right to Cure Breach 6.5 Assessment of Liquidated Damages 66 Receivership ARTICLE 7 GENERAL CONDITIONS UPON USE OF PUBLIC RIGHTS-OF-WAY 7.1 Permits 72 Submission/Approval of Desi,n Submittal 7.3 Compliance With Standards,/Codes 74 Conditions Precedent to Work 7.5 Work in the Public Rights-of-Way 7.6 Alterations 77 General Conditions 78 Facility Relocation at Request of the Cttv 79 Movement of Facilities for Others 7.10 Movement of Facilities DuringEmergencies 7.11 Record of Installations , 7.12 Restoration of Public Rights-of-Way, and Public and Private Property 713 Approvals 7.14 Abandonment of Facilities 7.15 Underaroundmg and Relocation Obligations ARTICLE 8 CABLE REQUIREMENTS 8.1 Cable Service Buildout 8.2 Svstem Facilities 8 3 Public Educational and Government Channels("PEG") 84 Public Buildings 85 Customer Privacy 86 Customer Service 87 Telephone Response 8 8 Outages 8.9 Senior Citizen/Disable Person Low-income Discount 8 10 Technical Audit 8.11 Live Feeds ARTICLE 9 MISCELLANEOUS 91 Headings 9.2 Entire Agreement TABLE OF CONTENTS-n f t 9.3 Incorporation of Exhibits 94 Calculation of Time 95 Time Limits Strictly Construed 9.6 No Joint Venture 9.7 Approval Authority j 9.8 Binding Effect Upon Successors and Assigns 9.9 Waiver 9.10 Severabtlity 9.11 Signs 9.12 Discriminatory Practices Prohibited 913 Notice 9 14 Survival of Terms 9.15 Force Majeure ' 9.16 Attorneys' Fees 9 17 Venue/Choice of Law 9.18 Reevelable Materials EXHIBITS• A Franchise Area B. Form of Acceptance of Franchise C. Environmental Indemnity 1 D. Insurance Requirements E. Financial Security F. Contractor/Subcontractor Insurance Requirements G. Form of Transfer/Change of Control H. Depiction of Service Areas 1 I TABLE OF CONTENTS-iii EXHIBIT "A" (Franchise Area) The Franchise Area shall consist of all of the Public Rights-of-Way lying within the jurisdictional boundaries of the City, including any areas annexed by the City during the term of this Franchise or any extension thereof. i t 1 i i r r EXHIBIT A TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC- 1 EXHIBIT "B" (Acceptance of Franchise) Franchise issued , 20 I, . am the authorized representative to accept the above-referenced Franchise on behalf of . I certify that this Franchise 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 120 . By Its Tax Payer ID# STATE OF ss. CITY OF I certify that l 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 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 1 Notary public in and for the state of residing at IMy appointment expires EXHIBIT B TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC- I EXHIBIT "C" (Environmental Indemnity) I Duty to Indemnify/Release/Defend. Franchisee assumes the risk that Hazardous Substances or other adverse matters may affect the Franchise Area that were not revealed by Franchisee inspection and indemnifies, holds harmless, and hereby waives, releases, and discharges forever the City and City's officers, employees, and agents (collectively "Indemnitees") 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,judgments, and attorneys' fees), of any and every kind or character, known or unknown, which Franchisee might have asserted or alleged against Indemnitees arising from or in any way related to the condition of the Franchise 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 Franchise Area (the "Franchisee Losses"). Franchisee 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 arising under any Environmental Law enacted after the date hereof Except as may be limited below, Franchisee Losses specifically include losses sustained by Franchisee as a result of any obligation of Franchisee to remove, close, Remediate, reimburse, or ' take other actions requested or required by any governmental agency concerning any Hazardous Substances on the Franchise Area. Notwithstanding the above, Franchisee Losses waived, released, and discharged hereunder by Franchisee 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 Franchisee pursuant to Sections 2 and 3 herein apply to the duty to indemnify and defend as provided in this Section 1 ' 2. Discovery Within Franchise Area In the event that the Work of the Franchisee in, on, and upon the Franchise 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 Franchisee within the Franchise Area (the "Excavated Areas"), the Franchisee 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 I the Franchise 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 Franchisee, or Franchisee decides to undertake Remedial Actions i independently or enter into a consent order or consent decree with an Environmental Authority, then in such event, Franchisee agrees to indemnify, defend, and hold the City harmless from and against the cost of all Remedial Actions which are required by the tEXHIBIT C TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC- 1 Environmental Authority within the Excavated Areas under the applicable Environmental Laws with respect to the Discovered Matters, provided, however, the City, subject to the 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 Franchise Area (outside the Excavated Areas) under the applicable Environmental Laws with respect to the Discovered Matters 3. Release by Franchisee. In the event the Franchisee's Work, in, on, or upon the Franchise 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 Franchisee are released beyond the Excavated Areas, and if the release is caused in whole or in part by the Franchisee, then the Franchisee 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 Franchisee's share of the liability for the release Franchisee's liability for the release may, inter alia, be determined by Franchisee'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 Franchisee and the Environmental Authority. EXHIBIT C TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC-2 ' EXHIBIT "D" (Insurance Requirements) 1. General Requirement Commencing upon issuance of the first Permit under this Franchise, Franchisee must have adequate insurance at all times while Franchisee 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 Franchise or involve the Facilities, Franchisee, its agents, representatives, contractors, subcontractors and their employees. 2 Minimum Insurance Limits. The Franchisee 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 Franchise 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 Franchise 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 Franchise to comply with statutory limits for all employees, and in the case any work is sublet, the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all their employees The Franchisee 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 per 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 S 10,000,000 in the aggregate. 3. Endorsements. Franchisee Commercial General Liability insurance policies are to contain, or be endorsed to contain, the following: EXHIBIT D TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC - I 3.1 The Franchisee'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 Franchisee's insurance and shall not contribute to it 3.2 Franchisee, 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 , whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability 3.4 The Franchisee'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 in the Public Rights-of-Way under a grant of authority of the City 3.5 The Franchisee's insurance shall include a requirement that the "railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG 24 17. 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, Franchisee shall provide a replacement policy ' 4 Acceptability of Insurers. Each insurance policy obtained pursuant to this Franchise 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 AN Best Company. In the event that at any time during coverage, the insurer does not meet the foregoing standards, Franchisee 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 Franchisee shall furnish the City with signed , certificates of insurance and a copy of the amendatory endorsements, including, but not necessarily hmited to, the additional insured endorsement, evidencing the Automobile Liability, Commercial General Liability and Umbrella or Excess insurance of the Franchisee upon acceptance of this Franchise 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 EXHIBIT D TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC-2 standard industry practices. The Franchisee hereby warrants that its insurance policies satisfy the requirements of this Franchise 6 Deductible The Commercial General Liability insurance policy and coverage required herein may include a reasonable deductible not to exceed ten percent (10%) of the minimum per occurrence Commercial General Liablity policy limits, provided, however, that if Franchisee elects to include any deductible, Franchisee shall itself directly cover, in lieu of insurance, any and all City Liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible 7. No Limitation. Franchisee's maintenance of insurance policies required by this Franchise shall not be construed to excuse unfaithful performance by Franchisee or limit ' the liability of Franchisee 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 Franchise, 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 Franchisee and an opportunity to provide comments, and the City shall review and consider such comments that are timely made 9. Public Franchisees Franchisee Commercial General Liability, Automobile Liabhty and Umbrella Coverage insurance policies and coverage required herein for Public Franchisees may include a reasonable self-insured retention, provided, however, that as to any self-insured retention, Franchisee shall itself directly cover, in lieu of insurance, any and all City liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee insurance if Franchisee elected not to include a self-insured retention Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual self-insured retention "Public Franchisee" for purposes of this Section 9 shall mean and include, any Franchisee organized as a political subdivision of the state of Washington, but shall not mean or include agents, contractors, and subcontractors of Franchisee that are not also organized as political subdivisions. Franchisee shall be required to provide verification of self- insurance retention coverage in a form and content acceptable to the City. r EXHIBIT D TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS,LLC-3 EXHIBIT "E" (Financial Security) 1 Performance Bond. 1.1 Franchisee shall provide to the City a faithful performance and payment bond in the initial amount of$500,000 to ensure the full and faithful performance of all of its responsibilities under this Franchise 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 Franchisee 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 Franchisee fails to provide or maintain the bond, then the City, in its sole discretion, may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. ' 1.5 Franchisee's maintenance of the bond(s) shall not be construed to excuse unfaithful performance by Franchisee, limit the liability of Franchisee 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 Franchisee compliance with its obligations under the Franchise, 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 Franchisee 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 to Lieu of Bond IFranchisee 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 Franchisee's responsibilities EXHIBIT E TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS,LLC- I hereto under this Franchise and all applicable Laws This includes, but is not limited to, ' Franchisee's obligations to relocate or remove its Facilities, restore the Public Rights-of- Way and other property to its original condition, and reimburse the City for its costs The City shall notify Franchisee in writing, by certified mail, of any default and shall give Franchisee thirty (30) days from the date of such notice to cure any such default In the event that the Franchisee 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 Franchisee's default Upon the City's cure of Franchisee's default, the City shall notify Franchisee in writing of such cure. In the event that the City draws upon the cash deposit or letter of credit, Franchisee 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 Franchisee 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 and 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 Franchise 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 32 Said restoration bond, or a separate bond acceptable to the City, shall warrant all such restoration work for a period of two (2) years 33 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 Franchisee 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: 3.4.1 Timely completion of Construction; 3.4 2 Construction in compliance with applicable approved plans, utility Permits, technical codes, and Standards; 3.43 Proper location of the Facilities as approved by the City; ' EXHIBIT E TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC-2 3 4A 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 two (2) years; 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 Franchisee or a pattern of repeated Breaches, then Franchisee 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 ($ 500,000) Such cash deposit, irrevocable letter of credit shall be established as security for the full and faithful performance of all of its responsibilities under this Franchise 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. r4.2 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 Franchise. 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 Franchisee to pay the City sums due under the ' terms of this Franchise, 4.3.2 Reimbursement of costs and expenses borne by the City to correct Franchise violations not corrected by Franchisee, and 4 3.3 Monetary remedies or damages assessed against Franchisee ' as provided to this Franchise 44 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 Franchisee. ' 4.5 Within thirty (30) days following notice that a withdrawal from the cash deposit/letter of credit has occurred, Franchisee shall restore the cash deposit/letter of credit to the full amount required by Section 4.L If at the time of a withdrawal from the EXHIBIT E TO FRANCHISE AGREEMENT BTWN CITY OF ' KENT AND GOLDFINCH COMMUNICATIONS,LLC-3 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 Franchisee to the City until it is paid 46 Upon termination of the Franchise under conditions other than those stipulating forfeiture of the security fund, the balance then remaining in the security fund shall be returned to the Franchisee within sixty (60) days of such termination, provided that there is then no outstanding default on the part of the Franchisee 4.7 Failure to maintain or restore the security fund or letter of credit shall constitute a Breach of this Franchise 48 In the event Franchisee believes that the letter of credit was drawn upon improperly, Franchisee shall give notice to the City 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 Franchisee or limit the liability of the Franchisee under the terms of its Franchise for damages, either to the full amount of the letter of credit or otherwise The City reserves the right to increase the amount of the cash deposit or irrevocable letter of credit depending upon factors that bear upon the increased risk of the City and inflation, provided that, such an increase shall be implemented nor more often than once every five (5) years, and shall not increase such amount by more than 150% of the then-existing amount required to be on deposit or specified in the irrevocable letter of credit i 1 EXHIBIT E TO FRANCHISE AGREEMENT BTWN CITY OF KEN i'AND GOLDFINCH COMMUNICATIONS, LLC-4 , EXHIBIT "F" (Contractor/Subcontractor Insurance Requirements) 1 General Requirement Prior to commencing and during the period of Work performed within the Franchise Area, Franchisee 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, arise from, or are connected with this Work 2. Minimum Insurance Limits The Contractors 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 Franchise 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 Coverage must be written with the following limits of liability $1,000,000 per occurrence, $2,000,000 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$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 ' 3.1 The Contractor'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 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 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. EXHIBIT F TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLD[,INCH COMMUNICATIONS, LLC- 1 34 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 in the Public Rights-of-Way under a grant of authority of the City 35 The Contractor's insurance shall include a requirement that the "railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG 24 17. 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 matt, return receipt requested, first being given to the City. If the insurance is canceled or reduced in coverage. Franchisee 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 Franchisee 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 authored 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 ten percent (10%) of the minimum per occurrence commercial general hablity 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 Franchisee or limit the liability of Franchisee 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. EXHIBIT F TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS,LLC-2 8. Modifications of Coverages and Limits. The City reserves the right, during the term of the Franchise, 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 Franchisee and an opportunity to provide comments, and the City shall review and consider such comments that are timely made. EXHIBIT F TO FRANCHISE AGREEMENT BTWN CITY OF ' KENT AND GOLDFINCH COMMUNICATIONS, LLC-3 Exhibit "G" (Form of Transfer Agreement) THIS TRANSFER AGREEMENT ("Agreement') is made this _ day of 20 , by and between. ' 1. PARTIES. 1.1 City of**, a legal subdivision of the state of Washington("City"). ' 1 2 ("Franchisee"). 1.3 ("Transferee") RECITALS WHEREAS, the City has issued a single Franchise (the "Franchise") to Franchisee, which was authorized on the day of 20 pursuant to Ordinance No. , and WHEREAS, Franchisee has reached an agreement with Transferee on a (describe transaction, example conveyance of benefited propertyi ' to (example acquire from Franchisee its facilities and equipment located in the Public Rights-of-Way) ' ; and ' WHEREAS, Franchisee and Transferee have requested that the City approve a transfer of the Franchise from Franchisee to Transferee, and WHEREAS, as a result of the transfer of the Franchise, Transferee will assume all rights, duties, and obligations that Franchisee has under the Franchise, will be responsible for full compliance with the Franchise, and will meet or exceed all applicable and lawful federal, state, and local requirements; and WHEREAS, relying on the representations made by the Transferee and Franchisee. the City, on the day of , 20 , has, pursuant to Resolution No and the Franchise, approved the transfer upon the terms and conditions as stated herein, EXHIBIT G TO FRANCHISE AGREEMENT BTWN CITY OF ' KENT AND GOLDFINCH COMMLNICATIONS, LLC- 1 NOW, THEREFORE, in consideration of the City's approval of the transfer, subject to the terms and conditions of this Agreement, THE PARTIES DO HEREBY AGREE as follows. ' 2. TRANSFER. Transfer of the Franchise shall be effective upon the following conditions precedent 2.1 Receipt by the City of the fully executed Acceptance of Franchise and Performance Guarantee attached hereto as Exhibit E-1 together with all required certificates of insurance, security funds, and performance bonds. 2.2 Payment to the City of the Transfer fees. 23 The date of closing of the sale/conveyance of the property benefited by this Franchise and/or the Cable System Facilities located in the Franchise Area, or upon a date as mutually agreed to by the City, Franchisee and Transferee as follows. 3. ACCEPTANCE OF FRANCHISE OBLIGATIONS. ' 3.1 The Franchisee and Transferee hereby accept, acknowledge, and agree that neither the proposed transaction between Franchisee and Transferee nor the City's approval of this Agreement shall diminish or affect the existing and continuing commitments, duties, or obligations, present, continuing, and future, of the Franchisee and Transferee embodied in the Franchise. ' 3.2 Transferee and Franchisee agree that (a) neither the Transfer nor the City's , approval of this Agreement and the resulting Transfer shall in any respect relieve Franchisee, or any of its successors in interest, of any obligation or liability relating to all lawful requirements to Construct, operate, and maintain its Cable System Facilities and equipment located in the Public Rights-of-Way, occurring prior to the Transfer of the Franchise or of responsibility for acts or omissions occurring prior to the Transfer, known or unknown, or the consequences thereof, and (b) neither the Transfer nor the City's approval of the Transfer shall in any respect relieve Franchisee of any obligation or liability occurring prior to the Transfer of the Franchise or of responsibility for acts or omissions occurring prior to the Transfer, known or unknown, or the consequences thereof. 3.3 The Transfer is not intended and shall not be construed to authorize the ' Franchisee to take any position or exercise any right that could not have been exercised prior to the Transfer 34 Notwithstanding anything to the contrary herein, Transferee shall not be responsible for any of Franchisee's financial liabilities and obligations under the Franchise or pursuant to City code, rules, and regulations and other applicable Laws that accrued before the Transfer of the Franchise EXHIBIT G TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC-2 3.5 The City waives none of its rights with respect to the Franchisee's or Transferee's compliance with the terms, conditions, requirements, and obligations set forth in the Franchise The City's approval of this Agreement shall to no way be deemed a representation by the City that Franchisee is in compliance with all of Franchisee's obligations under the Franchise. 3.6 Franchisee and Transferee acknowledge and agree that the City's approval and acceptance of this Agreement and the resulting Transfer is made in reliance upon the representations, documents, and information provided by the Franchisee and Transferee in connection with the request for Transfer. ' 4. MISCELLANEOUS PROVISIONS. 41 Conditions Precedent. The Agreement shall be effective and binding upon the signatories once it has been signed by all signatories, provided that, within 30 days of execution of the Agreement by all of the signatories, Transferee has provided to the City the following (1) all fees required for this Transfer, (2) its acceptance of the franchise in substantially the form of the document attached hereto as Exhibit E-1, (3) its insurance certificate in conformance with the requirements of the Franchise; (4) a performance bond or cash deposit in conformance with the requirements of the Franchise 42 Entire Agreement. The Agreement constitutes the entire agreement of the Parties with respect to the matters addressed herein No statements, promises, or inducements inconsistent with the Agreement made by any Party shall be valid or binding, unless in writing and executed by all Parties. ' 43 Binding Acceptance. The Agreement shall bind and benefit the Parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors, and assigns, and the promises and obligations herein shall survive the expiration date hereof Any purported transfer of the Agreement is void without the express written consent of the signatories 44 Severability In the event that the Agreement shall, to any extent, be held to be invalid, preempted, or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective 45 Defined Terms Terms not defined to this Agreement shall have the same meaning as given in the Franchise 46 Governing Law. The Agreement shall be governed in all respects by the laws of the state of Washington. (Signatures on the following page) EXHIBIT G TO FRANCHISE AGREEMENT BTWN CITY OF ' I ENT AND GOLDFINCH COMMUNICATIONS,LLC-3 i IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the , day and year first wrntte❑ above CITY FRANCHISEE i By City Manager/Administrator By: Title: i TRANSFEREE i By- Title: 1 i i 1 i EXHIBIT G TO FRANCHISE AGREEMENT BTWN CITY OF KENT AND GOLDFINCH COMMUNICATIONS, LLC-4 ' ' TRANSFER EXHIBIT G-1 Acceptance of Franchise and Performance Guarantee Franchise issued pursuant to Ordinance No. and accepted 20 Transfer authorized pursuant to Resolution No effective 20 I, am the authorized representative to accept the above-referenced Franchise on behalf of 1 certify that this Franchise 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 to the instrument Dated this day of EXHIBIT G TO FRANCHISE AGREEMENT BTWN CITY OF ' KENT AND GOLDFINCH COMMUNICATIONS, LLC-5 (Signature of Notary) Print Name Notary public in and for the state of residing at ' My appointment expires 1 1 EXHIBIT G TO FRANCHISE AGREEMENT BTWN CITY OF I ENT AND GOLDFINCH COMMUNICATIONS, LLC-6 , t Kent City Council Meeting Date June 1, 2010 Item No. 6A - 6B CONSENT CALENDAR 6. City Council Action: Councilmember moves, Councilmember seconds to approve Consent Calendar Items A through C. Discussion Action 6A. Approval of Minutes. Approval of the minutes of the regular Council meeting of May 18, 2010. 