HomeMy WebLinkAboutCity Council Committees - Public Works/Planning - 04/21/2004 1
Public Works Committee Agenda
40 A. Councilmembers: Brenda Fincher • Dana Ralph • Dennis Higgins, Chair
�� KENT
WASHINGTON
April 21, 2014
4:00 p.m.
Item Description Action Speaker Time Page
1. Approval of Meeting Minutes for April 7, 2014 YES None 03 03
2. Telecommunications Franchise with tw telecom YES Chad Bieren 05 07
of washington Ilc
3. Puget Sound Energy Conversion - Schedule 74 YES Toby Hallock 05 59
Design Agreement for State Route 516 to S.
231" Way/Russell Road Upper Levee-James
Street & Russell Road Intersection South Reach
Levee
4. Information Only/Safe Routes to School Grant NO Monica Whitman 05 71
Funding - Local Match
Unless otherwise noted, the Public Works Committee meets at 4:00 p.m. on the 1"& 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.
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Public Works Committee Minutes
April 7, .2014
COMMITTEE MEMBERS PRESENT:
Committee members Dana Ralph and Brenda Fincher were present. Committee Chair Dennis
Higgins was excused from the meeting. The meeting was called to order at 4:02 p.m.
Item 1 — Approval of Meeting Minutes Dated March 17, 2014:
Committee member Fincher MOVED to approve the minutes of March 17, 2014. The
motion was SECONDED by Committee member Ralph and PASSED 3-0, with Committee
Chair Higgins' concurrence.
Item 2 —Goods &Services Agreement for Metal Work at the Green River Natural
Resources Area:
Kelly Peterson, Special Projects Manager, presented pictures of the four locations within the
Green River Natural Resources Area that have experienced vandalism and metal theft. He stated
that this contract will repair, supply, fabricate and install handrails, walking grates, and water
level sensor mounts making these sites safe and functional for staff to operate. Peterson noted
that missing aluminum parts will be replaced with painted steel and welded which will make it
less desirable to be stolen.
Committee member Fincher MOVED to recommend Council authorize the Mayor to sign
a Public Works Agreement with Site Welding, Inc. in an amount not to exceed
$37,182.92 to repair, fabricate and install handrails, grating and sensor mounts at the
Green River Natural Resources Area, subject to final terms and conditions acceptable to
the City Attorney and Public Works Director. The motion was SECONDED by Committee
member Ralph and PASSED 3-0, with Committee Chair Higgins' concurrence.
Item 3 — Consultant Agreement with Aspect for Landsburg Mine:
Kelly Peterson, Special Projects Manager, gave an update of the Landsburg Mine which is located
east of Clark Springs, the city's primary water supply. He noted that Kent staff has met with
Ecology officials to discuss the cleanup action plan and will meet with Ecology staff in the near
future to continue to discuss Kent's concerns. Peterson stated that Aspect Consulting is needed to
provide technical guidance during the finalization of the cleanup action plan.
Committee member Fincher MOVED to recommend Council authorize the Mayor to sign
a consultant services agreement with Aspect Consulting for engineering services
related to the Landsburg Mine site in the amount of $12,690, subject to final terms and
conditions acceptable to the City Attorney and Public Works Director. The motion was
SECONDED by Committee member Ralph and PASSED 3-0, with Committee Chair
Higgins' concurrence.
Item 4 — Consultant Services Agreement with GeoEngineers for Briscoe Levee
Inspection:
Paul Kuehne, Construction Supervisor, noted that this contract is for materials testing,
construction inspection, and lab work associated with Briscoe Levees Reaches 2 and 3. He also
noted that taking concrete compression tests will ensure the concrete meets specifications, and
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Public Works Committee Minutes
April 7, .2014
sieve analysis of soils ensure proper gradation. Kuehne stated that this information will be
utilized through this testing and inspection for certification of the levee and also provides relief
for peak construction season activities where the on-staff personnel are stretched thin.
Committee member Fincher MOVED to recommend Council authorize the Mayor to sign
a consultant services agreement with GeoEngineers, in an amount not to exceed
$177,372 for materials testing and inspection services related to the Briscoe-Desimone
Levee Reaches 2 & 3 project, subject to final terms and conditions acceptable to the
City Attorney and Public Works Director. The motion was SECONDED by Committee
member Ralph and PASSED 3-0, with Committee Chair Higgins' concurrence.
Item 5 — Info Only/Water Festival Recap:
Gina Hungerford, Conservation Coordinator, provided a recap of the 2014 Water Festival which
Kent hosted at Green River Community College on March 25 & 26, with approximately 1,608
fourth and fifth grade students along with teachers and parent chaperones. She mentioned that
there were 37 presenters from both in-house and outside agencies. Hungerford presented a
power point of the environmental topics that the students participated in during this event. She
noted that for more information she can be reached at GHungerford@KentWA.gov.
Information Only/No Motion Required
Item 6 — Information Only/National Pollutant Discharge Elimination System Appeal
Settlement:
Todd Hunsdorfer, Conservation Coordinator with Environmental Engineering gave an update on
summary results from the most recent permit appeal regarding the National Pollutant Discharge
Elimination System permit, which is part of the Federal Clean Water Act. Hunsdorfer also gave an
overview of the requirements and compliance process.
Information Only/No Motion Required
Item 7 - Information Only/ Traffic Calming:
Chad Bieren, City Engineer, gave an update of the current eligible projects for traffic calming
device installation. Three neighborhood streets have been involved in the Residential Traffic
Calming Program and have met all eligibility requirements. At this time, $250,000 is available in
the Street Operating Fund for these projects. City Attorney Brubaker explained how the funding
became available.
Committee member Fincher MOVED to recommend Council authorize $250,000 for the
installation of residential traffic calming projects on 42nd Ave. S, 3001h Ave. SE, and
223rd Dr./2241h St., and to adjust the budget accordingly. The motion was SECONDED
by Committee member Ralph and PASSED 3-0, with Committee Chair Higgins'
concurrence.
