HomeMy WebLinkAboutCity Council Committees - Public Works/Planning - 02/22/2010 (3)Public Works Committee Agenda
Councilmembers: Ron Harmon♦Dennis Higgins♦Debbie Raplee, Chair
Unless otherwise noted, the Public Works Committee meets at 4:00 p.m. on the 1st & 3rd Mondays of each
month. Council Chambers East, Kent City Hall, 220 4th Avenue South, Kent, 98032-5895.
For information please contact Public Works Administration (253) 856-5500.
Any person requiring a disability accommodation should contact the City Clerk’s Office at
(253) 856-5725 in advance.
For TDD relay service call the Washington Telecommunications Relay Service at 1-800-833-6388.
February 22, 2010
4:00 p.m.
NOTICE OF
SPECIAL MEETING
Item Description Action Speaker Time Page
1. Approval of Minutes Dated February 1, 2010 YES None 03 1
2. Information Only/Transit Issues NO Cathy Mooney /
Ed Miller
10 5
3. Clark Lake Estates-Request from Clark Lake
Estates Homeowners Association
YES Tim LaPorte /
Mike Gillespie
15 7
4. Addendum to Cambridge Tower Site Lease
with Valley Communications
YES Tim LaPorte 05 11
5. LLC Telecommunications License w/Goldfinch
Communications
YES Tim LaPorte 05 17
6. Contract w/Cascade Columbia Distribution for
Supply of Water Treatment Chemical
YES Brad Lake 05 77
7. Public Works Board Urban Vitality Grant for
James St. at UPRR Non-motorized
Improvements
YES Ken Langholz 05 95
8. Information Only/Contract w/The Frause
Group, Inc. for Natural Yard Care
Neighborhoods Program
NO Mike Mactutis 05 125
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PUBLIC WORKS COMMITTEE MINUTES
Monday, February 1, 2010
COMMITTEE MEMBERS PRESENT: Committee Chair Debbie Raplee and committee
members Ron Harmon and Dennis Higgins were present. The meeting was called to order
at 4:06 p.m.
Item 8 moved up and was heard as Item 5. The rest of the items followed in order.
ITEM 1 – Approval of Minutes Dated January 25, 2010:
Committee Member Harmon moved to approve the minutes of January 25, 2010.
The motion was seconded by Higgins and passed 3-0.
ITEM 2 – Contract w/Natural Systems Design for E. Fork Soosette Creek Channel
Improvements:
Toby Hallock, Environmental Engineer stated that the East Fork of Soosette Creek, which
is south of Lake Meridian, flows to the west under 144th Avenue SE. The creek floods over
144th Avenues SE during rain events, causing standing water on the road. The contract
will have Natural Systems Design investigate the site, prepare alternative drainage
solutions, and analyze a selected design to determine if creating a new channel will
improve creek flows.
Higgins moved to recommend Council authorize the Mayor to sign a Consultant
Services Contract with Natural Systems Design to evaluate channel
improvements on the East Fork of Soosette Creek in the amount of $34,310 upon
concurrence of the language therein by the Public Works Director and City
Attorney. The motion was seconded by Harmon and passed 3-0.
ITEM 3 – East Valley Highway (84th Ave. S.) Fund Authorization:
Chad Bieren, Engineering Supervisor stated that staff applied for and was awarded several
federal grants to construct the East Valley Highway Improvements Project (Local
Improvement District 362) between 2004 and 2009. A total of $3,870,145 was awarded
on three separate federal grant applications. The largest grant in the amount of
$2,000,000 was accepted last summer and design funds totaling $95,755 were accepted
in 2006. The remaining $1,815,564 is available and needs to be accepted by Council.
Harmon moved to recommend council accept Federal grant monies for
construction of the East Valley Highway Project in the amount of $1,815,564,
establish a budget for the funds, and authorize the Public Works Director to sign
all necessary documents. The motion was seconded by Higgins and passed 3-0.
ITEM 4 – Contract w/Tetra Tech for Lake Monitoring:
Matt Knox, Environmental Ecologist noted that Lake Fenwick is currently not meeting
water quality thresholds established by the Washington State Department of Ecology and
the Environmental Protection Agency for total phosphorus. Water quality is also a concern
at Lake Meridian, with the lake being listed on the 303d list (the national list of “impaired
waters”) for two parameters (fecal coliform and total phosphorus) and proposed for listing
for six others.
The City has enacted a number of measures to improve water quality at both lakes; in
order to assess progress in meeting standards, water quality and aquatic weed monitoring
needs to continue. This contract will meet these goals and help prioritize future lake
management decisions.
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PUBLIC WORKS COMMITTEE MINUTES
Monday, February 1, 2010
Higgins moved to recommend Council authorize the Mayor to sign a consultant
services agreement with Tetra Tech, Inc. in the amount of $47,144.50 to monitor
surface water quality conditions and aquatic weeds in Lake Fenwick and Lake
Meridian during 2010, upon concurrence of the language therein by the City
Attorney and the Public Works Director. The motion was seconded by Harmon
and passed 3-0.
ITEM 5 6 – WA State Department of Ecology Coordinated Prevention Grant
(CPG):
Gina Hungerford, Conservation Specialist explained that the Washington State Department
of Ecology CPG grant will be used to fund Residential and Commercial Waste Reduction
and Recycling Programs in 2010-2011. Tasks will include special recycling and collection
events (three) for residents and businesses and education for residents to participate in
the City’s expanded food scrap collection services to improve public recycling rates and
improve waste diversion. The City will receive $54,940 from the Washington State
Department of Ecology for 2010. Gina stated that the next recycling event will be held on
March 20, 2010 from 9:00 a.m. – 3:00 p.m. at Russell Road Park, 24400 Russell Road.
Harmon moved to recommend Council authorize the Mayor to sign the
Coordinated Prevention Grant Contract for $54,940 for 2010. The motion was
seconded by Higgins and passed 3-0.
ITEM 6 7 - King County Waste Reduction and Recycling Grant (WRR):
Gina Hungerford, Conservation Specialist explained that the King County WRR Grant funds
special recycling events for residents and businesses to collect hard-to-recycle materials,
purchase, distribute and promote products made from recycled materials. The City will
receive $162,980 over a two year period. No matching funds are required.
Higgins moved to recommend Council authorize the Mayor to accept the
$162,980 Waste Reduction and Recycling Grant for 2010/2011. The motion was
seconded by Harmon and passed 3–0.
Item 7 8 – Contract w/Olympic Environmental Resources for Waste Reduction
and Recycling Activities and Programs:
Gina Hungerford, Conservation Specialist explained that Olympic Environmental Resources
(OER) will assist with organizing and implementing the City of Kent’s Waste Reduction and
Recycling Programs. The Consultant Contract is funded entirely through various grants.
There is no budgetary impact.
Harmon moved to recommend Council authorize the Mayor to sign the Olympic
Environmental Resources Contract Agreement for Waste Reduction and Recycling
Activities and Programs for 2010 in the amount of $63,745, upon concurrence of
the language therein by the City Attorney and the Public Works Director. The
motion was seconded by Higgins and passed 3-0.
Item 8 5 – Information Only/Solid Waste Update:
Gina Hungerford, Conservation Coordinator, gave an informative PowerPoint Presentation
on all functions performed within the Solid Waste Utility. These functions include
customer service, code enforcement, education, inter-agency coordination, contract
administration, litter control and addressing illegally dumped materials throughout the
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PUBLIC WORKS COMMITTEE MINUTES
Monday, February 1, 2010
City. Following the presentation, Councilmember Higgins asked about staffing levels for
the solid waste utility. Councilmember Harmon asked if the solid waste utility is an
enterprise fund, which was confirmed by Tim LaPorte, Public Works Director.
No Motion Required/Information Only
Item 9 – Cancel Public Works Committee Meeting of February 15, 2010:
Tim LaPorte, Public Works Director asked that the Public Works Committee Meeting of
February 15, 2010 be cancelled due to the President’s Day Holiday.
There was no formal motion made. It was agreed that the meeting would be
cancelled due to the President’s Day Holiday.
Item 10 – Special Public Works Committee Meeting – Set Date:
Tim LaPorte, Public Works Director requested that there be a Special Public Works
Committee meeting to be held on Monday, February 22, 2010, at 4:00 p.m.
No formal motion was made. Committee members concurred with LaPorte that a
Special Public Works Committee meeting will be held on Monday, February 22,
2010 at 4:00 p.m.
Added Item:
There was a question from Committee about how the permit process works. Mike
Gillespie, Development Manager explained the process and answered questions from
committee members.
Adjourned:
The meeting was adjourned at 5:18 p.m.
Upcoming Meetings:
February 15, 2010 was cancelled due to the Presidents Day Holiday.
Special Meeting scheduled for February 22, 2010 at 4:00 p.m. in Chambers East
Cheryl Viseth,
Public Works Committee Secretary
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PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 16, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Cathy Mooney, Senior Transportation Planner
Through: Timothy J. LaPorte, P.E., Public Works Director
Subject: Transit Issues – Introduction of Kent Resident, Mr. Ed Miller
Summary:
Mr. Ed Miller lives on the East Hill and works for Starbucks Coffee Company at their
headquarters in the SODO district of Seattle. He is a Senior National Account
Executive in Strategic Business Development. He commutes by bus between Kent
and Seattle.
Mr. Miller has graciously volunteered his time over the last many years to represent
South County residents on the King County Transit Advisory Committee (TAC).
TAC members are appointed by the King County Executive and approved by the King
County Council. Appointments are for two years. The TAC meets monthly from 6 to
8:30 p.m. on the second Tuesday of each month to help Metro improve transit
services and programs.
He is coming before the Public Works Committee tonight to tell you a little bit about
the TAC and his experiences representing the concerns of riders from South King
County. He would also like to hear your thoughts on how he might be more
effective at representing the interests of Kent bus riders in the future.
Budget Impact:
None.
Motion:
No Motion Required/Information Only
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PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte, P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 17, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Timothy J. LaPorte, P.E., Public Works Director
Subject: Clark Lake Estates-Request from Clark Lake Estates Homeowners
Association
Summary:
Clark Lake Estates hereinafter referred to as Sub-division is a 33 lot Sub-division
constructed at the southeast corner of 240th Street and 120th Avenue just south of Clark
Lake Park. The developer was unable to complete the improvements to this sub-division,
and the City was forced to obtain the proceeds from the bond that was used to secure the
infrastructure improvements to complete the work.
Since a majority of the infrastructure improvements had been made to the Sub-division,
the City as a normal course of action estimated the amount of work that was necessary to
complete the infrastructure improvements and reduced the bond from $150,000 to
$50,000. The remaining work to be completed to the Sub-division should have taken only
months to complete, but due to the slow-down in the economy took years until the
developer was unable to complete the repairs and gave up the bond.
The City Public Works Department completed the remaining work including the asphalt
overlay in this neighborhood using the funds from the bond. Two items remain including
setting survey monuments and the repair of approximately 10 feet of cracked sidewalk at
one location. The survey monuments are to be installed by the Development Surveyor and
the cracked sidewalk section will be replaced by mid summer.
The Clark Lake Homeowners Association (HOA) has met with staff on several occasions.
The most recent meeting took place on January 27th and included 3 representatives of the
HOA as well as Assistant City Attorney Kathy Hardy, Utilities Engineer Dave Brock,
Development Engineering Manager Mike Gillespie and Public Works Director Tim LaPorte.
The HOA remains concerned about a number of items including no parking signage, parking
enforcement and eventual completion of the two temporary cul de sacs.
Staff including our Law Department concur that the best course of action is for Council to
adopt the work as complete and begin enforcement for parking issues.
Budget Impact: None.
Motion: Move to accept the Improvements to Clark Lake Estates as Complete
and cause the transfer of said infrastructure to the City, subject to terms and
conditions acceptable to the City Attorney and the Public Works Director.
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PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 2, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Timothy J. LaPorte, P.E., Public Works Director
Subject: Cambridge Tower Site Lease with Valley Communications
Addendum
Summary:
The Water Utility leases ground space to Valley Communications at the Cambridge
Site for a structure and tower for radio communications. The master lease was
amended to allow Valley Communications to sublease a small amount of space to
the Washington State Department of Transportation (“WSDOT”). The mayor
executed the addendum at the time Valley Com’s director executed. Since this
technically involves a property interest, ratification by the Council is required.
Budget Impact:
No budget impact.
Motion: Recommend ratification of the Mayor’s execution of an addendum
to Cambridge Tower Site Lease with Valley Communications, subject to
terms and conditions acceptable to the City Attorney and the Public Works
Director.
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PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 17, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Timothy J. LaPorte, P.E., Public Works Director
Subject: Goldfinch Communications, LLC Telecommunications License
Summary:
Goldfinch Communications, LLC (Licensee) has formally completed the application
process for a telecommunications license within Kent, WA. This license provides for
the ability to construct, install, maintain, repair and operate a Telecommunications
System providing telecommunications services using the public rights-of-Way
(ROW).
Details:
Goldfinch Communications, LLC has formally applied for and successfully completed
the City’s requirements for provisioning access to the public ROW through a
telecommunications (telecom) license. Furthermore, they have successfully
represented the legal, technical, and financial qualifications to provide the services
authorized through this license.
The Public Works Committee is asked to consider that based on representation and
information provided by the Licensee, and in response to its request for the grant of
a License, the City Council will determine that the grant of a nonexclusive License,
on the terms and conditions set forth in the associated license agreement (see
attachment) and subject to applicable law, are consistent with the public interest.
This is in full accordance with the Council’s right to authorize by applicable law the
granting of nonexclusive Licenses within the boundaries of the City.
“Telecommunications" is the transmission of information by wire, radio, optical
cable, electromagnetic, or other similar means. As used in this definition,
"information" means knowledge or intelligence represented by any form of writing,
signs, signals, pictures, sounds, or any other symbols.
Motion: Recommend Council authorize the Mayor to sign a non-exclusive License
Agreement with Goldfinch Communications, LLC for it to construct, install,
maintain, repair, and operate a telecommunications system using the City’s rights-
of-way as provided for in an agreement substantially similar to that presented to
the Committee, subject to terms and conditions acceptable to the City Attorney and
the Public Works Director.
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“Telecommunications System” means collectively the Facilities that together with
other facilities, appurtenances and equipment of Licensee or other Persons are used
or intended to be used by Licensee to provide a Telecommunications service or
services whether or not such service is provided to the public.
Budget Impact:
There is no impact to the 2010 budget or any related allocation for negotiations,
installation, or operations of this telecommunications system. All related costs will
be borne by the Licensee. Furthermore, the City has negotiated for and secured
reimbursement of outside legal fees required in finalizing the license contract.
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ISMS License Agmnt for Public Works Committee.doc 1
TELECOMMUNICATIONS LICENSE AGREEMENT
BY AND BETWEEN
THE CITY OF KENT AND
GOLDFINCH COMMUNICATIONS, LLC
THIS LICENSE AGREEMENT (“License”), is made by and between the CITY
OF KENT, a municipal corporation, operating under the laws of the State of Washington
as a non-charter code city, (hereinafter called the “City”), and Goldfinch
Communications, LLC a limited liability company (“LLC”), doing business in
Washington as (“Goldfinch Communications, LLC”) (hereafter called “Licensee”), and
collectively, the “Parties”;
WHEREAS the Public Rights-of-Way within the City belong to the public and are
built and maintained at public expense for the use of the general public, the primary
purpose of which is public travel, and must be managed and controlled consistent with
that intent, and
WHEREAS Licensee has made application to the City of Kent for a
telecommunications License to construct, install, maintain, repair and operate a
Telecommunications System to provide telecommunications using the Public Rights-of-
Way, and
WHEREAS, Licensee represents that it has the legal technical, and financial
qualifications to provide the services authorized herein, and
WHEREAS, based on representations and information provided by Licensee, and
in response to its request for the grant of a License, the City Council has determined that
the grant of a nonexclusive License, on the terms and conditions herein and subject to
applicable law, are consistent with the public interest; and
WHEREAS, the City is authorized by applicable law to grant nonexclusive Licenses
within the boundaries of the City;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
City and the Licensee hereby agree as follows:
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ISMS License Agmnt for Public Works Committee.doc 2
ARTICLE 1. DEFINITIONS
Except as provided at Section 3.7 herein (order of precedence), for the purposes of
this License and the Exhibits attached hereto, the following terms, phrases, words and their
derivations where capitalized shall have the meanings given herein. Words not defined
herein shall have the meaning given in the most current version of the City of Kent Design
and Construction Standards as adopted pursuant to KCC Ch. 6.02 (the “Construction
Standards). Words not defined herein or in the Construction Standards shall have the
meaning given pursuant to such federal statutes, rules, or regulations that apply to and
regulate the services provided by the Licensee. Words not otherwise defined, shall be given
their common and ordinary meaning. When not inconsistent with the context, words used in
the present tense include the future, words in the plural include the singular, and words in
the singular include the plural. The word “shall” is always mandatory and not merely
directory. References to governmental entities (whether persons or entities) refer to those
entities or their successors in authority. If specific provisions of law, regulation or rule
referred to herein be renumbered, then the reference shall be read to refer to the
renumbered provision.
“Affiliate” when used in connection with Licensee means any Person who owns or
controls, is owned or controlled by, or is under common ownership or control with Licensee.
“Breach” shall mean any failure of a Party to keep, observe, or perform any of its
duties or obligations under this License.
“Cable television service" means the one-way transmission to subscribers of
video programming and other programming service and subscriber interaction, if any,
that is required for the selection or use of the video programming or other programming
service.
“City” shall mean the City of Kent, a municipal corporation organized as a non-
charter code city, operating under the laws of the state of Washington.
“Construct” shall mean to construct, reconstruct, install, reinstall, align, realign,
locate, relocate, adjust, affix, attach, remove, or support.
“Corrective Action” shall mean a Party undertaking action as provided in this
License to perform a duty or obligation that the other Party is obligated to but has failed
to perform.