6B. Approval of Bills. Approval of payment of the bills received through March 15 and paid on March 15 after auditing by the Operations Committee on April 6, 2010. Approval of checks issued for vouchers: Date Check Numbers Amount 03/15/10 Wire Transfers 4079-4099 $2,553,664.52 03/15/10 Regular Checks 641182-641566 962,979.40 Void Checks 64133 (740 00) Use Tax Payable 2,454.27 $3,518,358.19 Approval of payment of the bills received through March 31 and paid on March 31, after auditing by the Operations Committee on April 6, 2010. Approval of checks issued for vouchers: Date Check Numbers Amount 03/31/10 Wire Transfers 4100-4114 $1,672,410.00 03/31/10 Regular Checks 641567-641993 3,014,586.77 Void Checks 641579 (200.00) Use Tax Payable 706 19 $4,687,502.96 (continued) 6B. Approval of Bills. (Continued) Approval of checks issued for payroll for March 1 through March 15 and paid on March 19, 2010: Date Check Numbers Amount 3/19/10 Checks 316824-317049 $ 162,964 46 3/19/10 Advices 264357-265130 1,585,383.78 $1,748,348.24 Interim Pay Issued 3/19/10 317050 $187.80 Approval of checks issued for payroll for March 16 through March 31 and paid on April 5, 2010: Date Check Numbers Amount 4/5/2010 Checks 317051-317315 $ 189,916.68 4/5/2010 Advices 265131-265910 1,607,233.86 $1,797,150.54 Interim Pay 4/6/10 Issued 317316 $1,097.97 4/5/10 Voided 317058 ($845.89) Approval of payment of the bills received through April 15 and paid on April 15 after auditing by the Operations Committee on May 16, 2010. Approval of checks issued for vouchers: Date Check Numbers Amount 4/15/10 Wire Transfers 4115-4136 $2,393,662.37 4/15/10 Regular Checks 641994-642686 3,746,295.45 Void Checks 642526 (881.51) Use Tax Payable 2,806.98 $6,141,883.29 Approval of payment of the bills received through April 30 and paid on April 30 after auditing by the Operations Committee on May 16, 2010. Approval of checks issued for vouchers: Date Check Numbers Amount 04/30/10 Wire Transfers 4137-4150 $1,504,841.72 04/30/10 Regular Checks 642687-643082 3,014,586.77 Use Tax Payable 706.19 $4,520,134.68 (Continued) 66. Approval of Bills. (Continued) Approval of checks issued for payroll for April 1 through April 15 and paid on April 20, 2010: Date Check Numbers Amount 4/20/10 Checks 317317-317568 $ 167,568 22 4/20/10 Advices 265911-266692 1,603,614.32 $1,771,182.54 Approval of checks issued for payroll for April 16 through April 30 and paid on May 5, 2010: Date Check Numbers Amount 5/5/10 Checks 317569-317852 $ 188,870.29 5/5/10 Advices 266693 1,609,908.38 $1,798,778.67 1 I t i 1 i i Kent City Council Meeting KENT May 18, 2010 WPSN NGTON 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, Raplee, and Thomas. (CFN-198) CHANGES TO THE AGENDA A. From Council, Administration, Staff. (CFN-198) Perry announced that there will be no vote on Other Business Item B, Development Fees Deferral, at tonight's meeting, to allow time for further study. B. From the Public. (CFN-198) Several audience members asked to speak on the 2010 budget in regard to the Neighborhood Council program, which was added as Continued Communications Item A. PUBLIC COMMUNICATIONS A. Public Recognition. (CFN-198) There was no public recognition. B. Community Events. (CFN-198) Ranniger noted that Earthworks Park placed 12th out of 25 projects in the regional competition for grant funding for preservation, and that some funding will be received. She also noted that funding which will keep Safe Havens open for the rest of the year has been received. Watling elaborated on potential grants for the future of Safe Havens, as well as a permanent transition. Raplee then announced upcoming events at the ShoWare Center. iC. Solid Waste Contract Advisory Committee Recognition. (CFN-198) Mayor Cooke commended the Solid Waste Contract Advisory Committee and Public Works staff for their efforts in studying the solid waste contract issue and making a recommendation to Council. D. Introduction of Appointees. (CFN-198) Mayor Cooke announced her appointees to the Kent Arts Commission, and noted that both are high school students. E. Kent Youth and Family Services Recognition. (CFN-198) Mike Heinisch noted that Kent Youth and Family Services was established forty years ago, and presented a slide show of their history. He said they would like to reunite with people who were connected with the agency in any way in the past, and urged them to contact him. He added that a celebration will be held on September 25, 2010. ' F. Public Works Week Proclamation. (CFN-155) Mayor Cooke declared the week of May 17, 2010, as National Public Works Week and presented the proclamation to Public Works Director LaPorte. G. Sister City Presentation — El Grullo. (CFN-155) Former Mayor Jim White presented Mayor Cooke with a plaque honoring the sister city relationship between Kent and El Grullo, which was provided to him by the Mayor of El Grullo. 1 Kent City Council Minutes May 18, 2010 CONSENT CALENDAR Perry moved to approve Consent Calendar Items A through V. Ranniger seconded and the motion carried. A. Approval of Minutes. (CFN-198) Minutes of the regular Council meeting of May 4, 2010, were approved. B. Approval of Bills. (CFN-104) Figures were not available for approval. C. Watertree Place Release of Easement. (CFN-895) The Mayor was authorized to sign and record a Release of Document in order to remove a slope easement encumbrance against a portion of the Watertree Place Plat, upon final terms acceptable to the City Attorney and Public Works Director. D. 104th Avenue SE& SE 272"d St. Sanitary Sewer Latecomer Agreement. (CFN-485) The Mayor was authorized to accept the latecomer agreement from Kent Utilities, LLC and its referenced documents for a sanitary sewer conveyance line and a sanitary sewer lift station that were installed for the plats of Benchmark and Medallion of Kent, upon final terms and conditions acceptable to the City Attorney and the Public Works Director. E. East Hill Operations Center Utilities Consultant Agreement. (CFN-2390) The Mayor was authorized to sign the Consultant Services Agreement between the City and Jason Engineering & Consulting Business, Inc., in the amount of $81,030 for the purpose of providing materials testing and inspection services related to the East Hill Operations Center Phase II On-Site Utilities Project. F. Transportation Master Plan Phase 2, Amendment No. 3. (CFN-164) The Mayor was authorized to sign Amendment No 3 to the Consultant Services Agreement between the City of Kent and Fehr and Peers, Inc. in the amount of $8,000 for analyzing funding options for transportation capital projects. G. Mill Creek Sewer Lift Station Bill of Sale. (CFN-484) The Bill of Sale for the Mill Creek Sewer Lift Station for lift station valued at $1,209,822.34 was accepted. H. 116th Avenue SE Street Improvements (Kent-Kangley/SE 256). (CFN-1038) The 116th Ave SE Street Improvements (Kent Kangley/SE 256th) Project was accepted as complete and release of retainage to Rodarte Construction, Inc., upon receipt of standard releases from the State and release of any liens was authorized. The original contract amount was $3,663,316.76. The final contract amount was $3,310,832.94. I. LID 353: South 231" Way Landscaping. (CFN-1269) The South 2315t Way t Landscaping project was accepted as complete and release of retainage to Buckley Nursery Company, upon receipt of standard releases from the State and release of any liens was authorized. The original contract amount was $299,364.29. The final contract amount was $260,335.75. 2 Kent City Council Minutes May 18, 2010 J. 2009 4Culture King County Performance Network Grant. (CFN-118) The 1 4Culture King County Performance Network grant in the amount of $5,129 which supported the 2009 Kent Arts Commission site specific performances was authorized, and amendment of the 2010 Kent Arts Commission budget was approved. K. Kent Commons Architectural Agreement Amendment. (CFN-120) The Mayor was authorized to sign Amendment No. 1 to the contract with David A. Clark Architects, PLLC, in the amount of $1,000 for the Kent Commons Remodel, subject to final terms and conditions acceptable to the City Attorney, all acts consistent with this motion were ratified, and the agreement and Amendment No. 1 were authorized. L. Riverbend Golf Complex Restaurant Lease Agreement. (CFN-118) The Mayor was authorized to sign the lease agreement with Mick Kelly's, Inc. to operate the restaurant at the Riverbend Golf Complex, subject to final terms and conditions acceptable to the City Attorney. M. Recreation and Conservation Office Grant Application Resolution. (CFN-118) Resolution No. 1827 authorizing application to the Recreation and Conservation Office for a grant to fund the development of West Hill Park and Lake Meridian Park, and the acquisition of property at Clark Lake Park and within the newly annexed area of Panther Lake was adopted. N. Kent Arts Commission Appointments. (CFN-839) The Mayor's appointment of Michael Cercado and Natalya Braz to the Kent Arts Commission was confirmed Mr. Cercado and Ms Braz are both students at Kent Meridian High School and their terms will expire October 2011. O. Washington Auto Theft Prevention Authority Grant Award. (CFN-122) The Washington Auto Theft Prevention Authority grant in the amount of $800,000 was accepted, the Mayor was authorized to sign all necessary documents, amend the budget, and expend the funds. 1 P. Amendments to Criminal Code, Ordinance . (CFN-122) Ordinance No. 3954, amending Chapter 9.02 of the Kent City Code to adopt by reference for enforcement in Kent new and amended code provisions recently adopted by the state Legislature regarding possession of firearms by non-citizens, dog breeding practices, retail restroom access by customers with medical conditions, and definition of the word "conviction" regarding commercial drivers' licenses was adopted. Q. Amendment to City Code Regarding Exclusion from Public Facilities, Ordinance. (CFN-122) Ordinance No. 3955, which repeals Section 9.02.230 of the 1 Kent City Code, entitled "Public facility - Criminal activity - Prohibition of entry," and adopts in its place a new section, entitled "Public facility - Illegal activity - Exclusion," was adopted iR. Evidence Custodian Limited Term. (CFN-122) The Mayor was authorized to create a new, limited-term Evidence Custodian position within the Kent Police Department, and amendment of the budget was authorized. i 3 Kent City Council Minutes May 18, 2010 S. Panther Lake Annexation Census & Population Contract for Services (CFN-1309) The Mayor was authorized to sign a Consultant Services Agreement with Calm River, LLC with an initial amount not to exceed $122,217 to conduct the statutory required population census of the Panther Lake Annexation Area. T. 2009 Fire and Building Codes, Ordinances. (CFN-205) Ordinance Nos. 3956 and 3957, adopting the 2009 editions of the International Building, Residential, Mechanical, and Fire Codes and the Uniform Plumbing Code, and the 2009 Washington State Energy Code, together with the City's local amendments to those codes, were adopted. U. Safe Havens City of Seattle Grant Award Contract. (CFN-118) The Mayor was authorized to sign the City of Seattle Domestic Violence Grant in the amount of $30,000 to fund Safe Havens services, the funds were accepted, amendment of the budget was authorized, and the expenditure of funds in the Safe Havens' budget was approved. V. Goldfinch Communications LLC Cable Television Franchise Introduction. (CFN-274) June 1, 2010, was set as the date for the public hearing and first intro- duction of a proposed cable franchise agreement between the City of Kent and Goldfinch Communications, LLC, and the City Clerk was directed to provide notice of the hearing as required by Kent City Code (KCC) section 7.12.070 and as otherwise provided by law. OTHER BUSINESS A. Comprehensive Plan Amendment, Panther Lake Comprehensive Plan Land Use Plan Map And Zoning Districts Map, Ordinance. (CFN-377,131,1309) William Osborne of Planning Services said the recommendation of the Economic and Community Development Committee addresses and reflects public input and staff analysis of many options. He explained three citizen-proposed proposals and answered questions regarding notice to citizens. Jim Sturgul, 22116 1201h Avenue SE, encouraged the Council to rezone portions of the annexation into small, limited commercial use areas. Christian Etheridge, owner of the Sidetrack Pub & Eatery, noted that he holds a public card room license and asked whether the City could allow his business to be grandfathered in. The City Attorney clarified the state laws relating to social card rooms. Perry moved to adopt Ordinance No. 3958 enacting the Comprehensive Plan amend- ments for the Panther Lake Annexation Area Comprehensive Plan Land Use Map and Zoning Districts Map. Ranniger seconded. Perry said she was opposed to the Holmberg/Morford proposal which up-zoned 7.3 acres along 192Id Street to multi- family, and Albertson noted that the committee was divided on the issue. Ranniger stated that property owners in the area seemed to be pleased with the outcome. Upon Harmon's question, Osborne explained the difference between the City and the County zoning of the Holmberg/Morford property. The motion then carried. B. Development Fees Deferral, Ordinance and Resolution. (CFN-1000) Economic and Community Development Director Wolters explained that this proposal is an attempt to help developers during the current economic downturn Principal 4 Kent City Council Minutes May 18, 2010 Planner Matt Gilbert noted that the charges which are being addressed are the traffic mitigation fee, system development charges for both water and storm drainage, and school impact fees, and explained the specifics of the proposed ordinance. He noted that other cities in the region have adopted similar ordinances, that the City's interests are represented in the event of bankruptcy, that the school districts were notified of the proposal, and that most other Jurisdictions which do not include school impact fees have quite a large traffic impact fee. When Harmon voiced concern about holding someone's money until the end of 2013, Gilbert explained that the intent of that provision is to provide a window in which the option is available. He responded to Albertson's concern about risk to the City, and Ranniger suggested delaying action to a later meeting since two letters containing concerns have been received. Perry explained the process which took place at the committee level and noted that representatives from the Kent School District were in attendance and that letters from the Federal Way School District were addressed at that time. Gilbert then explained the disclosure requirements. Brian Derdowski, 70 E. Sunset Way, Issaquah 98027, said the proposed ordinance would transfer the interest cost from developers to the public. He said there are many unintended consequences and that he looks forward to working with the city on this issue. Rod Leland, 1066 S. 320th, Federal Way, Facilities Director for Federal Way Public Schools, said other Jurisdictions are not including school districts in their ordinances. He answered questions from Council regarding how student population is forecasted and the use of portables, and agreed to provide figures on the dollar amount of impact fees provided to the School District by the City. Fred High, Assistant Superintendent, Business Services, Kent School District, noted that for the last 17 years the School District has provided the City with the history of their enrollment, construction, projections, and use of impact fees in their Capital Facilities Plan. He said their intent has always been to use the impact fees to meet the growth impacts that occur without overburdening the rest of the tax base with property taxes. He said his three major concerns are timing, the reliability of funding, and the ability to get a 60% vote for bond issues. John Knutson, Finance Director for the Kent School District, voiced concern about their need to use other funds during the time lag, explained that impact fees are remitted from the City to the District on a monthly, not quarterly, basis, and explained the forecasting process. He said his information shows that the Kent School District has collected $16,700,000 since 1996, and that he will provide a breakdown of the annual amounts. He confirmed that the impact fees are used to address the impact of new development in particular areas. Council President Perry asked for information as to the amount of interest which would be lost due to the change in timing. High stated that deferral of fees would result in higher property taxes through a bond issue or fewer facilities being built, because they are less reliable as a source of funding for school facilities. Derdowski said that due to the time gap under the proposed system, the public would 1 be picking up the interest expense instead of the developer. Sam Pace, Association of Realtors, 29839 1S4th Avenue SE, said he believes there are serious flaws, omissions, and faulty assumptions in the information provided to the Council, and said he would address them in writing. He spoke in support of the proposed ordinance, and noted that it is a lien for money owed to the City that is due on sale and that it is important 5 Kent City Council Minutes May 18, 2010 , to record the lien He said he is very comfortable with the issue of notice, and that this is not an attempt to eliminate impact fees altogether. He suggested holding a meeting with the City Council, School District, City staff, builders and realtors Garrett Huffman, Master Builders Association of King and Snohomish Counties, 335 116th Avenue SE, Bellevue 98004, said he will provide a written response and looks forward to meeting with the districts. Harmon moved to make the letters from the Federal Way School District and the Kent School District a part of the record. Raplee seconded and the motion carried. It was determined that this issue will come back to Council on June 1 and that a meeting with all representatives will be held before then. Perry asked that the City Attorney address the issues of nexus and the City's ability to collect impact fees in the future. Mayor Cooke said the information provided by the School District will be forwarded to r the Council. BIDS A. SR 516 and 4th Avenue Improvements. (CFN-1038) Public Works Director LaPorte noted that the bid opening for this project was held on May 11, 2010, with five bids received, and that the low bid was under the Engineer's estimate. He recommended awarding the contract to Westwater Construction Company in the amount of $518,821. Raplee so moved, Harmon seconded and the motion carried. REPORTS A. Council President. (CFN-198) Perry announced that a special meeting to discuss the 2011 budget will be scheduled soon. B. Mayor. (CFN-198) Mayor Cooke reported that the recent trip to Washington D.C. was very effective and welcomed a new Hindu temple to Kent. C. Operations Committee. (CFN-198) No report was given. D. Parks and Human Services Committee. (CFN-198) No report was given. E. Economic & Community Development Committee. (CFN-198) No report was given. F. Public Safety Committee. (CFN-198) No report was given. G. Public Works Committee. (CFN-198) No report was given. H. Administration. (CFN-198) Hodgson noted that draft interlocal agreements on the Panther Lake Annexation and the Regional Fire Authority will be the subject of the workshop on June 1. He added that there is an executive session of approximately 30 minutes regarding property acquisition with action anticipated during the regular meeting. CONTINUED COMMUNICATIONS A. 2010 Budget. (CFN-186) Tina Budell, 323 W. Cloudy Street, Merwin Peters, 11931 SE 245`h Place, Joshua Douglass, 1313 E. Chicago Street, and Dawn Banfield, 6 Kent City Council Minutes May 18, 2010 4237 S. 252"d Street, spoke about the benefits of their Neighborhood Councils and ' urged the City Council not to cut the program or staff from the budget. Ranniger noted that one of the Council's strategic goals has been to improve communications with the community, which the Neighborhood Council Program has done. Perry pointed out that there has been a decrease in crime in at least one neighborhood since their council was formed. ' EXECUTIVE SESSION The meeting recessed to Executive Session at 9:40 p.m. and reconvened at 10:10 P.M. ACTION AFTER EXECUTIVE SESSION A. Property Acquisition. (CFN-239) CAO Hodgson explained that the Huse property is a 32-acre parcel next to the Soos Creek Trail, and that funding will come I from City funds which will be reimbursed over time through a variety of grant agencies. Parks & Community Services Director Watling explained that the City currently has a grant application in with the King County Conservation Futures Program, who has already toured the site and is going through their evaluation process. He said project managers from the State Recreation and Conservation Organization will submit a state grant application for half of the acquisition costs. Ranniger moved to authorize the Mayor to sign the Purchase and Sale Agreement and all other necessary documents to purchase the Huse property located at 13417 SE 216`h St, Kent, for $1,550,000, subject to final terms and conditions acceptable to the j Parks & Community Services Director and the City Attorney. Albertson seconded. Perry emphasized that the City funds being used are designated for Parks projects and that nothing is being taken from the General Fund. The motion then carried. ADJOURNMENT The meeting adjourned at 10:14 p.m. (CFN-198) i Brenda Jacober, CMC City Clerk 7 t Kent City Council Meeting Date June 1, 2010 ' Category Consent Calendar - 6C 1. SUBJECT: ONE REGIONAL CARD FOR ALL (ORCA) AGREEMENT - AUTHORIZE 2. SUMMARY STATEMENT: Authorize the Mayor to sign the One Regional Card for All (ORCA) Agreement for 2010-2011. This agreement is made between the City and King County, Sound Transit, Community Transit, Kitsap Transit, Washington State Ferries, Everett Transit, and Pierce Transit in order to provide a comprehensive transportation pass available to 350 regular, benefited employees. The total cost of this agreement is $37,786. t i 3. EXHIBITS: ORCA Agreement for 2010-2011 4. RECOMMENDED BY: Operations Committee (Committee, Staff, Examiner, Commission, etc.) t5. FISCAL IMPACT Expenditure? X Revenue? Currently in the Budget? Yes X No 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds iDISCUSSION: ACTION: AGREEMENT FOR PURCHASE OF ORCA BUSINESS CARDS AND ORCA BUSINESS PASSPORT PRODUCTS THIS AGREEMENT (hereinafter, "Agreement") is made and entered into by and among City of Kent ("Business Account") and King County Metro Transit ("Lead Agency") on behalf of any of the following agencies that are identified in Attachment 1 as covered by this Agreement (collectively referred to as the "Participating Agencies") The Snohomish County Public Transportation Benefit Area ("Community Transit") The City of Everett ("Everett Transit") King County Department of Transportation, Metro Transit Division ("King County") The Kitsap County Public Transportation Benefit Area ("Krtsap Transit") The Pierce County Public Transportation Benefit Area Corporation ("Pierce Transit") The Central Puget Sound Regional Transit Authority ("Sound Transit") The State of Washington acting through the Washington State Department of Transportation, Washington State Ferries Division ("WSF") IIN CONSIDERATION of the mutual covenants contained herein, the sufficiency of which Is hereby acknowledged, the Parties agree as follows 1.0 PURPOSE 1.1 This Agreement establishes the terms under which the Business Account may purchase and i distribute ORCA Business Cards and ORCA Business Passport and other ORCA Products to its Eligible Business Cardholders for their use on transportation services provided by the Participating Transportation Agencies designated in Attachment 1, Products, Pricing and Terms, which is incorporated in this Agreement by this reference. 1 2 This Agreement also establishes the terms under which an individual Participating Transportation Agency will provide the Business Account with specific optional products and services (e g use of ORCA Business Card on vanpool, a guaranteed ride home program) 1 3 The Business Account understands and agrees that this Agreement, and its purchase of ORCA Business Cards and ORCA Products, do not constitute a contract for transportation service and the ORCA Agencies have no obligation to the Business Account or any other party to provide any particular level, frequency or routing of transportation service 2.0 TERM OF AGREEMENT AND CONTACT PERSONS 21 This Agreement shall take effect upon the effective date specified in Attachment 1, Products, Pricing and Terms, which is incorporated in this Agreement by this reference Unless terminated in accordance with Section 12, this Agreement shall continue in effect for one (1) year or such other term as may be specified in said Attachment 1 22 The Business Account shall designate a Primary Contact Person in Attachment 2, Designated Representatives This Primary Contact Person shall be responsible for managing the Business Account's roles and responsibilities under this Agreement A Secondary Contact Person shall also be designated in Attachment 2 The Lead Agency may communicate with and rely upon either the Primary or Secondary Contact Person on matters relating to this Agreement 3.0 DEFINITIONS 3 1 Business Account A Business Account can be an employer, educational or human services institution, government agency or other entity that purchases transportation products on behalf of a constituency to which they distribute cards and products The Business Account purchases the ORCA Business Cards on which ORCA Products are loaded Passport Customer Agreement Page 1 of 17 City of Kent July 1, 2010 - June 30, 2011 32 Business Passport Program A Business Passport provides an ORCA unlimited right-to-ride product, usable on the regularly scheduled transportation service of the Participating Transportation Agencies, to all employees within an organization The Business Passport program includes two options per-trip pricing and flat-rate pricing Per-trip pricing provides a regional pass that covers the full fare of all regularly scheduled transportation services With flat-rate pricing, each Participating Transportation Agency sets its own price based on the previous year's ridership data 33 Business Choice Program Business Choice is a flexible program in which a Business Account can purchase a variety of ORCA Products to supplement the ORCA Business Passport Product Additional products can be purchased for some or all employees 34 Lead Agency The ORCA Agency that entered into this Agreement on behalf of itself and the other designated Participating Agencies and that is responsible for contract management and support, including invoicing, contract modifications and renewals, and ORCA system support 35 ORCA The system that enables use of a common fare card (One Regional Card for All) on the public transportation services provided by any of the ORCA Agencies The Participating Agencies will require additional payment if the ORCA Product on the presented ORCA Business Card is insufficient to cover the fare for the trip being provided 36 ORCA Agencies ORCA Agencies include the following public transportation agencies j Those agencies participating in this Agreement are listed on Attachment 1 a The Snohomish County Public Transportation Benefit Area ("Community Transit") b The City of Everett ("Everett Transit") c King County Department of Transportation, Metro Transit Division ("King County") d The Kitsap County Public Transportation Benefit Area ("Kitsap Transit") e The Pierce County Public Transportation Benefit Area Corporation ("Pierce Transit") f The Central Puget Sound Regional Transit Authority ("Sound Transit") g The State of Washington acting through the Washington State Department of Transportation, Washington State Ferries Division ("WSF") 37 ORCA Business Card(or`Business Card') An ORCA fare card that can be used to ride train, bus and ferry service provided by, and in accordance with the terms established by, the ORCA Agencies The Participating Transportation Agencies will accept ORCA Business Cards presented to an ORCA system device, and accepted as valid, for all or a portion of a required fare on the regular transportation services of the Participating Agencies The Participating Agencies will require additional payment if the ORCA Product on the presented ORCA Business Card is insufficient to cover the fare for the trip being provided An ORCA Business Card may be accepted as full or partial fare payment on Participating Agencies' vanpool services if