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Public Works Committee Minutes
April 7, .2014
Item 8 — Information Only/Slope Stability in Kent:
Public Works Director LaPorte, explained why this item was included and that the Oso landslide in
Snohomish County, has brought attention to landslides. He said there are qualified staff here that
are quite knowledgeable about landslides and there are decades of analysis of our slope stability.
Kelly Peterson described how the Kent valley was formed, and the different type of landslide that
occurred in Oso versus the type Kent would more likely experience.
The Kent area is more likely to have a translational slide, wherein the top layer of material slips
off. The Oso slide was a block slide of much higher volume than is typically experienced in a
translational slide.
Information Only/No Motion Required
Item 9 — Information Only/S. 2121h and 2281h Railroad Grade Separations:
Public Works Director LaPorte provided an overview of the continuing research and will make
recommendations to the Committee on how to proceed and will meet with the Freight Mobility
Board in May and give them options on how to these projects.
Information Only/No Motion Required
The meeting was adjourned at 5:11 p.m.
Mary Simmons
Council Committee Recorder
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PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH IN GTO N Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: April 11, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: April 21, 2014
From: Mark Howlett, PE, Design Engineering Manager
Through: Chad Bieren, P.E., City Engineer
Subject: Telecommunications franchise with tw telecom of Washington
Ilc
Item - 2
Motion: Move to recommend Council authorize the Mayor to sign an
ordinance granting tw telecom of Washington Ilc a franchise to install and
maintain facilities for a telecommunications network within the public
rights-of-way of the City, subject to final terms and conditions acceptable
to the City Attorney and Public Works Director.
Summary:
tw telecom of Washington Ilc (Time Warner) is a telecommunications company that
wishes to install and operate telecommunications equipment in the city's streets.
This equipment will be used to provide data, dedicated internet access, and local and
long distance voice services. tw telecom has requested that the City grant them a
franchise laying out the terms and conditions under which this equipment is installed
and the services provided.
Pursuant to RCW 35A.47.040 the City has the authority to grant non-exclusive
franchises for use of public streets and other rights-of-way.
This franchise does not grant tw telecom authority to install any facilities without
first obtaining appropriate permits, leases, easements, or other approvals as
required.
Budget Impact:
The city is able to recover the costs of drafting and processing the franchise. Permit
fees for specific projects would be charged separately. By law, the city is not able to
charge a franchise fee; however, we will be able to charge utility taxes on gross
receipts.
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ORDINANCE NO.
AN ORDINANCE of the city council of the
city of Kent, Washington, granting to tw telecom of
Washington, Ilc, and its successors and assigns,
the right, privilege, authority and nonexclusive
franchise for ten years, to construct, maintain,
operate, replace and repair a telecommunications
network, in, across, over, along, under, through
and below certain designated public rights-of-way
of the City of Kent, Washington.
RECITALS
1. tw telecom of washington Ilc ("Franchisee") has requested
that the city council grant it a nonexclusive franchise, and
2. The city council has the authority to grant franchises for the
use of its streets and other public properties pursuant to RCW 35A.47.040.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Franchise Granted.
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1.1 Pursuant to RCW 35A.47.040, the city of Kent, a Washington
municipal corporation (the "City"), grants to Franchisee, its successors,
legal representatives and assigns, subject to the terms and conditions set
forth below, a Franchise for a period of ten (10) years, beginning on the
effective date of this ordinance, set forth in Section 39.
1.2 This Franchise grants Franchisee the right, privilege, and authority
to construct, operate, maintain, replace, acquire, sell, lease, and use all
necessary Facilities for a telecommunications network in, under, on,
across, over, through, along or below the public Rights-of-Ways located in
the City of Kent, including such additional areas as may be subsequently
included in the corporate limits of the City during the term of this
Franchise (the "Franchise Area"), as approved pursuant to City permits
issued pursuant to Section 8.2. The phrase "Rights-of-Way" (singular
"Right-of-Way") as used in this Franchise, 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, or other public right-of-way, and over which the City
has authority to grant permits, licenses or franchises for use thereof, or
has regulatory authority thereover, excluding railroad right-of-way,
airports, harbor areas, buildings, parks, poles, conduits, dedicated but un-
opened right-of-way, and any land, facilities, or property owned,
maintained, or leased by the City in its governmental or proprietary
capacity or as an operator of a utility. "Facilities" as used in this Franchise
means one or more elements of Franchisee's telecommunications network,
with all necessary cables, wires, conduits, ducts, pedestals, antennas,
electronics, and other necessary appurtenances; provided that new utility
poles for overhead wires or cabling are specifically excluded. Equipment
enclosures with air conditioning or other noise generating equipment are
also excluded from "Facilities," to the extent such equipment is located in
zoned residential areas of the City.
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SECTION 2, - Authority Limited to Occupation of Public Rights-of-
Way.
2.1 The authority granted by this Franchise is a limited, non-exclusive
authorization to occupy and use the City's Rights-of-Way. Franchisee
represents that it currently provides or expects to provide the following
services within the City: Franchisee provides data, dedicated internet
access, and local and long distance voice services, including IP voice
services (the "Services"). Nothing contained within this Franchise shall be
construed to grant or convey any right, title, or interest in the Rights-of-
Way of the City to Franchisee other than for the purpose of providing the
Services. A more detailed description of Franchisee's telecommunications
system and Services is described in Exhibit A. If Franchisee desires to
expand the Services provided within the City, it shall provide written
notification of the addition of such services prior to the addition of the
service or within a reasonable time (not to exceed ninety (90) days) after
such services are offered; provided, however, that Franchisee may not
offer Cable Services pursuant to Section 2.3.
2.2 As described in Section 8, construction is not authorized without the
appropriate permits, leases, easements, or approvals. This Franchise does
not and shall not convey any right to Franchisee to install its Facilities on,
under, over, across, or to otherwise use City owned or leased properties of
any kind outside of the incorporated area of the City or to install Facilities
on, under, over, across, or otherwise use any City owned or leased
property other than the City's Rights-of-Way. This Franchise does not
convey any right to Franchisee to install its Facilities on, under, over, or
across any facility or structure owned by a third-party without such written
approval of the third-party. No substantive expansions, additions to, or
modifications or relocation of any of the Facilities shall be permitted
without first having received appropriate permits from the City pursuant to
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Section 8.2. As of the effective date of this Franchise, Franchisee has no
owned Facilities located in the City's Rights-of-Way.