“Design Document(s)” shall mean the plans and specifications for the
Construction of the Facilities illustrating and describing the refinement of the design of
the Telecommunications System Facilities to be Constructed, establishing the scope,
relationship, forms, size and appearance of the Facilities by means of plans, sections and
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ISMS License Agmnt for Public Works Committee.doc 3
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 Licensee’s
contractors will rely in constructing the Telecommunications System Facilities.
“Direct Costs” shall mean and include all costs and expenses to the City directly
related to a particular activity or activities, including by way of example:
i. All costs and expenses of materials, equipment, supplies, utilities,
consumables, goods and other items used or incorporated in connection with and in
furtherance of such activity or activities and any taxes, insurance, and interest expenses
related thereto, including costs for crews and equipment;
ii. All costs and expenses of labor inclusive of payroll benefits, non-
productive time and overhead for each of the labor classifications of the employees
performing work for the activity and determined in accordance with the City’s ordinary
governmental accounting procedures; and,
iii. All costs and expenses to the city for any work by consultants or
contractors to the extent performing work for a particular activity or activities, including
by way of example and not limitation, engineering and legal services.
“Dispute” shall mean a question or controversy that arises between the Parties
concerning the observance, performance, interpretation or implementation of any of the
terms, provisions, or conditions contained in this License or the rights or obligations of
either Party under this License.
“Effective Date” shall mean and refer to that term as it is defined at Section 4.3
herein.
“Emergency” shall mean and refer to a sudden condition or set of circumstances
that, (a) significantly disrupts or interrupts the operation of Facilities in the Public Rights-
of-Way and Licensee’s ability to continue to provide services if immediate action is not
taken, or (b) presents an imminent threat of harm to persons or property if immediate
action is not taken.
"Environmental Law(s)" means any federal, state or local statute, regulation,
code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in
any way to the protection of human health or the environment, including without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Toxic Substances Control
Act, and any similar or comparable state or local law.
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ISMS License Agmnt for Public Works Committee.doc 4
“Facility” means any part or all of the facilities, equipment and appurtenances of
Licensee whether underground or overhead and located within the Public Right-of-Way
as part of the Licensee’s Telecommunications System, including but not limited to,
conduit, case, pipe, line, fiber, cabling, equipment, equipment cabinets and shelters,
vaults, generators, conductors, poles, carriers, drains, vents, guy wires, encasements,
sleeves, valves, wires, supports, foundations, towers, anchors, transmitters, receivers,
antennas, and signage.
"Hazardous Substance" means any hazardous, toxic, radioactive or infectious
substance, material or waste as defined, listed or regulated under any Environmental
Law, and any element, compound, mixture, solution, particle, or substance, which
presents danger or potential danger for damage or injury to health, welfare, or to the
environment, including, but not limited to: those substances which are inherently or
potentially radioactive, explosive, ignitable, corrosive, reactive, carcinogenic, or toxic;
those substances which have been recognized as dangerous or potentially dangerous to
health, welfare, or to the environment by any federal, municipal, state, City, or other
governmental or quasi-governmental authority, and/or any department or agency thereof;
those substances which use, or have its a component thereof or therein, asbestos or
lead-based paint; and petroleum oil and any of its fractions.
“Law(s)” shall mean all present and future applicable laws, ordinances, rules,
regulations, resolutions, Licenses, authorizations, environmental standards, orders,
decrees and requirements of all federal, state, City and municipal governments, the
departments, bureaus or commissions thereof, authorities, boards or officers, any national
or local board of fire underwriters, or any other body or bodies exercising similar
functions having or acquiring jurisdiction over all or any part of the Facilities, including
the City acting in its governmental capacity, or other requirements. References to Laws
shall be interpreted broadly to cover government actions, however nominated, and
include laws, ordinances and regulations now in force or hereinafter enacted or amended.
“Legal action” shall mean filing a lawsuit or invoking the right to Arbitration.
“License” shall mean the grant, once accepted, giving general permission to the
Licensee to enter into and upon the Public Rights-of-Way and to use and occupy the
same for the purposes authorized herein, all pursuant and subject to the terms and
conditions of the License.
“Licensee” shall mean ** and any of its Affiliates.
“License Area” shall mean collectively or individually the Public Rights-of-Way
described in attached Exhibit “A”.
“Party(ies)” shall mean either the City or the Licensee or both.
“Permit” means a permit issued under the regulatory authority of the City that
provides specific requirements and conditions for work to Construct any part of the
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ISMS License Agmnt for Public Works Committee.doc 5
Telecommunications System and includes by way of example and not limitation, a
construction permit, building permit, street cut permit, and clearing and grading permit.
“Person” means and includes any individual, corporation, partnership, association,
joint-stock-company, limited liability company, political subdivision, public corporation,
taxing districts, trust, or any other legal entity, but not the City or any Person under
contract with the City to perform work in the Public Rights-of-Way.
“Public Rights-of-Way” means the surface of, and the space above and below,
any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
way, lane, public way, drive, circle, pathways, spaces, conduits, manholes or other public
right-of-way, including, any easement now or hereafter held by the City within the
corporate boundaries of the City as now or hereafter constituted for the purpose of public
travel, and over which the City has authority to grant permits, licenses or franchises for
use thereof, or has regulatory authority thereover, excluding railroad rights-of-way,
airports, harbor areas, buildings, parks, poles, conduits, and excluding such similar
facilities or property owned, maintained or leased by the City in its governmental or
proprietary capacity or as an operator of a utility.
“Public Works Director” means and refers to the Public Works Director for the
City or his or her designee or such officer or person who has been assigned the duties of
public works director or his or her designee.
“Remedy”, “Remediate” and “Remedial Action” shall have the same meaning as
these are given under the Model Toxics Control Act (Chapter 70.105D RCW) and its
implementing regulations at Chapter 173-340 WAC.
“Service” shall mean the service or services authorized to be provided by the
Licensee under the terms and conditions of this License.
Telecommunications" is the transmission of information by wire, radio, optical
cable, electromagnetic, or other similar means. As used in this definition, "information"
means knowledge or intelligence represented by any form of writing, signs, signals,
pictures, sounds, or any other symbols.
“Telecommunications System” shall mean collectively the Facilities that together
with other facilities, appurtenances and equipment of Licensee or other Persons are used
or intended to be used by Licensee to provide a Telecommunications service or services
whether or not such service is provided to the public.
“Transfer” shall mean any transaction in which all or a portion of the
Telecommunications System is sold, leased or assigned (except a sale or transfer that
results in removal of a particular portion of the Telecommunications System from the
Public Rights-of-Way); or the rights and/or obligations held by the Licensee under the
License are transferred, sold, assigned, or leased, in whole or in part, directly or
indirectly, to another Person. A transfer of control of an operator shall not constitute a
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ISMS License Agmnt for Public Works Committee.doc 6
transfer as long as the same person continues to hold the License both before and after the
transfer of control.
“Work” shall mean any and all activities of the Licensee, or its officers, directors,
employees, agents, contractors, subcontractors, volunteers, invitees, or licensees, within
the Public Rights-of-Way to Construct the Facilities.
ARTICLE 2. LICENSE GRANT
2.1 Public Right-of-Way Use Authorized. Subject to the terms and conditions
of this License, the City hereby grants to Licensee a nonexclusive License authorizing the
Licensee to Construct and operate Facilities in, along, among, upon, across, above, over, and
under the Public Rights-of-Ways located within the License Area. Licensee shall
coordinate its work within the Public Rights-of-Way with the City’s Capital
Improvement Plans, Redevelopment Agency Plans, and Comprehensive Plan.
2.2 Authorized Services. The grant given herein expressly authorizes Licensee
to use the Public Rights-of-Way to Construct and operate a Telecommunications System
to provide telecommunications. This authorization is limited and is not intended nor shall it
be construed as granting Licensee or any other Person the right, duty or privilege to use its
Facilities or the Public Rights-of-Way to provide Services not specifically authorized
therein, including but not limited to Cable or video programming broadband services. This
License shall not be interpreted to prevent the City from lawfully imposing additional
conditions, including additional compensation conditions for use of the Public Rights-of-
Way, should Licensee provide Service other than Service specifically authorized herein.
2.3 No rights shall pass to Licensee by implication. No rights shall pass to the
Licensee by implication. Without limiting the foregoing and by way of example, this
License shall not include or be a substitute for:
2.3.1 Any other authorization required for the privilege of transacting and
carrying on a business within the City that may be lawfully required by the Laws of the
City;
2.3.2 Any agreement, Permit or authorization required by the City for
Public Rights-of-Way users in connection with operations on or in Public Rights-of-Way or
public property; or
2.3.3 Any licenses, leases, easements or other agreements for occupying
any other property or infrastructure of the City or other Persons to which access is not
specifically granted by this License including, without limitation, agreements for placing
devices on poles, light standards, in conduits, in vaults, in or on pipelines, or in or on other
structures, public parks, or public buildings.
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2.4 Interest in the Public Right-of-Way. This License does not convey title,
equitable or legal, in the Public Rights-of-Way. The City does not represent or guarantee
that its interest, or other right to control the use of such Public Right-of-Way, is sufficient
to grant its use for Licensee’s purposes. This License shall be deemed to grant no more
than those rights which the City may have the undisputed right and power to give. This
grant does not confer rights other than as expressly provided in this License and is subject to
the limitations in applicable Law. This right shall not be transferred, subdivided or
subleased to a person other than the Licensee.
Licensee acknowledges that, where City has an ownership interest in a License
Area, that ownership interest may be a determinable fee, a public right of way dedication,
or a right of way easement, which may terminate when City either: (i) ceases to use that
Public Right-of-Way for Public Right-of-Way purposes; or (ii) uses such Public Right-of-
Way for purposes found to be inconsistent with use of the Public Right-of-Way for Public
Right-of-Way purposes, and that in such circumstances, City’s right to License or grant
the use of any such public right-of-way, or rights under any License of any such Public
Right-of-Way, may be subject to termination as of the date the circumstances set forth in
either (i) or (ii) above, first arise (unless Licensee improves the quality of title to the
applicable License Area, or acquires additional property interests from other Persons).
Licensee also acknowledges that, where City has ownership rights, those
ownership rights may terminate for other reasons, such as a street vacation. Licensee
further acknowledges that Licensee’s rights under this License as to any License Area,
are subject and subordinate to all outstanding rights and encumbrances on City’s Public
Rights-of-Way (including City Utilities), and any easements, franchise agreements,
licenses, permits, grants or other agreements in effect on or before the Effective Date;
City therefore grants to Licensee no more right, title and interest in any Public Right-of-
Way than the City holds in such Public Rights-of-Way at the time of grant, and Licensee
hereby releases City from any and all liability, cost, loss, damage or expense in
connection with any claims that City lacked sufficient legal title or other authority to
convey the rights described herein. In case of eviction of Licensee or Licensee’s
contractors by anyone owning or claiming title to, or any interest in the License Area,
City shall not be liable to Licensee or Licensee’s Contractors for any costs, losses or
damages of any Party.
CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR
TO ANY LICENSE AREA NOR UNDERTAKE TO DEFEND LICENSEE IN THE
PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE.
2.5 Condition of License Area. Licensee has inspected or will inspect License
Area, and enters upon each such License Area with knowledge of its physical condition
and the danger inherent in operations conducted in, on or near any License Area.
LICENSEE ACCEPTS THE LICENSE AREA IN AN "AS-IS WITH ALL FAULTS"
BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS AND IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR
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IMPLIED, OF ANY KIND WHATSOEVER FROM THE CITY AS TO ANY
MATTERS CONCERNING THE LICENSE AREA, including, but not limited to the
physical condition of the License Area; zoning status; presence and location of existing
utilities; operating history; compliance by the License Area with Environmental Laws or
other Laws and other requirements applicable to the License Area; the presence of any
Hazardous Substances or wetlands, asbestos, or other environmental conditions in, on,
under, or in proximity to the License Area; the condition or existence of any of the above
ground or underground structures or improvements, including tanks and transformers in,
on or under the License Area; the condition of title to the License Area, and the leases,
easements, Licenses, orders, licensees, or other agreements, affecting the License Area
(collectively, the “Condition of the License Area”).
Licensee represents and warrants to the City that nether the Licensee nor its
contractors or subcontractors have relied and will not rely on, and the City is not liable
for or bound by, any warranties, guaranties, statements, representations or information
pertaining to the Condition of the License Area or relating thereto made or furnished by
the City, or any agent representing or purporting to represent the City, to whomever made
or given, directly or indirectly, orally or in writing. CITY HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO
THE DESIGN OR CONDITION OF THE LICENSE AREA, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE
QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE PUBLIC RIGHT-OF-
WAY, OR THE CONFORMITY OF ANY PART OF THE PUBLIC RIGHT-OF-WAY
TO ITS INTENDED USES. CITY SHALL NOT BE RESPONSIBLE TO LICENSEE
OR ANY OF LICENSEE’S CONTRACTORS FOR ANY DAMAGES RELATING TO
THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PART OF THE PUBLIC
RIGHT-OF-WAY PRESENT ON OR CONSTITUTING ANY LICENSE AREA, OR
THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES.
2.6 License Nonexclusive. This License shall be nonexclusive. Subject to the
terms and conditions herein, the City may at any time grant authorization to others to use the
Public Rights-of-Way for any lawful purpose.
2.7 Transfer. Licensee shall not Transfer this License without the prior
written consent of the Mayor given on behalf of the City. Any Transfer made in violation
of this requirement is voidable at the sole discretion of Mayor without further action by
the City Council or the consent of the Licensee or transferee.
Notwithstanding the foregoing, notice to the City shall not be required for a
mortgage, hypothecation or an assignment of Licensee’s interest in the License in order to
secure indebtedness.
Licensee may, without the prior written notice to the City: (i) lease the
Telecommunications System, or any portion thereof, to another Person; (ii) grant an
Indefeasible Right of User Interest in the Telecommunications System, or any portion
thereof, to another Person; or (iii) offer or provide capacity or bandwidth in its
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Telecommunications System to another Person; provided that, Licensee at all times
retains exclusive control over its Telecommunications System and remains responsible
for Constructing its Facilities pursuant to the terms and conditions of this License, and
provided further that, Licensee may grant no rights to any such Person that are greater
than any rights Licensee has pursuant to this License; such Persons shall not be construed
to be a third-Party beneficiary hereunder; and, no such Person may use the
Telecommunications System for any purpose not authorized herein.
2.8 Street Vacation. If any Public Right-of-Way or portion thereof used by
Licensee is to be vacated during the term of this License, unless as a condition of such
vacation the Licensee is granted the right to continue its Facilities in the vacated Public
Right-of-Way, Licensee shall, upon written demand being made by the City and within
the time period specified in the written notice, remove its Facilities from such Public
Right-of-Way, and restore, repair or reconstruct the Public Right-of-Way where such
removal has occurred, and place the Public Right-of-Way in such condition as may be
required by the City.
2.9 Railroad Rights of Way. In the event that any portion of the Facilities will
be Constructed in the Public Right of Way within 25 feet of the centerline of any railroad
track, Licensee shall be responsible for coordinating such Work with the owner/operator of
such railroad track to conform the Licensee Work to the design and construction standards
of the owner/operator to the extent Facilities will be installed above or below the track, and
shall be responsible for complying with those workplace safety requirements that would
apply to contractors performing work in the railroad right of way on behalf of the railroad
owner/operator. Licensee may also be required to obtain railroad protective liability
insurance naming the railroad owner/operator as an additional insured.
2.10. Reservation of City Use of Public Right-of-Way. Nothing in this License
shall prevent the City from constructing sanitary or storm sewers; grading, changing grade,
paving, repairing or altering any Public Right-of-Way; laying down, repairing or removing
water mains; or installing conduit or fiber optic cable.
ARTICLE 3. COMPLIANCE WITH LAWS/ORDER OF PRECEDENCE
3.1 Compliance with Laws. Except as provided herein pursuant to Section
3.3, the Licensee agrees to comply with all applicable Laws as now or hereafter in effect,
and any lawful orders from regulatory agencies or courts with jurisdiction over Licensee and
its Facilities, or over the City and the Public Rights-of-Way.
3.2 Police Powers. Licensee acknowledges that its rights hereunder are
subject to those powers expressly reserved by the City and further are subject to the
police powers of the City to adopt and enforce ordinances necessary to protect the health,
safety and welfare of the public. Licensee agrees to comply with all lawful and
applicable general ordinances now or hereafter enacted by the City pursuant to such
power. Such powers include but are not limited to, the right to adopt and enforce
applicable zoning, building, permitting and safety ordinances and regulations, the right to
adopt and enforce ordinances and regulations relating to equal employment opportunities,
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and the right to adopt and enforce ordinances and regulations governing work performed
in the Public Right-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 License
may not be unilaterally altered by the City through subsequent amendments to any
ordinance, regulation, resolution or other enactment of the City, except within the lawful
exercise of the City’s police power.
3.4 Reservation of Rights/Wavier. The City is vested with the power and right
to administer and enforce the requirements of this License and the regulations and
requirements of applicable Law, or to delegate that power and right, or any part thereof, to
the extent permitted under Law, to any agent in the sole discretion of the City. The City
expressly reserves all of its rights, authority and control arising from any relevant provisions
of federal, State or local Laws granting the City rights, authority or control over the Public
Rights-of-way or the activities of the Licensee. Nothing in this License Agreement shall
be deemed to waive the requirements of the various codes and ordinances of the City
regarding Licenses, fees to be paid or manner of Construction. Nothing in this License
shall be deemed to waive and Licensee specifically reserves the right to challenge any
City ordinance, regulation or resolution that conflicts with its rights under this License.
3.5 Subsequent Action. In the event that after this License becomes effective,
(a) there is a change in or clarification of the Law which changes, broadens or clarifies
the authority or obligations of the City or the Licensee with respect to any act permitted
or authorized under this License, or (b) the State of Washington or any agency thereof or
any agency of the Federal government require Licensee or the City to act in a manner
which is inconsistent with any provisions of this License, or (c) any term, article, section,
subsection, paragraph, provision, condition, clause, sentence, or other portion of this
License, or its application to any person or circumstance, shall be held to be illegal, invalid
or unconstitutional for any reason by any court or agency of competent jurisdiction, or (d)
because of a change in circumstances, the City or the Licensee believe that amendments
to this License are necessary or appropriate, then the City and the Licensee agree to enter
into good faith negotiations to amend this License so as to enable the City and Licensee
to address, in a manner reasonably acceptable to the City and Licensee, such change or
other development which formed the basis for the negotiations. The City and Licensee
recognize that the purpose of the negotiations would be to preserve, to the maximum
extent consistent with Law, the intent, scope and purpose of this License.