included in this Agreement 38 ORCA Business Cardholder An individual to whom the Business Account has distributed an ORCA Business Card Eligible Business Cardholders are defined in Attachment 3 of this , Agreement 39 ORCA Products Any transit fare payment mechanism or electronic voucher offered for sale within the ORCA system by any of the Transportation Agencies Examples include, but are not limited to, monthly or period pass, e-purse, and electronic voucher 310 ORCA Services The equipment, systems, facilities, ORCA Business Cards, ORCA Products, ORCA Websites, data, information, and any services related to the regional fare coordination and payment program implemented by the Agencies using smart cards as the common media for fare payment on their public transportation services Passport Customer Agreement Page 2 of 17 City of Kent July 1, 2010 -June 30, 2011 311 Participating Agency(res) The public transportation agencies participating in this Agreement as designated above 312 Parties The Business Account and the Participating Agencies (which include the Lead Agency) may be collectively referred to as "Parties " 4.0 ORCA BUSINESS CARDS AND ORCA PRODUCTS PAYMENT TERMS 41 The ORCA Business Cards and ORCA Products that are purchased by the Business Account under this Agreement are specified in Attachment 1, Products, Pricing and Terms, which is incorporated in this Agreement by this reference 42 Any optional products or services provided by an individual Participating Agency that are purchased by the Business Account shall be described, and the applicable terms specified, in Attachment 1 , Products, Pricing and Terms, which is incorporated in this Agreement by this reference 43 This Agreement is subject to the adopted fare structures by all Participating Agencies at the time of its execution The prices and payment terms applicable to this Agreement are specified in Attachment 1 , Products, Pricing and Terms, which is incorporated in this Agreement by this reference Such terms shall include (a) the amounts due for any products, services and fees, (b) the timing of payments, and (c) the acceptable method of payment Each order for ORCA Business Cards and/or ORCA Products submitted by the Business Account will be subject to the provisions of this Agreement and the prices in effect at the time of the order The Business Account is responsible for reviewing the prices in effect before submitting each order and shall be deemed to have agreed to the then-applicable prices by submitting the order 44 In the event of a generally applicable fare increase by any of the Participating Agencies, the Agencies price for Business Passport and Business Choice will be increased, and the Business Account will be required to pay the additional amount owed for the remaining term of the agreement for which said increase is in effect The Lead Agency will notify the Business Account of applicable fare increases and prices when they are adopted A supplementary invoice will be provided by the Lead Agency prior to the expiration of this Agreement and shall be payable by the Business Account, unless the Parties agree to add the additional payment to payment due under a renewal agreement 45 Payment in full is due as specified in Attachment 1 If for any reason payment in full is not received by the date due, the Lead Agency, without notice and until full payment is received, may (a) refuse to process new orders for ORCA Business Cards, (b) block the loading of new ORCA Products on behalf of the Business Account, and (c) block the use of all ORCA Business Cards issued to the Business Account The acceptable method of payment shall be determined by the Lead Agency and noted on Attachment 1 46 If a payment is not honored due to non-sufficient funds (NSF) or if for any reason a payment is negated or reversed, the Lead Agency may a assess any late payment, NSF and collection fees to the maximum amount permitted by law, b. block the Business Cards issued to the Business Account, rendering them ineffective for use by the cardholders, until such time as the Business Account pays the full amount due, including any late payment, NSF and collection fees, in a manner acceptable to the Lead Agency, and c suspend or terminate access rights to the Business Account's secured area of the 1 website 47 The Business Account will be permitted to order only those ORCA Products specified in Attachment 1 Any additional limitations will be defined on the Business Account's secure page of the ORCA website The Business Account will follow directions provided on the Passport Customer Agreement Page 3 of 17 City of Kent July 1, 2010 -June 30, 2011 ORCA Business Accounts website for ordering ORCA Products and requesting they be loaded onto the Business Account's ORCA Business Cards 48 In addition to any other obligations it may have under this Agreement and at law, the Business Account agrees to pay to the Lead Agency any court costs, reasonable attorney fees and/or collection fees incurred in collecting amounts due from the Business Account ' 5.0 PURCHASE, OWNERSHIP, DISTRIBUTION AND REPLACEMENT OF ORCA BUSINESS CARDS 51 Ordering ORCA Business Cards The Business Account shall order ORCA Business Cards via the ORCA Business Accounts website, in accordance with the directions provided on that website, and shall make payment as provided in Attachment 1 If additional cards are required, the Business Account shall be required to pay both the standard card fee and the transportation service fee, as detailed on Attachment 1, Product, Pricing and Terms 52 Receipt and Ownership of ORCA Business Cards Upon actual or constructive receipt of the ORCA Business Cards it has ordered, the Business Account shall become the owner of the ORCA Business Cards The Business Account shall be deemed to have constructively received all ordered ORCA Business Cards unless it notifies the Lead Agency of any non- delivery or incorrect delivery within thirty (30) days after the order was placed If the Business Account notifies the Lead Agency that it has not received the ordered cards, the Lead Agency will ship a replacement order If the Business Account subsequently receives the cards reported as missing, the Business Account is responsible for returning them to the Lead Agency 5 3 Storage and Risk of Loss The Business Account is responsible for the storage, distribution and use of the ORCA Business Cards issued to it The Business Account bears the sole risk of any loss, damage, theft or unauthorized use of one of its cards, whether such card was held in its inventory or had been distributed for use The Business Account is responsible for the cost of any use of its Business Cards until the effective date of a "card block" that may be implemented by the Business Account as provided below 5 4 Distribution of ORCA Business Cards The Business Account is responsible for distributing its Business Cards for use by its eligible cardholders, as defined in Attachment 3, Eligible Business Cardholders, which is incorporated in this Agreement by this reference The Business Account remains the owner of all Business Cards it distributes but recognizes that a cardholder may also purchase and load individual ORCA products on a Business Card The Business Account shall require, as a condition of receiving a Business Card, that the Cardholder sign the written Cardholder Rules of Use, an example of which is attached herein as Attachment 4, and that must include a a prohibition on the sale or transfer of the Business Card, b notice that the Cardholder is required to pay any difference between a required fare and the value of the fare product loaded onto the Business Card, c notice that any ORCA Products purchased by the Cardholder with his/her own funds and loaded on the Business Card, including but not limited to the e-purse, will become the property of the Business Account and any subsequent refund to the Cardholder would be the responsibility of the Business Account in accordance with its own refund policy Individuals are encouraged to purchase an individual card if they have concerns about refund policies d notice that the ORCA System will record data each time the cardholder presents a Business Card to an ORCA device to prove fare payment, to load a product on it, or to review the amount and type of product on it Such data will include, but not be limited to, the date, time and route or other location related to the card being presented Such data is owned by the ORCA Agencies but accessible to the ORCA System contractor(s) that operate it, the Business Account, and the ORCA Agencies The Business Account understands and agrees that it is solely responsible for implementation and enforcement of the Cardholder Rules of Use Passport Customer Agreement Page 4 of 17 City of Kent July 1, 2010 - June 30, 2011 55 Business Account Access to Personal Data If an individual Cardholder opts to register one of the Business Cards issued to the Business Account, any personally identifying information 1 provided to the ORCA System will not be accessible by the Business Account If the Business Account collects any personally identifying information about individuals to whom it has distributed Business Cards, the Business Account is solely responsible for its collection, ' use, storage and disclosure of such information 56 Blocking Use of, and Replacing, ORCA Business Cards In the event a Business Card is determined to be lost or stolen or if a cardholder is determined by the Business Account to be no longer eligible to use the card, the Business Account may block the further use of the subject card by using the blocking function available on the Business Account website The Business Account is responsible for ordering and paying for any new cards, as provided in Section 5 1, if needed to replace any cards that have been damaged, lost or stolen An e- purse on a blocked card will be restored on the replacement card in approximately ten (10) days The e-purse amount restored will be that which remained on the lost or stolen card at the time the block took effect The ORCA Agencies are not responsible for any use of the e- purse prior to the card block taking effect 57 Agency Blocking or Confiscation of Business Cards The Lead Agency may block any of the Business Account's Business Cards or ORCA Products at the request of the Business Account or at the sale discretion of the Lead Agency if (a) a payment is not honored due to non-sufficient funds (NSF) or if for any reason a payment is negated or reversed, or (b) it is suspected that a card has been altered, duplicated, counterfeited, stolen or used by an ineligible Cardholder The Lead Agency or any ORCA Agency may, but is not required, to confiscate a Business Card and/or block any of the Business Account's Business Cards or ORCA Products, at the request of the Business Account or at the discretion of the Lead Agency, if it is suspected that a card has been altered, duplicated, counterfeited, stolen or used by an ineligible Cardholder, as defined in Attachment 3 The Business Account is responsible for ordering and paying for any new cards, as provided in Section 5 1, if needed to replace any cards that have been damaged, lost or stolen An e-purse on a blocked card will be restored on the replacement card in approximately ten (10) days The e-purse amount restored will be that which remained on the lost or stolen card at the time the block took effect The Business Account, not the ORCA Agencies, is responsible for the cost of any use of its Business Cards, until the card block takes effect 58 Card Replacement The Business Account is responsible for ordering and paying for any new cards needed to replace Business Cards that for any reason cease to be available or suitable for use by the Cardholders under the program of the Business Account, including but not limited to, if the unavailability or unsuitability is caused by damage, abuse, loss, theft and end of useful life Provided, however, if a Business Card malfunctions within twelve (12) months after it was delivered to the Business Account, it shall be replaced by the Lead Agency without additional charge to the Business Account if the malfunction was caused by a defect in design, material or workmanship and was not caused by misuse, an intentional act, negligence or damage, reasonable wear and tear excepted The Business Account understands and agrees that to avoid the disruption and inconvenience caused by sporadic failures as its cards are used, it must plan for replacement of its Business Cards on a regular basis As a condition of continuing under the Business Passport Program, the Business Account agrees that (a) it will retire all of its ORCA Business Cards at some time within four years after they are issued by the Lead Agency to the Business Account, and (b) purchase replacement Business Cards at the then-applicable rate 6.0 CARDHOLDER USE OF BUSINESS ACCOUNT ORCA CARDS 1 61 Cardholder Pnvileges The Business Account understands and agrees that, although it remains the owner of ORCA Business Cards after distribution, the Cardholder has the following privileges in connection with the use of an ORCA Business Card a The Cardholder may present an CIRCA Business Card, loaded with a valid, applicable Business Passport, Business Choice product, or other retail product, to an Passport Customer Agreement Page 5 of 17 City of Kent July 1, 2010 - June 30, 2011 ORCA fare transaction processor as proof of payment of all or a portion of a required fare on a regular transportation service operated by one or more of the ORCA Agencies (Provided, however, a product that is not sufficient to fully pay a fare will not be accepted as partial payment by the Washington State Ferries ) In all cases, a cardholder will be required to make other payment to the extent a fare is not covered by an ORCA pass product. b The Cardholder may individually purchase ORCA Products and load them on the Business Card in addition to the Business Passport product loaded by the Business Account Individual ORCA Products may be used to pay all or a portion of a required fare on a transportation service not included in the Business Passport product (Provided, however, a product that is not sufficient to fully pay a fare will not be accepted as partial payment by the Washington State Ferries ) In all cases, a cardholder will be required to make other payment to the extent a fare is not covered by the non-Passport ORCA Product c The Cardholder may register his/her name and other contact information with the , ORCA System and link such personal information to the serial number of the Business Card provided to him/her Such registration does not give the Cardholder any ownership rights in the card but does give the Cardholder the right to access the ORCA cardholder website to view the card's transaction history and current stored value, to modify travel zone preferences, and to add retail products 7.0 NO RETURNS OR REFUNDS The Business Account understands and agrees that its purchases of ORCA Business Cards, Business Passport Products and Business Choice Products loaded on such cards are final and it is not entitled to any refunds Provided, however, the Business Account may request a refund of the e- purse value remaining on a Business Card if the card is surrendered by the Business Account to the Lead Agency Upon surrender of the subject Business Card, the card shall be blocked and the refund processed approximately ten (10) days later to allow any pre-block transactions to clear A processing fee of ten dollars ($10) shall be payable by the Business Account to the Lead Agency for each such e-purse refund that is processed, regardless of e-purse value refunded The Business Account, not the Lead Agency, is responsible for the refunding of such e-purse value, if any, to the individual Cardholder to whom the Business Card had been distributed 8.0 BUSINESS ACCOUNT WEBSITE 81 The Business Account website is the primary means by which the Business Account shall purchase ORCA Business Cards, Business Passport and Business Choice Products, manage its Business Cards and obtain information about the use of said cards As a condition of participation in the Business Passport Program the Business Account agrees that it will use the Business Account website when it is available and that each access and use of said website shall be subject to the Terms of Use and Privacy Statement that are in effect and posted on the Business Account website at the time of such access and use 8.2 The Business Account understands and agrees that uninterrupted access to and use of the Business Account website is not guaranteed and agrees that it will contact its representative at the Lead Agency by email or telephone if the website is not available 83 The Business Account understands and agrees that it is responsible for complying with any security standards specified by the Lead Agency which include but are not limited to controls on issuing, managing and rescinding access rights and passwords to the secured website pages for the Business Account 9.0 INFORMATION PROVIDED BY THE AGENCIES AND THE ORCA SYSTEM 91 The Business Account understands and agrees that the data, reports or any information provided to it by the Lead Agency or the other ORCA Agencies, via this website or otherwise, is and remains the sole property of the ORCA Agencies and nothing shall be construed as a Passport Customer Agreement Page 6 of 17 City of Kent July 1, 2010 -June 30, 2011 transfer or grant of any copyright or other property interest in such data, reports or information The ORCA Agencies hereby grant to the Business Account a non-exclusive license to use any data, reports or information provided by the ORCA Agencies, via this website or otherwise, for any lawful purpose related to the administration of the transportation program of the Business Account 92 The ORCA System will record data each time an ORCA Business Card is presented to an ORCA device for fare payment and to load a product Such transaction data includes, but is not limited to, the date, time, and location (or route) of the transaction The Business Account may routinely access such transaction data related to its Business Cards to the extent provided via the Business Account website Said website and its reports do not provide the Business Account Business Card transaction data linked to card serial numbers The Primary Contact Person of the Business Account may submit a written request to the Lead Agency for the card number linked to a specific transaction The written request shall include the following a the date, time and other known details about the specific transaction for which a card serial number is being requested, and b. the signature of the Primary Contact Person. If the Lead Agency determines that the subject transaction(s) is linked to a Business Card issued to the Business Account, the Lead Agency will provide the Business Account with the card serial number linked to the requested transaction(s) The Business Account agrees that it will use such card serial number information only for purposes of enforcing its Rules of Use or other lawful business purposes The Business Account must maintain its own records if it wishes to identify the card serial number issued to an individual 93 The Business Account understands and agrees that all records related to its participation in the CIRCA System are public records under the Washington Public Records Act (Chapter 42 56 RCW) ("Act"), including but not limited to (a) this Agreement and the sales activity hereunder, (b) the orders, communications, and any other information provided by the Business Account to the Lead Agency, the other ORCA Agencies or the ORCA System, whether provided via this website or otherwise and whether provided in hard copy or I electronic form, (c) any communications, responses, requests, reports or information of any kind provided to the Business Account from the Lead Agency, the other ORCA Agencies or the ORCA System, and (d) all data, reports and information of any kind related to the loading of products on, and the use of, the Business Cards issued to the Business Account As public records, these records will be made available for public inspection and copying upon request, unless the Lead Agency determines they are exempt from disclosure 10.0 INDIVIDUAL USE OF BUSINESS CARD AFTER LEAVING A BUSINESS ACCOUNT The Business Account may choose to allow employees to retain their Business Cards upon leaving the employ of the Business Account if individuals have loaded e-purse or other ORCA Products on the card at their own expense If this option is selected, the Business Account is responsible for blocking the Business Passport Product and other ORCA Products for which the Business Account is fiscally responsible, using the product block function of the Business Account website 11.0 OTHER ORCA PROGRAM ACTIVITIES The Business Account and its participants may be asked and required to perform other activities associated with the ORCA program, such as but not limited to participant surveys and evaluations If the Lead Agency deems such activities are needed, then it will send notice at least thirty (30) days prior to the commencement of such activities to the Business Account's Primary Contact Person as identified in Attachment 2 12.0 TERMINATION 121 The Lead Agency may at any time terminate the Agreement if the Business Account fails to make timely and effective payment of all amounts due, or otherwise breaches the Agreement, or acts in manner indicating that it intends to not comply, or is unable to comply, Passport Customer Agreement Page 7 of 17 City of Kent July 1, 2010 -June 30, 2011 with the Agreement Such termination shall take effect immediately upon the Lead Agency sending email notice to the last known email address for the last known primary contact person of the Business Account In the event of such a termination, the Lead Agency may immediately terminate the website access privileges of the Business Account, block the Business Cards issued to the Business Account and decline to accept and fulfill any pending or new orders form the Business Account , 122 Either the Business Account or the Lead Agency may terminate the Agreement without cause and for its own convenience by sending the other party written or email notice at least thirty (30) days in advance of the effective date of the termination Upon receipt of a notice of termination for convenience from the Business Account, the Lead Agency may, in its sole discretion, waive the advance notice period and immediately terminate the website access privileges of the Business Account, block the Business Cards issued to the Business Account and decline to accept and fulfill any pending or new orders form the Business Account 123 Notwithstanding any termination of the Agreement, the Business Account shall remain liable to satisfy and comply with all of its obligations under this Agreement and at law with regard to, or arising out of, any orders submitted or any of its acts or omissions occurring prior to the effective date of the termination, including but not limited to paying all amounts due or incurred prior to the effective date of the termination and any fees, charges, collection costs or other costs arising from a failure to make timely and effective payment 13.0 NO WARRANTIES The Business Account expressly understands and agrees as follows a The Lead Agency and each of the other CIRCA Agencies make no warranties or other assurances of any nature regarding the ORCA Services, including the ORCA Business Cards, the Business Passport and Business Choice Products, the Business Account's access to and use of the ORCA websites, reports and other information or other things or service provided under the Agreement All ORCA Services are provided on an "as is," "as available" and "with all faults" basis Any use of ORCA Services, including but not limited to, any material downloaded or otherwise obtained through the use of the ORCA websites, is done at the Business Account's sole discretion and risk b To the extent permitted by law, the Lead Agency and each of the other ORCA Agencies disclaims all warranties and duties of every kind, express, implied or statutory, including but not limited to any implied warranties of merchantability or fitness for a particular purpose or created by trade usage, course of dealing or course of performance, any warranties of quiet enjoyment or non-infringement and any warranties of workmanlike effort or lack of negligence By way of example and not limitation, the Lead Agency and each of the other ORCA Agencies disclaim any warranty and do not represent or warrant to the Business Account that (1) its use of any ORCA Services provided under this Agreement will meet its requirements, (2) its use of the ORCA Services will be uninterrupted, timely, secure or free from error, and (3) any information obtained by the Business Account as a result of the use of the ORCA Services will be accurate or reliable 14.0 NOTICES 141 Any notice required to be given under the terms of this Agreement shall be directed either by email or regular mad to the Parties' Designated Representatives, as specified in Attachment 2 142 The Business Account shall immediately notify the Lead Agency of any changes to its contact information and any other information provided in its application An email sent by the Lead Agency shall be sufficient notice to the Named Business Account if sent to the last person and address provided by the Named Business Account Passport Customer Agreement Page S of 17 City of Kent July 1, 2010 - June 30, 2011 15.0 FORCE MAJEURE The ORCA Agencies and each of them shall be relieved of any obligations under this Agreement to the extent they are rendered unable to perform or comply with such obligations as a direct or indirect result of a force majeure event or any other circumstance not within such party's control, including but not limited to acts of nature, acts of civil or military authorities, terrorism, fire or water damage, accidents, labor disputes or actions, shutdowns for purpose of emergency repairs, or industrial, civil or public disturbances 16.0 APPLICATION OF AGENCY FARES AND OTHER POLICIES The purchase, distribution and use of Business Cards by the Business Account and its Cardholders, and access to and use of the ORCA websites, shall be subject to all applicable federal, state and local law, regulations, ordinances, codes and policies, including but not limited to the fares transfer rules, code of conduct and other operating policies and procedures established by each of the ORCA Agencies for their transportation services 17.0 PROHIBITED DISCRIMINATION The Business Account shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation, age, or presence of any sensory, mental, or physical handicap in the administration of its transportation program, the provision of ORCA Business Cards and ORCA Products or the performance of any acts under this Agreement The Business Account shall comply fully with all applicable federal, state and local laws, ordinances, executive orders and regulations which prohibit such discrimination 18.0 COMPLIANCE WITH APPLICABLE LAW 1 The Business Account shall be solely responsible for compliance with all applicable federal, state and local laws, regulations, resolutions and ordinances, including but not limited to any provisions relating to the Business Account's provision of compensation, benefits or services to employees or I others (e g including but not limited to transportation fringe benefits) and any reporting, tax withholding or other obligations related thereto The Business Account expressly acknowledges and agrees that it has not relied on any representations or statements by the ORCA Agencies and will not rely on them to provide any legal, accounting, tax or other advice with regard to the Business I Account's provision of compensation, benefits or services to employees or others (e g including but not limited to transportation fringe benefits) and any reporting, withholding or other obligations related thereto 19.0 LEGAL RELATIONS 19 1 No Partnership. Agency or Employment Relationship Formed The Business Account and the ORCA Agencies are independent parties and nothing in this Agreement shall be construed as creating any joint venture, partnership, agency or employment relationship between and among them or their respective employees Without limiting the foregoing, the Business Account understands and agrees that none of its employees or agents shall be deemed employees or agent, for any purpose, of any of the ORCA Agencies and the Business Account is solely responsible for the acts of its agents and employees and their compensation, wages, withholdings and benefits. 