2.3 Under this Franchise, the Facilities shall not be used for Cable
Services as that term is defined in 47 U.S.C. § 522(6).
2.4 Franchisee shall have the right, without prior City approval, to offer
or provide capacity or bandwidth to its customers consistent with this
Franchise provided:
a. Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and remains
responsible for constructing, installing, and maintaining its Facilities
pursuant to the terms and conditions of this Franchise;
b. Franchisee may not grant rights to any customer or lessee
that are greater than any rights Franchisee has pursuant to this Franchise;
C. Such customer or lessee shall not be construed to be a third-
party beneficiary under this Franchise; and
d. No such customer or lessee may use the telecommunications
system or Services for any purpose not authorized by this Franchise.
SECTION 3, - Non-Exclusive Franchise Grant. This Franchise is
granted upon the express condition that it shall not in any manner prevent
the City from granting other or further franchises in, along, over, through,
under, below, or across any Rights-of-Way. This Franchise shall in no way
prevent or prohibit the City from using any Rights-of-Way or affect its
jurisdiction over any Rights-of-Way or any part of Right-of-Way, and the
City shall retain power to make all necessary changes, relocations, repairs,
maintenance, establishment, improvement, dedication of Right-of-Way as
the City may deem fit, including the dedication, establishment,
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maintenance, and improvement of all new Rights-of-Way, thoroughfares,
and other public properties of every type and description.
SECTION 4. - Location of Telecommunications Facilities.
Franchisee is maintaining a telecommunications network consisting of
Facilities within the City. Franchisee may locate its Facilities anywhere
within the Franchise Area consistent with the City's Design and
Construction Standards and subject to the City's applicable permit
requirements. Franchisee shall not be required to amend this Franchise to
construct or acquire Facilities within the Franchise Area.
SECTION 5, - Relocation of Facilities.
5.1 Franchisee agrees and covenants to protect, support, temporarily
disconnect, relocate, or remove from any Rights-of-Way any of its
Facilities when reasonably required by the City by reason of traffic
conditions or public safety, dedications of new Rights-of-Way and the
establishment and improvement thereof, widening and improvement of
existing Rights-of-Way, street vacations, freeway construction, change or
establishment of street grade, or the construction of any public
improvement or structure by any governmental agency acting in a
governmental capacity or as otherwise necessary for the operations of the
City or other governmental entity, provided that Franchisee shall in all
such cases have the privilege to temporarily bypass in the authorized
portion of the same Rights-of-Way upon approval by the City, which
approval shall not unreasonably be withheld or delayed, any Facilities
required to be temporarily disconnected or removed. Except as otherwise
provided by law, the costs and expenses associated with relocations
ordered pursuant to this Section 5.1 shall be borne by Franchisee.
Nothing contained within this Franchise shall limit Franchisee's ability to
seek reimbursement for relocation costs when permitted by RCW
35.99.060.
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5.2 Upon request of the City and in order to facilitate the design of City
street and Right-of-Way improvements, Franchisee agrees, at its sole cost
and expense, to locate, and if determined necessary by the City, to
excavate and expose its Facilities for inspection so that the Facilities'
location may be taken into account in the improvement design. The
decision as to whether any Facilities need to be relocated in order to
accommodate the City's improvements shall be made by the City upon
review of the location and construction of Franchisee's Facilities. The City
shall provide Franchisee at least fourteen (14) days' written notice prior to
any excavation or exposure of Facilities.
5.3 If the City determines that the project necessitates the relocation of
Franchisee's existing Facilities, the City shall:
a. At least thirty (30) days prior to commencing the project,
provide Franchisee with written notice requiring such relocation; provided,
however, that in the event of an emergency situation, defined for
purposes of this Franchise as a condition posing an imminent threat to
property, life, health, or safety of any person or entity, the City shall give
Franchisee written notice as soon as practicable; and
b. Provide Franchisee with copies of pertinent portions of the
plans and specifications for the improvement project and a proposed
location for Franchisee's Facilities so that Franchisee may relocate its
Facilities in other City Rights-of-Way in order to accommodate such
improvement project; and
C. After receipt of such notice and such plans and specifications,
Franchisee shall complete relocation of its Facilities at least ten (10) days
prior to commencement of the City's project at no charge or expense to
the City, except as otherwise provided by law. Relocation shall be
accomplished in such a manner as to accommodate the City's project. In
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the event of an emergency situation, Franchisee shall relocate its Facilities
within the time period specified by the City, recognizing that certain
emergencies may require a shorter timeframe.
5.4 Franchisee may, after receipt of written notice requesting a
relocation of its Facilities, submit to the City written alternatives to such
relocation. Such alternatives must be submitted to the City at least thirty
(30) days prior to commencement of the project. The City shall evaluate
the alternatives and advise Franchisee 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,
Franchisee shall submit at its sole cost and expense additional information
to assist the City in making such evaluation. The City shall give each
alternative proposed by Franchisee full and fair consideration. In the
event the City ultimately determines that there is no other reasonable or
feasible alternative, Franchisee shall relocate its Facilities as otherwise
provided in this Section 5.
5.5 The provisions of this Section 5 shall in no manner preclude or
restrict Franchisee from making any arrangements it may deem
appropriate when responding to a request for relocation of its Facilities by
any person or entity other than the City, where the facilities to be
constructed by said person or entity are not or will not become City-
owned, operated, or maintained facilities, provided that such
arrangements do not unduly delay a City construction project.
5.6 Franchisee will indemnify, hold harmless, and pay the costs of
defending the City, in accordance with the provisions of Section 17.3,
against any and all claims, suits, actions, damages, or liabilities for delays
on City construction projects caused by or arising out of the failure of
Franchisee to remove or relocate its Facilities in a timely manner;
provided, that Franchisee shall not be responsible for damages due to
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delays caused by circumstances beyond the control of Franchisee or the
negligence, willful misconduct, or unreasonable delay of the City or any
unrelated third party.