If the terms of this License are materially altered due to changes in or
clarifications governing Law or due to agency rule making or other action, then the
Parties shall negotiate in good faith to reconstitute this License in a way consistent with
then-applicable Law in a form that, to the maximum extent possible, is consistent with
the original scope, intent and purpose of the City and Licensee and preserves the benefits
bargained for by each Party.
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3.6 Change in Form of Government. Any change in the form of government
of the City shall not affect the validity of this License. Any governmental unit succeeding
the City shall, without the consent of Licensee, succeed to all of the rights and obligations
of the City provided in this License.
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 License, the provision, term, condition, or
requirement City Code or City ordinance shall control to the extent of such conflict.
3.7.2 In the event of a conflict between a provision, term, condition, or
requirement of the City Code or City ordinance enacted subsequent to the Effective Date
and a provision, term, condition, or requirement of this License, the provision, term,
condition, or requirement of the City Code or City ordinance shall control, to the extent of
the conflict, subject to Sections 3.3 and 3.4 of this License.
3.7.3 In the event of a conflict between a provision, term, condition, or
requirement of this License and a provision, term, condition, or requirement of an exhibit
incorporated herein, the License shall control, to the extent of the conflict.
ARTICLE 4. ACCEPTANCE
4.1 Acceptance. Within thirty (30) days after approval of this License by the
City Council, this License shall be accepted by Licensee by filing with the City Clerk during
regular business hours, or such other person as may be designated by the City, three
originals of this License with its original signed and notarized written acceptance of all of
the terms, provisions and conditions of this License in conformance with Exhibit “B”,
together with the following, if required herein:
4.1.1 Payment in readily available funds of the administrative costs for
issuance of the License in conformance with the requirements of Section 5.8 herein.
4.1.2 Submission of proof of financial security in accordance with
Section 5.4 herein.
4.1.3 Parental Guarantee, if required, in conformance with the
requirements of Section 5.5 herein.
In the event that the thirtieth 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.
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4.2 Effect of Acceptance. Timely receipt of Licensee’s acceptance in
conformance with Section 4.1 herein, shall constitute Licensees offer to enter into this
License and be subject to the terms and conditions hereof upon the Effective Date.
4.3 Effective Date; Term.
4.3.1 Effective Date. This license shall not be effective until the City has
timely received Licensee’s acceptance and the Mayor has executed the License Agreement.
The Effective Date of this License shall be the last date entered by the City on the signature
page(s) of this License. This License and the rights, privileges, and authority granted
hereunder and the contractual relationship established hereby shall take effect and be in
force from and after the Effective Date for the term hereof.
4.3.2 Term. Subject to Section 6.3 below, the term of this License shall
commence on the Effective Date and shall continue in full force and effect for a period of
ten (10) years, unless sooner terminated, revoked or rendered void; provided that, at the end
of each term, this Agreement shall automatically extend upon the same terms and conditions
for a ten (10) year term, for a total term of no greater than forty (40) years, unless sooner
terminated, revoked or rendered void. Nothing in this Section 4.3.2 shall affect the right of
the City to terminate or revoke this agreement pursuant to Section 6.3 herein.
4.4 Effect of Acceptance. By accepting the License the Licensee:
4.4.1 Accepts and agrees to comply with and abide by all of the lawful
terms and conditions of this License;
4.4.2 Acknowledges and accepts the City's legal right to grant this
License;
4.4.3 Agrees that the License was granted pursuant to processes and
procedures consistent with applicable Law and that it will not raise any claim to the
contrary.
4.4.4 Agrees that it enters into this License freely and voluntarily,
without any duress or coercion, after free and full negotiations, after carefully reviewing
all of the provisions, conditions and terms of this License Agreement, and after
consulting with counsel;
4.4.5 Warrants that Licensee has full right and authority to enter into and
accept this License in accordance with its terms, and by entering into or performing this
License, Licensee is not in violation of its charter or by-laws, or any law, regulation, or
agreement by which it is bound or to which it is subject.
4.4.6 Warrants that acceptance of this License by Licensee has been duly
authorized by all requisite Board action, that the signatories for Licensee hereto are
authorized to sign the License acceptance, and that the joinder or consent of any other
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party, including a court, trustee, or referee, is not necessary to make valid and effective
the execution, delivery, and performance of this License.
4.5 Effect of Expiration/Termination. Upon expiration, revocation or
termination of the License without renewal or other authorization, Licensee shall no
longer be authorized to operate the Facilities within the License Area and shall, to the
extent it may lawfully do so, cease operation of the Facilities. Forthwith thereafter,
except as may be otherwise agreed to in writing between the Parties, Licensee shall
remove its structures or property from the Public Rights-of-Ways and restore the Public
Right-of-Way to such condition as the City may reasonably require all at Licensee's
expense
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Limitation of Liability
5.1.1 INDEMNITY/RELEASE/DEFENSE. EXCEPT AS MAY BE
OTHERWISE PROVIDED PURSUANT TO SECTION 5.2 OF THIS LICENSE WITH
RESPECT TO ENVIRONMENTAL LIABILITY, TO THE FULLEST EXTENT
PERMITTED BY LAW, LICENSEE SHALL RELEASE, INDEMNIFY, DEFEND,
AND HOLD HARMLESS THE CITY AND THE CITY’S SUCCESSORS, ASSIGNS,
LEGAL REPRESENTATIVES, OFFICERS (ELECTED OR APPOINTED),
EMPLOYEES, AND AGENTS (COLLECTIVELY, “INDEMNITEES”) FOR, FROM,
AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES,
COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS,
JUDGMENTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS, ATTORNEYS’ FEES, AND COSTS OF INVESTIGATION,”) 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):
REMOVAL AND REMEDIATION, AND GOVERNMENTAL OVERSIGHT COSTS),
ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY “LIABILITIES
5.1.1.1 THIS LICENSE;
5.1.1.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT
TO THIS LICENSE;
5.1.1.3 LICENSEE’S OCCUPATION AND USE OF THE
PUBLIC RIGHT-OF-WAY;
5.1.1.4 LICENSEE’S OPERATION OF THE UTLITY SYSTEM;
5.1.1.5 THE PRESENCE OF THE TELECOMMUNICATIONS
SYSTEM WITHIN THE PUBLIC RIGHT-OF-WAY;
5.1.1.6 THE ENVIRONMENTAL CONDITION AND STATUS
OF THE PUBLIC RIGHT-OF-WAY CAUSED BY, AGGRAVATED BY, OR
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CONTRIBUTED TO, IN WHOLE OR IN PART, BY LICENSEE OR ITS
CONTRACTORS, SUBCONTRACTORS, OR AGENTS;
5.1.1.7 ANY ACT OR OMISSION OF LICENSEE OR
LICENSEE’S CONTRACTORS, SUBCONTRACTORS, AGENTS AND SERVANTS,
OFFICERS OR EMPLOYEES IN CONNECTION WITH WORK IN THE PUBLIC
RIGHT OF WAY; OR
5.1.1.8 THE CITY’S PERMITTING LICENSEE’S USE OF THE
CITY’S PUBLIC RIGHTS-OF-WAY OR OTHER PUBLIC PROPERTY,
(EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY OF THE INDEMNITEES. THE
ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE’S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE
EXTENT PROXIMATELY CAUSED BY THE SOLE NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF AN INDEMNITEE OR FOR LIABILITIES THAT
BY LAW THE INDEMNITEES CANNOT BE INDEMNIFIED FOR.)
This covenant of indemnification shall include, but not be limited by this reference, to
Liabilities arising, (1) as a result of the negligent acts or omissions of Licensee, its agents,
servants, officers, or employees in barricading, instituting trench safety systems or
providing other adequate warnings of any excavation, construction, or work in any public
Right-of-Way or other public place in performance of work or services Permitted under
this authorization or lease; (2) solely by virtue of the City’s ownership or control of the
Public Rights-of-Way or other public properties; and (3) solely by virtue of the City’s
inspection or lack of inspection of Work in the Public Right-of-Way.
The fact that Licensee carries out any activities under this License through independent
contractors shall not constitute an avoidance of or defense to Licensee’s duties of defense
and indemnification under this Section 5.1
5.1.2 Tender of Defense. Upon written notice from the City, Licensee
agrees to assume the defense of any lawsuit, claim or other proceeding brought against
any Indemnitee by any entity, relating to any matter covered by this License for which
Licensee has an obligation to assume liability for and/or save and hold harmless any
Indemnitee. Licensee shall pay all costs incident to such defense, including, but not
limited to, attorneys’ fees, investigators’ fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments. Further, said indemnification
obligations shall extend to claims that are not reduced to a suit and any claims which may
be compromised prior to the culmination of any litigation or the institution of any
litigation. The City has the right to defend and may participate in the defense of a claim
and, in any event, Licensee may not agree to any settlement of claims financially affecting
the City without the City’s prior written approval which shall not be unreasonably withheld.
If separate representation to fully protect the interests of both Parties is necessary, such as a
conflict of interest between the City and the counsel selected by Licensee to represent the
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City, Licensee shall select additional counsel with no conflict with the City and shall assume
and be responsible for all costs, including attorneys fees, for such additional counsel.
5.1.3 Refusal to Accept Tender. In the event Licensee refuses the tender
of defense in any suit or any claim, said tender having been made pursuant to the
indemnification clauses contained herein, and said refusal is subsequently determined by
a court having jurisdiction (or such other tribunal that the Parties shall agree to decide the
matter), to have been a wrongful refusal on the part of Licensee, then Licensee shall pay
all of the City’s costs for defense of the action, including all reasonable expert witness
fees and reasonable attorneys’ fees and the reasonable costs of the City, including
reasonable attorneys’ fees of recovering under this indemnification clause because there
was a wrongful refusal on the part of Licensee. (They should pay if City prevails).
5.1.4 Title 51 Waiver. THE LICENSEE WAIVES IMMUNITY UNDER
RCW TITLE 51 AND AFFIRMS THAT THE CITY AND THE LICENSEE HAVE
SPECIFICALLY NEGOTIATED THIS PROVISION, AS REQUIRED BY RCW
4.24.115, TO THE EXTENT IT MAY APPLY.
5.1.5 Inspection. Inspection or acceptance by the City of any Work
performed by Licensee at the time of completion of construction shall not be grounds for
avoidance of any of these covenants of indemnification.
5.2 Environmental Liability. See attached Exhibit “C”.
5.3 Insurance Requirements. See Attached Exhibit “D”.
5.4 Financial Security. See Attached Exhibit “E”.
5.5 Parental Guarantee. If the License is wholly owned or is controlled by
another Person, the City may require Licensee to cause such Person to provide, upon
acceptance of this License, a guarantee by such Person of performance by the Licensee of
Licensee’s rights, duties and obligations herein, in substantially the form of the parental
guarantee attached hereto as Exhibit “F”. “Control” shall mean de jure or de facto
control over the Licensee and does not necessarily imply a majority ownership of
Licensee by such Person. If Licensee is a partnership or limited liability company or
similar entity, the City may require a guarantee from the principal partners/members of
the partnership, limited liability company or similar entity.
5.6 Contractors/Subcontractors. Licensee contractors and subcontractors
performing Work in the Public Rights-of-Way shall comply with such bond, indemnity
and insurance requirements as may be required by City code or regulations, or other
applicable Law. If no such requirements are set forth in the City code or regulations, the
Licensee contractors and subcontractors shall comply with the requirements set forth in
attached Exhibit “G”.
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
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through Licensee which Licensee does not contest in good faith, Licensee shall promptly,
and in any event within 30 days, cause such lien claim or encumbrance to be discharged
or released of record (by payment, posting of bond, court deposit, or other means),
without cost to the City, and shall indemnify the City against all costs and expenses
(including attorneys’ fees) incurred in discharging and releasing such claim of lien or
encumbrance. If any such claim or encumbrance is not so discharged and released, the
City may pay or secure the release or discharge thereof at the expense of Licensee after
first giving Licensee five business days’ advance notice of its intention to do so. Nothing
herein shall preclude Licensee’s or the City’s contest of a claim for lien or other
encumbrance chargeable to or through Licensee or the City, or of a contract or action
upon which the same arose.
5.8 Financial Conditions.
5.8.1 License Fees. During the term of this License, should federal
and/or state Law change or the statutory prohibition or limitation upon assessment of
License fees be invalidated, amended, or modified allowing revenues derived by
Licensee from any Services provided by Licensee using the License Area to be subject to
a License fee or other fee in lieu of a License fee that was otherwise prohibited or limited
on the Effective Date, the City and Licensee shall negotiate a reasonable License fee or
other fee in lieu of a License fee, consistent with federal and/or state Law. The fee shall
be comparable to fees received by the City for other similar uses of the Public Rights of
Way.
5.8.2 Reimbursement of Direct Costs of Issuance, Renewal, Amendment
and Administration. Licensee shall reimburse the City for the City’s Direct Costs relating to
the issuance, renewal, amendment (if requested by or for the benefit of the Licensee) and
administration of this License.
5.8.3 Reimbursement of Direct Costs of Design Review and Inspection.
City approvals and inspections, as provided for in this License, are for the sole purpose of
protecting the City’s rights as the owner or manager of the road Public Rights-of-Way
and are separate and distinct from the approvals and inspections and fees that may be
required pursuant to a Permit. Therefore, Licensee shall reimburse to the City, its Direct
Costs of approvals and inspections, to the extent that such Direct Costs are not included
in the costs for issuance of and compliance with the Permit. Approvals and inspection,
by way of example and not limitation, include review of design documents and inspection
for compliance with Standards and 100% Design Submittal.
5.8.4 Reimbursement of Direct Costs of altering Public Rights-of-Way.
Licensee shall reimburse the City for the Direct Costs incurred by the City in planning,
designing, constructing, installing, repairing or altering any City infrastructure, structure,
or facility as the result of the actual or proposed presence in the Public Right-of-Way of
Licensee’s Facilities. Such costs and expenses shall include, but not be limited to, the
Direct Costs of City personnel and contractors utilized to oversee or engage in any work
in the Public Right-of-Way as the result of the presence of Licensee’s Facilities in the
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Right-of-Way, and any time spent reviewing construction plans in order to either
accomplish the relocation of Licensee’s Facilities or the routing or rerouting of any
public utilities or Public Rights-of-Way so as not to interfere with Licensee’s Facilities.
Upon request as a condition of payment by Licensee, all billing will be itemized so as to
specifically identify 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.
5.8.5 Licensee Responsibility for Costs. Except as expressly provided
otherwise in this License, any act that Licensee, its contractors or subcontractors are
required to perform under this License shall be performed at their sole cost and expense.
5.8.6 Licensee Work Performed by the City. Any work performed by
the City that Licensee has failed to perform as required pursuant to this License and
which is performed by the City in accordance with the terms of this License, shall be
performed at the cost and expense of the Licensee. Licensee shall be obligated to pay
the Direct Costs to the City of performing such work.
5.8.7 Taxes and Fees. Nothing contained in this License Agreement
shall exempt Licensee from Licensee’s obligation to pay any utility tax, business tax, or
ad valorem property tax, now or hereafter levied against real or personal property within
the City, or against any local improvement assessment imposed on Licensee. Any fees,
charges and/or fines provided for in the City Municipal Code or any other City ordinance,
and any compensation charged and paid for the Public Rights-of-Way, whether pecuniary
or in-kind, are separate from, and additional to, any and all federal, state, local, and City
taxes as may be levied, imposed or due from Licensee.
5.8.8 Itemized Invoice. Upon request by the Licensee of Direct, City
shall submit an itemized billing so as to specifically identify the Direct Costs incurred by
the for each project for which the City claims reimbursement.
5.8.9 Time for Payment. All non-contested amounts owing shall be due
and paid within thirty (30) days of receipt of invoice; provided that, in the event that an
itemized invoice is not provided at the time of receipt of invoice and the City receives a
request from Licensee for an itemized invoice within 30 days of receipt of invoice, such
amounts shall be due and paid within (30) days of receipt of the itemized invoice.
5.8.10 Overdue Payments. Any amounts payable under this License by
Licensee which shall not be paid upon the due date thereof, shall bear interest at a rate of
twelve (12%) percent per annum.
5.8.11 Contesting charges. Licensee may contest all or parts of amounts
owed within thirty (30) days of receipt of any invoice. The City will investigate
Licensee’s contest and will make appropriate adjustments to the invoice, if necessary, and
resubmit the invoice to Licensee. Licensee shall pay any amounts, owing as itemized in
the resubmitted invoice, within thirty (30) days of receipt of the resubmitted invoice.
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However, Licensee does not waive its rights to take legal action to challenge the amount
of the invoice.
5.8.12 Receivables. Either Party hereto may assign any monetary
receivables due them under this License; provided, however, such transfer shall not
relieve the assignor of any of its rights or obligations under this License.
ARTICLE 6. ENFORCEMENT AND REMEDIES.
6.1 Communication and Discussion. The Parties are fully committed to
working with each other throughout the term of this License and agree to communicate
regularly with each other at all times so as to avoid or minimize Disputes. The Parties
agree to act in good faith to prevent and resolve potential sources of conflict before they
escalate into a Dispute. The Parties each commit to resolving a Dispute in an amicable,
professional and expeditious manner.
6.2 Remedies. The Parties have the right to seek any and all available
remedies, including without limitation, the following singly or in combination, in the
event of a Breach:
6.2.1 Specific Performance. Each Party shall be entitled to specific
performance of each and every obligation of the other Party under this Permit without
any requirement to prove or establish that such Party does not have an adequate remedy
at law. The Parties hereby waive the requirement of any such proof and acknowledge
that either Party would not have an adequate remedy at law for the commission of a
Breach hereunder.