192 Limitation on Liability a The Lead Agency and each ORCA Agency shall not be liable for, and the Business Account holds each harmless from, any loss or damage arising out of or resulting from (1) any reliance placed by the Business Account on the completeness, accuracy or existence of any information provided under this agreement, (2) any changes which an ORCA Agency may make to the ORCA Services, or for any permanent or temporary cessation in the provision of the services (or any features within the services), Passport Customer Agreement Page 9 of 17 City of Kent July 1, 2010 - June 30, 2011 (3) the deletion of, corruption of, or failure to store, any information transmitted to or generated by the Business Account's use of the ORCA Services or the use of said account's ORCA Business Cards, (4) failure of the Business Account to provide the Lead Agency with accurate information, and , (5) failure by the Business Account to keep password or account details secure and confidential b The Lead Agency and each other ORCA Agency shall not be liable for, and the Business Account hereby holds each harmless from any loss of use, loss of time, loss of profits, loss of privacy, loss of data, loss of goodwill, inconvenience, commercial loss, loss of anticipated savings, wasted management time or labor, or any special, consequential, general, indirect, incidental, or punitive damages or that are for failure to meet any duty (including without limitation any duty of lack of negligence or workmanlike effort), when such damages arise out of or are related to this Agreement or the ORCA Services, even if anyone in any of the ORCA Agencies has been advised of the possibility of such damages and even in the event of a tort (including negligence, strict or product liability) or violation of contract or policy c If anyone in any of the ORCA Agencies breaches any duty or agreement relating to the ORCA Services, the exclusive, aggregate remedy against the Lead Agency and each other ORCA Agency will be at the option of the ORCA Agencies (a) correction, substitution or replacement of all or part of the ORCA Services giving rise to the breach, or (b) a refund of the amount paid by the Business Account for the ORCA Service causing the damage, which amount will not exceed the damages (other than those excluded above) actually incurred by the Business Account in reasonable reliance d The damage exclusions and limitations on liability in the Agreement shall apply even if , any remedy fails for its essential purpose 193 No Waiver The Business Account agrees that if the Lead Agency does not exercise or enforce any legal right or remedy which is contained in the Agreement or under applicable law, this will not be taken to be deemed to be a waiver or modification of the Lead Agency s rights and remedies and that those rights or remedies will still be available to Lead Agency 194 Governing Law and Forum This Agreement and all provisions hereof shall be interpreted and enforced in accordance with, and governed by, the applicable law of the State of Washington and of the United States of America without regard to its conflict of laws , provisions The exclusive jurisdiction and venue for conducting any legal actions arising under this Agreement shall reside in either the Federal District Court or the State of Washington Superior Court as applicable, that is located in the county in which the Lead Agency's primary administrative office is located The Business Account hereby consents to personal jurisdiction and venue in said courts and waives any right which it might have to conduct legal actions involving the ORCA Agencies in other forums 195 Attorneys'Fees and Costs in the event of litigation between the parties related to Sections 4, 13 and 19 of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and reasonable litigation expenses and costs 196 Survival Sections 4, 5, 9, 13 and 19 shall survive and remain effective notwithstanding any termination of this Agreement 197 The Business Account understands and agrees that the "ORCA" name and logos are trademarked and that it will not copy or use them and any other trade names, trade marks, service marks, logos, domain names, and other distinctive features or intellectual property of the ORCA Agencies without written permission Passport Customer Agreement Page 10 of 17 City of Kent July 1, 2010 - June 30, 2011 i 20.0 SUCCESSORS AND ASSIGNS This Agreement and all terms, provisions, conditions and covenants hereof shall be binding upon the parties hereto and their respective successors and assigns, provided, however, the Business Account may not assign or delegate the duties performed under this Agreement without written agreement by the Lead Agency. 21.0 ENTIRE AGREEMENT AND WRITTEN AMENDMENTS This Agreement constitutes the entire agreement between the Business Account and the Lead Agency, on behalf of all ORCA Agencies related to the Business Account's use of and access to ORCA Services (but excluding any services which Lead Agency may provide under a separate written agreement), and completely replaces and supersedes any prior oral or written representations or agreements in relation to fare media consignment and sales or to the ORCA Services No oral agreements or modifications will be binding on the parties and any changes shall be effective only upon a written amendment being signed by the parties 22.0 SEVERABILITY In the event any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable or invalid then the meaning of that provision shall be construed, to the extent feasible, to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of the Agreement which shall remain in full force and effect unless the provisions that are invalid and unenforceable substantially impair the value of the entire Agreement to any party 23.0 AUTHORITY TO EXECUTE Each party to this Agreement represents and warrants that (i) it has the legal power and authority to execute and perform this Agreement and to grant the rights and assume its obligations herein, and (ii) the person(s) executing this Agreement below on the party's behalf is/are duly authorized to do so and that the signatures of such person(s) is/are legally sufficient to bind the party hereunder 240 COUNTERPARTS This Agreement may be executed in two (2) counterparts, each one of which shall be regarded for all purposes as one original IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the Effective Date BUSINESS ACCOUNT LEAD TRANSPORTATION AGENCY BY: BY: Suzette Cooke Darwin Campbell Title: MayorTitle: Supervisor of Fare Media Sales Business Name: Agency King County Metro Transit City of Kent Date. Date Passport Customer Agreement Page 11 of 17 City of Kent July 1, 2010 - June 30, 2011 Attachment 1 Business Passport Flat Rate - Products, Pricing and Terms Customer Name City of Kent Fed Tax ID# 916001254 ORCA Business ID# Agreement Type Passport-Transition Program Term July 1 , 2010 - June 30, 2011 Business Passport Flat Rate Products and Pricing • Access to regular bus services on Community Transit, Everett Transit, Kitsap Transit, Metro Transit, Pierce Transit, and Sound Transit • Access to regular Sound Transit Link light rail service • Access to regular Sound Transit Sounder commuter rail service • 100% vanpool fare subsidy on Community Transit, Kitsap Transit, Metro Transit, and Pierce Transit vanpool vans • 100%vanshare fare subsidy on Metro Transit vanshare vans • Access to Seattle Streetcar • Access to King County Water Taxi (Vashon and West Seattle Passenger-only ferry) • Emergency guaranteed ride home service (Up to eight rides per employee ) Initial supply of ORCA cards for all employees Annual Mo Rate Passport Area Employees Rate per Cost for Add] Employee Eligible Employee KING COUNTY SUBURBS - 220 4th 350 $107 96 $37,786 00 AVE S Kent, WA 98032 Total 1350 $371786.00 Business Passport Flat Rate Payment Terms • 1/2 in 60 and 180 days from start of program term • By invoice - do not send with contract Additional Information Number of ORCA Cards initially delivered = 385 (Note Up to 5 additional cards or up to 10% of the number of eligible employees with a maximum of 50 additional cards maybe provided at the current card fee) Amount of Eligible Employee contribution = $53 98 maximum (Note employees may contribute up to 50% of the Annual Rate per Employee) Business Choice Products Business Choice products are purchased at prevailing retail rates as specified on the Business Accounts website Payment terms Prepay Passport Customer Agreement Page 12 of 17 City of Kent July 1, 2010 - June 30, 2011 ATTACHMENT 2 DESIGNATED REPRESENTATIVES BUSINESS ACCOUNT- Primary LEAD AGENCY - Primary Name Aaron Barber Jane Finch Title Human Resources Analyst Employer Transportation Representative Address City of Kent King County Metro Transit 220 4 Ave S ES-TR-0650, 400 Yesler Way ( Kent, WA 98032 Seattle, WA 98104 Telephone 253-856-5283 06-263-3456 Cell Phone Fax 253-856-6270 06-684-2058 E-Mail abarber@ci kent wa us lane finch@kingcounty gov BUSINESS ACCOUNT- Secondary LEAD AGENCY - Secondary Name Becky Fowler Title Benefits Manager King County Lead Agency Representative Address City of Kent 201 S Jackson St KSC-TR-0412 20 4th Ave S Seattle, WA 98104 Kent, WA 98032 Telephone (253) 856-5290 206-263-3444 Cell Phone I Fax (253) 856-627 E-Mail Bfowler@ci kent wa us business leadagent@kingcounty gov I 1 1 1 Passport Customer Agreement Page 13 of 17 City of Kent July 1 , 2010 - June 30, 2011 r ATTACHMENT 3 ELIGIBLE BUSINESS CARDHOLDERS Definition and Number of Eligible Participants Definition of All benefit-eligible employees Eligible Participants Number of 350 Eligible Participants r r r r r r r r r r r Passport Customer Agreement Page 14 of 17 City of Kent July 1, 2010 - June 30, 2011 ' ATTACHMENT 4 SAMPLE —ORCA BUSINESS CARDHOLDER RULES OF USE As a Business Account Cardholder, I agree to the following 1 1 will use my ORCA Business Card for my own transportation only I will not transfer my ORCA Business Card to any other person I understand that my ORCA Business Card and any products will be blocked from further use if I misuse this benefit 2 1 will keep my ORCA Business Card secure and in good condition I will immediately report a lost, stolen, or damaged ORCA Business Card to my company Transportation Coordinator I understand a lost ORCA Business Card will be replaced only once per year at a charge of $5 00. A defective ORCA Business Card will be replaced free of charge 3 1 will return my ORCA Business Card upon request or when I leave my employment with this company If I do not return my ORCA Business Card, I understand that it may be blocked for further use on transportation services provided me by my employer 4 1 understand that the ORCA Business Card is valid for the following services provided by my employer A 100% of transit fares on regularly scheduled transportation service on King County Metro Transit, Community Transit, Everett Transit, Kitsap Transit, Pierce Transit, and Sound Transit B Up to 100% subsidy for vanpool fares on participating transit agencies I C Up to 100% subsidy for vans hare/vanlink fares on participating transit agencies D I understand that the ORCA Business Card products are not valid fare payment for services on any non-participating ORCA agencies and that I am responsible for gaining that I information from my employer prior to card usage 5. 1 understand that I am responsible to pay additional fares required for services not covered, or not fully covered, by my employer provided benefits I6 1 understand that any additional ORCA Products I load onto my ORCA Business Card become the property of my employer, and any refund of such products will be made by my employer according to its refund policy 7 1 understand the ORCA system will record data each time I use my ORCA Business Card Data will include the date, time and location of the card when it is presented I understand this data is owned by the ORCA Agencies and is accessible to my employer I acknowledge the receipt of my ORCA Business Card, and understand and agree to the terms stated above on using the ORCA Business Card LEmployee's Signature Date Employee's Printed Name ORCA Card Serial # Transportation Coordinator Use Only—ORCA Card returned Employee's Signature Date tORCA Card Serial # Passport Customer Agreement Page 15 of 17 City of Kent July 1, 2010 - June 30, 2011 Attachment 5- Exhibit- Home Free Guarantee Program r Home Free Guarantee (hereinafter, "HFG") is a King County program that guarantees payment for taxi fares incurred by Eligible Employees who meet the eligible criteria, as set forth below, and taken in accordance with the terms set forth below HFG is the emergency guaranteed ride home service mentioned in Attachment 1 of the ORCA Business Passport Agreement 1 DEFINITIONS 1 1 Approved Commute Modes Eligible Employees must have commuted from their principal residence, transit center, or park & ride lot to the Business Account's worksite by one of the following modes bus, train, carpool, vanpool, walk-on or , bicycle-on ferry, bicycle, or walk 1 2 Eligible Reasons For Using HFG The following are the only eligible reasons for using HFG , a Eligible Employee's or family member's unexpected illness or emergency b Unexpected schedule change such that the normal commute mode is not available for the return commute to the starting place of their commute Unexpected means the employee learns of the schedule change that day L Missing the employee's normal return commute to the starting place of their commute for reasons, other than weather or acts of nature which are beyond the employee's control, and of which they had no prior knowledge For example, the employee's carpool driver left work or worked late unexpectedly 1 3 Non-Eligible Reasons For Using HFG Reasons which are not eligible for HFG use include, but are not limited to, the following a Pre-scheduled medical or other appointments b To transport individuals who have incurred injury or illness related to their occupation An HFG ride should NEVER be used where an ambulance is appropriate, nor should an HFG ride replace Business Account's legal responsibility under workers' compensation laws and regulations c Other situations where, in the opinion of the Business Accounts Program Coordinator, alternate transportation could have been arranged ahead of time 1 4 Eligible Destinations For An HFG Ride a From the Business Account's worksite to the Eligible Employee's principal place of residence b From the Business Account's worksite to the Eligible Employee's personal vehicle, e g vehicle , located at a transit center or park & ride lot c From the Business Account's worksite to the Eligible Employee's usual commute ferry terminal on the east side of Puget Sound 1 5 Intermediate Stops r Intermediate stops are permitted only if they are of an emergency nature and are requested in advance by the Eligible Employee and are authorized in advance of the HFG ride by the Business Account's Program Coordinator (i e pick up a necessary prescription at a pharmacy pick up a sick child at school) 2 BUSINESS ACCOUNT RESPONSIBILITIES 21 HFG Program Payment , Business Account's payment for HFG services is accounted for in the base price of the ORCA Business Passport Agreement, as indicated in Attachment 1 22 Program Coordinator Business Account shall designate as many Program Coordinators as necessary to administer and perform the necessary HFG program tasks as set forth in this Attachment 2.3 Number Of HFG Rides Per Eligible Employee Business Account shall ensure that each Eligible Employee does not exceed eight (8) HFG rides per twelve (12) month period Passport Customer Agreement Page 16 of 17 City of Kent July 1 , 2010 - June 30, 2011 Attachment 5- Exhibit- Home Free Guarantee Program (continued) 3 HFG Program Tasks 31 Process To access HFG rides, Eligible Employees shall contact the Program Coordinator The Program Coordinator shall call directly an answering service provider, contracted for by King County The phone number shall be supplied to Business Account by King County Business Account agrees to make I information about how to access HFG rides available to all Eligible Employees Program Coordinator shall obtain the following information from the Eligible Employee, and provide the information to the answering service provider d Verify the Eligible Employee has commuted to the worksite by an eligible mode ' b Verify the Eligible Employee has an eligible reason and eligible destination for an HFG ride c Ensure the Eligible Employee has valid identification to show the taxi driver d Once an Eligible Employee takes the emergency taxi ride, obtain from the Eligible Employee a receipt of the taxi trip e Business Account's Program Coordinator shall forward copies of such receipts to King County at the end of each month for record keeping and accounting purposes f The answering service provider will arrange taxi rides for the Eligible Employee 4 KING COUNTY RESPONSIBILITIES 4 1 Participating Taxi Business Account(s) Business Account agrees that neither King County nor answering service provider is responsible for providing transportation services under the HFG program Business Account further agrees that King County makes no guarantee or warranty as to the availability, quality or reliability of taxi service, and that King County's sole obligation under the program is to make payment of the taxi provider for trips actually taken in accordance with the terms of this Agreement Business Account agrees it shall make no claims of any kind or bring any suits of any kind against King County for damages or injuries of any kind arising out of or in any way related to the HFG program Without limiting the foregoing and by way of example only, the Business Account agrees that King County shall not be liable for any injuries or damages caused by negligence or intentional acts occurring before, during or after a taxi ride or for any injuries or damages caused by failure of a taxi to provide a ride due to negligence, intentional acts or causes beyond the taxi's control, including but not limited to incidence of fire, flood snow, earthquake or other acts of nature, riots, insurrection, accident, order of any court or civil authority, and strikes or other labor actions 4 2 Payment Of Authorized HFG Taxi Fares King County shall pay the metered fare amount of a Business Account's Program Coordinator-authorized HFG ride, as defined in the DEFINITIONS section above, for a one-way distance of up to sixty (60) miles Business Account or Eligible Employee taking the HFG ride shall pay any fare for a one-way distance in excess of sixty (60) miles King County shall not pay any taxi driver gratuity Taxi driver gratuity will be at the sole discretion of Business Account or the Eligible Employee taking the HFG ride 4 3 Reporting King County shall keep a complete record of all authorized HFG ride requests and provide a copy of this record to Business Account's designated Contact Person if requested 4.4 Program Abuse King County reserves the right to investigate and recover costs from the Business Account of intentional abuse of the HFG program by Eligible Employees Program abuse is defined as, but not limited to, taking trips for inappropriate reasons, unauthorized destinations and intermediate stops, and pre-scheduled appointments not defined in the DEFINITIONS section above Passport Customer Agreement Page 17 of 17 City of Kent July 1, 2010 - June 30, 2011 Kent City Council Meeting Date June 1, 2010 Category Other Business - 7A 1. SUBJECT: TEMPORARY FLOOD PROTECTION STRUCTURES ORDINANCE ' 2. SUMMARY STATEMENT: Due to the flooding threat posed by the diminished flood control capabilities of the damaged Howard Hanson Dam, the Kent City Council adopted Ordinance No. 3932 on September 15, 2009, which waived certain permitting requirements for temporary structures constructed for flood protection purposes. This current waiver is applicable until July 1, 2010, after which these structures would be deemed permanent and property owners would then need to obtain a permit for those structures. The U.S. Army Corps of Engineers has completed temporary repairs at the Howard Hanson Dam, and the federal government has designated $44 million in emergency funding for further repairs. Once the additional repairs are made to the Howard Hanson Dam, the risk of flood will be no greater than the risk of flood that existed prior to the time the abutment problems were discovered. In order to address the needs of the community in light of the continually changing flood threat as repairs at the Howard Hanson Dam continue, staff and the Operations Committee recommend extending the permit waiver by one additional year, from July 1, 2010, to July 1, 2011. 3. EXHIBITS: Memo to Operations Committee and Ordinance i4. 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 to adopt Ordinance No. , which extends the waiver provided by Ordinance Nos. 3932 and 3933 of certain permitting requirements for temporary structures constructed for flood protection purposes from July 1, 2010, to July 1, 2011. ' DISCUSSION: ACTION: r LAW DEPARTMENT 1 Tom Brubaker, City Attorney Phone: 253-856-5770 KENT Fax, 253-856-6770 WASH 1 N G T O N Address: 220 Fourth Avenue S. Kent, WA. 98032-5895 May 18, 2010 To: Operations Committee From: Tom Brubaker, City Attorney Regarding: Temporary Flood Protection Structures—Permitting Deadline Ordinance MOTION: Recommend Council adopt the proposed ordinance amending Ordinance Nos. 3932 and 3933 to extend the waiver provided of certain permitting requirements for temporary structures constructed for flood protection purposes from July 1, 2010, to July 1, 2011. SUMMARY: On September 15, 2009, the Kent City Council adopted Ordinance No. 3932 temporarily waiving certain permitting requirements for temporary structures constructed for flood protection purposes due to the threat posed by the diminished flood control capabilities of the Howard Hanson Dam. Ordinance No. 3933 was adopted shortly thereafter to further clarify when the permitting requirements for temporary flood protection structures would be waived under Ordinance No. 3932. ' The U.S. Army Corps of Engineers has completed temporary repairs at the Howard Hanson Dam, which have reduced the flood risk posed to property owners and ' citizens located down-river of the dam. The federal government has designated $44 million in emergency funding for further repairs at the Howard Hanson Dam that may include an extended grout curtain or a concrete cutoff wall Once the additional repairs are made to the Howard Hanson Dam with the use of the designated funds, the risk of flood will be no greater than the risk of flood that existed prior to the time the abutment problems were discovered. ' In order to address the needs of the community in light of the continually changing flood threat as repairs at the Howard Hanson Dam continue, staff recommends extending the permit exemption by one additional year, from July 1, 2010, to July 1, 2011. ' BUDGET IMPACT: None. P\Clvll\Motions-BlueSheem\TemDFloodProte Strudures-ExtendPermltDeadline-MotionSheet docx ' 1 t r ORDINANCE NO. 1 ' AN ORDINANCE of the City Council of the City of Kent, Washington, amending Ordinance Nos. 3932 and 3933, to extend the waiver provided by those ordinances of certain permitting requirements for temporary structures constructed for flood protection purposes due to the threat posed by the diminished flood control capabilities of the Howard Hanson Dam from July 1, 2010, to July 1, 2011. iRECITALS rA. On September 15, 2009, the Kent City Council adopted Ordinance No. 3932 temporarily waiving certain permitting requirements for temporary structures constructed for flood protection purposes due to the threat posed by the diminished flood control capabilities of the Howard iHanson Dam. Ordinance No. 3933 was adopted shortly thereafter to further clarify when the permitting requirements for temporary flood protection structures would be waived under Ordinance No. 3932. B. Near the end of 2009, the U.S. Army Corps of Engineers completed temporary repairs at the Howard Hanson Dam, which included 1 constructing a grout curtain along a damaged abutment. This temporary ' 1 Amending Ordinance No. 3932 and Ordinance No. 3933 Re: Permitting of ' Temporary Flood Protection Structures r fix has reduced the flood risk posed to property owners and citizens located down-river of the dam. C. The U.S. Army Corps of Engineers has obtained an independent review of its plans for temporary and permanent repairs needed at the Howard Hanson Dam, and the reviewing engineers have concluded that the U.S. Army Corps of Engineers is taking the appropriate , steps to temporarily and permanently repair the dam in order to stop water seepage through a damaged abutment. Most recently, the federal , government has designated $44 million in emergency funding for further repairs at the Howard Hanson Dam that may include an extended grout , curtain or a concrete cutoff wall. The final plans are still in process. D. Given the temporary repairs that have already been constructed, and the additional repairs that will be constructed with the , designated funds, the flooding risk has continued to decrease. Once the additional repairs are made to the Howard Hanson Dam with the use of the designated funds, the risk of flood will be no greater than the risk of flood that existed prior to the time the abutment problems were discovered. E. Ordinance No. 3932, as amended by Ordinance No. 3933, provided that property owners and tenants within the City of Kent could install temporary flood protection structures without a permit, if those structures were removed by July 1, 2010. If the structures were not removed by that date, the ordinances provided that a permit for those structures would need to be obtained. In order to address the needs of t the community in light of the continually changing flood threat as repairs at the Howard Hanson Dam continue, the City Council wishes to extend the , permitting exemption by one additional year, to July 1, 2011. 