5.7 Whenever any person shall have obtained permission from the City
to use any Right-of-Way for the purpose of moving any building,
Franchisee, upon thirty (30) days' written notice from the City, shall raise,
remove, or relocate to another part of the Right-of-Way, at the expense of
the person desiring to move the building, any of Franchisee's Facilities that
may obstruct the removal of such building.
5.8 If Franchisee fails, neglects, or refuses to remove or relocate its
Facilities as directed by the City following the procedures outlined in
Section 5.1 through Section 5.4 the City may perform such work or cause
it to be done, and the City's costs shall be paid by Franchisee pursuant to
Section 15.3 and Section 15.4.
5.9 The provisions of this Section 5 shall survive the expiration or
termination of this Franchise during such time as Franchisee continues to
have Facilities in the Rights-of-Way. Additionally, the provisions of
Section 5 are applicable only so long as the Right-of-Way is owned and/or
controlled by the City.
SECTION 6, - Underaroundina of Facilities.
6.1 Except as specifically authorized by permit of the City, Franchisee
shall not be permitted to erect poles or to run or suspend wires, cables, or
other facilities on existing poles, but shall lay wires, cables, or other
facilities underground in the manner required by the City, as described in
Kent City Code Chapter 7.10. Franchisee acknowledges and agrees that if
the City does not require the undergrounding of its Facilities at the time of
a permit application, the City may, at any time in the future, require the
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conversion of Franchisee's aerial facilities to underground installation at
Franchisee's expense. Unless otherwise permitted by the City, Franchisee
shall underground its Facilities in all new developments and subdivisions
and any development or subdivision where utilities are currently
underground.
6.2 Whenever the City may require the undergrounding of the aerial
utilities in any area of the City, Franchisee shall underground its aerial
facilities in the manner specified by the City, concurrently with and in the
area of the other affected utilities. The location of any relocated and
underground utilities shall be approved by the City. Where other utilities
are present and involved in the undergrounding project, Franchisee shall
only be required to pay its fair share of common costs borne by all
utilities, in addition to the costs specifically attributable to the
undergrounding of Franchisee's own Facilities. "Common costs" shall
include necessary costs not specifically attributable to the undergrounding
of any particular facility, such as costs for common trenching and utility
vaults. "Fair share" shall be determined for a project on the basis of the
number of conduits of Franchisee's Facilities being undergrounded in
comparison to the total number of conduits of all other utility facilities
being undergrounded. This Section 6.2 shall only apply to the extent
Franchisee has existing aerial utilities in the City or is specifically
authorized to build aerial utilities by the City.
6.3 Within forty-eight (48) hours (excluding weekends and City-
recognized holidays) following a request from the City, Franchisee shall
locate underground Facilities by marking the location on the ground. The
location of the underground Facilities shall be identified using orange spray
paint, unless otherwise specified by the City, and within two feet of the
actual location.
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6.4 Franchisee shall be entitled to reasonable access to open utility
trenches, provided that such access does not interfere with the City's
placement of utilities or increase the City's costs. Franchisee shall pay to
the City the actual cost to the City resulting from providing Franchisee
access to an open trench, including without limitation the pro rata share of
the costs of access to an open trench and any costs associated with the
delay of the completion of a public works project.
6.5 Franchisee shall not remove any underground cable or conduit that
requires trenching or other opening of the Rights-of-Way along the
extension of cable to be removed, except as provided in this Section 6.5.
Franchisee may remove any underground cable from the Right-of-Way
that has been installed in such a manner that it can be removed without
trenching or other opening of the Right-of-Way along the extension of
cable to be removed, or if otherwise permitted by the City. Franchisee
may remove any underground cable from the Rights-of-Way where
reasonably necessary to replace, upgrade, or enhance its Facilities, or
pursuant to Section 5. When the City determines, in the City's sole
discretion, that Franchisee's underground Facilities must be removed in
order to eliminate or prevent a hazardous condition, Franchisee shall
remove the cable or conduit at Franchisee's sole cost and expense.
Underground cable and conduit in the Right-of-Way that is not removed
shall be deemed abandoned and title thereto shall vest in the City at no
cost to the City. Franchisee must apply and receive a permit, pursuant to
Section 8.2, prior to any such removal of underground cable or conduit
from the Right-of-Way and must provide as-built plans and maps pursuant
to Section 7.1.
6.6 The provisions of this Section 6 shall survive the expiration,
revocation, or termination of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way. Nothing in this Section 6
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shall be construed as requiring the City to pay any costs of
undergrounding any of Franchisee's Facilities.
SECTION 7, - Maps and Records.
7.1 After construction is complete, Franchisee shall provide the City
with accurate copies of as-built plans and maps stamped and signed by a
professional land engineer having a form and content reasonably
prescribed by the Public Works Director or his/her designee. These plans
and maps shall be provided at no cost to the City, and shall include hard
copies and digital files in Autocad or other industry standard readable
formats that are acceptable to the City and delivered electronically.
Franchisee shall provide such maps within ten (10) days following a
request from the City. Franchisee shall warrant the accuracy of all plans,
maps and as-builts provided to the City.
7.2 Within thirty (30) days of a written request from the City,
Franchisee shall furnish the City with information sufficient to
demonstrate: 1) that Franchisee has complied with all applicable
requirements of this Franchise; and 2) that all taxes, including but not
limited to sales, utility and/or telecommunications taxes due the City in
connection with Franchisee's Services and Facilities have been properly
collected and paid by Franchisee.
7.3 All books, records, maps, and other documents maintained by
Franchisee with respect to its Facilities within the Rights-of-Way shall be
made available for inspection by the City at reasonable times and
intervals; provided, however, that nothing in this Section 7.3 shall be
construed to require Franchisee to violate state or federal law regarding
customer privacy, nor shall this Section 7.3 be construed to require
Franchisee to disclose proprietary or confidential information without
adequate safeguards for its confidential or proprietary nature. Unless
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otherwise prohibited by State or federal law, nothing in this Section 7.3
shall be construed as permission to withhold relevant customer data from
the City that the City requests in conjunction with a tax audit or review;
provided, however, Franchisee may redact identifying information such as
names, street addresses (excluding City and zip code), Social Security
Numbers, or Employer Identification Numbers related to any
confidentiality agreements Franchisee has with third parties.