6.2.2 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 License without, in either case, being required to prove or
establish that such Party does not have an adequate remedy at law. The Parties hereby
waive the requirement of any such proof and acknowledge that the other Party would not
have an adequate remedy at law a Breach hereunder.
6.2.3 Alternative Remedies. Except as otherwise provided herein,
neither the existence of other remedies identified in this License nor the exercise thereof
shall be deemed to bar or otherwise limit the right of the either Party to commence an
action for equitable or other relief, and/or proceed against the other Party and any
guarantor for all direct monetary damages, costs and expenses arising from the Default
and to recover all such damages, costs and expenses, including reasonable attorneys’
fees.
6.2.4 Damages. Except as otherwise provided or limited herein,
commence an action at law for monetary damages or seek other equitable relief.
Remedies are cumulative; the exercise of one shall not foreclose the exercise of others.
No provision of this License shall be deemed to bar the City from seeking appropriate
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judicial relief. Neither the existence of other remedies identified in this License nor the
exercise thereof shall be deemed to bar or otherwise limit the right of either Party to recover
monetary damages, as allowed under applicable law, or to seek and obtain judicial
enforcement by means of specific performance, injunctive relief or mandate, or any other
remedy at law or in equity. The City specifically does not, by any provision of this License,
waive any right, immunity, limitation or protection otherwise available to the City, its
officers, officials, City Council, Boards, commissions, agents, or employees under federal,
State, or local law.
6.3 Termination/Revocation. THE LICENSEE UNDERSTANDS AND
ACKNOWLEDGES THAT ISSUANCE OF THIS LICENSE BY THE CITY IS
DISCRETIONARY AND THAT THE LICENSE IS TERMINABLE AT WILL BY THE
CITY. THE CITY RESERVES THE RIGHT TO REVOKE OR TERMINATE THE
LICENSE, AND ALL RIGHTS, PERMISSIONS, AND PRIVILEGES GRANTED
HEREIN AND PERTAINING THERETO, WITH OR WITHOUT CAUSE.
REVOCATION OR TERMINATION SHALL BE EFFECTED AFTER NINETY (90)
DAYS’ WRITTEN NOTICE TO THE LICENSEE OF THE CITY’S INTENT TO
REVOKE OR TERMINATE THE LICENSE.
6.4 Assessment of Liquidated Damages.
6.4.1 The parties explicitly represent that it will be impractical and/or
difficult to ascertain or quantify the amount of damages which may be incurred by the City
as a result of any failure by Franchisee to comply, or maintain compliance, with the
provisions of this License as enumerated below, and further acknowledge and agree that the
City will be damaged as a result of such a Breach(s). Therefore, the City and Licensee agree
that the liquidated damages set forth in Section 6.4.2 are a reasonable estimate of the
damages resulting from a breach of those provisions of this License set forth as Section
6.4.2 herein. Such damages shall be the City’s sole and exclusive remedy for recovery of
economic loss resulting from such Breach. Nothing in this subsection is intended to
preclude the City from exercising any other right or remedy with respect to other losses not
compensated by liquidated damages, including, without limitation, the right to seek specific
performance.
6.4.2 Pursuant to the requirements outlined herein, liquidated damages
shall not exceed the following amounts: one hundred dollars ($100.00) per day for failure to
comply with the requirements of the following Sections: 4.5 (Expiration/Termination), 5.3
(Insurance), 5.4 (Financial Security), 5.5 (Parental Guarantee); 7.5.3 (Work Subject to
Inspection); 7.7.2 (Facilities Subject to Inspection); five hundred dollars ($500) per day for
the first two days for failure to comply with the requirements of 7.5.7 (Stop Work Order),
and one thousand dollars ($1,000) per day for each day thereafter. Payment by Licensee of
the liquidated damages shall be due thirty (30) days after the date of the City’s notice
assessing such damages. If the Licensee does not make payment within that period, the City
may withdraw from or make a claim upon the Licensee’s bond or letter of credit or cash
deposit, the amount assessed.
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6.5 Receivership. At the option of the City, subject to applicable law and lawful
orders of courts of jurisdiction, this License or any Site Specific Permit may be revoked
after the appointment of a receiver or trustee to take over and conduct the business of
Licensee whether in a receivership, reorganization, bankruptcy or other action or
proceeding, unless:
6.5.1 The receivership or trusteeship is timely vacated; or
6.5.2 The receiver or trustee has timely and fully complied with all the
terms and provisions of this License, and has remedied all defaults under the License.
Additionally, the receiver or trustee shall have executed an agreement duly approved by the
court having jurisdiction, by which the receiver or trustee assumes and agrees to be bound
by each and every term, provision and limitation of this License.
ARTICLE 7. CONDITIONS UPON USE OF PUBLIC RIGHTS-OF-WAY
7.1 Permits. If Licensee has submitted an application for a Permit to perform
work in the Public Right-of-Way, the City shall, to the extent practicable, consider such
application contemporaneously with the design review requirements hereunder.
7.2 Submission/Approval of Design Submittal.
7.2.1 Submission. At the time of application for a Permit, or in the event
that Licensee seeks to alter or change the location of the Facilities in the License Area,
Licensee shall provide the City with 100% Design submittal for review and approval of
any Telecommunications System Construction, alteration or change of location within the
proposed License Area.
7.2.2 Use of Public Rights-of-Way. Within parameters reasonably related
to the City’s role in protecting the public health, safety and welfare and except as may be
otherwise preempted by Law, the City may require that Facilities be installed at a particular
time, at a specific place or in a particular manner as a condition of access to the proposed
License Area and may deny access if Licensee is not willing to comply with such
requirements; and, may remove, or require removal of, any Facility that is not installed in
compliance with the requirements established by the City or which is installed without
prior City approval of the time, place, or manner of installation.
7.2.3 Approval of Plans. Work may not commence without prior
approval by the City of the 100% Design Submittal submitted by the Licensee. The City
may review and approve the Licensee’s 100% Design Documents with respect to:
7.2.3.1 Location/Alignment/Depth;
7.2.3.2 The manner in which the Facility is to be installed;
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7.2.3.3 Measures to be taken to preserve safe and free flow of
traffic;
7.2.3.4 Structural integrity, functionality, appearance,
compatibility with and impact upon roadways, bridges, sidewalks, planting strips, signals,
traffic control signs, intersections, or other facilities and structures in the Public Right-of-
Way;
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-year
transportation plan, capital improvements plan, and regional transportation improvement
plans.
7.3 Compliance with Standards/Codes. Except as may be preempted by federal
or state Laws, all Facilities shall conform to and all Work shall be performed in
compliance with the following “Standards” as now or may be hereafter revised, updated,
amended or re-adopted:
7.3.1 Construction Standards. The applicable provisions of the current and
any subsequent edition of the City of Kent Design and Construction Standards;
7.3.2 Road and Bridge Standards. The current and any subsequent
edition of the Standard Specifications for Road, Bridge and Municipal Construction as
prepared by the Washington State Department of Transportation (“WSDOT”) and the
Washington State Chapter of American Public Works Association (“APWA”);
7.3.3 MUTCD. The Washington State Department of Transportation
Manual of Uniform Traffic Control Devices (“MUTCD”);
7.3.4 Special Conditions. Requirements and standards set forth as special
conditions;
7.3.5 City Regulations. The Kent City Code, including but not limited to
KCC Ch. 6.06, City ordinances, and regulations adopted by the City Engineer or Public
Works Director establishing standards for placement of Facilities in Public
Rights-of-Way, including by way of example and not limitation, the specific location of
Facilities in the Public Rights-of-Way. This shall also include any road design standards
that the City shall deem necessary to provide adequate protection to the Public
Rights-of-Way, its safe operation, appearance and maintenance;
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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 Licensee Facilities;
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 Licensee Facilities;
7.3.8 Safety Codes and Regulations. Licensee Facilities and Work shall
comply with all applicable federal, State and City safety requirements, rules, regulations,
Laws and practices. By way of illustration and not limitation, Licensee shall comply with
the National Electrical Safety Code and the Occupational Safety and Health Administration
(OSHA) Standards; and
7.3.9 Building Codes. Licensee 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 Standard, Licensee shall comply with the following
as a condition precedent to Work:
7.4.1 Permits Required. Prior to performing any Work in the Public Right-
of-Way requiring a permit, Licensee shall apply for, and obtain, in advance, such
appropriate Permits from the City as are required by ordinance or rule. Licensee shall pay
all generally applicable and lawful fees for the requisite City Permits.
7.4.2 Compliance with License. Licensee shall be in material
compliance with the License, including by way of example and not limitation, payment
of fees invoiced to Licensee for City reimbursable costs and expenses related to review
and approval of the Site Specific Permit, proof of insurance and proof of financial
security.
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. Licensee Facilities shall be designed, located, aligned and Constructed so
as not to disturb or impair the use or operation of any street improvements, utilities, and
related facilities of City or City’s existing lessees, licensees, Licensees, franchises,
easement beneficiaries or lien holders, without prior written consent of City or the Parties
whose improvements are Interfered with and whose consent is required pursuant to
agreements with the City existing prior to the Effective Date. Licensee’s Facilities shall
be designed, located, aligned and Constructed in such a manner as not to interfere with any
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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 Investment Program Plan, a comprehensive utility plan, a
transportation improvement plan, the City’s Comprehensive Plan, or other written
construction or planning schedule.
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
Utility License, this License, applicable Law, the applicable approved 100% Design
Submittal, the Standards, and to ensure the Work is not being performed in an unsafe or
dangerous manner.
7.5.4 Publicizing Work.
7.5.4.1 Notice to Private Property Owners. Except in the case of an
Emergency, Licensee shall give reasonable advance notice to private property owners and
tenants of Construction Work on or adjacent to such private property if the City or Licensee
reasonably anticipates such Work will materially disturb or disrupt the use of such private
property.
7.5.4.2 Notice to the Public. Except in the case of an Emergency,
the Licensee shall notify the public prior to commencing any significant planned
Construction that Licensee reasonably anticipates will materially disturb or disrupt public
property or have the potential to present a danger or affect the safety of the public
generally.
7.5.4.3 Additional Requirements. Work shall be publicized as the
City may direct, from time to time, in accordance with written procedures established by
the Public Works Director and on file with the City Clerk. The publication of Work may
be used to notify the public and operators of other Telecommunications Systems of the
impending work, in order to minimize inconvenience and disruption to the public. The
cost of publication shall be borne by the Licensee.
7.5.5 Work of Contractors and Subcontractors. Licensee’s contractors
and subcontractors performing Work in the License Area shall be licensed and bonded in
accordance with the City’s and State’s applicable regulations and requirements. Any
contractors or subcontractors performing Work within the Public Right-of-Way on behalf
of the Licensee shall be deemed servants and agents of the Licensee for the purposes of
this License and are subject to the same restrictions, limitations and conditions as if the
work were performed by Licensee. Licensee shall be responsible for all work performed
by its contractors and subcontractors and others performing work on its behalf as if the
work were performed by it, and shall ensure that all such work is performed in
compliance with this License and other applicable laws, and shall be jointly and severally
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liable for all damages and correcting all damage caused by them. It is Licensee’s
responsibility to ensure that contractors, subcontractors or other Persons performing work
on Licensee’s behalf are familiar with the requirements of this License and other
applicable laws governing the work performed by them.
7.5.6 Emergency Permits. In the event that Emergency repairs are
necessary, Licensee shall immediately notify the Public Works Director of the need for such
repairs. Licensee may initiate such Emergency repairs, and shall apply for appropriate
Utility Permits within forty-eight (48) hours after discovery of the Emergency. In the event
of an Emergency, a Licensee may perform Emergency Work in the Public Rights-of-Way
without first securing a Permit for such Emergency Work, provided that: (1) the
Licensee notifies the City in advance of the Emergency requiring the performance of
such Emergency Work and the type and location of such Work; (2) the Licensee applies
for a Permit on the first business day following commencement of such Work; and (3) the
Licensee, at its sole cost and expense, makes its Work performed in the Public Rights-of-
Way available for inspection to determine compliance with Laws and Standards.
7.5.7 Stop Work. On notice from the City that any Work does not comply
with the License, the approved 100% Design Documents for the Work, the Standards, or
other applicable Law, or is being performed in an unsafe or dangerous manner as
reasonably determined by the City, the non-compliant Work may immediately be stopped
by the City. The stop work order shall be, in writing, given to the Person doing the work
and be posted on the work site, indicate the nature of the alleged violation or unsafe
condition; and Establish conditions under which work may be resumed. If so ordered,
Licensee shall cease and shall cause its contractors and subcontractors to cease such
activity until the City is satisfied that Licensee is in compliance. If an unsafe condition is
found to exist, the City, in addition to taking any other action permitted under applicable
Law, may order Licensee to make the necessary repairs and alterations specified therein
forthwith to correct the unsafe condition by a time the City establishes. The City has the
right to inspect, repair and correct the unsafe condition if Licensee fails to do so, and to
reasonably charge Licensee.
7.5.8 Dedication of City Utilities/Public Improvements. Upon
substantial completion of Construction of the Facilities and any related restoration of or
improvements to or within the Public Rights-of-Way, including without limitation, curbs,
gutters, sidewalks, underlayment, roadway surface, pipe, connectors, catch basins, or any
part thereof that will be dedicated to City ownership (collectively “Dedicated
Improvements”), and upon satisfaction of other applicable conditions of the City and this
License, Licensee shall submit a written request to the City for a final inspection and
acceptance of dedication of all Dedicated Improvements. The written request shall
certify that the Work is substantially complete. The Work will be deemed to be
“substantially complete” when:
7. 5.8.1 Complete record drawings are provided to the City;
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7. 5.8.2 Licensee has completely and accurately identified
within the record drawings the Dedicated Improvements;
7. 5.8.3 The Dedicated Improvements are functioning to the
satisfaction of the City, and when appropriate, operationally tested;
7. 5.8.4 Licensee has warranted in writing that the Work is
completed in conformance with the 100% Design Documents 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 liens and
encumbrances;
7. 5.8.6 Licensee has assigned to the City any and all
manufacturer warranties of the Dedicated Improvements, if any; and
7. 5.8.7 Licensee, or its contractors or subcontractors,
warrant the Dedicated Improvements to be free from defects in design, manufacture and
construction for a period of one year from the date that such Dedicated Improvements are
accepted by the City. This warranty shall not operate to waive, alter or diminish any
rights the City may otherwise have under this License, at law, or in equity.
Upon receipt of Licensee’s request for final inspection and dedication, the
City shall within twenty (20) business days thereafter arrange for a final inspection. If
the City determines that the Work with regard to the Dedicated Improvements is not
substantially complete, it shall promptly provide License with a written statement
indicating in adequate detail in what respects Licensee has failed to substantially
complete the Work or any component thereof or is otherwise in default and what
measures or acts will be necessary, in the opinion of the City, for Licensee to take or
perform in order to substantially complete such Work. Upon receipt of such detailed
statement from the City, Licensee shall undertake to complete the Work, cure the alleged
default in a manner responsive to the stated reasons for disapproval, or Licensee may
submit to dispute resolution pursuant to Section 6.1 herein, the issue of whether the City
has unreasonably withheld its acceptance.
When the City is satisfied that the Work related to the Dedicated
Improvements is substantially complete, it will by ordinance, resolution or other lawful
means accept ownership of such Dedicated Improvements and thereafter become
responsible for maintenance, repair, and replacement of the same.
7.6 Alterations. Except as may be shown in the 100% Design Submittal
approved by City or the record drawings, or as may be necessary to respond to an
Emergency, Licensee, and Licensee’s contractors and subcontractors, may not make any
material alterations to the License Area, or permanently affix anything to the License
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Area, without City’s prior written consent. Material alteration shall include by way of
example and not limitation, a change in the dimension or height of the above ground
Facilities or the addition of or change in configuration of an antenna. If Licensee desires
to change either the location of any Facilities or otherwise materially deviate from the
approved design of any of the Facilities, Licensee shall submit such change to City in
writing for its approval pursuant to Section 7.2 of this License. Licensee shall have no
right to commence any such alteration change until after Licensee has received City’s
approval of such change in writing.
7.7 General Conditions.
7.7.1 Right-of-Way Meetings. Subject to receiving advance notice,
Licensee will make reasonable efforts to attend and participate in meetings of the City
regarding Right-of-Way issues that may impact the Telecommunications System.
7.7.2 Compliance Inspection. Licensee’s Facilities shall be subject to the
City’s right of periodic inspection upon at least twenty-four (24) hours notice, or, in case of
an emergency, upon demand without prior notice, to determine compliance with the
provisions of this License or Site Specific Permit or other applicable Law over which the
City has jurisdiction. Licensee shall respond to requests for information regarding its
Telecommunications System as the City may from time to time issue to determine
compliance with this License, including requests for information regarding the Licensee’s
plans for Construction and the purposes for which the Facility is being Constructed.
7.7.3 One Call. If Licensee places Facilities underground, Licensee shall,
at its own expense, continuously be a member of the State of Washington one number
locator service under Chapter 19.122 RCW, or an approved equivalent, and shall comply
with all such applicable rules and regulations. The Licensee shall locate and field mark
its Facilities for the City at no charge.
7.7.4 Graffiti Removal. Within 48 hours after notice from the City,
Licensee shall remove any graffiti on any part of its Telecommunications System,
including, by way of example and not limitation, equipment cabinets. If Licensee fails to
do so, the City may remove the graffiti and bill the Licensee for the 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
public place, or endangers the public, any utilities, or City-owned property, the City may
reasonably require the Licensee to take action to protect the Public Right-of-Way, the
public, adjacent public places, City-owned property, streets, and utilities. Such action
may include compliance within a prescribed time. In the event that the Licensee fails or
refuses to promptly take the actions directed by the City, or fails to fully comply with
such directions, or if Emergency conditions exist which require immediate action, the
City may, to the extent it may lawfully do so, take such actions as are necessary to protect
the Public Right-of-Way, the public, adjacent public places, City-owned property, streets,
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and utilities, to maintain the lateral support thereof, or actions regarded as necessary
safety precautions; and the Licensee shall be liable to the City for the costs thereof.