2 Amending Ordinance No. 3932 ' and Ordinance No. 3933 Re: Permitting of Temporary Flood Protection Structures NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, ' WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE Ordinance No. 3932, as amended by Ordinance No. 3933, is amended as follows: SECTION 1. - Recrtals Adooted as Findings. In addition to the ' findings adopted by the Kent City Council in Ordinance Nos. 3932 and 3933, the City Council finds the additional recitals listed above to be true and correct in all respects and adopts and incorporates them as its findings for the purposes of this ordinance,_--ate-Ordinance No. 3933, and 1 Ordinance No. 3932. The City Council further finds that the threat of flooding caused by the structural weaknesses in the Howard Hanson Dam ' abutment constitutes a real and imminent emergency that poses a threat to the health, safety, and welfare of the persons and property in and near the Green River Valley. Even though the actual occurrence of flooding is subject to weather-related events and is accordingly not capable of being predicted with any accuracy at this time, and may in fact not occur at all, the threat nevertheless remains real and imminent, and it is appropriate and advisable to take appropriate steps to protect persons and property now when time allows to provide protection in advance of any potential flood. SECTION 2. - Definitions. The following definitions apply to the words and phrases used in this ordinance: ' A. Temporary Flood Protection Structure. "Temporary Flood Protection Structure" means any sandbag, water-filled sack, earthen berm, concrete jblock, or similar material, or any combination of these materials, placed or installed within ten feet (10') of, or as close as is reasonably practicable to, 3 Amending Ordinance No. 3932 and Ordinance No. 3933 Re: Permitting of Temporary Flood Protection Structures i the outside perimeter of any critical facility for the sole purpose of keeping potential Green River floodwaters from invading the critical facility. ' B. Critical Facility. "Critical Facility" includes the following: 1. Any permanent building primarily used as a business or , residence that is regularly staffed or is lived in on a daily basis; 2. Any structure used to store bulk fuel or bulk hazardous or , dangerous wastes; 3. Any structure or building owned or operated by a public entity ' whose preservation is necessary for public safety purposes; and 4. Any building or other structure necessary for the ongoing operation of any public or government franchised sewer, water, stormwater, power, gas, or telecommunications utility. Garages, sheds, or other outbuildings, parking areas, landscaping areas, and other similar areas or structures are specifically excluded from this definition. SECTION 3. — Scope, Purpose, & Applicabdity. A. This is an unanticipated emergency that poses an imminent threat to public health, safety, and the environment within the Green River Valley that requires immediate action within a time too short to follow established permit application and approval procedures. ' B. The purpose of this ordinance is to provide property owners the ability to protect life and property in advance of any flood, should one t occur, while making best efforts to control the placement of these structures in a manner that attempts to maintain adequate protection for i flood storage, erosion and sedimentation control, and other environmental and regulatory controls. t 4 Amending Ordinance No. 3932 ' and Ordinance No. 3933 Re: Permitting of Temporary Flood Protection Structures ' C. Temporary Flood Protection Structures placed or installed to protect critical facilities located within the Green River Valley are exempt from the City's permitting application and approval process for those structures if the Temporary Flood Protection Structure is removed no later than July 1, -20192011. While the permitting procedural requirements for Temporary Flood Protection Structures are waived, these structures must still comply with the substantive requirements of all applicable federal, state, and local regulations, specifically including, without limitation, the State Environmental Policy Act, the Shoreline Master Program, the International Building and Residential Codes, or other International and Uniform Codes, the Kent Zoning Code, and the Kent Design and Construction Standards. 1 D. Temporary Flood Protection Structures must be both maintainable and removable; structures subject to degradation, deterioration, abnormal ' wear and tear, or damage (for example and without limitation, from deficient design, inappropriate fabrics, ultraviolet light, or excessive erosion from flood waters or flood debris) are not Temporary Flood Protection Structures for the purposes of this ordinance. E. All Temporary Flood Protection Structures must be removed and all materials used to place or install the structures must be properly and legally disposed of no later than July 1, 20112919. Any Temporary Flood ' Protection Structure that remains on site beyond July 1, 2011241-9, will automatically be deemed a permanent flood protection device, structure, or installation, will automatically be deemed subject to this ordinance and to all applicable regulatory and permitting requirements, and will ' automatically be deemed in violation of this ordinance and the Kent City Code for failure to obtain necessary permits and approvals, enforceable ' under chapter 1.04 of the Kent City Code and subject to civil and criminal penalties ' 5 Amending Ordinance No. 3932 and Ordinance No. 3933 Re: Permitting of Temporary Flood Protection Structures F. All flood protection structures that do not meet these requirements for Temporary Flood Protection Structures must be properly permitted ' under city, state, and federal regulatory requirements. However, because this is an emergency and because the threat of flooding is imminent, property owners who wish to construct flood protection structures other than Temporary Flood Protection Structures may commence work ' immediately, but the property owner must subsequently obtain all required permits for that non-temporary structure no later than July 1, 201128 . , SECTION 4. - Severability. If any one or more section, subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTIONS. - 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 ordinance, including the , correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and i section/subsection numbering. SECTION 6. - Effective Date. This ordinance shall take effect and be in force thirty (30) days from and after its passage as provided by law ' SUZETTE COOKE, MAYOR ATTEST: , BRENDA JACOBER, CITY CLERK 6 Amending Ordinance No. 3932 and Ordinance No. 3933 Re: Permitting of Temporary Flood Protection Structures ' APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY PASSED: day of June, 2010. ' APPROVED: day of June, 2010. ' PUBLISHED: day of June, 2010. I hereby certify that this is a true copy of Ordinance No. passed by the City Council of the City of Kent, Washington, and approved by the Mayor of the City of Kent as hereon indicated. (SEAL) BRENDA JACOBER, CITY CLERK ' P\Ciwl\Ordinance\FloodProtectionMeasures-ExrendPe"itDeadline doa 7 Amending Ordinance No. 3932 and Ordinance No. 3933 Re: Permitting of ' Temporary Flood Protection Structures ' Kent City Council Meeting Date June 1, 2010 ' Category Other Business - 7B 1. SUBJECT: DEFERRAL OF DEVELOPMENT FEES, ORDINANCE AND RESOLUTION 2. SUMMARY STATEMENT: City staff recommends approval of amendments to Kent City Code Titles 7 and 12 related to the timing of development mitigation fee collection. These amendments apply to first sale of newly constructed single family homes and allow deferral of drainage system development charges, school ' impact fees, transportation improvement fees, and water system development charges through the use of a fee deferral lien. City staff is recommending a corresponding amendment to its current develop- ment fee resolution to include a fee for the City's costs of administering the fee deferral lien process. After a special meeting of the Economic and Community Development Committee on May 25, the fee deferral sections have been clarified (1) by changing the word, "resale," to "initial sale," (2) by specifying that the lien for deferred fees will be a "first priority" lien, (3) by stating that the seller, not the buyer, will pay the deferred fees at closing of the sale; and (4) by removing the notice to buyer provisions because the lien will be paid by the seller/builder at closing and notifying the buyer of this transaction could potentially cause confusion. 3. EXHIBITS: Staff Report, Ordinance, Resolution, Minutes of 4/12/10, Minutes of 5/10,10 and Minutes of 5/25/10 4. RECOMMENDED BY: Staff (Committee, Staff, Examiner, Commission, etc.) ' 5. FISCAL IMPACT Expenditure? Y Revenue? Y Currently in the Budget? Yes No X 6. CITY COUNCIL ACTION: Councilmember moves, Councilmember seconds to adopt Ordinance No. , which amends Titles 7 and 12 of the Kent City Code related to timing of development mitigation fee collection and to adopt Resolution No. , which amends Resolution No. 1740 by establishing a fee concerning the deferral of certain development mitigation fees. ' DISCUSSION: ' ACTION: i ECONOMIC & COMMUNITY DEVELOPMENT Ben Wolters, Director 1 PLANNING DIVISON KENT Fred N. Satterstrom, AICP, Planning Director I,,,,,,„G7p„ Charlene Anderson, AICP, Manager Phone: 253-856-5454 Fax: 253-856-6454 ' Address: 220 Fourth Avenue S. Kent, WA 98032-5895 ' DATE: May 27, 2010 ' TO: Council President Perry and Councilmembers FROM: Matt Gilbert, AICP, Principal Planner RE: Deferral of Impact Fees and Certain Other Development Fees/Residential i (SCA-2009-2) For the Council Meeting of June 1, 2010. MOTION: Move to adopt Ordinance No. , which amends Title 7 and 12 of the Kent City Code related to the timing of development mitigation fee collection, and ' to adopt Resolution No. , which amends the exhibits to Resolution No 1740 by establishing a fee concerning the deferral of certain development mitigation fees. SUMMARY: On May 25th, 2010 the Economic and Community Development Committee held a special meeting for further discussion regarding the proposed Fee Deferral Ordinance. Stakeholder representatives from the Kent and Federal Way School Districts, King County Realtors and the Master Builders Association attended, as well as City staff. The discussion at this meeting primarily addressed inclusion of school impact fees, homebuyer notification and ensuring that the City will be paid ' monies owed. This discussion lead to the following changes in the proposed ordinance: • Language added to clarify that payment of deferred fees is the responsibility of the seller/builder. • Language added to clarify that the City be in a `first lien' position. • The language requiring additional homebuyer notification has been deleted. • For clarification, language allowing deferral of fees for a home being constructed 'for resale', has been changed to 'for initial sale'. r MEMORANDUM: Planning & Economic Development Committee , January 4, 2009 Page 2 BUDGET IMPACT: Administration of this program will involve increased staff time r to prepare, record and track deferral agreements and payments and to enforce unfulfilled agreements. A period of evaluation is necessary to fully understand the impacts to staff resources and may require imposition of an administrative fee. Staff recommends an initial administrative fee of $202 dollars, to cover the estimated time and expense associated with preparing, recording and tracking , liens. Permit related fees are addressed in Kent City Council Resolution 1740, which will need to be updated to incorporate this new fee. The SEPA official has determined the proposal is procedural in nature and no further 1 SEPA review is required. The City has provided notice of the proposed changes to the Washington State Department of Commerce as required under the Growth r Management Act. 1 r r t r ORDINANCE NO. ' AN ORDINANCE of the City Council of the City of Kent, Washington, relating to the deferral ' of fees imposed to mitigate the impact of new development. RECITALS A. Pursuant to the provisions of state law, Chapter 35A.63 of the ' Revised Code of Washington (RCW) and Chapter 36.70A RCW, the Kent City Council has adopted the Kent City Code (KCC), which includes regulation of fees imposed to mitigate the impact of new development. B. As a result of the current downturn in the local economy, a diminishing number of new residential units are being built, which adversely impacts the local economy and revenue for governmental services. Unless the City acts, the housing market may continue to languish and adverse consequences of decreased revenues, abandoned tprojects, and underutilized land will occur. ' C. Current regulations require that mitigation fees be paid well before new homes are occupied. This results in larger construction loans ' and increased finance costs that add to the cost of a new home. To mitigate these negative economic impacts, the City can amend the Kent ' City Code to afford more flexibility to applicants on the timing of fee 1 Deferred Land Use Fees payments while maintaining consistency with the Comprehensive Plan. Changing the timing of collection would result in a lower cost to the builders, who could pass the savings to buyers. D. The City's State Environmental Policy Act (SEPA) official has determined that these amendments to the Kent City Code are procedural in nature, and therefore exempt from SEPA review. E. On April 13, 2010, notice was sent to the Washington State ' Department of Commerce requesting expedited review for an amendment ' to development regulations. On April 29, 2010, the City was granted expedited review and was informed that it had met the Growth ' Management Act notice requirements under RCW 36.70A.106. F. The Economic and Community Development Committee ' considered this matter at its January 11, 2010, and April 12, 2010 , meetings. The Committee also held a public hearing on May 10, 2010 regarding this issue. G. The deferral provisions in this ordinance shall remain in effect until December 31, 2013. ' NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. - Amendment. Section 7.02.160, of the Kent City Code, is amended as follows: , Sec. 7.02.160. Installation and Connection Charges Inside ' City Limits. 2 Deferred Land Use Fees A Tap charge - Connection by water utility. Any property owner within ' the city limits applying for water service shall pay in full a tap charge plus a system development charge prior to issuance of the water service ' permit. The tap charge will include the cost of connection and laying the pipe from the city water main to the property line of the property to which ' service is desired, or at a distance of sixty (60) feet from the main toward such property line, whichever is shorter. The minimum tap charge so established for service installed by the water utility is as follows: 1. Two hundred seventy-five dollars ($275) for each five-eighth (5/8) inch by three-quarter (3/4) inch connection. 2. Three hundred twenty-five dollars ($325) for each three- quarter (3/4) inch connection. 3. Three hundred fifty dollars ($350) for each one (1) inch ' connection. 4. Six hundred dollars ($600) for each one and one-half (1-1/2) inch connection. 5. Eight hundred dollars ($800) for each two (2) inch connection. On any connection over two (2) inches, the minimum tap charge shall be the actual cost of the meter and installation, plus twenty-five (25) percent. B. Tap charge - Connection by licensed contractor. If the workload of the water utility as determined by the director of public works is such that the installation of the water connection would interfere with the proper ' operation and maintenance of the water system, the director of public works may require that the property owner employ a licensed contractor to ' make the connection and install the necessary line and materials except the water meter. All such water services shall meet or exceed the ' standards and specifications approved by the director of public works. The minimum tap charge is as follows: 3 Deferred Land Use Fees r 1. One hundred dollars ($100) for each five-eighth (5/8) inch by r three-quarter (3/4) inch connection. , 2. One hundred twenty-five dollars ($125) for each three- quarter (3/4) inch connection. 3. One hundred seventy-five dollars ($175) for each one (1) inch connection. ' 4. Three hundred sixty dollars ($360) for each one and one-half (1-1/2) inch connection. 5. Five hundred dollars ($500) for each two (2) inch connection. All such contractor-installed connections shall be guaranteed by the contractor for a period of one (1) year. C. System development charge. The system development charge is as ' follows Meter Charge Charge r Size Effective Effective (inches) Through April 1, ' March 31, 2009 2009 Less than 1 $2,600 $5,949 1 $4,627 $14,872 1-1/2 $10,400 $29,743 2 $18,486 $47,589 3 $41,594 $95,179 r 4 $73,933 $148,717 5 $115,528 $222,932 , 6 $166,376 $297,434 8 $295,786 $475,894 10 $462,162 $654,354 After April 1, 2009, this system development charge will increase r annually, on the first day of each calendar year, by an amount equal to the r percentage increase in the Construction Price Index for Seattle-Tacoma- 4 Deferred Land Use Fees ' r Bremerton for the twelve (12) months October 31 through September 30 of the previous calendar year. However, if (1) the city's fire marshal has required that, in ' conjunction with the city's issuance of a single-family residential building permit, the applicant must install a fire sprinkler system, and (2) the need for a meter size greater than three-quarters (3/4) of an inch is based solely on the fire marshal's requirement that the sprinkler system be ' installed, the single-family residential permit applicant shall pay only the system development charge listed above for a meter less than one (1) inch ' in diameter. It is not the city's intent to require an applicant to pay a higher system development charge when the larger meter size is needed only in the unusual event of a fire demand rather than for normal daily user demand. ' D. Installation of undersized meter. If an undersized meter is installed, a deduction will be allowed from the above charges, including system ' development charges, which will reflect the difference in cost between the undersized meter and the regular size meter. All service material ' (including water meter) will remain the property of the city. ' E. Tap change. If the tap is changed to one of a larger size, the cost and expense of such charge must be paid before the larger size tap is installed. F. Paving replacement - Charge. If it becomes necessary during the installation of such connection on a time and material basis to break and replace either concrete or blacktop paving, then in each instance an additional charge shall be made to cover the cost of such repair. G. Fee deferral ' (1) Until December 31, 2013, at the time of issuance of any single family residential building permit for a dwelling unit that is being ' 5 Deferred Land Use Fees constructed for initial sale, the owner of the subject real property may defer payment of the water system development charge in subsection "A" ' of this section, executing a first position lien in favor of the City in the amount of the water system development charge. The City shall record , the lien against the real property and the lien amount shall be paid by the seller to the City at the time of closing of the sale of the real property and single family residence. An owner who chooses to defer the water system development charge must combine the lien with a lien deferring the school , impact fee in KCC 12.13.110, transportation improvement fee in KCC 12.11.090 or Chapter 43.21C RCW, and drainage system development ' charge in KCC 7.05 165. SECTION 2. — Amendment. Section 7.05.165, of the Kent City ' Code, is amended as follows: Sec. 7.05.165 Drainage systems development charge. A. Effective April 1, 2009, the city shall assess and collect a drainage ' systems development charge against all new development or ' redevelopment in the amount of one thousand and seven hundred and eighty-seven dollars ($1,787) per ESU, as defined in KCC 7.05 090(B)(3). ' This drainage system development charge will increase annually, on the first day of each calendar year, by an amount equal to the percentage increase in the Construction Price Index for Seattle-Tacoma-Bremerton for the twelve (12) month period October 1 through September 30 of the ' previous calendar year. All drainage system development charges collected by the storm and ' surface water utility shall be placed in a separate revenue account for the storm and surface water utility. i 6 Deferred Land Use Fees B. Fee deferral (1). Until December 31, 2013, at the time of issuance of any single family residential building permit for a dwelling unit that is being constructed for initial sale, the owner of the subject real property may defer payment of the drainage system development charge in subsection "A" above by executing a first position lien in favor of the City in the ' amount of the drainage system development charge. The City shall record the lien against the real property and the lien amount shall be paid by the seller to the City at the time of closing of the sale of the real property and single family residence. An owner who chooses to defer the drainage system development charge must combine the lien with a lien deferring the school impact fee in KCC 12.13.110, transportation improvement fee in KCC 12.11.090 or Chapter 43.21C RCW, and water system development charge in KCC 7.02.160. SECTION 3. - Amendment. Section 12.11.090 of the Kent City Code is amended as follows: Sec. 12.11.090 Mitigation. A. General. If mitigation is required to meet the area-average level of service standard, the applicant may instead choose to (1) reduce the size of the development until the standard is met, (2) delay development fschedule until city and/or others provide needed improvements, or (3) provide the mitigation as provided for in this chapter. Mitigation must be acceptable to the city in form and amount, to guarantee the applicant's pro rata share of the financial obligation for capital improvements for the benefit of the subject property. 7 Deferred Land Use Fees B. Mitigation approval. If concurrency does not exist as set forth in KCC 12.11.050, to obtain concurrency, the applicant may provide mitigation to the satisfaction and approval of the director as follows: 1. Payment for and timing of improvements. a. Payment for developer-funded transportation improvements affecting critical arterials and key intersections within the ' city's direct operational control necessary to meet the requirements for concurrency must be made prior to issuance of a development permit, final plat approval or other approval requiring improvements under this chapter. Any such improvements required to be constructed by a developer to meet the requirements for concurrency must be under construction within six (6) months after issuance of a certificate of occupancy, final plat approval or such other approval for the proposed development. All improvements shall comply with the city's construction standards, as adopted pursuant to Ordinance 3117, and as thereafter amended. Furthermore, the director shall require an assurance device to guarantee completion of such improvements in accordance with said construction standards. The finance manager shall be responsible for maintaining all mitigation funds received under this chapter. b. Payment for or the requirement of the developer to construct any transportation improvement necessary to meet the requirements of concurrency which is partially or wholly outside the city's i direct operational control must be submitted for approval by the appropriate agency(ies) which have control. Should the appropriate agency(ies) elect to postpone the proposed improvements, or refuse to accept the proposed mitigation, the director shall collect and hold the amount estimated for mitigation until the improvement is made as required in this chapter. An assurance device satisfactory to the director may substitute for the payment required in this subsection. 8 Deferred Land Use Fees C. The project proponent may provide funding in an amount equal to the cost estimate of the director, for necessary traffic improvements. The director may require actual construction rather than provision of funding. Funds, or other commitments, for projects to be constructed by the city must be paid in full by the project proponent to the city prior to issuance of a development permit, final plat approval or such other approval for the project. d. Fee deferral (i). Until December 31, 2013, at the time of issuance of any single family residential building permit for a dwelling unit that is being constructed for initial sale, the owner of the subject real property may defer payment of the transportation improvement fee in subsections a. and c. above by executing a first position lien in favor of the City in the amount of the transportation improvement fee. The City shall record the lien against the real property and the lien amount shall be paid by the seller to the City at the time of closing of the sale of the real property and single family residence. An owner who chooses to defer the transportation improvement fee must combine such deferral with deferral of the school impact fee in KCC 12.13.110, water system development charge in KCC t7.02.160, and drainage system development charge in KCC 7.05.165. 2. Transportation demand management. As a mitigation measure, the project proponent may establish transportation demand management (TDM) strategies to reduce single occupant vehicle trips generated by the project. The project proponent shall document the ' specific measures to be implemented and the number of trips to be reduced by each measure. The TDM program may be denied based on the criteria of subsection (13)(3) below. The director must approve the strategies and shall monitor and enforce the performance of agreed upon ' TDM measures. The director will determine if performance measuring devices shall be imposed, and may require annual documentation of the 9 Deferred Land Use Fees continued effectiveness of such measures. The director may require that additional measures be implemented if the agreed upon measures fail to result in the reduction of the stated number of trips. 