HomeMy WebLinkAboutCity Council Meeting - Council - Agenda - 06/01/2010 CITY OF KENT
CityCouncil Meeting
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June 1 , 2010
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Mayor Suzette Cooke
�s Jamie Perry, Council President
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Councilmembers
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Elizabeth Albertson
Ron Harmon
Dennis Higgins
r Deborah Ranniger
Debbie Raplee
KENT
WASHINGTON
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Les Thomas CITY CLERK
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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
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I COUNCIL WORKSHOP AGENDA
5:30 p.m.
Item Description Speaker Time
1. Panther Lake Annexation Planning Division Director 40 minutes
Interlocal Agreement Satterstrom
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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
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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.
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COUNCIL WORKSHOP
1) PANTHER LAKE ANNEXATION INTERLOCAL AGREEMENT
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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
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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
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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
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'♦' 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.
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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
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Cable Franchise Agreement Authorized
with Goldfinch Communications, LLC
PASSED: day of , 2010.
APPROVED: day of , 2010.
PUBLISHED: day of , 2010.
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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.
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(SEAL)
BRENDA JACOBER, CITY CLERK
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P\0v6\0rd i na nce\Goldfinch-Authon zeF ranch iseAg reement docx
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Cable Franchise Agreement Authorized
with Goldfinch Communications, LLC
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EXHIBIT A
Goldfinch Communications, L.L.C. Cable Franchise Agreement
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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
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"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,
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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,
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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.
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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
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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.
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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
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FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010)
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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
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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
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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
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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
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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
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FRANCHISE AGREEMENT BETWEEN CITY OF KENT (May 26,2010)
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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.
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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
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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
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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,
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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)
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Brenda Jacober, CMC
City Clerk
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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.
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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
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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,
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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
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Passport Customer Agreement Page 13 of 17
City of Kent
July 1 , 2010 - June 30, 2011
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ATTACHMENT 3
ELIGIBLE BUSINESS CARDHOLDERS
Definition and Number of Eligible Participants
Definition of All benefit-eligible employees
Eligible Participants
Number of 350
Eligible Participants
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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
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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:
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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
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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
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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
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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
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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.
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ECDC Minutes
May 10, 2010
Page 4 of 5
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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
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ECDC Minutes
1 May 10, 2010
Page 5 of 5
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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
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F. PUBLIC SAFETY COMMITTEE
' G. PUBLIC WORKS COMMITTEE
H. ADMINISTRATION
' REPORTS FROM SPECIAL COMMITTEES
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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.
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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
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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
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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
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' 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
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' EXECUTIVE SESSION
' ACTION AFTER EXECUTIVE SESSION
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