7.7.6 No Duty. Notwithstanding the right of City to inspect the Work,
issue a stop work order, and order or make repairs or alterations, City has no duty or
obligation to observe or inspect, or to halt work on, the applicable Facilities, it being
solely Licensee’s responsibility to ensure that the Facilities are Constructed and operated
in strict accordance with this License, the approved 100% Design Submittal, the
Standards, and applicable Law. Neither the exercise nor the failure by City to exercise
any right set forth in this Article 7 shall alter the liability allocation set forth in this
License.
7.7.7 Roadside Hazard. All of Licensee’s Facilities shall be kept by
Licensee at all times in a safe and hazard-free condition. Licensee shall ensure that
Facilities within the Public Rights-of-Way do not become or constitute an unacceptable
roadside obstacle and do not interfere with or create a hazard to maintenance of and along
the Public Rights-of-Way. In such event, or in the event that the City determines that a
Facility within the Public Rights-of-Way has become or constitutes an unacceptable
roadside obstacle or may interfere with or create a hazard to maintenance of and along
the Public Rights-of-Way, the Licensee shall:
7.7.7.1 If the hazard results from disrepair, repair the Facility to a
safe condition;
7.7.7.2 Relocate the Facility to another place within the Public
Right-of-Way or underground;
7.7.7.3 Convert the Facility to a break-away design;
7.7.7.4 Crash-protect the Facility;
7.7.7.5 Relocate the Facility to another location off the Public
Rights-of-Way; or
7.7.7.6 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 in and around the Facility.
Licensee, at all times, shall employ the standard of care attendant to the
risks involved and shall install and maintain in use commonly accepted methods and
devices for preventing failures and accidents which are likely to cause damage, injury, or
nuisance to the public or to Licensee’s agents or employees. Licensee, at its own
expense, shall repair, renew, change, and improve its Facilities from time to time as may
be necessary to accomplish this purpose. Licensee shall use suitable barricades, flags,
flaggers, lights, flares and other measures as required for the safety of all members of the
general public and to prevent injury or damage to any person, vehicle or property by
reason of such Work in or affecting such Public Rights-of-Way or property. All
excavations made by Licensee in the Public Rights-of-Way shall be properly safeguarded
for the prevention of accidents.
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7.7.8 Verification of Alignment/Depth. Upon the reasonable request and
prior written notice, in non-Emergency situations at least thirty (30) days notice by the
City and in order to facilitate the location, alignment and design of Public Improvements,
the Licensee agrees to locate, and if reasonably determined necessary by the City, to
excavate and expose portions of its Facilities for inspection so that the location of same
may be taken into account in the improvement design, PROVIDED that, Licensee shall
not be required to excavate and expose its Facilities unless the Licensee’s record
drawings and maps of its Facilities submitted pursuant to Section 7.11 of this License are
reasonably determined by the City to be inadequate for purposes of this paragraph.
7.8 Facility Relocation at Request of the City.
7. 8.1 Public Project. The City may require Licensee to alter, adjust,
relocate, or protect in place its Facilities within the Public Right-of-Way at Licensee’s
sole cost and expense when reasonably necessary for construction, alteration, repair,
expansion, or improvement of any portion of the Public Rights-of-Way for purposes of
public welfare, health, or safety (“Public Improvements”). Such Public Improvements
include, by way of example but not limitation, Public Rights-of-Way construction; Public
Rights-of-Way repair (including resurfacing or widening); change of Public Rights-of-
Way grade; construction, installation or repair of sewers, drains, water pipes, power lines,
signal lines, communication lines, or any other type of government-owned
communications, utility or public transportation systems, public work, public facility, or
improvement of any government-owned utility; Public Rights-of-Way vacation, and the
Construction of any public improvement or structure by any governmental agency acting
in a governmental capacity.
7.8.2 Alternatives. If the City requires Licensee to relocate its facilities
located within the Public Rights-of-Way, the City shall make a reasonable effort to
provide Licensee with an alternate location within the Public Right-of-Way. The
Licensee may, after receipt of written notice requesting a relocation of its Facilities,
submit to the City written alternatives to such relocation. The City shall evaluate such
alternatives and advise the Licensee in writing if one or more of the alternatives are
suitable to accommodate the work that would otherwise necessitate relocation of the
Facilities. If so requested by the City, Licensee shall submit additional information to
assist the City in making such evaluation. The City shall give each alternative proposed
by the Licensee full and fair consideration, within a reasonable time, so as to allow for
the relocation work to be performed in a timely manner. In the event the City ultimately
determines, in its sole discretion, that there is no other reasonable alternative, the
Licensee shall relocate its Facilities as otherwise provided in this Section. In the event
that the City reasonably determines that it does not have available resources to evaluate
Licensee’s proposal, the City shall not be obligated to further consider such proposal
unless and until the Licensee funds the additional costs to the City to complete its
evaluation.
7.8.3 Notice. The City shall notify Licensee as soon as practicable of
the need for relocation and shall specify the date by which relocation shall be completed.
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Except in case of Emergency such notice shall be no less than (180) calendar days. In
calculating the date that relocation must be completed, City shall consult with Licensee
and consider the extent of Facilities to be relocated, the service requirements, and the
construction sequence for the relocation, within the overall project construction sequence
and constraints, to safely complete the relocation. Licensee shall complete the relocation
by the date specified, unless the city, or a reviewing court, establishes a later date for
completion, after a showing by the Licensee that the relocation cannot be completed by
the date specified using best efforts and meeting safety and service requirements.
7.8.5 Coordination of Work. Licensee acknowledges and understands
that any delay by Licensee in performing the work to alter, adjust, relocate, or protect in
place 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 result
in damage to the City, including but not limited to, delay claims. Licensee shall
cooperate with the City and its contractors and subcontractors to coordinate such
Licensee Work to accommodate the public improvement project and project schedules to
avoid delay, hindrance of, or interference with such project.
7.8.6 Failure to Comply. Should Licensee fail to alter, adjust, protect in
place or relocate any Facilities ordered by the City to be altered, adjusted, protected in
place, or relocated, within the time prescribed by the City, given the nature and extent of
the work, or if it is not done to the City’s reasonable satisfaction, the City may, to the
extent the City may lawfully do so, cause such work to be done and bill the reasonable
cost of the work to the Licensee, including all reasonable costs and expenses incurred by
the City due to Licensee’s delay. In such event, the City shall not be liable for any
damage to any portion of Licensee’s Telecommunications System. In addition to any
other indemnity set forth in this License, the Licensee will indemnify, hold harmless, and
pay the costs of defending the City, from and against any and all claims, suits, actions,
damages, or liabilities for delays on Public Improvement construction projects caused by
or arising out of the failure of the Licensee to adjust, modify, protect in place, or relocate
its Facilities in a timely manner; provided that, the Licensee shall not be responsible for
damages due to delays caused by the City.
7.8.7 Assignment of Rights. In addition to any other rights of assignment
the City may have, the City may from time to time assign or transfer to its contractors or
subcontractors its rights under Sections 7.8 or 7.10 of this License to require Licensee to
alter, adjust, relocate, or protect in place its Facilities within the Public Right-of-Way.
Licensee acknowledges and consents to such an assignment(s)/transfer(s) and agrees that it
is bound by all lawful orders issued by such assignee(s) of the City under color of authority
of such assignment(s)/transfer(s) as though such orders had been issued by the City under
the terms and conditions of this License. Such assignment/transfer is an assignment/transfer
of the City’s contract rights under this License and shall not in any way be interpreted or
construed as an assignment, transfer, delegation or relinquishment of the City’s rights under
its police powers to require Licensee to alter, adjust, relocate, or protect in place its
Facilities within the Public Right-of-Way.
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7.8.8 Reimbursement for Costs. Notwithstanding the cost allocation
provisions set forth in this License, Licensee does not waive its right(s) to and shall be
entitled to seek reimbursement of its relocation costs as may be otherwise specifically set
forth and authorized in statute.
7.9 Movement of Facilities for Others.
7.9.1 Private Benefit. If any alteration, adjustment, temporary
relocation, or protection in place of the Telecommunications System is required solely to
accommodate the Construction of facilities or equipment that are not part of a Public
Improvement project, Licensee shall, after at least ninety (90) days advance written notice,
take action to effect the necessary changes requested by the responsible entity; provided
that, (a) the Party requesting the same pays for the Licensee’s time and material costs
associated with the requested work; (b) the alteration, adjustment, relocation or protection in
place is reasonably necessary to accommodate such work; (c) the Person requesting the
alteration, adjustment, relocation, or protection in place considers alternatives in the same
manner as provided at Section 7.8.2; and (d) such alteration, adjustment, or relocation is not
requested for the purpose of obtaining a competitive advantage over the Licensee.
7.9.2 Temporary Changes for Other Licensees. At the request of any
Person holding a valid permit and upon reasonable advance notice, Licensee shall
temporarily raise, lower or remove its wires as necessary to permit the moving of a building,
vehicle, equipment or other item. The expense of such temporary changes must be paid by
the permit holder. Licensee shall be given not less than seven (7) days’ advance notice to
arrange for such temporary wire changes.
7.10 Movement of Facilities During Emergencies.
7.10.1 Immediate Threat. In the event of an unforeseen event, condition
or circumstance that creates an immediate threat to the public safety, health, or welfare,
the City shall have the right to require Licensee to shut down, relocate, remove, replace,
modify, or disconnect Licensee’s Facilities located in the Public Rights-of-Way at the
expense of the Licensee without regard to the cause or causes of the immediate threat.
7.10.2 Emergency. In the event of an Emergency, or where a Facility
creates or is contributing to an imminent danger to health, safety, or property, the City
retains the right and privilege to protect, support, temporarily disconnect, remove, or
relocate any or all parts of the Telecommunications System located within the Public
Rights-of-Way, as the City may determine to be necessary, appropriate or useful in
response to any public health or safety Emergency and charge the Licensee for costs
incurred.
7.10.3 Notice. During Emergencies the City shall endeavor to, as soon as
practicable, provide notice to Licensee of such Emergency at a designated Emergency
response contact number, to allow Licensee the opportunity to respond and rectify the
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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 Telecommunications System located within the Public Rights-of-Way.
7.10.4 Limitation on Liability. The City shall not be liable for any direct,
indirect, or any other such damages suffered by any person or entity of any type as a
direct or indirect result of the City’s actions under this Section.
7.11 Record of Installations
7.11.1 Map/Record Drawing of Telecommunications System. Upon
request by the City, Licensee shall search for and provide the City with the most accurate
and available maps and record drawings in a form and content prescribed by the City
reflecting the horizontal and vertical location and configuration of its
Telecommunications System within the Public Rights-of-Way and upon City property in
a format acceptable to the City. Licensee shall provide the City with updated record
drawings and maps upon request.
7.11.2 Planned Improvements. Upon written request of the City,
Licensee shall provide the City with the most recent update available of any planned
improvements to its Telecommunications System to the extent such plans do not contain
confidential or proprietary information or such information can be redacted; provided,
however, any such plan submitted shall be for informational purposes only and shall not
obligate Licensee to undertake any specific improvements, nor shall such plan be
construed as a proposal to undertake any specific improvements.
7.11.3 Maps/Record Drawings of Improvements. After Construction
involving the locating or relocating of Facilities, the Licensee shall provide the City with
reasonably accurate copies of all record drawings and maps showing the horizontal and
vertical location and configuration of all of located or relocated Facilities within the
Public Rights-of-Way. These record-drawings and maps shall be provided at no cost to
the City, and shall include hard copies and digital copies in a format specified by the
City. As to any such record drawings and maps so provided, Licensee warrants the
accuracy thereof.
7.12 Restoration of Public Rights-of-Way, Public and Private Property
7.12.1 Restoration after Construction. Licensee shall, after completion of
Construction of any part of its Telecommunications System, leave the Public Rights-of-
Way and other property disturbed thereby, in as good or better condition in all respects as
it was in before the commencement of such Construction. Licensee agrees to promptly
complete restoration work to the reasonable satisfaction of the City.
7.12.2 Notice. If Licensee’s Work causes unplanned, unapproved, or
unanticipated disturbance of or alteration or damage to Public Rights-of-Way or other public
or private property, the Licensee shall promptly notify the property owner within twenty-
four (24) hours.
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7.12.3 Duty to Restore. If Licensee’s Work causes unplanned, unapproved,
or unanticipated disturbance of or alteration or damage to the Public Right-of-Way or other
public property, it shall promptly remove any obstructions therefrom and restore such
Public Rights-of-Way and public property to the satisfaction of the City to as good or
better a condition as existed before the Work was undertaken, unless otherwise directed
by the City. If the City determines that complete or satisfactory restoration is not
obtainable, the City shall have the right to require compensation for the less than
complete or satisfactory condition of the Public Right-of-Way or public property.
Licensee shall complete the restoration work within forty-eight (48) hours or as authorized
by the City’s Public Works Director.
7.12.4 Temporary Restoration. If weather or other conditions do not
allow the complete restoration required by this Section, Licensee shall temporarily restore
the affected Public Right-of-Way or public property. Licensee shall promptly undertake
and complete the required permanent restoration when the weather or other conditions no
longer prevent such permanent restoration.
7.12.5 Survey Monuments. All survey monuments which are disturbed or
displaced by any Work shall be referenced and restored, as per WAC 332-120, as the
same now exists or may hereafter be amended, and all pertinent federal, state and local
standards and specifications.
7.12.6 Approval. The Public Works Director, or his/her designee, shall be
responsible for observation and final approval of the condition of the Public Rights-of-
Way and City property following any restoration activities therein. Licensee is
responsible for all testing and monitoring of restoration activities.
7.12.7 Warranty. Licensee shall warrant any restoration work performed by
Licensee in the Public Right-of-Way or on other public property for one (1) year, unless a
longer period is required by the City Code or any generally applicable ordinance or
resolution of the City or pursuant to the Construction Standards. If restoration is not
satisfactorily and timely performed by the Licensee, the City may, after prior notice to the
Licensee, or without notice where the disturbance or damage may create a risk to public
health or safety, cause the repairs to be made and recover the reasonable cost of those repairs
from the Licensee. Within thirty (30) days of receipt of an itemized list of those costs,
including the costs of labor, materials and equipment, the Licensee shall pay the City.
7.12.8 Restoration of Private Property. When Licensee does any Work in
the Public Right-of-Way that affects, disturbs, alters, or damages any adjacent private
property, it shall, at its own expense, be responsible for restoring such private property to
the satisfaction of the private property owner.
7.13 Approvals. Nothing in this License shall be deemed to impose any duty
or obligation upon the City to determine the adequacy or sufficiency of Licensee's Design
Documents or to ascertain whether Licensee's proposed or actual Construction is
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adequate or 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 License shall constitute or be
construed as a representation or warranty express or implied by the City that such item
reviewed, approved, inspected, or supervised, complies with applicable Laws or this
License or meets any particular Standard, code or requirement, or is in conformance with
the approved 100% Design Submittal, and no liability shall attach with respect thereto.
City approvals and inspections as provided herein, are for the sole purpose of protecting
the 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 Telecommunications System, suitability of the
License Area for Construction, or any obligation on the part of the City to insure that
Work or materials are in compliance with any requirements imposed by a governmental
entity. City is under no obligation or duty to supervise the design, Construction, or
operation of the Telecommunications System.
7.14 Abandonment of Facilities. Except as may be otherwise provided by Law,
Licensee may abandon in place any Facilities in the Public Rights-of-Way by providing
the City written notice of its intent, which notice shall include a description of the
Facilities it intends to abandon, the specific location in the Public Rights-of-Way of such
Facilities, and the condition of such Facilities. If the City provides its written approval of
the proposed abandonment, License may, within 60 days of receipt of the City’s written
approval to abandon Facilities in place, execute such documents as may be required to
convey such abandoned property to the City free and clear of all encumbrances. Absent
such request and conveyance, Licensee shall be and remain responsible for any Facilities
abandoned in the Public Rights-of-Way.
ARTICLE 8 MISCELLANEOUS
8.1 Headings. Titles to articles and sections of this License are not a part of
this License and shall have no effect upon the construction or interpretation of any part
hereof.
8.2. Entire Agreement. The written provisions and terms of this License,
together with any Exhibits attached hereto, shall supersede all prior verbal statements of
any officer or other representative of the City, and such statements shall not be effective
or be construed as entering into or forming a party of or altering in any manner this
License.
8.3 Incorporation of Exhibits. All exhibits annexed hereto at the time of
execution of this License or in the future as contemplated herein, are hereby incorporated
by reference as though fully set forth herein.
8.4 Calculation of Time. All periods of time referred to herein shall include
Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last
day of any period falls on any Saturday, Sunday, or legal holiday in the State of
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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 License.
8.5 Time Limits Strictly Construed. Whenever this License sets forth a time for
any act to be performed by Licensee, such time shall be deemed to be of the essence, and
any failure of Licensee to perform within the allotted time may be considered a Breach of
this License.
8.6 No Joint Venture. It is not intended by this License to, and nothing
contained in this License shall, create any partnership, joint venture, or principal-agent
relationship or other arrangement between Licensee and the City. Neither Party is
authorized to, nor shall either Party act toward third Persons or the public in any manner
which would indicate any such relationship with the other. The Parties intend that the
rights, obligations, and covenants in this License and the collateral instruments shall be
exclusively enforceable by the City and Licensee, their successors, and assigns. No term
or provision of this License is intended to be, or shall be, for the benefit of any Person not
a Party hereto, and no such Person shall have any right or cause of action hereunder,
except as may be otherwise provided herein. Further, the Licensee is not granted any
express or implied right or authority to assume or create any obligation or responsibility on
behalf of or in the name of the City. Nothing in this Section 8.6 shall be construed to
prevent an assignment as provided for at Section 7.8.7 of this License.
8.7 Approval Authority. Except as may be otherwise provided by Law or
herein, any approval or authorization required to be given by the City, shall be given by
the Public Works Director (or its successor), or by the Public Works Director’s designee.