3. Decision criteria-acceptable mitigation. Acceptable mitigation requires a finding by the director that: a. The mitigation is consistent with the comprehensive plan. b. The mitigation contributes to system performance. C. Improvements to an intersection or roadway may not shift traffic to a residential area. d. Improvements to an intersection or roadway may not shift traffic to other intersections for which there is no acceptable mitigation available. e. Improvements to an intersection or roadway may not shift traffic to intersections within another jurisdiction which would violate that jurisdiction's policies and regulations. f. Improvements to an intersection or roadway may not shift traffic to another mobility management zone and violate that zone's objectives and standards. g. The effect of the improvement would not result in a reduction or the loss of another transportation objective, including but not , limited to maintaining high occupancy vehicle lanes, sidewalks, or bicycle lanes. h. The adverse environmental impacts of the facilities' i improvement can be reasonably alleviated. 10 Deferred Land Use Fees 1. The improvement will not violate accepted engineering standards and practices. Notwithstanding the foregoing, the director has the authority, in the director's sole discretion, to require correction of a documented safety- related deficiency. C. Mitigation dental-appeal process. If the director determines that the proposed mitigation does not meet the requirements of this chapter, the director may deny the proposed improvements and determine the project is inconsistent with this chapter. The director's decision may be appealed by the applicant to the hearing examiner pursuant to the provisions of KCC 12.11.080. SECTION 4. — Amendment. Section 12.13.110 of the Kent City Code is amended as follows: Sec. 12.13.110 Collection of impact fees. A. For residential developments located in school districts where impact fees have been adopted by city ordinance, the city shall collect impact fees based upon the schedule set forth in KCC 12.13.140, and shall be collected by the city from any applicant where such development activity requires issuance of a residential building permit or a manufactured home permit. B. For application for single-family and multifamily residential building permits and manufactured home permits, the total amount of the impact fees shall be collected from the applicant when the building permit is ' issued, using the impact fee schedules in effect at the time of application. i 11 Deferred Land Use Fees C. The city shall not issue the required building permit or manufactured home permit unless and until the impact fees set forth in the impact fee schedule have been paid. D. Fee deferral (1). Until December 31, 2013, at the time of issuance of any single family residential building permit for a dwelling unit that is being constructed for initial sale, the owner of the subject real property may defer payment of the school impact fee in subsection "A" of this section by executing a first position lien in favor of the City in the amount of the school impact fee. The City shall record the lien against the real property and the lien amount shall be paid by the seller to the City at the time of closing of the sale of the real property and single family residence. An owner who chooses to defer the school impact fee must combine the lien with a lien deferring the transportation improvement fee in KCC 12.11.090 or Chapter 43.21C RCW, the drainage system development charge in 7.05.165 and water system development charge in KCC 7.02.160. , SECTION S. - Severabtlity. If any one or more section, subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 6. - 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 ordinance, including the correction of clerical errors; references to other local, state or federal laws, , codes, rules, or regulations; or ordinance numbering and section/subsection numbering. , 12 Deferred Land Use Fees SECTION 7. - Effective Date. This ordinance shall take effect and be in force thirty (30) days from and after Its passage as provided by law. SUZETTE COOKE, MAYOR ATTEST: BRENDA JACOBER, CITY CLERK APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY PASSED: day of , 2010. APPROVED: day of , 2010. PUBLISHED: day of 2010. I hereby certify that this is a true copy of Ordinance No. passed by the City Council of the City of Kent, Washington, and approved by the Mayor of the City of Kent as hereon indicated. (SEAL) BRENDA JACOBER, CITY CLERK P \Civil\Ordinance\Deferred LandUseFeesFinal docx I13 Deferred Land Use Fees i i RESOLUTION NO. i A RESOLUTION of the City Council of the City of Kent, Washington, amending Resolution 1740 by establishing a fee concerning the deferral of certain development mitigation fees. RECITALS A. The Kent City Council has established a number of fees by resolution rather than by ordinance so that the fees may be adjusted by council without amending the text of the Kent City Code. The city has adopted an ordinance allowing applicants to defer certain development mitigation fees through the use of a fee deferral lien. An applicant wanting to use such a lien is required to pay the city's costs incurred to administer the process. B. It is appropriate to amend Resolution No. 1740, Business License, Planning and Land Use, and Permit Inspection Fees, to include a fee for the city's costs of administering the fee deferral lien process, and adopt this replacement resolution which establishes a new fee for the fee deferral lien. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: 1 Amend IPlanning and Land Use Fees RESOLUTION SECTION 1. - Resolution No. 1740. Planning and Land Use Application Fee Schedule and Fee Schedule Notes Amended - Exhibit E Superseded. The attached and revised Exhibit A shall supersede in its i entirety Exhibit E to Resolution No. 1740. i SECTION 2. - Savings. Resolution No. 1740 and the fees established by that resolution and its applicable exhibits, which are amended by this resolution, shall remain in full force and effect until the date the new fees are assessed and collected in accordance with this resolution. SECTION 3. - 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 4. - Ratification. Any act consistent with the authority and prior to the effective date of this resolution is hereby ratified and affirmed. SECTION 5. - 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, codes, rules, or regulations; or resolution numbering and section/subsection numbering. SECTION 6. - Effective Date. This resolution shall take effect and be in force immediately upon its passage. However, the new fee schedule 2 Amend Planning and Land Use Fees adopted by this resolution shall not take effect nor be assessed and collected until the effective date of Ordinance No. PASSED at a regular open public meeting by the City Council of the City of Kent, Washington, this day of , 2010. CONCURRED in by the Mayor of the City of Kent this day of 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 , 2010. BRENDA JACOBER, CITY CLERK P 1Crvd\Rcsolulion\DctcrralOfFccsRcsolution docx 3 Amend Planning and Land Use Fees Exhibit"A" City of Kent Planning and Land Use Fees Permit Application Type Fee Notes Accessory Dwelling Unit $54 (1) Appeal of Administrative Interpretation / Decision s215 Appeal of SEPA Determination s215 Appeal of Short Plat S215 Binding Site Plan S539 Binding Site Plan Modification $323 / $431 (2) Code Text Amendment $539 / $1,616 (12) (13) Combining Districts $1,616 (12) Comprehensive Plan Map Amendment $1,616 (12) Comprehensive Plan Text Amendment $1,616 (12) Conditional Use $2,154 (15) Downtown Design Review $215/ $539 (3) (16) Fee Deferral Lien $202 (20) Lot Line Adjustment $323 (4) Lot Line Elimination $108 (5) Mixed Use Design Review $539 (16) Multi-Family Design Review $539 + $11/unit (16) Multi-Family Dwelling Tax Exemption - Conditional Application $150 + $25/unit (18) Multi-Family Dwelling Tax Exemption - Final Application $150 (19) Multi-Family Tax Exemption Appeal - Conditional, Final, Extension $100 Multi-Family Tax Exemption Extension of Conditional Certificate $100 Tentative Planned Unit Development Plan $269 Planned Unit Development Plan $2,693 + $50/unit Planned Unit Development Plan Modification $269 / $808 (6) Plat Modification/Alteration Minor 1/4 of plat fee Minor/Major Major 1/2 of plat fee (17) Pre-Application Conference $269 Public Notice Board $108 (7) SEPA Checklist $269/ $754 (8) SEPA Modification s81 / $269 (9) SEPA Exempt Determination $215 SEPA Environmental Impact Statement $2,154 + deposit (10) Shoreline Conditional Use S1,292 (15) Shoreline Exempt Determination $21S Shoreline Substantial Development $1,077 Shoreline Variance $808 (15) Short Plat (2-4 lots) $808 Short Plat (5-9 lots) -Tentative Plat $269 Short Plat (5-9 lots) - Preliminary Plat $2,154 + $54/lot l IPermit Application Type Fee Notes Short Plat (5-9 lots) - Final Plat $1,616 + $22/lot Sign Permit $162 Special Home Occupation Permit $323 (15) Subdivision - Tentative Plat $269 Subdivision - Preliminary Plat $3,770 + S54/lot Subdivision - Final Plat $2,154 + $22/lot Temporary Use $108 / $269 / $162 (11) Temporary Sign $81 Variance - Administrative $323 Variance - Single Family Dwelling $323 (15) Variance - Sign &Other than Single Family Dwelling $2,154 (15) WTF Administrative Permit $323 WTF Conditional Use $2,154 Zone Map Amendment (Rezone) $2,154 (12) Zoning Permit/ Site Plan Review $27/ $54 / value (14a-14e) (16) Zoning Determination / Compliance Letter $54 ' (CONT.) City of Kent Planning and Land Use Fees CITY OF KENT PLANNING AND LAND USE FEE SCHEDULE NOTES (Effective October 21, 2004) (1) $54 fee is applicable for an attached accessory dwelling unit, an Interior accessory dwelling unit or for a detached accessory dwelling unit in a single-family residential zone. The fee Includes the cost of the Planning Services Office recording of the accessory dwelling unit covenant documents with King County. An accessory living quarters in a commercial or industrial zone is subject to the applicable construction value-based fee. (2) Any changes to an approved, but unrecorded Binding Site Plan are subject to the $323 fee for a modification to a Binding Site Plan. Any changes to a recorded Binding Site Plan are subject to the $431 fee for a modification to a Binding Site Plan. t (3) The $215 fee is applicable to minor alterations and improvements. The $539 fee is applicable to all new buildings, redevelopment, and major alterations and improvements. (4) Fee includes the cost of the Planning Services Office recording of the lot line revision documents with King County. (5) The $108 fee is applicable to the elimination of lot lines between two or more parcels in the same ownership. The fee includes the cost of the Planning Services Office recording of the lot line revision documents with King County. All other types of lot line adjustments, except for a lot line elimination, are subject to the lot line adjustment fee schedule. (6) Any minor change to an approved Planned Unit Development Plan is subject to the $269 fee for a modification. Any major change to an approved Planned Unit Development Plan is subject to the $808 fee for a modification. (7) The Planning Manager has the authority to change this fee as , needed to cover City expenditures. (8) The $269 fee is applicable only to SEPA review of construction of one single family dwelling on an individual parcel. All other SEPA checklist applications are subject to the $754 fee. , (9) The $81 fee is applicable only to modifications to a SEPA determination for one single family dwelling on an individual parcel. All other modifications to a SEPA determination are subject to the $269 fee. (10) $2,154 fee plus a deposit, equal to the estimated cost of contract services necessary to complete the EIS process, must be submitted to the city. (11) Temporary Use Permits 0-30 days .............................$108 31-90 days.............................$269 Extensions beyond 90 days ......$162 (12) Application requires public hearings. If multiple permit applications which require the same hearing procedure are submitted at the same time, the applicant will be charged the full fee for the permit application with the highest fee and 50% of the established fee for each of the other permits eligible for a consolidated review and hearing. (13) The $539 fee is applicable to amendments to Single Family j Residential zones only. Amendments to all other zoning districts or sections of the zoning code are subject to the $1,616 fee. (14) a) The $27 fee is applicable for Minor Single Family Dwelling Construction on an existing dwelling such as a deck, minor addition of less than 25% of existing floor area, interior i i ' remodel or accessory building of 500 square feet or less on the same lot as the existing dwelling. b) The $54 fee is applicable for Major Single Family Dwelling Construction on an existing dwelling such as major addition of more than 25% of existing floor area or an accessory building of more than 500 square feet on the same lot as the existing dwelling. jc) All new single family dwelling construction in a residential zone is subject to the following fee schedule: Development Services Construction Value Fee $75,000-$124,999 ........................... $108 ' $125,000 - $224,999 ....................... $215 Over $225,000 ................................ $323 d) All new buildings, tenant improvements, an accessory living quarters in a commercial or industrial zone and other construction and development activity, other than single family dwelling construction, is subject to the following fee schedule: Development Services Construction Value Fee $0 - $99,999 ...................................$359 $100,000-$249,999 .........................$718 $250,000 - $499,999 .......................$1,077 $500,000 - $999,999 .......................$1,436 $1,000,000 - $4,999,999 .................. $2,154 $5,000,000 - $10,000,000 ................ $2,872 Over $10,000,000. ..........................$3,590 e) The zoning permit fee for those development projects for which no building permit is required but which requires site plan review and a zoning permit, shall be based on the value of the proposed development to be undertaken. The value of the proposed construction/ development shall be determined based on professional estimates by a licensed engineer, architect, landscape designer or contractor. These estimates 1 may include, but are not limited to, grade and fill of the site, paving, placement of utilities, lighting, landscaping, and other site improvements. The combined total of the cost estimates t t for all development on the site shall be the established value basis for the zoning permit fee [as listed in 14c or 14d categories above as appropriate]. (15) Application requires a public hearing before the Hearings Examiner. If multiple permit applications which require a HE decision are submitted at the same time, the applicant will be charged the full fee for the permit application with the highest fee and 50% of the established fee for each of the other permits eligible for a consolidated review and hearing. (16) Application fees may be reduced by 75% if the application is for a mixed-use building. Fee reduction applies to site plan review/zoning permit, mixed use design review, multi-family design review and downtown design review Fee waivers do not apply to SEPA, short plat, subdivision or other permit requests associated with the development of a site, nor does fee reduction apply to mixed use development where the commercial and residential uses are not located within the same building (17) Plat alteration fees are determined after review whether the changes requested are minor or major. A minor change is done administrative and the fee is 0.27 the cost of the original preliminary plat fee. A major change requires a public hearing or meeting and the fee is 0.54 the cost of the original preliminary plat fee. A public notice board is required for a major alteration. (18) The maximum fee shall be $539. i (19) These funds are distributed to the King County Assessor's Office by the City. (20) A fee deferral lien may be used in association with building permits and water permits associated with single family residential homes built for resale. Any fee deferral shall include drainage system development fee, water system development fee, traffic mitigation , payments and school impact fees. P \Civil\Resolution\DeferralOfFeesResolution docx , r r KEN r ECONOMIC & COMMUNITY DEVELOPMENT COMMITTEE MINUTES April 12, 2010 Committee Members Chair Jamie Perry, Elizabeth Albertson, Deborah Ranniger Chair Perry called the meeting to order at 5:00 p.m. 1. APPROVAL OF MINUTES Albertson MOVED and Ranniger SECONDED to approve the March 8, 2010 Minutes. Motion PASSED 3-0. 2. Panther Lake Annexation Zoning Comprehensive Plan Land Use & Zoning Maps fAZ-2009-11 Hearing Long-Range Planner William D Osborne stated that staff anticipates going before City Council in May to adopt zoning prior to the effective date of annexation on July 1st. Osborne discussed urban separators, the Land Use and Planning Board's (LUPB) recommendation and consideration of citizen proposals. Osborne stated that the City of Kent's Growth Management Act Comprehensive Plan and regulations must be consistent with the Countywide Planning Policies (CPP) of King County. He stated that Kent and other King County cities that comprise 70% of the population ratify the CPPs which include Urban Separator Policies and the map designating those urban separators. King County will begin the process of revisiting urban separators in 2014 at which time the City will have opportunity to consider them. 1 Osborne stated that the LUPB adopted staff's Alternative 2 that provided Kent Comprehensive Plan Land Use Designations consistent with existing King County Zoning and then suggesting Kent Zoning that could best fit those designations. One change between Alternative 1 and 2 is that the balance of the former Panther Lake Elementary School site located on the corner of 208th and the Benson Rd would be designated as Community Commercial, Mixed Use (CC-MU). Osborne stated that Kent is proposing to apply Mobile Home Park (MHP) designations for a number of Mobile Home Park areas in the County that carry Single Family (SF) or Multifamily (MF) Designations. Osborne characterized each of the following citizen proposals defining them as. the Ruth Proposal, the Holmberg/Morford Proposal, the Beckwith Proposal, and the O'Brien Proposal. Osborne stated that staff has further considered their original Neighborhood Convenience r Commercial (NCC) zoning recommendation for the Ruth Proposal which addressed the County's scale of development and included an option to consider Community Commercial, Mixed-Use Zoning, as King County encourages a mix of uses both in their commercial Comprehensive Plan Land Use Map and Zoning District Map designations. Osborne stated that the property associated with the Herman Proposal is currently designated R-4 in the County with staff not recommending any changes from the LUPB's recommendation (of SF-4 5/SR-4.5). Osborne stated that the Leever Proposal considers an area adjacent to an existing urban separator The City is looking at urban separators as a countywide planning policy issue and recommends addressing this proposal at some future time Staff supports the LUPB's original recommendation. Osborne stated that the Bowditch proposal is an applaudable planning goal which encourages increasing land use intensity particularly in proximity to transit. He stated that were staff to move forward on this proposal, approximately 650 to 700 parcels would need notification to move forward with this proposal as written The actual development of multifamily projects requires a significantly larger amount of area than a one parcel depth and staff is reluctant to define exactly where in any given neighborhood adjacent to existing or planned arterials where that line would be drawn There is no certainty that this proposal would realistically encourage development of multifamily Osborne asked the Committee to clarify if they felt it would be desirable for staff to move forward on this for further analysis. Osborne submitted for the record: 1) a letter dated April 12, 2010 from Stephen Bowditch to ' clarify the geographic extent of his proposal, 2) An email dated April 8, 2010 from Mike Rountree in support of the Ruth Proposal, 3) An email dated April 10, 2010 from Marcia Prater in support of the Ruth Proposal, (4) An email dated April 12, 2010 Indicating opposition to the Bowditch proposal, (5) one email in opposition to the Herman Proposal, and (6) one letter via email and hard copy from William and Candi McKay indicating their opposition to the O'Brien proposal. Osborne assured Perry that the Committee would be provided copies of those submittals. With regard to the Ruth proposal, Osborne spoke about an option to apply a Community Commercial/Mixed Use character which encourages more pedestrian orientation with relaxed parking standards for the commercial at the southeast corner of southeast 192nd Street and 108th Avenue. This designation allows for more flexibility Ranniger MOVED and Albertson SECONDED a Motion to Open the Public Hearing. Motion PASSED 3-0. Perry declared the Public Hearing open. William Prater, PO Box 1804, Bellevue, WA 98009 submitted a letter for the record in support of the Ruth Proposal asking for consideration to include their lot as part of the Ruth proposal He stated that he would like additional zoning options applied to his property, as he prepares to sell his home Mike Rountree, 10847 SE 192nd St., Renton, WA spoke in support of the Ruth proposal requesting his property be included in the Ruth proposal to give him more flexibility and options to market his property as multi-use. Larry Armstrong, 19637 116th Avenue SE, Kent, WA spoke in opposition to the O'Brien proposal as it would destroy Panther Lake and the surrounding habitat. Gary Johnson, 19645 116th Avenue SE, Renton, WA spoke in opposition to the O'Brien proposal. He stated that Panther Lake needs protection to survive. William McKay, 19821 116t Avenue SE, Kent, WA spoke in opposition to the O'Brien ' proposal. He stated that the lake area is an ignored and neglected resource with sensitive areas, wetlands and wildlife habitat which needs to be protected and preserved by maintaining the area as a greenbelt and urban separator. Jon Ruth, 19400 108th Avenue SE, Renton, WA upon receiving clarification from Osborne on , the zoning classifications for his property, Ruth stated that he supports staff's option for the Ruth proposal and would encourage staff to consider including the Rountree and Prater property as part of the Ruth proposal. Mark Duncan, 221 South 281h Street, Tacoma, WA questioned the permitting process for property located in the Panther Lake Annexation area. Perry deferred to Satterstrom to address his permitting concerns. Cham Farkas 11011 SE 192nd Street, Kent, WA asked staff to define the boundaries of the Ruth proposal, stating that she would like her one-third acre parcel to be included in the Ruth proposal Osborne stated that the Farkas property is currently zoned (R-12) 12 units per acre in the County, and that commercial designations for the Farkas parcel had not been analyzed to this point in time Osborne stated that inclusion of the Farkas parcel in the Ruth Proposal would require further staff consideration and another public hearing Staff and the LUPB's recommendation are to adopt (MRG) Multifamily Residential Garden Density 16 units per acre zoning which allows apartments for that property. ECDC Minutes April 12, 2010 Page 2 of 6 Christian Etheridge, 21642 148t1' Avenue SE, Kent, WA stated that he owns the Side Track Pub and Eatery at 108th and 208th. He stated that he legally carries a license for tabletop card gaming under King County statutes He stated that he has carried this license for two years, building up his business through holding Texas Hold-um tournaments. Etheridge ' voiced his concern that with the annexation, he would no longer be able to hold this license which has become very important to his business. Perry stated that legislation has allowed house-banked card games within the annexation area Perry further stated that Etheridge's establishment is not house-banked, so therefore, he would not be allowed to continue with his license. She stated that there is no venue to allow grandfathering of the license, as the Revised Code of Washington (RCW) has not given Kent the ability to do that. Dan Barrett, 11436 SE 208th Street, Kent. WA stated that at one time the Board of the Pantera Lago Homeowners Association and a board member from the Association of Manufactured Homeowners (a statewide organization) advocated for the interests of 72,000 Washington residents who own manufactured and mobile homes Barrett stated that he and his colleagues from the Pantera Homeowners Association support Alternative One (1) as it pertains to mobile home parks within the annexation area. Barrett stated that staff's narrative omits a 15 unit mobile home park at 11320 SE 208th Street, encircled by Pantera Lago Estates, known as East Hill Estates with a different owner Barrett suggested adding East Hill Estates to the narrative under Alternative 1 in order to avoid any question arising from its omission. Jim Dolan, 11214 SE 196th Street, Renton, WA spoke in opposition to the Ruth and O'Brien proposals. He stated that the O'Brien proposal would create the potential for higher densities that would exacerbate flooding and drainage issues. The Ruth proposal would increase traffic volume and create access issues to the Ruth property. Parking would become problematic 011ie Burton, 11007 SE 196th Street, Renton, WA stated that the City needs to take measures to correct drainage and maintenance issues with respect to a drainage ditch (tile) that runs from 196th Street to the Benson Highway. Burton stated that although he is not opposed to new residential development, no further development should occur within the vicinity of Panther Lake until the drastic drainage problem is fixed Mr Burton submitted a letter for the record dated April 12, 2010 opposing zoning changes in the Panther Lake Drainage Basin and a copy of an 1893 deed showing Panther Lake and the drainage ditch Valerie Matiniussi, 11220 SE 204th Street, Kent, WA stated that Panther Lake is a 10,000 year old glacier made lake with a natural shoreline that needs protection. Development could turn the lake into a toxic waste health hazard from the pouring of pollutants and storm water runoff into the lake. She alluded to her opposition to the O'Brien proposal Robert Matinjussi, 11220 SE 204th Street, Kent, WA on behalf of himself and his wife Valerie spoke against the O'Brien proposal He stated that the lake needs protected and it has a lot to offer the community Matinjussi voiced concern that too much development will result in increased pollutants and contaminants and destroy natural habitat. He asked that the zoning for Lake Johe should remain R-1. Paul Morford. PO Box 6345, Kent, WA stated that he has no vested interest in the property defined as the Holmberg/Morford proposal He stated that he had read and submitted for the record a letter written by Shupe Holmberg with Holmberg and Baima Engineering on behalf of his neighbor proposing zoning that his neighbor desired for his property Morford I stated that he would recommend MR-G zoning for this property which would be greater than or equal to the zoning that King County currently allows and would comply with the GMA. Osborne stated that staff recommends that the LUPB recommendation stand Ken Nelson, 11441 SE 196th Street, Kent. WA spoke on behalf of his wife Carol and himself in opposition to the O'Brien proposal, stating that the R-1 or the City's equivalent zoning ECDC Minutes April 12, 2010 Page 3 of 6 should stand out of respect for the topography of Panther Lake, a large drainage basin. Nelson submitted three pictures for the record with the view from two of those pictures facing south and one facing north from his property. Camille O'Brien, 19619 116`h Avenue SE, Renton, WA stated that her proposal requests that both sides of 1161h be zoned SR-6 for consistency O'Brien stated that she enjoys the lake, the habitat and wetland area. She stated that if zoning were to change to SR-6 there are factors in place to protect the lake, citing the Critical Areas Ordinance, the Shoreline Management Act, and setback requirements. O'Brien stated that she would be fine with a , SR-1 zone as long as there is consistency. She stated that she would be fine with SR-1 as long as there is consistency. Ranniger MOVED and Albertson SECONDED a Motion to Close the Public Hearing. j Motion Passed 3-0. Perry stated that a motion is in order for submittal of some exhibits. Whereupon, Albertson MOVED to enter into the record Mr. 011ie Burton's two page letter protesting the proposed Panther Lake drainage basin properties and an original plat map from July 3, 1893; and entered into the record three (3) photographs submitted by Mr. Ken Nelson taken on or around 11441 SE 196th Street residence. Motion PASSED 3-0. After deliberating, Ranniger MOVED to adopt the Comprehensive Plan Land Use Map and Zoning Districts Map Designations per the recommendation of the Land Use and Planning Board's Alternative Two with the following amendments and changes: Adopting the Ruth Proposal with a CC-MU zoning, adopting the Holmberg/Morford (Toshi) proposal for Low-Density Multifamily (MR-G) zoning, adopting the Leever Proposal for Single Family Residential/One Dwelling Unit Per Acre (SR-1) zoning, and adopting corresponding Comprehensive Plan Land Use Map Designations of; Mixed Use (MU) for the Ruth Proposal, Low Density Multifamily (LDMF) for the Holmberg/Morford Proposal, and Urban Separator (US) for the Leever Proposal. Albertson SECONDED the MOTION. Motion PASSED 3-0. 