7.4 Franchisee shall not be required to disclose information that it
reasonably deems to be proprietary or confidential in nature. The City
agrees to keep confidential any proprietary or confidential books or
records to the extent permitted by law. Franchisee shall be responsible
for clearly and conspicuously identifying the work as confidential or
proprietary, and shall provide a brief written explanation as to why such
information is confidential and how it may be treated as such under State
or federal law. In the event that the City receives a public records request
under Chapter 42.56 RCW or similar law for the disclosure of information
Franchisee has designated as confidential, trade secret, or proprietary, the
City shall promptly provide written notice of such disclosure so that
Franchisee can take appropriate steps to protect its interests. Nothing in
this Section 7.4 prohibits the City from complying with Chapter 42.56 RCW
or any other applicable law or court order requiring the release of public
records, and the City shall not be liable to Franchisee for compliance with
any law or court order requiring the release of public records. The City
shall comply with any injunction or court order obtained by Franchisee
that prohibits the disclosure of any such confidential records; however, in
the event a higher court overturns such injunction or court order and such
higher court action is or has become final and non-appealable, Franchisee
shall reimburse the City for any fines or penalties imposed for failure to
disclose such records as required hereunder within forty-five (45) days of
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a request from the City, unless additional time is reasonably necessary
under the circumstances and is agreed to by the parties.
SECTION S. - Work in the Rights-of-Way.
8.1 During any period of relocation, construction or maintenance, all
work performed by Franchisee or its contractors shall be accomplished in a
safe and workmanlike manner, so as to minimize interference with the
free passage of traffic and the free use of adjoining property, whether
public or private. Franchisee shall at all times post and maintain proper
barricades, flags, flaggers, lights, flares, and other measures as required
for the safety of all members of the general public and comply with all
applicable safety regulations during such period of construction as
required by the ordinances of the City or the laws of the State of
Washington, including RCW 39.04.180 for the construction of trench safety
systems. Franchisee shall, at its own expense, maintain its Facilities in a
safe condition, in good repair, and in a manner suitable to the City.
Additionally, Franchisee shall keep its Facilities free of debris and anything
of a dangerous, noxious, or offensive nature or which would create a
hazard or undue vibration, heat, noise, or any interference with City
services. The provisions of this Section 8 shall survive the expiration of
this Franchise during such time as Franchisee continues to have Facilities
in the Rights-of-Way.
8.2 Whenever Franchisee shall commence work in any public Rights-of-
Way for the purpose of excavation, installation, construction, repair,
maintenance, or relocation of its cable or equipment, it shall apply to the
City for a permit to do so and, in addition, shall give the City at least ten
(10) working days prior notice of its intent to commence work in the
Rights-of-Way. During the progress of the work, Franchisee shall not
unnecessarily obstruct the passage or proper use of the Rights-of-Way,
and all work by Franchisee in the area shall be performed in accordance
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with applicable City standards and specifications and warranted for a
period of two (2) years. In no case shall any work commence within any
Rights-of-Way without a permit, except as otherwise provided in this
Franchise.
8.3 If either the City or Franchisee shall at any time plan to make
excavations in any area covered by this Franchise and as described in this
Section 8.3, the party planning such excavation shall afford the other,
upon receipt of a written request to do so, an opportunity to share such
excavation, PROVIDED THAT:
a. Such joint use shall not unreasonably delay the work of the
party causing the excavation to be made;
b. Such joint use shall be arranged and accomplished on terms
and conditions satisfactory to both parties; and
C. Either party may deny such request for safety reasons.
8.4 Except for emergency situations, Franchisee shall give at least
seven (7) days' prior notice of intended construction to residents in the
affected area. Such notice shall contain the dates, contact number, nature
and location of the work to be performed; a door hanger is permissible.
At least twenty-four (24) hours prior to entering private property or
streets or public easements adjacent to or on such private property,
Franchisee shall physically post a notice on the property indicating the
nature and location of the work to be performed; a door hanger is
permissible. Franchisee shall make a good faith effort to comply with the
property owner/resident's preferences, if any, on location or placement of
underground installations (excluding aerial cable lines utilizing existing
poles and existing cable paths), consistent with sound engineering
practices. Following performance of the work, Franchisee shall restore the
private property as nearly as possible to its condition prior to construction,
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except for any change in condition not caused by Franchisee. Any
disturbance of landscaping, fencing, or other improvements on private
property caused by Franchisee's work shall, at the sole expense of
Franchisee, be promptly repaired and restored to the reasonable
satisfaction of the property owner/resident. Notwithstanding the above,
nothing herein shall give Franchisee the right to enter onto private
property without the permission of such private property owner, or as
otherwise authorized by applicable law.
8.5 Franchisee shall at all times comply with the safety requirements
contained in Section 10 and all applicable federal, State and local safety
requirements.
8.6 Franchisee may trim trees upon and overhanging on public ways,
streets, alleys, sidewalks, and other public places of the City so as to
prevent the branches of such trees from coming in contact with
Franchisee's Facilities. The right to trim trees in this Section 8.6 shall only
apply to the extent necessary to protect above ground Facilities.