8.8 Binding Effect upon Successors and Assigns. All of the provisions,
conditions, and requirements contained in this License shall further be binding upon the
heirs, successors, executors, administrators, receivers, trustees, legal representatives and
assigns of the Licensee; and all privileges, as well as all obligations and liabilities of the
Licensee shall inure to its heirs, successors, and assigns equally as if they were
specifically mentioned wherever the Licensee is named herein.
8.9 Waiver. No failure by either Party to insist upon the performance of any
of the terms of this License or to exercise any right or remedy consequent upon a Breach
thereof, shall constitute a waiver of any such Breach or of any of the terms of this
License. None of the terms of this License to be kept, observed or performed by either
Party, and no breach thereof, shall be waived, altered or modified except by a written
instrument executed by the injured Party. No waiver of any Breach shall affect or alter
this License, but each of the terms of this License shall continue in full force and effect
with respect to any other then existing or subsequent Breach thereof. No waiver of any
default of the defaulting Party hereunder shall be implied from any omission by the
injured Party to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the default specified in
the express waiver and then only for the time and to the extent therein stated. One or
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more waivers by the injured Party shall not be construed as a waiver of a subsequent
breach of the same covenant, term or conditions.
8.10 Severability. If any word, article, section, subsection, paragraph, provision,
condition, clause, sentence, or its application to any person or circumstance (collectively
referred to as “Term”), shall be held to be illegal, invalid, or unconstitutional for any
reason by any court or agency of competent jurisdiction, such Term declared illegal,
invalid or unconstitutional shall be severable and the remaining Terms of the License
shall remain in full force and effect unless to do so would be inequitable or would result
in a material change in the rights and obligations of the Parties hereunder; provided,
however, that if either Licensee or the City prevails in any proceeding seeking a finding
that any Term invalid, illegal or unconstitutional for any reason, this License shall be
declared terminated and all rights and obligations hereunder shall immediately cease and
be of no force and effect except with regard to those provisions that survive termination
of this License pursuant to Section 8.14 herein. In the event that such Term shall be held
or otherwise mutually agreed to by the City and Licensee to be illegal, invalid, or
unconstitutional, the Parties shall reform the License pursuant to Section 3.5 herein.
8.11 Signs. No signs or advertising shall be permitted in the License Area except
as may be required by Law or as may be required by the City for the protection of the
public health, safety and welfare, to the extent it has authority to do so.
8.12 Discriminatory Practices Prohibited. Throughout the term of this License,
Licensee shall fully comply with all equal employment and nondiscrimination provisions of
applicable Law.
8.13 Notice. Any notice required or Permitted to be given hereunder shall be in
writing, unless otherwise expressly Permitted or required, and shall be deemed effective
either, (i) upon hand delivery to the person then holding the office shown on the attention
line of the address below, or, if such office is vacant or no longer exists, to a person
holding a comparable office, or (ii) or when delivered by a nationally recognized
overnight mail delivery service, to the Party and at the address specified below, or (ii) on
the third business day following its deposit with the United States Postal Service, first
class and certified or registered mail, return receipt requested, postage prepaid, properly
sealed and addressed as follows:
Licensee’s address: **
And to: **
The City’s Address: City of Kent
Attn: Chief Administrative Officer
220 Fourth Avenue South,
Kent, WA 98032
And to the City Attorney Office of the City Attorney
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Attn: City Attorney
220 Fourth Avenue South,
Kent, WA 98032
The City and Licensee may designate such other address from time to time by giving
written notice to the other, but notice cannot be required to more than two addresses,
except by mutual agreement.
8.14 Survival of Terms. Upon the expiration, termination, revocation or
forfeiture of the License, the Licensee shall no longer have the right to occupy the
License Area for the purpose of providing services authorized herein. However, the
Licensee’s obligations under this License to the City shall survive the expiration,
termination, revocation or forfeiture of these rights according to its terms for so long as
the Licensee’s Telecommunications System or any part thereof shall remain in whole or
in part in the Public Rights-of-Way, the Licensee transfers ownership of all Facilities in
the License Area to a third-Party, or the Licensee abandons said Facilities in place, all as
provided herein. Said obligations include, by way of illustration and not limitation,
Licensee’s obligations to indemnify, defend, and protect the City, to provide insurance, to
relocate its facilities, and to reimburse the City for its costs to perform Licensee work.
8.15 Force Majeure. In the event Licensee is prevented or delayed in the
performance of any of its obligations herein due to circumstances beyond its control or by
reason of a force majeure occurrence, such as, but not limited to, acts of God, acts of
terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes,
unusually severe weather conditions, employee strikes and unforeseen labor conditions
not attributable to Licensee’s employees, Licensee shall not be deemed in Breach of
provisions of this License.
If Licensee believes that circumstances beyond its control or by reason of a force
majeure occurrence have prevented or delayed its compliance with the provisions of this
License, Licensee shall provide documentation as reasonably required by the City to
substantiate the Licensee’s claim. Licensee shall have a reasonable time, under the
circumstances, to perform the affected obligation under this License or to procure a
substitute for such obligation which is satisfactory to the City; provided that, the Licensee
shall perform to the maximum extent it is able to perform and shall take reasonable steps
within its power to correct such cause(s) in as expeditious a manner as possible, provided
that the Licensee takes immediate and diligent steps to bring itself back into compliance
and to comply as soon as possible under the circumstances with the License without
unduly endangering the health, safety, and integrity of the Licensee's employees or
property, or the health, safety, and integrity of the public, Public Rights-of-Way, public
property, or private property.
8.16 Attorneys’ Fees. In the event of a suit, action, arbitration, or other
proceeding of any nature whatsoever, whether in contract or in tort or both, is instituted
to enforce any word, article, section, subsection, paragraph, provision, condition, clause or
sentence of this License or its application to any person or circumstance, the prevailing
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Party shall be entitled to recover from the losing Party its reasonable attorneys,
paralegals, accountants, and other experts fees and all other fees, costs, and expenses
actually incurred and reasonably necessary in connection therewith, as allowed by
Washington law and as determined by the judge or arbitrator at trial or arbitration, as the
case may be, or on any appeal or review, in addition to all other amounts provided by
law. This provision shall cover costs and attorneys’ fees related to or with respect to
proceedings in Federal Bankruptcy Courts, including those related to issues unique to
bankruptcy law. This provision shall not apply to dispute resolution proceedings under
section 6.1 of this License and shall not apply to the extent that the suit, action, arbitration or
other proceeding is brought to interpret any term, condition, provision, section, article or
clause of this License.
8.17 Venue/Choice of Law. This License shall be governed by and construed
in accordance with the laws of the State of Washington. If the Parties are unable to settle
any dispute, difference or claim arising from the Parties’ performance of this License, the
Exclusive means of resolving that dispute, difference or claim, shall only be by filing suit
exclusively under the venue, rules and jurisdiction of the King County Superior Court,
King County, Washington, unless the Parties agree in writing to an alternative dispute
resolution process.
8.18. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the
City requires its contractors and consultants to use recycled and recyclable products
whenever practicable. A price preference may be available for any designated recycled
product.
IN WITNESS WHEREOF, this License has been executed by the City as of the last
date set forth below (Effective Date).
CITY OF KENT
______________________________
Suzette Cooke, Mayor
Dated:
Michael Carrington, Director
Information Technology Department
Dated:
Approved as to form:
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______________________________
Chris Bacha,
Kenyon Disend, PLLC
Special Counsel
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Table of Contents.
Article 1 Definitions
Article 2 Grant
2.1 Public Right-of-Way Use Authorized
2.2 Authorized Services
2.3 No rights shall pass to Licensee by implication
2.4 Interest in the Public Right-of-Way
2.5 Condition of License Area
2.6 License Nonexclusive
2.7 Transfer
2.8 Street Vacation
2.9 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 Material Terms and Conditions
3.4 Reservation of Rights/Wavier
3.5 Subsequent Action
3.6 Change in Form of Government
3.7 Order of Precedence
ARTICLE 4. ACCEPTANCE
4.1 Acceptance
4.2 Failure to Timely File Acceptance
4.3 Effective Date; Term
4.4 Effect of Acceptance
4.5 Effect of Expiration/Termination
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Limitation of Liability
5.2 Environmental Liability- Attached Exhibit C
5.3 Insurance Requirements – Attached Exhibit D
5.4 Financial Security – Attached Exhibit E
5.5 Parental Guarantee – Attached Exhibit F
5.6 Contractors/Subcontractors – Attached Exhibit G
5.7 Liens
5.8 Financial Conditions
ARTICLE 6. ENFORCEMENT AND REMEDIES.
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6.1 Communication; Discussion
6.2 Remedies
6.3 Termination/Revocation
6.4 Assessment of Liquidated Damages
6.5 Receivership
ARTICLE 7. GENERAL CONDITIONS UPON USE OF PUBLIC RIGHTS-OF-WAY
7.1 Permits
7.2 Submission; Approval of Design Submittal
7.3 Compliance with Standards/Codes
7.4 Conditions Precedent to Work
7.5 Work in the Public Rights-of-Way
7.6 Alterations
7.7 General Conditions
7.8 Facility Relocation at Request of the City
7.9 Movement of Cable System Facilities for Others
7.10 Movement of Facilities During Emergencies
7.11 Record of Installations
7.12 Restoration of Public Rights-of-Way, Public and Private Property
7.13 Approvals
7.14 Abandonment of Facilities
ARTICLE 8 MISCELLANEOUS
8.1 Headings
8.2. Entire Agreement
8.3 Incorporation of Exhibits
8.4 Calculation of Time
8.5 Time Limits Strictly Construed
8.6 No Joint Venture
8.7 Approval Authority
8.8 Binding Effect upon Successors and Assigns
8.9 Waiver
8.10 Severability
8.11 Signs
8.12 Discriminatory Practices Prohibited
8.13 Notice
8.14 Survival of Terms
8.15 Force Majeure
8.16 Attorneys’ Fees
8.17 Venue/Choice of Law
8.18 Publication
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EXHIBITS:
A. License Area
B. Form of Acceptance of License
C. Environmental Indemnity
D. Insurance Requirements
E. Financial Security
F. Parental Guarantee
G. Contractor/Subcontractor Insurance Requirements
H.
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EXHIBIT “A”
(License Area)
The License Area shall consist of all of the Public Rights of Way lying with the
jurisdictional boundaries of the City, including any areas annexed by the City during the
term of this License.
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EXHIBIT “B”
(Acceptance of License)
License issued ______________________, 20_____.
I, _______________________, am the _________________________________,
and (am the authorized representative to) accept the above-referenced License on behalf
of _______________________________. I certify that this License and all terms and
conditions thereof are accepted by _______________________, without qualification or
reservation and that __________________________ unconditionally guarantee(s)
performance of all such terms and conditions.
DATED this _____ day of ________________, 20___.
By
Its
Tax Payer ID#
STATE OF ______________
CITY OF ____________
ss.
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 _____________________, a _____________
corporation,) to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this _____day of _________________________, _____.
(Signature of Notary)
Print Name
Notary public in and for the state of
______________, residing at
My appointment expires
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EXHIBIT “C”
(Environmental Indemnity)
1. Duty to Indemnify/Release/Defend. Licensee assumes the risk that
Hazardous Substances or other adverse matters may affect the License Area that were not
revealed by Licensee inspection and indemnifies, holds harmless and hereby waives,
releases and discharges forever the City and City’s officers, employees and agents
(collectively, “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 and judgments, and attorneys’ fees) of any and every kind or character,
known or unknown, which Licensee might have asserted or alleged against Indemnitees
arising from or in any way related to the Condition of the License Area or alleged
presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or
other handling of any Hazardous Substances in, on or under the License Area (the
“Licensee Losses”). Licensee Losses shall include without limitation (a) the cost of any
investigation, removal, or Remedial Action (defined below) that is required by any
Environmental Law, that is required by judicial order or by order of or agreement with
any governmental authority, or that is necessary or otherwise is 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,
Licensee Losses specifically include losses sustained by Licensee as a result of any
obligation of Licensee to remove, close, Remediate, reimburse or take other actions
requested or required by any governmental agency concerning any Hazardous Substances
on the License Area. Notwithstanding the above, Licensee Losses waived, released, and
discharged hereunder by Licensee shall not include losses as a result of releases or
contamination caused by the acts of the City after the Effective Date. The rights, duties
and obligations of the city and Licensee pursuant Sections 2 and 3 herein apply to the
duty to Indemnify and defend as provided in this Section 1.
2 Discovery Within License Area. In the event that the Work of the
Licensee in, on, and upon the License Area results in the discovery of the presence of
Hazardous Substances ("Discovered Matters”) in, on or upon the areas excavated or
otherwise opened or exposed by Licensee within the License Area (the "Excavated
Areas"), the Licensee shall immediately notify the City and take whatever other reporting
action is required by applicable Environmental Law as it relates to the Discovered
Matters in the Excavated Areas. In the event that, as a result of such discovery, an
agency with jurisdiction to address Hazardous Substances in, on or upon the License
Area (“Environmental Authority”) orders, obtains a judgment or court order requiring,
or otherwise exercises its authority to require Remedial Actions to be taken by the City or
Licensee, or Licensee decides to undertake Remedial Actions independently or enter into
a consent order or consent decree with an Environmental Authority, then in such event,
Licensee agrees to indemnify, defend, and hold the City harmless from and against the
cost of all Remedial Actions which are required by the Environmental Authority within
the Excavated Areas under the applicable Environmental Laws with respect to the
Discovered Matters; provided, however, the City, subject to the provisions of Section 3
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below, shall be solely responsible for all necessary Remedial Actions which are required
by the Environmental Authority within other portions of the License Area (outside the
Excavated Areas) under the applicable Environmental Laws with respect to the
Discovered Matters.
2 Release by Licensee. In the event the Licensee’s Work, in, on or upon the
License Area within the Excavated Areas results in a release (as determined under
applicable Environmental Laws) of Hazardous Substances which were, before such
activities, confined to areas within the Excavated Areas, but which after such activities by
Licensee are released beyond the Excavated Areas, and if the release is caused in whole
or in part by the Licensee, then the Licensee shall indemnify, defend and hold the City
harmless from the costs of all necessary Remedial Actions which are required under the
applicable Environmental Laws, to the extent of Licensee's share of the liability for the
release. Licensee’s liability for the release may, inter alia, be determined by Licensee’s
admission of the same, or as determined by a final non-appealable decision by a court of
competent jurisdiction, or as provided in a final non-appealable administrative order
issued by the Environmental Authority, or by a consent decree entered by Licensee and
the Environmental Authority.
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EXHIBIT “D”
(Insurance Requirements)
1 General Requirement. Commencing upon issuance of the first Site Specific
Permit under this License, Licensee must have adequate insurance at all times while
Licensee owns or operates Facilities in the Public Rights-of-Way, to protect the City against
claims for death or injuries to Persons or damages to property or equipment which in any
way relate to, arise from or are connected with this License or involve the Facilities,
Licensee, its agents, representatives, contractors, subcontractors and their employees.
2 Minimum Insurance Limits. The Licensee shall maintain the following
minimum insurance coverages and limits:
2.1 Commercial General Liability: insurance to cover liability, bodily
injury, and property damage. The Commercial General Liability insurance shall be
written on an occurrence basis, with an aggregate limit location endorsement for the
License Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability and completed operations. Such insurance shall include broad
form and blanket contractual coverage, including coverage for the License as now or
hereafter amended and specific coverage for the indemnity provisions set forth herein.
Coverage must be written with the following limits of liability:
$2,000,000 per occurrence,
$4,000,000 general aggregate and
$1,000,000 products/completed operations aggregate.
2.2 Automobile Liability: shall include owned, hired, and non-owned
vehicles on an occurrence basis with coverage of at least $2,000,000 per occurrence.
2.3 Workers Compensation Insurance: shall be maintained during the
life of this License to comply with statutory limits for all employees, and in the case any
work is sublet, the Licensee shall require its contractors and subcontractors similarly to
provide workers' compensation insurance for all the employees. The Licensee shall also
maintain, during the life of this policy, employer’s liability insurance with limits of
$1,000,000 each occurrence.
2.4 Excess or Umbrella Liability: $5,000,000 each occurrence and
$5,000,000 policy limit.
2.5 Pollution Legal Liability Insurance: (At the option of the City)
$5,000,000 per occurrence and $10,000,000 in the aggregate.
3 Endorsements. Licensee Commercial General Liability insurance policies
are to contain, or be endorsed to contain, the following:
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3.1 The Licensee’s insurance coverage shall be primary insurance with
respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained
by the City shall be in excess of the Licensee’s insurance and shall not contribute to it.
3.2 Licensee, through policy endorsement, shall waive its rights of
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 Licensee’s insurance shall name the City as an additional
insured, and other Persons to whom the City is obligated under separate agreement or by
Law, to protect or insure as an additional insured, from and against Liabilities arising out of
work performed in the Public Rights-of-Way under a grant of authority of the City.
3.5 The Licensee’s insurance shall include a requirement that the
“railroad exclusion” be deleted or may include, in the alternative, ISO endorsement CG
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, Licensee shall provide a replacement policy.
4 Acceptability of Insurers. Each insurance policy obtained pursuant to this
License shall be issued by financially sound insurers who may lawfully do business in the
State of Washington with a financial strength rating at all times during coverage of no
less than an “A” and in a financial size category of no less than “X”, in the latest edition
of “Best’s Rating Guide” published by A.M. Best Company. In the event that at any time
during coverage, the insurer does not meet the foregoing standards, Licensee shall give
prompt notice to the City and shall seek coverage from an insurer that meets the
foregoing standards. The City reserves the right to change the rating or the rating guide
depending upon the changed risks or availability of other suitable and reliable rating
guides.