3. Capital Facilities Element Comprehensive Plan Amendment Transportation i fCPA-2009-1(A)1 Planning Manager Charlene Anderson stated that this is a housekeeping amendment to the Capital Facilities Element of the Comprehensive Plan to update the inventory of roads and bridges and to reference the 2008 Transportation Master Plan. Albertson MOVED to recommend to the Full Council approval of an amendment to the Capital Facilities Element of the Kent Comprehensive Plan related to inventories of streets and bridges and reference to the 2008 Transportation Master Plan as recommended by the Land Use & Planning Board. Ranniger SECONDED the Motion. Motion PASSED 3-0. 4. Countywide Planning Policies, Amendments, Allocation of Regional Services and Facilities, and Growth Targets ' Anderson stated that amendments to the Countywide Planning Policies come before the City Council periodically and have been approved by the Growth Management Planning Committee (GMPC) and King County (KC). The current motions approved by the GMPC adopts a work program and schedule to address a policy framework for allocation of regional services and facilities and update existing policies and Table LU-1 in the Countywide Planning Policies to provide the most current housing and employment targets for the period of 2006-2031. ECDC Minutes April 12, 2010 Page 4 of 6 Ranniger MOVED to recommend to the full Council ratification of amendments to the Countywide Planning Policies approved under Growth Management Planning Council (GMPC) Motions No. 09-1 and 09-2 adopting a work plan and schedule to address the policy framework for allocation of regional services and facilities and updating existing policies and Table LU-1 to provide for housing and employment targets for the period 2006-2031. Albertson SECONDED the MOTION. Motion PASSED 3-0. 5. Deferral of Certain Development Fees rSCA-2009-21 Principal Planner Matt Gilbert stated that a discussion before the Economic and Community Development Committee in January considered the challenges facing developers In these difficult economic times and contemplated potential solutions the city might enact to address some of those challenges and lessen the financial impacts to builders and home- buyers Gilbert stated that it has been Kent's practice to collect mitigation fees early in the development process requiring a major outflow of cash for the builder. Gilbert stated that staff is recommending deferring those mitigation fees in order to lessen financial Impacts related to a range of impacts that include, water system development, storm system development, traffic system and school impact fees. Gilbert stated that mitigation fees can be tracked. Gilbert stated that water connection fees are fees for service, and Parks and Sidewalk mitigation fees require payment prior to the subdivision of land, therefore those fees are not included in the fee deferral recommendation. Gilbert stated that staff recommends deferring fees for Single Family homes. The fees for a typical single family home are about $20,000 with about $15,000 used for mitigation payments with the remainder used for plan review fees, inspection fees, and administrative costs Gilbert stated that deferring the mitigation payments until the sale of those homes would not impact the general fund that pays for staff time to provide the review and inspection services Gilbert stated that staff is proposing if a builder wishes to defer fees that the builder authorize the City to record a lien against their property for the amount of fees owed that would be paid upon sale of the home through an escrow process whereby any liens would be cleared and the city would be paid. Gilbert stated that the City's legal department is drafting language to clarify this procedure and to incorporate language that would require builders to notify buyers through the normal disclosure process that those fees would be paid before title is transferred Gilbert stated that in establishing a new fee collection system staff is considering the costs associated with lien recordation and staff time with an estimated cost to the city of $140 for each lien or approximately 1.5 hours of staff time plus recording fees, and that this fee amount may need to be revised if more time is ultimately needed to create and track each lien. Perry stated that the ECDC will hold a public hearing on this issue in May. Garrett Huffman, Master Builders Association, Bellevue, WA clarified that the deferred fees are not added to the cost of a home, concurred with staff that the builder needs to disclose this information to the homebuyer and stated that the builder is obligated to pay those fees not the homeowner If the builder goes bankrupt, the lien remains on the title which would have to be cleared out of escrow. Hans Korve, DMP Encineerino, 726 Auburn Way N, Auburn, WA stated that this proposal will impact those folks he represents with projects still out there. He spoke in favor of staff's proposal suggesting that staff consider bundling sidewalk and park fees with the other fees 1 as discussed so that only one payment needs to be made. ECDC Minutes April 12, 2010 Page 5 of 6 Albertson MOVED to direct staff to prepare development related fee deferrals for consideration in a public hearing before the ECDC. Ranniger SECONDED the Motion. Motion PASSED 3-0. 6. Economic Development Report Economic & Community Development Director Ben Wolters stated that the economy is slowly making a positive turn. He stated that the City has received a proposal from Exotic Metals, an aerospace manufacturer in Kent. He stated that they have purchased a building next door to their existing facility as part of a plan for expansion that would add 100 new employees. Wolters stated that improvements to the building won't trigger the threshold of half the appraised value that would trigger additional flood plain regulations. Wolters stated that staff is working with them to expedite their permitting and answer any other questions. , Wolters stated that he believes this is part of a larger national and regional picture citing that in March the manufacturing index grew to 59 6%, an increase of 3.1 percent compared to February. An index of 50% or higher indicates growth and when that index drops below 50% the industry is contracting. Wolters stated that although manufacturing is picking up across the board it is not necessarily an indicator of new employment. Within the manufacturing industry, existing staff are being worked hard to meet new order requirements leading to signs of pending burnout which will break the industry and necessitate hiring additional staff. Wolters stated that staff and development partners Heinz Mortensen and L & N Architects conducted a site tour on April 20d with four representatives from the General Service Administration (GSA) and the Federal Aviation Administration (FAA). He stated that the GSA and FAA were impressed with staff's proposal Wolters stated that the GSA and FAA will rank the sites they have toured; inform the market place of their ranking in order for those markets to determine if they wish to remain in the competition based on their ranking. Wolters stated that the City received 40 new residential permit submittals in March, the largest number submittals for homes in over 3 years. Informational Only 7. Downtown Zoning Discussion Planning Director Fred Satterstrom stated that the Downtown Commercial Enterprise (DCE) ' zone is the downtown urban centers dominant commercial zone The DCE zone (created in the 90s) allows intense urban style development with few restrictions. Development standards allow virtually 100% site coverage with no height limitations and reduced parking standards. Satterstrom stated that since development standards were less restrictive the city implemented a design review process to control the aesthetic environment. Uses in the DCE zone include a broad range of retail uses, offices, personal services, multifamily such as condominiums, apartments, senior housing and retirement homes Perry directed staff to prepare a report for the next Committee meeting on DCE zoning as well as the design review standards and process Perry stated that it is time to reevaluate the DCE zone for relevancy with Ranniger suggesting allowing Mixed-Use in the NCC zone. Informational Only Adiournment Perry Adjourned the Meeting at 8.05 p m Pamela Mottram Economic & Community Development Committee Secretary P\Planning\ECDC\2010\Minutes\06-12-10_Min doc ECDC Minutes April 12, 2010 Page 6 of 6 1 KENT WPSHINGTO' ECONOMIC & COMMUNITY DEVELOPMENT COMMITTEE MINUTES May 10, 2010 Committee Members Chair Jamie Perry, Elizabeth Albertson, Deborah Ranniger Chair Perry called the meeting to order at 5.00 p.m. 1. APPROVAL OF MINUTES Ranniger MOVED and Perry SECONDED to approve the April 12, 2010 Minutes. Motion PASSED 3-0. Passed with pending concurrence 2. Deferral of Development Fees—Hearing Mayor Cooke addressed the Committee regarding the issue of deferring fees as in the context of the current economy and its impacts on development. As a result of the depression in the housing market, the cost of improvements required with new homes and the cost of money for developers, the idea of deferring costs is a trend that is happening all across the county and in King County. Deferring part of the fees the developer pays up front until the residence is purchased, allows money to be leveraged to pay for the City's fees This came clear as a path we wanted to offer to help our housing base, residents and 1 our economic status. Matt Gilbert presented to the Committee and summarized an ordinance to implement fee deferrals as discussed at the April 12 meeting Mr Gilbert noted that we are addressing I development mitigation fees collected at the time a single family building permit is issued Fee deferrals are limited to new single family homes intended for sale The fees which are available for deferral are development mitigation payments, which do not impact the City's general fund. These payments include drainage system development charges, water system development charges, school impact, and traffic mitigation fees. Under staff's recommendation, these fees would be bundled into a lien, at the owners discretion could be filed by the City against the property, to be paid at the time the home is sold This lien will come up in the escrow process and will need to be paid through the closing of the sale. Water permits will also be part of this and are a separate fee; these are also required to be bundled in with deferred building permit fees if the lien option is exercised. The disclosure issue that came up at the April 12th meeting is covered under the State of Washington and other encumbrances on property and under the ordinance, the City will require this notice process be used as well, so no one is surprised. Mr Gilbert noted that when the lien is released there is a recording fee which is not included in the $140 fee called out in the motion. To account for the additional County recording cost, this fee amount should be stated in the motion as $202. Additionally the lien administration fee will need to be added to the City's fee schedule. Councilmember Albertson questioned how we ensure that the lien is not paid by the purchaser. She clarified that the ordinance does not require the builder/seller to pay off the lien at time of escrow. Council Chair Perry stated it is in Section 4 and the seller is responsible Is the lien with the builder or on the property? It is on the property, responded Gilbert. That is what makes me uncomfortable stated Councilmember Albertson. Councilmember Albertson states, anything that is a hold on the title is on the table and that is my issue with the way this is written. Council Chair Perry asked why the water fee is included. Gilbert responded that there are two charges to be paid when a water permit is issued, tap charge and system development fee The tap fee is being paid the same as today. System development fee goes into the water fund to pay for larger projects and is just different name for impact fee. Councilmember Albertson asked Kim Adam-Pratt from the City Law Department, who is responsible to pay. It doesn't say the seller must pay it just says it is required to be paid Pratt responded we can specify who has to pay it, at this time we are just requiring it to be paid. It will come up as a lien on the title and it has to be cleared before the deed is exchanged, this will be addressed during the escrow process. The buyer will be able to see it on their escrow statement. Councilmember Ranniger MOVED and Councilmember Albertson SECONDED to a open the Public Hearing. Motion PASSED 3-0. Council Chair Perry opened the Public Hearing. Fred High, Assistant Superintendent, Kent School District, 12033 SE 256th, Kent, WA. Would like to Join the Federal Way School District, who sent by email a letter to join Kent School District in asking the school impact fees be exempt from this ordinance. Garret Huffman, Master Builders Association King and Snohomish Counties Stated for the record he is in full support of the ordinance. Several of the neighboring cities, such as Federal Way, Covington, Burien and Renton are all moving forward with this issue Gerald E. Schneider, Schneider Homes, 6510 S. Center Blvd. Has a big development that will be happening in the Kent city limits and the impact fee will be devastating to pay up front The thing about impact is there is no impact till the home is occupied The average time for construction and buyers to move in are 10-12 months The impact fees would be a real burden on Schneider Homes I came in to say to defer the impact fees till the closing. Paul Lymberis, Sr. Development Manager Quadrant Homes, PO Box 130, Bellevue, WA. Would like to echo everything the last two gentlemen said. We would like to get into the Kent market area By deferring the payment to a later time always helps the bottom line. Hans Korve, 726 Auburn Way N., Auburn, WA. With all due respect to the school district and their concerns, a child doesn't show up when the building permit is issued or picked up it is when they move into the district. When a building permit is picked up, it also doesn't show up as what type of student it is, elementary, Jr. or High School student. Councilmember Perry asked of Fred High, how do you build a school? Only with a ' demonstrated need in the area, stated Fred High, Assistant Superintendent, Kent School District. We can't sell bonds without raising tax rates on the residents of the City of Kent. Impact fees will become the reliable sources to house or take care of the temporary impact from new growth. Councilmember Ranniger asked Matt Gilbert is it correct we pay the impact fees on quarterly bases, not monthly? Yes, I checked with Finance and that is our procedure. Could we consider adjusting how frequently the City pays out the fees to solve the short fall Councilmember Ranniger asked? We could raise that question with Finance, Gilbert responded. Gilbert wanted to make sure staff understands the administration fee of $202 and ask that Council comes back at a later date to make sure the fee is covering all costs. Council Chair Perry agreed. Councilmember Albertson wanted to know what happens when builders go bankrupt, where does that leave the city in respect to the lien? Kim Adams-Pratt from legal stated we will ECDC Minutes May 10, 2010 Page 2 of 4 I ' want to make sure we are in first position, and if a foreclosure happens our lien will not be wiped out. Council Chair Perry asked is it feasible to pay the school district monthly? Yes was stated by Bob Nachlinger Finance Director Albertson MOVED and Ranniger SECONDED a Motion to close the public hearing ' and add to the next Council meeting as Other Business. Motion PASSED 2-1. Councilmember Ranniger moved to Approve amendments to Kent City Code title seven and title twelve, related to timing of development mitigation fee collection as recommended by staff. Additionally, direct staff to prepare and update of Kent City Council Resolution 1740 to include a $202 payable prior to recordation of each fee deferral lien. Council Chair Perry 2"d. Passed 2-1, goes to other business. 3. Adoption and Amendment of 2009 Building and Fire Codes Bob Hutchinson, City Building Official stated this updated occurs every 3 years. The purpose before committee is the 2009 addition on the State Building Code The State Building Code Council has adopted and will be in effect state wide on July 1st This ordinance does not contain provisions that allow fire sprinklers in residential homes. Fire Marshall, Jon Napier touched on wanting to add all of the appendices into the body of the code to make it easier for people to find and read Along with asking for ability to make changes to fire alarm and sprinkler systems so they don't send false alarms. It's noted a clarification of the budget change which is being corrected to reflect $15,000 of revenue due to 3 new permit types, we will be adding commercial kitchens, emergency stand-by power supply, which is due to existing fire hazards in commercial kitchens. Unique to Kent is the hazard of idle pallet storage. Staff will be requiring a setback of a minimum of 10 feet with a possible maximum of 20 feet. Councilmember Albertson moved to recommend Council enact ordinances adopting the 2009 editions of the International Building, Residential, Mechanical and Fire Codes and the Uniform Plumbing Code, and the 2009 Washington State Energy Code, together with the City's local amendments to those codes as depicted in Exhibits A and B, Councilmember Ranniger 2nd, Motion passed 3-0 I4. Panther Lake Annexation Interlocal Agreement with King County Planning Director Fred Satterstrom stated this item is not ready to bring to the committee at this time Staff will bring back to committee next month if sufficient progress has been made with King County. 5, Panther Lake Annexation Special Census Calm River Consultant Services Agreement Planning Director Fred Satterstrom explained that the city has to do a census of the population with in the first 30 days following the effective date of the Panther Lake Annexation This is a large population of approximately 24,000 to 25,000 people and the state has allowed us to start 2 weeks early Staff interviewed two companies and Calm River was chosen. They have done annexation population census for Auburn and Burien The ' agreement is for $122,000 with a contingency for every unit over 8250 it is $12.50 per unit. Sufficient monies are already in the Council approved annexation budget. I Councilmember Ranniger moved to authorize the Mayor to sign a contract with Calm River, not to exceed $122,217, to provide census services to the City of Kent for the Panther Lake Annexation area special census as required by the State of ECDC Minutes May 10, 2010 Page 3 of 4 Washington Office of Financial Management. Councilmember Albertson 2nd, Motion passed 3-0 6. Economic Develooment Report - Information Only No Report was given Adiournment Council Chair Perry Adjourned the Meeting at 6:20 p.m. , Julie Pulliam Economic & Community Development Committee Secretary P\Planning\ECDC\2010\Minutes\05-10-10_Mm doc r ECDC Minutes May 10, 2010 Page 4 of 4 I ■ KENT .+. ..F,i N G T O ECONOMIC & COMMUNITY DEVELOPMENT COMMITTEE SPECIAL PUBLIC MEETING MINUTES May 25, 2010 Committee Members Committee Chair Jamie Perry, Elizabeth Albertson, Dennis Higgins Committee Chair Perry called the meeting to order at 1.10 p.m. 1) PURPOSE OF THE MEETING To gather information on school impact fees should they be included in the Fee Deferral ordinance legislation before the Council. 2) STATEMENTS FROM INTERESTED PARTIES ' Assistant Superintendent, Kent School District, Fred High, Spoke in opposition to inclusion of the school district impact fee being included in the fee deferral ordinance. The first school impact fee started for the Kent School District in 1993 with King County, following in 1 1994 with Kent. Kent area is ranked second or third in highest school taxes. The reason is Kent has a lot of wealth but even more kids. So when it's look at, the assets valuation per child, it is well below the state average Renton is about twice Kent's rate per student. When we need to raise a dollar per child, that cost to voters is that much more, and it doesn't matter if it is for construction or operations. Taxes on our community are extremely important to us. That is one of the prime drivers behind the impact fee program We had huge growth between the 80's and 90's voters were not going to vote for anymore bond issues, when they looked at all the development coming to Kent. Residents started questioning, why they should have to pay for all the development hitting the schools at the same time The impact fee help the school district mitigate the construction costs. Not that it was ever intended impact fees would pay entirely for construction costs, and it doesn't. At best it pays for about twenty-three or twenty-four percent The school district made a couple promise when the initial process was set up The Growth Management Act (GMA) allows collection for impact fees at the time plats come in King County's program has half at plat and half at time of permitting. Kent School District agreed from the start that collecting the entire fee at permitting was a much more appropriate process The collection of fees at permitting was a good match in terms of when the relationship of housing hit the school district and their ability to plan for it, along with being fair to the development community. Second the Kent School District made a commitment to keep the impact fees reasonable The Consumer Price Index (CPI) has not been exceeded. Kent School District is the only one who discounts the fee at the end, based on the CPI. This fee deferral discussion started a few years ago to basically pass fees on from the developer cost to the buyer cost That is where we are at today. This is not a new argument it is Just a new circumstance in terms of the economic situation. Beginning in 1993 the Kent School District has submitted a Capital Facilities Plan (CFP) each ' year to the City of Kent The CFP details out what the district expect in growth, how the district is going to spend the monies, and the impact of how many students are derived from housing. It is pretty precise; but the district's ability to plan for the future is not precise The overall projections are good, but school by school and month to month are much more difficult The obligation is to serve kids the day they show up. There is not a lot of empty space in the schools, especially in the elementary level. There is room in the ' middle schools and they are no longer part of the impact fee program. High Schools are not in the middle. Every new school that has been built in Kent has been built with adding an extra twenty percent The addition to the schools is where impact fees are used to make up the difference. Impact fees are only used for expansions or portables. The districts preference is to stay away from portables. At times it is the only method to take care of short term expansions when a facility can't be built. Due to state regulation schools are the most expensive structures to can build. This is because of all the safety standards, prevailing wages, and State requirements. The districts standard is to build schools which will last for a fifty year period. The point is, the funds need to be committed either by bond issue, state match, or impact fees before committing to build or provide portable classrooms. These are the only sources of revenue we have plus the interest earning on all three The timeline to apply for portables is March 1st with the city to get the permits, portables i ordered, and set up for the beginning of the school year. Most of the impact fees are assessed in the spring, which is usually the beginning of the construction time. This is one rational the school district is giving for keeping the fee at the time of permitting; this allows the portables construction to be done by September Councilmember Higgins asked if it is documented any where showing most of the single family resident permits are applied for in the spring. Economic & Community Development Director, Ben Wolters confirmed it is in general that most of the permits come in the spring Impact fees collected by the City of Kent are transferred to the Kent School District on a month by month basis. Kent School Districts primary concern with deferring the fee. 1) It is closer to the Growth Management Act, in relationship to when the impact occurs and our ability to plan 2) The deferral of fees will make them less reliable. • Councilmember Albertson point of