Franchisee shall ensure that its tree trimming activities protect the
appearance, integrity, and health of the trees to the extent reasonably
possible. Franchisee shall be responsible for all debris removal from such
activities. Franchisee shall prepare and maintain a tree trimming schedule
to ensure compliance with this Section 8.6 and to avoid exigent
circumstances where tree cutting, trimming, or removal is necessary to
protect the public safety or continuity of service. Franchisee shall submit
the schedule to the Public Works Director or his/her designee. All
trimming, except in emergency situations, is to be done after the explicit
prior written notification and approval of the City and at the expense of
Franchisee. Franchisee may contract for such services, however, any firm
or individual so retained must first receive City approval prior to
commencing such trimming. Nothing herein grants Franchisee any
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authority to act on behalf of the City, to enter upon any private property,
or to trim any tree or natural growth not owned by the City. Franchisee
shall be solely responsible and liable for any damage to any third parties'
trees or natural growth caused by Franchisee's actions. Franchisee shall
indemnify, defend and hold harmless the City from claims of any nature
arising out of any act or negligence of Franchisee with regard to tree
and/or natural growth trimming, damage, and/or removal. Franchisee
shall reasonably compensate the City or the property owner for any
damage caused by trimming, damage, or removal by Franchisee. Except
in an emergency situation, all tree trimming must be performed under the
direction of an arborist certified by the International Society of
Arboriculture, unless otherwise approved by the Public Works Director or
his/her designee.
8.7 Franchisee shall meet with the City and other franchise holders and
users of the Rights-of-Way upon written notice as determined by the City,
to schedule and coordinate construction in the Rights-of-Way. All
construction locations, activities, and schedules shall be coordinated as
ordered by the City to minimize public inconvenience, disruption, or
damages.
8.8 Franchisee acknowledges that it, and not the City, shall be
responsible for compliance with all marking and lighting requirements of
the FAA and the FCC with respect to Franchisee's Facilities. Franchisee
shall indemnify and hold the City harmless from any fines or other
liabilities caused by Franchisee's failure to comply with such requirements.
Should Franchisee or the City be cited by either the FCC or the FAA
because the Facilities or Franchisee's equipment is not in compliance and
should Franchisee fail to cure the conditions of noncompliance within the
timeframe allowed by the citing agency, the City may, upon at least forty-
eight (48) hours' prior written notice to Franchisee, either terminate this
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Franchise immediately if the equipment is not brought into compliance by
the expiration of such notice period or may proceed to cure the conditions
of noncompliance at Franchisee's expense, and collect all reasonable costs
from Franchisee in accordance with the provisions of Section 15.3 and
Section 15.4, but Franchisee shall not be liable for any claims, damages or
liability resulting from City's acts in effecting the cure on behalf of
Franchisee.
SECTION 9, - One Call Locator Service. Prior to doing any work in
the Rights-of-Way, the Franchisee shall follow established procedures,
including contacting the Utility Notification Center in Washington and
comply with all applicable State statutes regarding the One Call Locator
Service pursuant to Chapter 19.122 RCW. The City shall not be liable for
any damages to Franchisee's Facilities or for interruptions in service to
Franchisee's customers that are a direct result of Franchisee's failure to
locate its Facilities within the prescribed time limits and guidelines
established by the One Call Locator Service regardless of whether the City
issued a permit.
SECTION 10. - Safety Requirements.
10.1 Franchisee shall, at all times, employ professional care and shall
install and maintain and use industry-standard methods for preventing
failures and accidents that are likely to cause damage, injuries, or
nuisances to the public. All structures and all lines, equipment, and
connections in, over, under, and upon the Rights-of-Ways, wherever
situated or located, shall at all times be kept and maintained in a safe
condition. Franchisee shall comply with all federal, State, and City safety
requirements, rules, regulations, laws, and practices, and employ all
necessary devices as required by applicable law during the construction,
operation, maintenance, upgrade, repair, or removal of its Facilities. By
way of illustration and not limitation, Franchisee shall also comply with the
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applicable provisions of the National Electric Code, National Electrical
Safety Code, FCC regulations, and Occupational Safety and Health
Administration (OSHA) Standards. Upon reasonable notice to Franchisee,
the City reserves the general right to inspect the Facilities to evaluate if
they are constructed and maintained in a safe condition.
10.2 If an unsafe condition or a violation of Section 10.1 is found to
exist, and becomes known to the City, the City agrees to give Franchisee
written notice of such condition and afford Franchisee a reasonable
opportunity to repair the same. If Franchisee fails to start to make the
necessary repairs and alterations within the time frame specified in such
notice (and pursue such cure to completion), then the City may make such
repairs or contract for them to be made. All costs, including
administrative costs, incurred by the City in repairing any unsafe
conditions shall be borne by Franchisee and reimbursed to the City
pursuant to Section 15.3 and Section 15.4.
10.3 Additional safety standards include:
a. Franchisee shall endeavor to maintain all equipment lines and
facilities in an orderly manner, including, but not limited to, the removal of
all bundles of unused cable.
b. All installations of equipment, lines, and ancillary facilities
shall be installed in accordance with industry-standard engineering
practices and shall comply with all federal, State, and local regulations,
ordinances, and laws.
C. Any opening or obstruction in the Rights-of-Way or other
public places made by Franchisee in the course of its operations shall be
protected by Franchisee at all times by the placement of adequate
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barriers, fences, or boarding, the bounds of which, during periods of dusk
and darkness, shall be clearly marked and visible at night.
SECTION 11. - Work of Contractors and Subcontractors.
Franchisee's contractors and subcontractors shall be licensed and bonded
in accordance with State law and the City's ordinances, regulations, and
requirements. Work by contractors and subcontractors is subject to the
same restrictions, limitations, and conditions as if the work were
performed by Franchisee. Franchisee shall be responsible for all work
performed by its contractors and subcontractors and others performing
work on its behalf as if the work were performed by Franchisee and shall
ensure that all such work is performed in compliance with this Franchise
and applicable law.
SECTION 12. - City Conduit. Except in emergency situations,
Franchisee shall inform the Public Works Director with at least thirty (30)
days' advance written notice that it is constructing, relocating, or placing
ducts or conduits in the Rights-of-Way and provide the City with an
opportunity to request that Franchisee provide the City with additional
duct or conduit, and related structures necessary to access the conduit
pursuant to and subject to RCW 35.99.070. Such notification shall be in
addition to the requirement to apply for and obtain permits pursuant to
Section 8.2.
SECTION 13. - Restoration after Construction.