5 Verification of Coverage. The Licensee shall furnish the City with signed
certificates of insurance and a copy of the amendatory endorsements, including, but not
necessarily limited to, the additional insured endorsement, evidencing the Automobile
Liability, Commercial General Liability and Umbrella or Excess insurance of the Licensee
upon acceptance of this License. The certificate for each insurance policy is to be signed by
a Person authorized by that insurer to bind coverage on its behalf. The certificate for each
insurance policy must be on standard forms or on such forms as are consistent with standard
industry practices. The Licensee hereby warrants that its insurance policies satisfy the
requirements of this License.
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6 Deductible. Commercial General Liability Insurance policies and
coverage required herein may include a reasonable deductible not to exceed 10% of the
minimum per occurrence commercial general liablity policy limits; provided, however,
that if Licensee elects to include any deductible, Licensee shall itself directly cover, in
lieu of insurance, any and all City Liabilities that would otherwise in accordance with the
provisions of this License be covered by Licensee insurance if Licensee elected not to
include a deductible. Such direct coverage by Licensee shall be in an amount equal to the
amount of Licensee’s actual deductible.
7 No Limitation. Licensee’s maintenance of insurance policies required by
this License shall not be construed to excuse unfaithful performance by Licensee or limit the
liability of Licensee to the coverage provided in the insurance policies, or otherwise limit the
City’s recourse to any other remedy available at law or in equity.
8 Modifications of Coverages and Limits. The City reserves the right,
during the term of the License, to require any other insurance coverage or adjust the
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures. Prior to imposing such additional coverage
or adjusting existing required coverages or limits, the City shall provide reasonable notice
to the Licensee and an opportunity to provide comments, and the City shall review and
consider such comments that are timely made.
9 Public Licensees. Licensee Commercial General Liability, Automobile
liablity and Umbrella Coverage Insurance policies and coverage required herein for
Public Licensees may include a reasonable a self-insured retention; provided, however,
that as to any self-insured retention, Licensee shall itself directly cover, in lieu of
insurance, any and all City liabilities that would otherwise in accordance with the
provisions of this License be covered by Licensee insurance if Licensee elected not to
include a self-insured retention. Such direct coverage by Licensee shall be in an amount
equal to the amount of Licensee’s actual self-insured retention. “Public Licensee” for
purposes of this Section 9 shall mean and include, any Licensee organized as a political
subdivision of the state of Washington, but shall not mean or include agents, contractors
and subcontractors of Licensee that are not also organized as political subdivisions.
Licensee shall be required to provide verification of self-insurance retention coverage in a
form and content acceptable to the City.
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EXHIBIT “E”
(Financial Security)
1 Performance Bond.
1.1 Licensee shall provide to the City a faithful performance and
payment bond in the initial amount of $***,*** to ensure the full and faithful performance
of all of its responsibilities under this License and applicable Laws, including, by way of
example and not limitation, its obligations to relocate and remove its Facilities, to restore
the Public Right-of-Way and other property when damaged or disturbed, and to
reimburse the City for its Direct Costs.
1.2 The performance bond shall be in a form with terms and conditions
acceptable to the City and reviewed and approved by the City Attorney.
1.3 The performance bond shall be with a surety with a rating no less
than "A X" in the latest edition of "Bests Rating Guide," published by A.M. Best
Company.
1.4 The Licensee shall pay all premiums or costs associated with
maintaining the performance and payment bond, and shall keep the same in full force and
effect at all times. If Licensee fails to provide or maintain the bond, then the City, in its
sole discretion, may require Licensee to substitute an equivalent cash deposit as described
below in lieu of the bond.
1.5 Licensee’s maintenance of the bond(s) shall not be construed to
excuse unfaithful performance by Licensee, or limit the liability of Licensee to the amount
of the bond(s), or otherwise limit the City’s recourse to any other remedy available at law or
in equity.
1.6 The amount of the bond may, in the reasonable discretion of the
City, be adjusted by the City to take into account (1) cumulative inflation, (2) increased
risk to the City, (3) the experiences of the Parties regarding Licensee compliance with its
obligations under the License, and (4) issuance of Site Specific Permits for installation of
new Facilities. Prior to adjusting the amount of the bond, the City shall provide
reasonable notice to the Licensee and an opportunity to provide comments, and the City
shall review and consider such comments that are timely made.
2 Cash Deposit/Irrevocable Letter of Credit in Lieu of Bond.
Licensee may, at its election or upon order by the City pursuant to Section 4
herein, substitute an equivalent cash deposit with an escrow agent approved by the City
or an irrevocable letter of credit in form and content approved by the City Attorney,
instead of a performance and payment bond. This cash deposit or irrevocable letter of
credit shall ensure the full and faithful performance of all of Licensee’s responsibilities
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hereto under this License and all applicable Laws. This includes but, is not limited to,
Licensee’s obligations to relocate or remove its facilities, restore the Public Rights-of-
Way and other property to its original condition, reimburse the City for its costs.
The City shall notify Licensee in writing, by certified mail, of any default and
shall give Licensee thirty (30) days from the date of such notice to cure any such default.
In the event that the Licensee fails to cure such default to the satisfaction of the City, the
City may, at its option, draw upon the cash deposit or letter of credit up to the amount of
the City’s costs incurred to cure Licensee’s default. Upon the City’s cure of Licensee’s
default, the City shall notify Licensee in writing of such cure.
In the event that the City draws upon the cash deposit or letter of credit, Licensee
shall thereupon replenish the cash deposit or letter of credit to the full amount as
specified herein or provide a replacement performance and payment bond.
3 Restoration Bond.
3.1 Unless otherwise provided in a Permit issued by the City for work
within the Public Right-of-Way, or by City ordinance, code, rule, regulation or
Standards, the City may require Licensee to enter into a performance agreement, secured
by a restoration bond written by a corporate surety acceptable to the City equal to at least
_______________ percent (____%) of the estimated cost of restoring the Public Rights-
of-Way to their pre-construction condition in accordance with Section 7.12 of the
License. Such restoration bond shall be deposited before construction is commenced.
Such restoration bond may be required, when the City determines that the Performance
and Payment Bond or cash deposit/letter of credit is not sufficient to protect the interests
of the City for Permitted Work.
3.2 Said restoration bond, or a separate bond acceptable to the City,
shall warrant all such restoration work for a period of ____ (__) years.
3.3 In the event that a bond issued to meet the requirements of this
Section is canceled by the surety, after proper notice and pursuant to the terms of said
bond, Licensee shall, prior to expiration of said bond, be responsible for obtaining a
replacement bond which complies with the terms of this Section.
3.4 The performance agreement shall guarantee, to the satisfaction of
the City:
3.4.1 Timely completion of construction;
3.4.2 Construction in compliance with applicable approved
plans, Utility Permits, technical codes, and Standards;
3.4.3 Proper location of the Facilities as approved by the City;
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3.4.4 Restoration of the Public Rights-of-Way and other public
or private property disrupted, damaged, or otherwise affected by the construction. The
performance agreement shall warrant said restoration work for a period of _________
(___) 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 Licensee or a pattern of repeated
Breaches, then Licensee shall, upon written request of the City, establish and provide to the
City a cash deposit or irrevocable letter of credit from a local financial institution
satisfactory to the City, in a form and content approved by the City Attorney, and in the
amount of $________ ($ _____). Such Irrevocable letter of credit shall be established as
security for the full and faithful performance of all of its responsibilities under this
License and applicable Laws, including, by way of example but not limited to, its
obligations to relocate and remove its Facilities, to restore the Public Right-of-Way and
other property when damaged or disturbed, and to reimburse the City for its costs,
4.2 If a cash deposit or letter of credit is furnished pursuant to Section 2,
the cash deposit or letter of credit shall then be maintained at that same amount throughout
the remaining term of this License.
4.3 Upon a Material Breach, the cash deposit/letter of credit may be
drawn upon by the City for purposes including, but not limited to, the following:
4.3.1 Failure of Licensee to pay the City sums due under the terms
of this License;
4.3.2 Reimbursement of costs and expenses borne by the City to
correct License violations not corrected by Licensee; and
4.3.3 Monetary remedies or damages assessed against Licensee as
provided in this License.
4.4 Within three (3) days of a withdrawal from the Security Fund, the
City shall mail, by certified mail, return receipt requested, written notification of the
amount, date, and purpose of such withdrawal to the Licensee.
4.5 Within thirty (30) days following notice that a withdrawal from the
cash deposit/letter of credit has occurred, Licensee shall restore the cash deposit/letter of
credit to the full amount required by Section 4.1. If at the time of a withdrawal from the
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Security Fund by the City, the amounts available are insufficient to provide the total
payment towards which the withdrawal is directed, the balance of such payment shall
continue as the obligation of the Licensee to the City until it is paid.
4.6 Upon termination of the License under conditions other than those
stipulating forfeiture of the Security Fund, the balance then remaining in the Security
Fund shall be returned to the Licensee within sixty (60) days of such termination,
provided that there is then no outstanding default on the part of the Licensee.
4.7 Failure to maintain or restore the security fund or letter of credit
shall constitute a Breach of this Agreement.
4.8 In the event Licensee believes that the letter of credit was drawn
upon improperly, Licensee shall give notice to the City and the City and Licensee shall refer
the Dispute to the Dispute Resolution process set forth at Section 6.1 of this License.
4.9 The rights reserved to the City herein are in addition to all other
rights of the City, whether reserved herein or authorized by applicable Law, and no
action, proceeding, or exercise of a right with respect to such Security Fund or letter of
credit will affect any other right the City may have. Neither the filing of a letter of credit
with the City, nor the receipt of any damages recovered by the City thereunder, shall be
construed to excuse faithful performance by the Licensee or limit the liability of the
Licensee under the terms of its License for damages, either to the full amount of the letter
of credit or otherwise.
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EXHIBIT F
(Form of Parental Guarantee)
This Guaranty is made on the date set forth below by [NAME OF
GUARANTOR] (hereinafter referred to as the "GUARANTOR").
RECITALS:
WHEREAS, . ** (Guarantor) and the City of **, (the "CITY") have entered into
a License Agreement (the "License") dated _______, 20___.
WHEREAS, The License requires GUARANTOR to guaranty the observance,
fulfillment and performance of Licensee’s obligations under the License.
NOW, THEREFORE, in partial consideration of the City’s grant of the License
Agreement to Licensee and in addition to other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the GUARANTOR hereby
agrees to the following:
TERMS:
1. GUARANTOR guarantees to the CITY the observance, fulfillment and
performance by Licensee of each and every obligation of Licensee in the License, except
to the extent that any such provision or obligation is unenforceable under applicable law
(the "Guaranty").
2. The Guaranty shall continue in full force and effect until the City releases the
Guarantor from its obligations under this Guarantee or otherwise by operation of law or
contract. In no event shall the Guaranty extend beyond the original term of the License
Agreement.
3. This Guaranty shall be governed by and construed in accordance with the laws
of the State of Washington.
4. If any provision of this Guaranty is determined to be illegal, invalid or
unconstitutional by any court of competent jurisdiction or by any state or federal
regulatory authority having jurisdiction, then such determination shall have no effect on
the validity of any other provision of this Guaranty.
IN WITNESS WHEREOF, the GUARANTOR has caused the Guaranty to be
executed by its duly authorized representative on the date set forth below.
BY:
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ISMS License Agmnt for Public Works Committee.doc 54
NAME:
TITLE:
DATE:
STATE OF ______________
CITY OF ____________
ss.
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 _____________________, a _____________
corporation,) to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this _____day of _________________________, _____.
(Signature of Notary)
Print Name
Notary public in and for the state of
______________, residing at
My appointment expires
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EXHIBIT “G”
(Contractor/Subcontractor Insurance Requirements)
1 General Requirement. Prior to commencing and during the period of Work
performed within the Public License Area, Licensee contractors and subcontractors
(hereafter the “Contractors”) must have in place adequate insurance to protect the City
against claims for death or injuries to Persons or damages to property or equipment which in
any way relate to, arise from or are connected with this such 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
License Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability and completed operations. 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 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.
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3.4 The Contractor’s insurance shall name the City as an additional
insured, and other Persons to whom the City is obligated under separate agreement or by
Law, to protect or insure as an additional insured, from and against Liabilities arising out of
Work performed in the Public Rights-of-Way under a grant of authority of the City.
3.5 The Contractor’s insurance shall include a requirement that the
“railroad exclusion” be deleted or may include, in the alternative, ISO endorsement CG
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, Licensee shall provide a replacement policy.
4 Acceptability of Insurers. Each insurance policy required herein shall be
issued by financially sound insurers who may lawfully do business in the State of
Washington with a financial strength rating at all times during coverage of no less than an
“A-” and in a financial size category of no less than “IX”, in the latest edition of “Best’s
Rating Guide” published by A.M. Best Company. In the event that at any time during
coverage, the insurer does not meet the foregoing standards, Contractor shall give prompt
notice to the City and shall seek coverage from an insurer that meets the foregoing
standards. The City reserves the right to change the rating or the rating guide depending
upon the changed risks or availability of other suitable and reliable rating guides.
5 Verification of Coverage. The Licensee shall furnish the City with
Contractors’ signed certificates of insurance and a copy of the amendatory endorsements,
including, but not necessarily limited to, the additional insured endorsement, evidencing the
Automobile Liability, and Commercial General Liability policies of the Contractors. The
certificate for each insurance policy is to be signed by a Person authorized by that insurer to
bind coverage on its behalf. The certificate for each insurance policy must be on standard
forms or on such forms as are consistent with standard industry practices.
6 Deductible. Commercial General Liability Insurance policies and
coverage required herein may include a reasonable deductible not to exceed ___% of the
minimum per occurrence commercial general liablity policy limits; provided, however,
that 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 Contactors 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 by
herein shall not be construed to excuse unfaithful performance by Licensee or limit the
liability of Licensee or contractor to the coverage provided in the insurance policies, or
otherwise limit the City’s recourse to any other remedy available at law or in equity.
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8 Modifications of Coverages and Limits. The City reserves the right,
during the term of the License, to require any other insurance coverage or adjust the
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures. Prior to imposing such additional coverage
or adjusting existing required coverages or limits, the City shall provide reasonable notice
to the Licensee and an opportunity to provide comments, and the City shall review and
consider such comments that are timely made.
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PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 1, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Bradley Lake, Water Superintendent
Through: Timothy J. LaPorte, P.E., Public Works Director
Subject: 2010 Water Treatment Chemical Contract with Cascade
Columbia Distribution
Summary:
The City annually advertises for water treatment supply chemicals to ensure a
consistent cost for budgetary constraints. The use of these chemicals is required to
obtain drinking water quality that meets State and Federal Regulations for drinking
water standards.
This treatment chemical is required to supply potable drinking water to the City’s
water customers. Sodium Fluoride is used to fluoridate the drinking water in an
effort to help prevent dental carries in young children.
Budget Impact:
No Unbudgeted Fiscal/Personnel Impact as the funding ($37,705.00) would come
from the 2010 operating budget.
Motion: Move to recommend Council authorize the Mayor to sign the 2010
Water Treatment Chemical Supply Agreement between the City of Kent and
Cascade Columbia Distribution for Sodium Fluoride, subject to terms and
conditions acceptable to the City Attorney and the Public Works Director.
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GOODS & SERVICES AGREEMENT - 1
(Over $10,000.00, including WSST)
GOODS & SERVICES AGREEMENT
between the City of Kent and
Newco, Inc., d/b/a Cascade Columbia Distribution
THIS AGREEMENT is made by and between the City of Kent, a Washington municipal
corporation (hereinafter the "City"), and Newco, Inc., d/b/a Cascade Columbia Distribution
organized under the laws of the State of Washington, located and doing business at 6900 Fox
Avenue S., Seattle, WA 98108, Phone: (206) 763-2350/Fax: (206) 762-5995, Contact: Keith
Weisenburg (hereinafter the "Vendor").
AGREEMENT
I. DESCRIPTION OF WORK.
Vendor shall provide the following goods and materials and/or perform the following
services for the City:
The Vendor shall supply the City of Kent Water Department with a water treatment
chemical (bid item 6) according to the bid proposal submitted October 30, 2009,
which is attached as Exhibit A and incorporated by this reference.
Vendor acknowledges and understands that it is not the City’s exclusive provider of these
goods, materials, or services and that the City maintains its unqualified right to obtain these
goods, materials, and services through other sources.
II. TIME OF COMPLETION. Upon the effective date of this Agreement, Vendor shall
complete the work and provide all goods, materials, and services by December 31, 2010.
III. COMPENSATION. The City shall pay the Vendor an amount not to exceed Thirty
Seven Thousand, Seven Hundred Five Dollars ($37,705.00), including applicable Washington
State Sales Tax, for the goods, materials, and services contemplated in this Agreement. The
City shall pay the Vendor the following amounts according to the following schedule:
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GOODS & SERVICES AGREEMENT - 2
(Over $10,000.00, including WSST)
Delivery will be scheduled upon execution of this agreement. Vendor shall be paid
after submittal of invoice.
If the City objects to all or any portion of an invoice, it shall notify Vendor and reserves
the option to only pay that portion of the invoice not in dispute. In that event, the parties will
immediately make every effort to settle the disputed portion.
A. Defective or Unauthorized Work. The City reserves its right to withhold payment
from Vendor for any defective or unauthorized goods, materials or services. If
Vendor is unable, for any reason, to complete any part of this Agreement, the City
may obtain the goods, materials or services from other sources, and Vendor shall
be liable to the City for any additional costs incurred by the City. "Additional costs"
shall mean all reasonable costs, including legal costs and attorney fees, incurred by
the City beyond the maximum Agreement price specified above. The City further
reserves its right to deduct these additional costs incurred to complete this
Agreement with other sources, from any and all amounts due or to become due the
Vendor.
B. Final Payment: Waiver of Claims. VENDOR’S ACCEPTANCE OF FINAL PAYMENT
SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND
PROPERLY MADE AND IDENTIFIED BY VENDOR AS UNSETTLED AT THE TIME
REQUEST FOR FINAL PAYMENT IS MADE.
IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent
Contractor-Employer Relationship will be created by this Agreement. By their execution of this
Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following
representations:
A. The Vendor has the ability to control and direct the performance and details
of its work, the City being interested only in the results obtained under this
Agreement.