clarification; it is the school district money, the City of Kent just does the collecting 3) It will require higher property taxes or fewer facilities being built. The school district r has authorization to sell 31 Million dollars worth of bonds right now from 2006. • Council President Perry made note to the fact that the statement of building fewer schools or raising property taxes would suggest a piece of money being taken away not just deferred. Mr High's stated at the point when a new facility is needed, if the money is not there the district has no other choice then to raise taxes or not build a facility. The other part is the interest earnings the district , earns day to day on the monies Councilmember Higgins wanted to know if it would only mean a lag time till the following school year. Mr. High stated it would create a lag time, so the dollar amount lost would be in the interest. Reality Specialist, Sam Pace spoke in favor of the fee deferral and stated as it stands now the buyer pays the cost of the interest. The buyer pays for everything including the interest , and the impact fee. If the impact fee is assessed at plat the effect on a house is four times the amount of the fee, if it assessed at building permit twice the amount of the fee If the market turns, there will not be many builders around in Kent along with the jobs they create. Lag time is important because the supply will not match the demand created by job growth. If the builders don't continue to build in advance of the economic recovery, the demand happening here will be more imbalanced in the supply and demand when the market does recover The result will be home prices will be higher >� Mr High stated the school district does suspect the residential development may come faster than the assessed valuation growth and there may be some lag of time there Worst case scenario for the school district is to go to double shifts in specific areas of problems or ask for a concurrence provision, which allows the district through the City of Kent's authority to curtail development is certain areas until schools are available ECDC Minutes May 10, 2010 Page 2of5 The lien process is going to make it more difficult and more expense to manage the lien property. As situations come up there will be legal challenges. The district is concerned with home owners being confused. A lien is something that should be taken care of long before buying property With as high as taxes are in Kent, the school district is concerned this will push new home buyers over the edge so they will not be will to support public issues in the future, feeling they fulfilled their obligation when they paid off ' the lien. Councilmember Albertson inquired if the Kent School District is grand fathered into their ' bonds at a higher amount. If one failed would they would have to go back to a lower amount. Kent is not a grand fathered district Kent is at the lowest level that King County or this area's ability to raise levy. Master Builders Association of King and Snohomish Counties, Garret Huffman, Spoke in opposition to fee deferral and is unaware of anything that clarifies when the fee should be collected This issue is about the economic development and if fees are delayed it is more likely banks will loan monies, because they do not have to account for the soft cost dollars up front At no point was this ever about the school districts, now this ordinance is about schools School impact fees should be included, it is Five Thousand dollars less the builders 1 don't have to account for when approaching the bank, making a total package around Fifteen Thousand dollars. Master Builders Association Attorney, Duana Kolouskova is here for any questions anyone may have. Most important thing on a legal perspective, there has been success reviewing the legal considerations that go into deferring an impact fee. From a legal point of view the operative affect of a lien when it is looking at deferring or moving the point of collection from building permit to close is the same The City of Sammamish is a great example that is ready to work, they have a system in place that does work, and are collecting fees in this manner. This is not a meeting to purpose to change the fee amount or create a situation of if you will get it or not The GMA clearly leaves it to the Cities and the School Districts to decide to collect fees at all, and how that is going to work out; it is a give and take process where ultimately the district get the fee. The GMA leaves it to the Cities on how that collection is going to happen and what is fair. The home buyer should know what they are paying for. The critical thing is the reason this is being looked at is the builders can't get the loans to pay for the fees, so Council is being asked to help builders build the home to begin with so fees can be collected. tMr. Pace stated the lien should say something like; a lien for money owed to the City due at closing. As the City you have the right to say if impact fee will be collected, what the ' amount will be, for each district and they do not have to be the same, and when they will be collected. As well as the City's own fees. None of it will be over on the buyer's side. ' The Councils understanding is the disclosure language is to let the buyer know the lien was to be paid by the seller. The language is for the buyer and not required The builders will sign the lien for money owed to the city at close of the sale. These liens will only apply to new construction of single family home and only to permits applied for prior to December 31, 2013. Does the notice serve any legitimate purpose for the City to collect. City Attorney, Tom ' Brubaker noted so long as the lien document is drafted and recorded in a way that clearly establishes it as part of the sellers cost at closing, the disclosure is not as necessary to the buyer. It will show on the Title Reports. Council President Perry suggested the disclosure language be taken out to clear up confusion. ECDC Minutes May 10, 2010 Page 3 of 5 Mr. Wolters stated the critical question to be answered was number one, how does staff insure the City gets paid and number two; there is clear policy direction by the part of Mayor and City Council that payment occur on the part of the seller. Work has been done with the attorney's office, MBA, the City of Sammamish who is already perfected this method. To insure this staff is requiring when the lien is filed there are instructions to the escrow agent that will dictate the lien will be paid by the seller It is clear. The question has been asked, what the lien is. The lien is constructed for the entire amount of the impact, it , does not distinguish between school and city, and it is a total amount that is due upon sale. That amount is the total of all the impact fees that have been deferred both City and School. There will be no itemization. When a builder comes to the City, the City will require ' that lien be in the first position. 3) FOLLOW UP OUESTIONS FROM COUNCIL OF INTERESTED PARTIES AND What are the specific impacts that will be looked at over the next two and a half years? Auburn, Renton, Covington, Kent and King County all have impact fees with the Kent School District. • The Kent School District said it discounts it fee, does the district know what the ' difference you are collecting and what you can legally adopt? It is listed in the Kent School Districts 2010 CFP, for single family residents the developers obligation would be $10,033 the district has discounted it $4,639 right now the district collects a fee of $5,394. The school district has the right to ask for $10,033 impact fee and the City has the right to approve it or not • Would MBA object to increasing the fee? The district would collect more money and the builders would be less affected? Before this can happen, the district has to do its , own assessments, estimates, and it has its own formula so there is not an ability here to change. First of all the school district must approach the City with what they want, then they have to justify it Does the School District spend all the impact fees every year? No, there is an account with impact fees in it. • When are school impact fees used? When expanding facilities to accommodate growth that is the only thing impact fees can be used for • Over the last ten years there has been an increase from 1998 — 2000 of about 946 kids district wide, the projection through 2014 is 1883 kids. Where is the growth area, since Kent is eight-five percent built out? By the information the City, County and other jurisdiction have provided of platting, also by using the growth yield statistics that the district does on existing development over the past 5 years the district can forecast what would be yielded from that. • Does the district have capacity till 2014? To do that each school would need to be looked at How many portables are at non elementary schools? 103 total in the district. They are not instantly movable because the cost to move them is ' approximately $50,000. Operational funds are needed to move a portable. Impact fees cannot be used to move a portable. • How many districts have approved Fee Deferral? Three districts, Olympia, Redmond, , and Kitsap County. • Would deferring two-thirds of the fees help the builders to get loans? No, banks won't loan on fees • What is the amount of interest dollars which would be lost to the school district for ' fee deferral? The actual number would have to be provided by the school district. On average about $27,500 a year, estimated for the last 8 years. I ECDC Minutes May 10, 2010 Page 4 of 5 1 1 4) UPDATED ORDINANCE LANGUAGE TO CLARIFY INTENT — City City Attorney, Tom Brubaker will look at the disclosure paragraph again and determine if it is necessary. Staff will review to make sure costs come out of sellers closing costs. Language does not say specifically lien amount will be paid by seller Legal will look at that It can be put in the ordinance and also the lien If this can be assured by the lien document without having to put it in the ordinance, by having to disclose to the buyer then it is not needed. Adiournment Council Chair Perry Adjourned the Meeting at 3:30 p.m. Julie Pulliam Economic & Community Development Committee >� Secretary P\Planning\ECDC\201D\Minutes\05-25-10_Min doc 1 1 1 1 1 1 1 1 1 1 ECDC Minutes 1 May 10, 2010 Page 5 of 5 1 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 i F. PUBLIC SAFETY COMMITTEE ' G. PUBLIC WORKS COMMITTEE H. ADMINISTRATION ' REPORTS FROM SPECIAL COMMITTEES 1 1 KENT W45HINGTON OPERATIONS COMMITTEE MINUTES APRIL 20, 2010 Committee Members Present: Debbie Raplee, Jamie Perry, Dennis Higgins. Perry filled in for Thomas as Committee Chair. The meeting was called to order by Perry at 4:00 p.m. 1 1. APPROVAL OF MINUTES DATED APRIL 16, 2010 ' Raplee moved to approve the minutes of the April 16, 2010 Operations Committee meeting as amended with the correction of Tim Higgins to read Dennis Higgins. Higgins seconded the motion, which passed 3-0. 1 2. I MOVE TO RECOMMEND TO CITY COUNCIL TO ENTER INTO A CONTRACT WITH KING COUNTY FOR ANIMAL CONTROL SERVIES FOR THE TIME PERIOD ' OF JULY 11 2010 TO DECEMBER 31, 2012. King County has terminated its animal control contract with Kent and other king County cities effective June 30, 2010. King County has provided Kent with a new 2 1/2 year contract that continues animal control services beginning July 15t. Kent staff has been participating on various committees to research options for animal control. The research has centered around continuing a contract with King County, creating a sub-regional model or managing animal control on our own. Because of limited or no alternative sheltering option in South King County, it is difficult to develop a sub-regional option Staff will review the options and provide a recommendation to the Operations Committee Higgins moved to recommend that city council move the contract for king county for ' animal control services for the time period of July 1, 2010 to December 31, 2012 to Other Business on the May 4 Council agenda. Raplee seconded the motion, which passed 3-0. ' The following people spoke on behalf of retaining the Senior Lunch Program at the Senior Activity Center. ' Ken Carlson, 21035 101't Ave SE, 253-854-3607 Jim Vandenberg, 206-730-2075 Terry Rottkamp, 1401 West Meeker, 253-736-3698 Barb Laurie, 23233 109th PI SE, Justbjl@msn.com, 253-854-0379 Mary Lou Oslau, 10816 SE 2351h St, 253-632-7652 Wild Bill Lindow, 11904 SE 223rd Dr, wildbl@earthlink.net, 253-631-2793 ' Orvil Dealy, 25104 119th Ct SE, odealy@msn.com, 253-631-6315 The meal program is contracted through Consolidated Food Jeff Watling explained in the ' contract there is an 80 meal minimum The current average is 60-70 Better promotion was discussed and Lea Bishop mentioned there used to be a banner up but did not meet sign ordinance criteria and was removed. Operations Committee Minutes ' April 20 2010 Page: 2 4. MARCH BUDGET SUMMARY - INFORMATION Bob Nachlinger supplied a comparison of revenues and expenditures for first quarter 2009 and 2010 He reported a better first quarter this year than last. ' The meeting adjourned at 4:45 p.m. by Perry. Pamela Clark , Operations Committee Secretary ' Page 1 City of Kent • Parks and Human Services Committee Meeting KENT Minutes of April 15, 2010 ' Council Committee Members Present: Chair Debbie Ranniger, Elizabeth Albertson and Dennis Higgins Debbie Ranniger called the meeting to order at 5:03 p.m. ' 1. Minutes of March 18, 2010 - Approve Elizabeth Albertson moved to approve the minutes of March 18, 2010. Dennis Higgins seconded. The motion passed 3-0. ' 2. King County Grant Agreement for Safe Havens Services — Accept Katherin Johnson, Manager of Housing and Human Services shared that Safe t Havens has a group working for them called "Friends of Safe Havens." They are trying to raise funds to bridge the gap in funding, as well as locating a non-profit organization to operate the facility. There is only enough money to ' get through the end of April. This county grant will not be spent until May, unless bridge funding is received. Jeff complimented the "Friends of Safe Havens" for their commitment in trying to locate funding to fill the gap for this year, as well as their efforts in looking for a fiscal sponsor that will allow Safe Havens to begin applying for tother human services funding through other municipalities. Katherin acknowledged supporters who are volunteering many hours to ' locate funding. She explained the impact of closing the facility on the clients, as well as staff who've been a part of the facility for the past five years. Katherin stated that, in order to keep it open until the end of 2010, $100,000 ' is needed. If $50,000 is located by the end of April, the center can operate until the other $50,000 is donated. A fiscal agent working for the group has been applying to as many cities as possible for funding. Dennis Higgins moved to recommend accepting the King County Domestic Violence Grant of $10,000.00 to fund Safe Havens services, and approving the expenditure of funds in the Safe Havens budget. Elizabeth Albertson seconded. The motion passed 3-0. 3. 4Culture Grant Contract for Fourth of July Splash - Authorize Ronda Billerbeck explained that 4Culture awarded the Kent Arts Commission $6,500.00 to preserve arts Jobs through a competitive grant process. The funding comes through 4Culture from the National Endowment for the Arts distribution of American Recovery and Reinvestment Act funds. The money will allow professional performers to be restored at the Kent's Fourth of July ' Splash festival at Lake Meridian Park in 2010. 1 Page 2 t Elizabeth Albertson moved to recommend accepting the $6,500.00 grant from 4Culture to restore professional performances at the 2010" Fourth of , July Splash," and authorizing the . The motion passed 3-0. 4. Kent Station Sponsorship Agreement for 2010 Summer Concert Performance - Authorize Ronda Billerbeck reported that Kent Station will sponsor the city's Take-Out Tuesday concerts in 2010. The $6,000.00 will cover artistic fees and offset , other expenses associated with producing the concerts. Dennis Higgins moved to recommend accepting the $6,000.00 sponsorship , from Kent Station to partially fund summer concert performances, and authorizing the expenditure of funds in the Arts Commission budget. Elizabeth Albertson seconded. The motion passed 3-0. 5. Park and Open Space Plan - Adout The plan 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. It 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 plan includes the four core themes previously discussed: Kent's Legacy, Athletic Fields, Green Kent and Connectivity, and will be used to direct future development, acquisition and renovation of parks and open spaces. Since reviewing the draft plan with the Committee in January, it has been before the Land Use and Planning Board on January 11, 2010 for workshop and on March 8, 2010 for a public ' hearing. The Land Use and Planning Board voted to recommend approval of the Park and Open Space Plan. Jeff added that maps have been completed and incorporated into the plan, broken down into three categories: Parks and Facilities, Implementation of Short and Long Term Implementation, and a Connectivity Map relating to ' trails, biking and paths. In addition, the Parks & Open Space Element and the Capital Facilities Element of the Comprehensive Plan has been updated 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. Elizabeth Albertson moved to recommend adopting the proposed ordinance which adopts the Park and Open Space Plan and amends the Park and Open Space Element and Capital Facilities Element of the Comprehensive Plan. Dennis Higgins seconded. The motion passed 3-0. 6. Resource Center Building - Informational ' Jeff explained that, as part of the 2010 Budget, all programs and staff from the Resource Center were recommend to be consolidated to Kent Commons. Office space was completed and will move at the end of the month. The 2 ' Page 3 Iprogram space modifications will be completed in early May. Scheduling will continue at the Resource Center until the programming space is completed. ' The city now has the opportunity to explore short and long-term options for what to do with the Resource Center. Jeff introduced options to consider: either selling the property, or leasing the building. The committee's initial ' response was to lease the building and not sell because of the poor real estate market. Jeff will proceed with the process to lease the building for a short-term solution until a long-term decision can be made in the future. 7. First Quarter Reports - Informational Jeff Watling, Director of Parks, Recreation and Community Services, highlighted some services from the first quarter of 2010. Kent Commons, Facilities staff and Resource Center staff have transitioned into the consolidation at Kent Commons very smoothly. Facilities has done an incredible job of renovating the office and program space. ' Human Services regional affiliates partnered with eGov Alliance, a county- wide group, to have the application process completely on line now. The applicants can conveniently submit one application to multiple funding agencies. It also helps staff to review applications and create reports. The Youth/Teen Community Center at Phoenix Academy continues to be very popular, with 1,300 visits during the first quarter of 2010. The RFP for the restaurant at Riverbend Golf Complex closed on April 12, with seven proposals submitted. Five firms will be interviewed next week. Staff will bring the contract to Council in May. Rocco's Salsa Dogs continues to provide food temporarily at the golf course. ' Approximately $27,000 was received in cash and in-kind contributions for the first quarter of 2010. The majority of donations went to the Cultural and Recreation Division. These numbers are a testament of the loyalty of our participants. S. 2010 Budget - Informational Jeff asked the Committee for any specific questions he can have ready in preparation for the budget workshop that night. Dennis Higgins asked about the temporary transfer of the 50/c sales tax revenue from CIP to the General Fund. He asked what projects would be impacted. Jeff responded that the impact would be with lifecycle projects within facilities capital projects. Jeff Iwill get details of what projects would be deferred. Elizabeth asked to discuss the elimination of the subsidy to the lunch ' program at the Senior Center. Jeff responded that, as part of the contract with Consolidated Food Management, Inc., the lunch program is a fee-based program with a per-day minimum and they have been approached to adjust the daily minimum. It was also announced that Panera Bread will no longer 3 Page 4 , be catering lunches on Wednesdays at the Senior Center because they can't lower their prices any further to help with the subsidy. Staff is pursuing an arrangement with Los Agaves, a local Mexican Restaurant for lunches and will continue to pursue additional local restaurants for lunch partnerships. 9. Director's Report ' Cheryl dos Remedios, Visual Arts Coordinator, announced that that Mill Creek Canyon Earthworks Park is one of 15 Puget Sound landmarks selected to compete for $1,000,000 in preservation funding through the American j Express Foundation and National Trust for Historic Preservation. This is a community participation donation. We get $5,000.00 for playing and could get as much as $125,000 for the park. You can vote every day on the following site until May 121 First you must be registered. Then, go to: www.VoteEarthworks.com. Cheryl demonstrated how to vote and how to invite friends on Facebook to vote. The Earth Day event will be held Thursday, April 22 at the park from 7:00 to 8:30 p.m. with artwork viewing, music, and dance. On Saturday, April 24 is , the Earth Day clean up event. The meeting adjourned at 6:00 p.m. Respectfully submitted, Twi petoaee I Teri Petrole Council Committee Secretary i t 1 4 1 ' PUBLIC WORKS COMMITTEE MINUTES Monday, May 3, 2010 1 COMMITTEE MEMBERS PRESENT: Committee Chair Debbie Raplee and committee members Ron Harmon and Dennis Higgins were present. The meeting was called to order at 4:01 p m. 1 ITEM 1 — Approval of Minutes Dated April 19, 2010: Committee Member Higgins moved to approve the minutes of April 19, 2010. The motion was seconded by Harmon and passed 3-0. ITEM 2 — Watertree Place/Release of Easement: Development Engineering Manager, Mike Gillespie explained that a slope easement was recorded in 1989 concurrently with a deed for relocating a portion of 641h Avenue South. With the recording of the plat of Watertree place in 2008 the slope easement was been determined by City engineers to be unnecessary. ' Harmon moved to authorize the Mayor to execute the attached release of slope easement. The motion was seconded by Higgins and passed 3-0. ' ITEM 3 — 104th Ave SE & SE 272nd St. Sanitary Sewer System Latecomer Agreement: Mike Gillespie, Development Engineering Manager explained that the developer requested to be reimbursed for constructing a sanitary sewer lift station and for the construction of a sanitary sewer conveyance line that serves the area. The developer is required by state law to make the ' improvements The two sanitary sewer improvements were constructed to service the plats of Benchmark and Medallion as well as the surrounding areas. The cost is pro-rated and will be reimbursed at the time of connection, over a 20 year period. Gillespie noted that this is a very common practice and is a benefit to the City. Higgins moved to recommend Council accept the Latecomer Agreement and its referenced documents for a sanitary sewer conveyance line and a sanitary sewer lift station that were installed for the plats of Benchmark and Medallion of Kent, upon approval of final terms and conditions acceptable to the City Attorney and the Public Works Director. The motion was seconded by Harmon and passed 3-0. ITEM 4 - East Hill Operations Center Utilities Consultant Agreement with Jason Engineering & Consulting Business, Inc.: City Engineer, Chad Bieren explained that Engineering designed the on and off-site underground utilities for the proposed East Hill Operations Center. The construction of this project will involve materials testing and soils engineering/inspection that is beyond the expertise of City staff and it is in the best interest of the City to enter into this agreement. Harmon moved to propose that the Mayor sign a consultant contract between the City and Jason Engineering and Consulting Business, Inc., in the amount of $81,030.00 for ' the purpose of providing materials testing and inspection services related to the East Hill Operations Center Phase II On-Site Utilities Project with concurrence of the language there in by the City Attorney and the Public Works Director. The motion was seconded by Higgins and passed 3-0. ITEM 5 — Transportation Master Plan Phase 2 Amendment No. 3 with Fehr & Peers, Inc.: Tim LaPorte, Public Works Director explained why we are using the current consultants. Cathy Mooney, Senior Transportation Planner introduced Don Samdahl and Randy Young. She noted that Council had asked staff to prepare updated funding analyses to help inform the Council ' about overall Transportation Funding recommendations and specifically to help focus a decision i ' PUBLIC WORKS COMMITTEE MINUTES ' Monday, May 3, 2010 regarding railroad grade separation projects which are largely dependent upon current and future grant awards. Mooney noted that the consultants will review and re-work financial forecasts associated with Transportation Funding analysis and recommendations to the City for funding the Transportation Master Plan capital projects, including railroad grade separations. They will need to update out of date material. Higgins moved to recommend authorization for the Mayor to sign Amendment No. 3 to the Consultant Services Agreement between the City of Kent and Fehr and Peers, Inc. in the amount of $8,000 for analyzing funding options for transportation capital projects. The motion was seconded by Harmon and passed 3-0. Item 6 —Information Transportation Master Plan Funding: ' Public Works Director Tim LaPorte explained that based on past years and various briefings this item is being brought back to committee and will be presented to the full council at the May 4, Workshop due to the grade separation agreement ' Don Samdahl, Randy Young and Tim LaPorte, presented an informative PowerPoint presentation that highlighted the following. Transportation Master Plan (TMP): The big picture ' Grade Separation Projects: Current Funding from all sources TMP: Funding from existing sources Grade Separation Project Costs vs. TMP. Funding from existing sources Potential Kent funding sources (updated for annexation) LaPorte offered to draft a letter to the Freight Mobility Strategic Improvement Board, based on the direction given him at the May 4, Council Workshop. Information Only/No Motion Adiourned• The meeting was adjourned at 5:39 p.m. Cheryl Viseth Public Works Secretary r 1 CONTINUED COMMUNICATIONS 1 A. 1 1 1 1 I 1 1 i 1 1 1 1 1 1 ' EXECUTIVE SESSION ' ACTION AFTER EXECUTIVE SESSION 1