13.1 Franchisee shall, after installation, construction, relocation,
maintenance, or repair of its Facilities, or after abandonment approved
pursuant to Section 19, promptly remove any obstructions from the
Rights-of-Way and restore the surface of the Rights-of-Way to at least the
same condition the Rights-of-Way were in immediately prior to any such
installation, construction, relocation, maintenance or repair, provided
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Franchisee shall not be responsible for any changes to the Rights-of-Way
not caused by Franchisee or anyone doing work for Franchisee. The Public
Works Director or his/her designee shall have final approval of the
condition of such Rights-of-Way after restoration. All concrete encased
monuments that have been disturbed or displaced by such work shall be
restored pursuant to federal, state (Chapter 332-120 WAC), and local
standards and specifications.
13.2 Franchisee agrees to promptly complete all restoration work and to
promptly repair any damage caused by work to the Franchise Area or
other affected area at its sole costs and expense and according to the time
and terms specified in the construction permit issued by the City. All work
by Franchisee pursuant to this Franchise shall be performed in accordance
with applicable City standards and warranted for a period of two (2) years
and for undiscovered defects as is standard and customary for this type of
work.
13.3 If conditions (e.g. weather) make the complete restoration required
under Section 13 impracticable, Franchisee shall temporarily restore the
affected Right-of-Way or property. Such temporary restoration shall be at
Franchisee's sole cost and expense. Franchisee shall promptly undertake
and complete the required permanent restoration when conditions no
longer make such permanent restoration impracticable.
13.4 In the event Franchisee does not repair a Right-of-Way or an
improvement in or to a Right-of-Way within the time agreed to by the
Public Works Director, or his/her designee, the City may repair the
damage and shall be reimbursed its actual cost within sixty (60) days of
submitting an itemized invoice to Franchisee in accordance with the
provisions of Section 15.3 and Section 15.4. In addition, and pursuant to
Section 15.3 and Section 15.4, the City may bill Franchisee for expenses
associated with the inspection of such restoration work.
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13.5 The provisions of this Section 13 shall survive the expiration or
termination of this Franchise so long as Franchisee continues to have
Facilities in the Rights-of-Way and has not completed all restoration to the
City's standards.
SECTION 14. - Emergencies.
14.1 In the event of any emergency in which any of Franchisee's
Facilities located in or under any street endangers the property, life,
health, or safety of any person, entity or the City, or if Franchisee's
construction area is otherwise in such a condition as to immediately
endanger the property, life, health, or safety of any person, entity or the
City, Franchisee shall immediately take the proper emergency measures to
repair its Facilities and to cure or remedy the dangerous conditions for the
protection of property, life, health, or safety of any person, entity or the
City, without first applying for and obtaining a permit as required by this
Franchise. However, this shall not relieve Franchisee from the
requirement of obtaining any permits necessary for this purpose, and
Franchisee shall apply for all such permits not later than the next
succeeding day during which the Kent City Hall is open for business. The
City retains the right and privilege to cut or move any Facilities located
within the Rights-of-Way of the City, as the City may determine to be
necessary, appropriate, or useful in response to any public health or safety
emergency. The City shall notify Franchisee by telephone promptly upon
learning of the emergency and shall exercise reasonable efforts to avoid
an interruption of Franchisee's operations.
14.2 Whenever the construction, installation, or excavation of Facilities
authorized by this Franchise has caused or contributed to a condition that
appears to substantially impair the lateral support of the adjoining street
or public place, an adjoining public place, street utilities, City property,
Rights-of-Way, or private property (collectively "Endangered Property") or
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endangers the public, the Public Works Director or his/her designee, may
direct Franchisee, at Franchisee's own expense, to take reasonable action
to protect the Endangered Property or the public, and such action may
include compliance within a prescribed time. In the event that Franchisee
fails or refuses to promptly take the actions directed by the City, or fails to
fully comply with such directions, or if an emergency situation exists that
requires immediate action before the City can timely contact Franchisee to
request Franchisee effect the immediate repair, the City may enter upon
the Endangered Property and take such reasonable actions as are
necessary to protect the Endangered Property or the public. Franchisee
shall be liable to the City for the costs of any such repairs in accordance
with the provisions of Sections 15.3 and 15.4.
14.3 The City shall not be liable for any damage to or loss of Facilities
within the Rights-of-Way as a result of or in connection with any public
works, public improvements, construction, grading, excavation, filling, or
work of any kind in the Rights-of-Way by or on behalf of the City, unless
directly and proximately caused by the gross negligence or willful acts of
the City, its employees, contractors, or agents. The City shall further not
be liable to Franchisee 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 14 unless caused by the gross
negligence or willful acts of the City, its employees, contractors, or agents.
SECTION 15. - Recovery of Costs.
15.1 Franchisee shall pay a grant fee in the maximum amount of
Dollars ($ ) for the City's administrative, legal,
and other costs incurred in drafting and processing this Franchise and all
work related thereto. No construction permits shall be issued for the
installation of Facilities authorized until such time as the City has received
payment of the grant fee. Franchisee shall further be subject to all permit
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fees associated with activities undertaken through the authority granted in
this Franchise or under the laws of the City. Where the City incurs costs
and expenses for review, inspection, or supervision of activities, including
but not limited to reasonable fees associated with attorneys, consultants,
City Staff and City Attorney time, undertaken through the authority
granted in this Franchise or any ordinances relating to the subject for
which a permit fee is not established, Franchisee shall pay such costs and
expenses directly to the City in accordance with the provisions of Section
15.3.
15.2 In addition to Section 15.1, Franchisee shall promptly reimburse the
City in accordance with the provisions of Section 15.3 and Section 15.4 for
any and all costs the City reasonably incurs in response to any emergency
situation involving Franchisee's Facilities, to the extent said emergency is
not the fault of the City. The City agrees to simultaneously seek
reimbursement from any franchisee or permit holder who caused or
contributed to the emergency situation.