B. The Vendor maintains and pays for its own place of business from which
Vendor’s services under this Agreement will be performed.
C. The Vendor has an established and independent business that is eligible for a
business deduction for federal income tax purposes that existed before the
City retained Vendor’s services, or the Vendor is engaged in an
independently established trade, occupation, profession, or business of the
same nature as that involved under this Agreement.
D. The Vendor is responsible for filing as they become due all necessary tax
documents with appropriate federal and state agencies, including the Internal
Revenue Service and the state Department of Revenue.
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GOODS & SERVICES AGREEMENT - 3
(Over $10,000.00, including WSST)
E. The Vendor has registered its business and established an account with the
state Department of Revenue and other state agencies as may be required
by Vendor’s business, and has obtained a Unified Business Identifier (UBI)
number from the State of Washington.
F. The Vendor maintains a set of books dedicated to the expenses and earnings
of its business.
V. TERMINATION. Either party may terminate this Agreement, with or without
cause, upon providing the other party thirty (30) days written notice at its address set forth on
the signature block of this Agreement.
VI. CHANGES. The City may issue a written amendment for any change in the goods,
materials or services to be provided during the performance of this Agreement. If the Vendor
determines, for any reason, that an amendment is necessary, Vendor must submit a written
amendment request to the person listed in the notice provision section of this Agreement,
section XIV(D), within fourteen (14) calendar days of the date Vendor knew or should have
known of the facts and events giving rise to the requested change. If the City determines that
the change increases or decreases the Vendor's costs or time for performance, the City will
make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the
Vendor on all equitable adjustments. However, if the parties are unable to agree, the City will
determine the equitable adjustment as it deems appropriate. The Vendor shall proceed with the
amended work upon receiving either a written amendment from the City or an oral order from
the City before actually receiving the written amendment. If the Vendor fails to require an
amendment within the time allowed, the Vendor waives its right to make any claim or submit
subsequent amendment requests for that portion of the contract work. If the Vendor disagrees
with the equitable adjustment, the Vendor must complete the amended work; however, the
Vendor may elect to protest the adjustment as provided in subsections A through E of Section
VII, Claims, below.
The Vendor accepts all requirements of an amendment by: (1) endorsing it, (2) writing a
separate acceptance, or (3) not protesting in the way this section provides. An amendment that
is accepted by Vendor as provided in this section shall constitute full payment and final
settlement of all claims for contract time and for direct, indirect and consequential costs,
including costs of delays related to any work, either covered or affected by the change.
VII. CLAIMS. If the Vendor disagrees with anything required by an amendment,
another written order, or an oral order from the City, including any direction, instruction,
interpretation, or determination by the City, the Vendor may file a claim as provided in this
section. The Vendor shall give written notice to the City of all claims within fourteen (14)
calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14)
calendar days of the date the Vendor knew or should have known of the facts or events giving
rise to the claim, whichever occurs first . Any claim for damages, additional payment for any
reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively
deemed to have been waived by the Vendor unless a timely written claim is made in strict
accordance with the applicable provisions of this Agreement.
At a minimum, a Vendor's written claim shall include the information set forth in
subsections A, items 1 through 5 below.
FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM
WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY
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GOODS & SERVICES AGREEMENT - 4
(Over $10,000.00, including WSST)
CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS
SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY.
A. Notice of Claim. Provide a signed written notice of claim that provides the following
information:
1. The date of the Vendor's claim;
2. The nature and circumstances that caused the claim;
3. The provisions in this Agreement that support the claim;
4. The estimated dollar cost, if any, of the claimed work and how that
estimate was determined; and
5. An analysis of the progress schedule showing the schedule change or
disruption if the Vendor is asserting a schedule change or disruption.
B. Records. The Vendor shall keep complete records of extra costs and time incurred
as a result of the asserted events giving rise to the claim. The City shall have
access to any of the Vendor's records needed for evaluating the protest.
The City will evaluate all claims, provided the procedures in this section are
followed. If the City determines that a claim is valid, the City will adjust payment
for work or time by an equitable adjustment. No adjustment will be made for an
invalid protest.
C. Vendor's Duty to Complete Protested Work. In spite of any claim, the Vendor shall
proceed promptly to provide the goods, materials and services required by the City
under this Agreement.
D. Failure to Protest Constitutes Waiver. By not protesting as this section provides,
the Vendor also waives any additional entitlement and accepts from the City any
written or oral order (including directions, instructions, interpretations, and
determination).
E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures
of this section, the Vendor completely waives any claims for protested work and
accepts from the City any written or oral order (including directions, instructions,
interpretations, and determination).
VIII. LIMITATION OF ACTIONS. VENDOR MUST, IN ANY EVENT, FILE ANY LAWSUIT
ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM
THE DATE THE CONTRACT WORK IS COMPLETE OR VENDOR’S ABILITY TO FILE THAT SUIT
SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY
LIMITATIONS PERIOD.
IX. WARRANTY. This Agreement is subject to all warranty provisions established
under the Uniform Commercial Code, Title 62A, Revised Code of Washington. Vendor warrants
goods are merchantable, are fit for the particular purpose for which they were obtained, and will
perform in accordance with their specifications and Vendor’s representations to City. The Vendor
shall correct all defects in workmanship and materials within one (1) year from the date of the
City's acceptance of the Contract work. In the event any part of the goods are repaired, only
original replacement parts shall be used—rebuilt or used parts will not be acceptable. When
defects are corrected, the warranty for that portion of the work shall extend for one (1) year
from the date such correction is completed and accepted by the City. The Vendor shall begin to
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GOODS & SERVICES AGREEMENT - 5
(Over $10,000.00, including WSST)
correct any defects within seven (7) calendar days of its receipt of notice from the City of the
defect. If the Vendor does not accomplish the corrections within a reasonable time as
determined by the City, the City may complete the corrections and the Vendor shall pay all costs
incurred by the City in order to accomplish the correction.
X. DISCRIMINATION. In the hiring of employees for the performance of work under
this Agreement or any sub-contract, the Vendor, its sub-contractors, or any person acting on
behalf of the Vendor or sub-contractor shall not, by reason of race, religion, color, sex, age,
sexual orientation, national origin, or the presence of any sensory, mental, or physical disability,
discriminate against any person who is qualified and available to perform the work to which the
employment relates.
Vendor shall execute the attached City of Kent Equal Employment Opportunity Policy
Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract
work, file the attached Compliance Statement.
XI. INDEMNIFICATION. Vendor shall defend, indemnify and hold the City, its
officers, officials, employees, agents and volunteers harmless from any and all claims, injuries,
damages, losses or suits, including all legal costs and attorney fees, arising out of or in
connection with the Vendor's performance of this Agreement, except for that portion of the
injuries and damages caused by the City's negligence.
The City's inspection or acceptance of any of Vendor's work when completed shall not be
grounds to avoid any of these covenants of indemnification.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY
UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS
INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY
NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this
Agreement.
XII. INSURANCE. The Vendor shall procure and maintain for the duration of the
Agreement, insurance of the types and in the amounts described in Exhibit B attached and
incorporated by this reference.
XIII. WORK PERFORMED AT VENDOR'S RISK. Vendor shall take all necessary
precautions and shall be responsible for the safety of its employees, agents, and subcontractors
in the performance of the contract work and shall utilize all protection necessary for that
purpose. All work shall be done at Vendor's own risk, and Vendor shall be responsible for any
loss of or damage to materials, tools, or other articles used or held for use in connection with the
work.
XIV. MISCELLANEOUS PROVISIONS.
A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City
requires its contractors and consultants to use recycled and recyclable products whenever
practicable. A price preference may be available for any designated recycled product.
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GOODS & SERVICES AGREEMENT - 6
(Over $10,000.00, including WSST)
B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of
any of the covenants and agreements contained in this Agreement, or to exercise any option
conferred by this Agreement in one or more instances shall not be construed to be a waiver or
relinquishment of those covenants, agreements or options, and the same shall be and remain in
full force and effect.
C. Resolution of Disputes and Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. If the parties are unable
to settle any dispute, difference or claim arising from the parties’ performance of this
Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by
filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court,
King County, Washington, unless the parties agree in writing to an alternative dispute resolution
process. In any claim or lawsuit for damages arising from the parties' performance of this
Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or
bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award
provided by law; provided, however, nothing in this paragraph shall be construed to limit the
City's right to indemnification under Section XI of this Agreement.
D. Written Notice. All communications regarding this Agreement shall be sent to the
parties at the addresses listed on the signature page of the Agreement, unless notified to the
contrary. Any written notice hereunder shall become effective three (3) business days after the
date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to
the addressee at the address stated in this Agreement or such other address as may be
hereafter specified in writing.
E. Assignment. Any assignment of this Agreement by either party without the written
consent of the non-assigning party shall be void. If the non-assigning party gives its consent to
any assignment, the terms of this Agreement shall continue in full force and effect and no
further assignment shall be made without additional written consent.
F. Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
the City and Vendor.
G. Entire Agreement. The written provisions and terms of this Agreement, together
with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or
other representative of the City, and such statements shall not be effective or be construed as
entering into or forming a part of or altering in any manner this Agreement. All of the above
documents are hereby made a part of this Agreement. However, should any language in any of
the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms
of this Agreement shall prevail.
H. Compliance with Laws. The Vendor agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become applicable
to Vendor's business, equipment, and personnel engaged in operations covered by this
Agreement or accruing out of the performance of those operations.
I. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, and all of which will together constitute this one
Agreement.
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GOODS & SERVICES AGREEMENT - 7
(Over $10,000.00, including WSST)
IN WITNESS, the parties below execute this Agreement, which shall become
effective on the last date entered below.
VENDOR:
By:
(signature)
Print Name:
Its
(title)
DATE:
CITY OF KENT:
By:
(signature)
Print Name: Suzette Cooke
Its Mayor
DATE:
NOTICES TO BE SENT TO:
VENDOR:
Keith Weisenburg
Cascade Columbia Distribution
6900 Fox Avenue S.
Seattle, WA 98108
(206) 763-2350 (telephone)
(206) 762-5995 (facsimile)
NOTICES TO BE SENT TO:
CITY OF KENT:
Timothy J. LaPorte, P.E.
City of Kent
220 Fourth Avenue South
Kent, WA 98032
(253) 856-5500 (telephone)
(253) 856-6500 (facsimile)
APPROVED AS TO FORM:
Kent Law Department
Cascade Columbia - 2010 Water Chemical (6)/Bauer
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EEO COMPLIANCE DOCUMENTS - 1 of 3
DECLARATION
CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY
The City of Kent is committed to conform to Federal and State laws regarding equal opportunity.
As such all contractors, subcontractors and suppliers who perform work with relation to this
Agreement shall comply with the regulations of the City’s equal employment opportunity
policies.
The following questions specifically identify the requirements the City deems necessary for any
contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative
response is required on all of the following questions for this Agreement to be valid and binding.
If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the
directives outlines, it will be considered a breach of contract and it will be at the City’s sole
determination regarding suspension or termination for all or part of the Agreement;
The questions are as follows:
1. I have read the attached City of Kent administrative policy number 1.2.
2. During the time of this Agreement I will not discriminate in employment on the basis of
sex, race, color, national origin, age, or the presence of all sensory, mental or physical
disability.
3. During the time of this Agreement the prime contractor will provide a written statement to
all new employees and subcontractors indicating commitment as an equal opportunity
employer.
4. During the time of the Agreement I, the prime contractor, will actively consider hiring and
promotion of women and minorities.
5. Before acceptance of this Agreement, an adherence statement will be signed by me, the
Prime Contractor, that the Prime Contractor complied with the requirements as set forth
above.
By signing below, I agree to fulfill the five requirements referenced above.
Dated this day of ____ , 20___.
By: ___________________________________________
For: __________________________________________
Title: _________________________________________
Date: _________________________________________
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EEO COMPLIANCE DOCUMENTS - 2 of 3
CITY OF KENT
ADMINISTRATIVE POLICY
NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998
SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996
CONTRACTORS APPROVED BY Jim White, Mayor
POLICY:
Equal employment opportunity requirements for the City of Kent will conform to federal and
state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee
equal employment opportunity within their organization and, if holding Agreements with the City
amounting to $10,000 or more within any given year, must take the following affirmative steps:
1. Provide a written statement to all new employees and subcontractors indicating
commitment as an equal opportunity employer.
2. Actively consider for promotion and advancement available minorities and women.
Any contractor, subcontractor, consultant or supplier who willfully disregards the City’s
nondiscrimination and equal opportunity requirements shall be considered in breach of contract
and subject to suspension or termination for all or part of the Agreement.
Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public
Works Departments to assume the following duties for their respective departments.
1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these
regulations are familiar with the regulations and the City’s equal employment opportunity
policy.
2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines.
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EEO COMPLIANCE DOCUMENTS - 3 of 3
CITY OF KENT
EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT
This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the
Agreement.
I, the undersigned, a duly represented agent of
Company, hereby acknowledge and declare that the before-mentioned company was the prime
contractor for the Agreement known as that was entered into on
the (date), between the firm I represent and the City of
Kent.
I declare that I complied fully with all of the requirements and obligations as outlined in the City
of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity
Policy that was part of the before-mentioned Agreement.
Dated this day of , 20____.
By: ___________________________________________
For: __________________________________________
Title: _________________________________________
Date: _________________________________________
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PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 12, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Ken Langholz, Design Engineering Supervisor
Through: Timothy J. LaPorte, P.E., Public Works Director
Subject: Urban Vitality Grant for James Street at UPRR Non-motorized
Improvements Project
Summary:
The Public Works Department was successful in obtaining a $235,000 grant from the
Washington State Public Works Board. The estimated cost of the project is
$470,000.
A SEPA requirement of the ShoWare Center is to provide pedestrian improvements
along James Street between the Kent/James Street Park and Ride lot west of the
Union Pacific Railroad (UPRR) tracks and the ShoWare Center. These improvements
include pedestrian gates or flashing lights at the UPRR, additional concrete railroad
crossing sections, and widened sidewalks on both sides of James Street between the
ShoWare Center and the Park and Ride Lot.
Budget Impact:
The City is required to provide $235,000 in matching funds as a condition of the
grant.
Motion:
Move to recommend authorization for the Mayor to sign the agreement with
the Washington State Public Works Board for an Urban Vitality Grant in the
amount of $235,000 for the James Street at UPRR Non-motorized
Improvements Project, subject to terms and conditions acceptable to the
City Attorney and the Public Works Director.
Further move to recommend that a capital line item be included in the 2011
budget in the amount of $235,000 for City matching funds.
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PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: February 12, 2010
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: February 22, 2010
From: Matt Knox, Environmental Ecologist
Through: Timothy J. LaPorte, P.E., Public Works Director
Subject: Natural Yard Care Education Program
Summary: Since the Fall of 2007, the City of Kent Public Works Department has
presented Natural Yard Care (NYC) workshops to five different neighborhoods
throughout the City. Six total hours of education over three nights have been
presented to each neighborhood. A total of 15 workshops have been presented and
well attended with an average of 71 participants per workshop.
The purpose of these workshops is to educate and inform participants about the
environmental effects of yard care, and to teach them how to create a beautiful,
low-maintenance, environmentally “friendly” yard. Fertilizers and pesticides from
yard care are one of the largest sources of pollution in Kent’s lakes and streams –
these workshops show participants how to “act naturally” to reduce or even
eliminate the need for these lawn chemicals.
Most of Kent’s lakes and streams exceed water quality standards. Under the Clean
Water Act and National Pollution Discharge Elimination System (NPDES), Kent is
required to implement educational efforts to decrease surface water pollution.
The Environmental Section of Public Works plans to enact a contract with The Frause
Group to assist us in recruiting and conducting six NYC workshops targeting two
different neighborhoods in 2010. The Frause Group jointly developed this program
with King County and has been successfully implementing it with many of our
neighboring cities since the late 1990’s. The Frause Group has had very good,
documented success in changing people’s yard care behaviors to those that are
more “environmentally friendly.”
With this 2010 contract, The Frause Group will line-up expert, entertaining speakers,
provide high-quality, easy-to-understand graphics and informational handouts, and
help the City recruit participants and conduct workshops to residents in the
southeast portion of the City (in Spring), and in the Panther Lake area in the Fall.
Budget Impact:
Frause contract cost ($20,448) budgeted for through Environmental Engineering
NPDES funds.
Motion:
No Motion Required/Information Only
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URBAN VITALITY GRANTFOR
JAMES STREET AT UPRR
James St. at the UPRR looking westerly.
North side of James St. at UPRR looking west.
Existing pedestrian crossing.
North side of James St. looking west.
Existing bike lane ends at the UPRR.
Narrow sidewalk on the south side of James
St. between the Park & Ride Lot and UPRR.
South side of James St. at the UPRR looking
east.
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Natural Yard Care
City of Kent
Public Works Committee
February 22, 2010
Water Quality Problems . . .
•Lakes –Total Phosphorus and
Fecal Coliform (among others);
•Streams –Fecal Coliform,
Temperature, Others
Educating people about how to “act naturally” at
their homes is one of the best things we can do to
reduce water pollution!
Why is teaching important?
Most of the pollution in Kent’s lakes and streams
runs off of people’s lawns and driveways!
Natural Yard Care in Kent
•15 workshops to‐date
in 5 neighborhoods
•Great attendance
•Good Success
What Do Workshops Teach?
Five Natural Yard Care Steps
1.Build Healthy Soil
2.Plant Right For Your Site
3.Practice Smart Watering
4.Think Twice Before Using
Pesticides & Herbicides
5.Practice Natural Lawn Care
Other Goals of Program
•Set realistic goals . . .
“HONEY, I
SHRUNK THE
YARD!”
What Do We Propose?
Continue Natural Yard
Care Workshops
–Proven program
–Target two new
neighborhoods
–Contract with The Frause
Group
Kent Natural Yard Care Program
•6 “Neighborhoods” left to complete City
& Panther Lake Area
•Great outreach to new Panther Lake
neighbors
•National Pollutant Discharge Elimination
System (NPDES) Educational
Requirements
Questions?