15.3 Franchisee shall reimburse the City within sixty (60) days of
submittal by the City of an itemized billing for reasonably incurred costs,
itemized by project, for Franchisee's proportionate share of all actual,
identified expenses incurred by the City in planning, constructing,
installing, repairing, altering, or maintaining any City facility as the result
of the presence of Franchisee's Facilities in the Rights-of-Way. Such costs
and expenses shall include but not be limited to Franchisee's proportionate
cost of City personnel assigned to oversee or engage in any work in the
Rights-of-Way as the result of the presence of Franchisee's Facilities in the
Rights-of-Way. Such costs and expenses shall also include Franchisee's
proportionate share of any time spent reviewing construction plans in
order to either accomplish the relocation of Franchisee's Facilities or the
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routing or rerouting of any utilities so as not to interfere with Franchisee's
Facilities.
15.4 The time of City employees shall be charged at their respective rate
of salary, including overtime if applicable, plus benefits and reasonable
overhead. Any other costs will be billed proportionately on an actual cost
basis. All billings will be itemized so as to specifically identify the costs
and expenses for each project for which the City claims reimbursement. A
charge for the actual costs incurred in preparing the billing may also be
included in said billing. At the City's option, the billing may be on an
annual basis, but the City shall provide the Franchisee with the City's
itemization of costs, in writing, at the conclusion of each project for
information purposes.
SECTION 16. - City's Reservation of Rights.
16.1 Franchisee represents that its Services, as authorized under this
Franchise, are a telephone business as defined in RCW 82.16.010, or that
it is a service provider as used in RCW 35.21.860 and defined in RCW
35.99.010. As a result, the City will not impose franchise fees under the
terms of this Franchise. The City reserves its right to impose a franchise
fee on Franchisee if Franchisee's Services as authorized by this Franchise
change such that the statutory prohibitions of RCW 35.21.860 no longer
apply or if statutory prohibitions on the imposition of such fees are
otherwise removed. The City also reserves its right to require that
Franchisee obtain a separate franchise for a change in use, which
franchise may include provisions intended to regulate Franchisee's
operations as allowed under applicable law. Nothing contained within this
Franchise shall preclude Franchisee from challenging any such new fee or
separate agreement under applicable federal, State, or local laws.
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16.2 Franchisee acknowledges that its operation with the City constitutes
a telephone business subject to the utility tax imposed pursuant to the
Kent City Code Chapter 3.18. Franchisee understands that RCW
35.21.870 currently limits the rate of city tax upon telephone business
activities to six percent (6%) of gross income (as that term is defined in
Kent City Code Chapter 3.18), unless a higher rate is otherwise approved.
Franchisee stipulates and agrees that certain of its business activities are
subject to taxation as a telephone business and that Franchisee shall pay
to the City the rate applicable to such taxable services under Kent City
Code Chapter 3.18, and consistent with state and federal law. The parties
agree however, that nothing in this Franchise shall limit the City's power
of taxation as may exist now or as later imposed by the City. This
provision does not limit the City's power to amend Kent City Code Chapter
3.18 as may be permitted by law.
SECTION 17. Indemnification.
17.1 Franchisee releases, covenants not to bring suit, and agrees to
indemnify, defend, and hold harmless the City, its officers, employees,
agents, and representatives from any and all claims, costs, judgments,
awards, or liability to any person, for injury or death of any person, or
damage to property caused by or arising out of the any acts or omissions
of Franchisee, its agents, servants, officers, or employees in the
performance of this Franchise and any rights granted within this Franchise.
17.2 Inspection or acceptance by the City of any work performed by
Franchisee at the time of completion of construction shall not be grounds
for avoidance by Franchisee of any of its obligations under this Section 17.
These indemnification obligations shall extend to claims that are not
reduced to a suit and any claims that may be compromised, with
Franchisee's prior written consent, prior to the culmination of any litigation
or the institution of any litigation.
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17.3 The City shall promptly notify Franchisee of any claim or suit and
request in writing that Franchisee indemnify the City. Franchisee may
choose counsel to defend the City subject to this Section 17.3. City's
failure to so notify and request indemnification shall not relieve Franchisee
of any liability that Franchisee might have, except to the extent that such
failure prejudices Franchisee's ability to defend such claim or suit. In the
event that Franchisee refuses the tender of defense in any suit or any
claim, as required pursuant to the indemnification provisions within this
Franchise, and said refusal is subsequently determined by a court having
jurisdiction (or such other tribunal that the parties shall agree to decide
the matter), to have been a wrongful refusal on the part of Franchisee,
Franchisee shall pay all of the City's reasonable costs for defense of the
action, including all expert witness fees, costs, and attorney's fees, and
including costs and fees incurred in recovering under this indemnification
provision. If separate representation to fully protect the interests of both
parties is necessary, such as a conflict of interest between the City and the
counsel selected by Franchisee to represent the City, then upon the prior
written approval and consent of Franchisee, which shall not be
unreasonably withheld, the City shall have the right to employ separate
counsel in any action or proceeding and to participate in the investigation
and defense thereof, and Franchisee shall pay the reasonable fees and
expenses of such separate counsel, except that Franchisee shall not be
required to pay the fees and expenses of separate counsel on behalf of the
City for the City to bring or pursue any counterclaims or interpleader
action, equitable relief, restraining order or injunction. The City's fees and
expenses shall include all out-of-pocket expenses, such as consultants and
expert witness fees, and shall also include the reasonable value of any
services rendered by the counsel retained by the City but shall not include
outside attorneys' fees for services that are unnecessarily duplicative of
services provided the City by Franchisee. Each party agrees to cooperate
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and to cause its employees and agents to cooperate with the other party
in the defense of any such claim and the relevant records of each party
shall be available to the other party with respect to any such defense.
17.4 The parties acknowledge that this Franchise is subject to RCW
4.24.115. Accordingly, in the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting
from the concurrent negligence of Franchisee and the City, its officers,
officials, employees, and volunteers, Franchisee's liability shall be only to
the extent of Franchisee's negligence. It is further specifically and
expressly understood that the indemnification provided constitutes
Franchisee's waiver of immunity under Title 51 RCW, solely for the
purposes of this indemnification. This waiver has been mutually
negotiated by the parties.
17.5 Notwithstanding any other provisions of this Section 17, Franchisee
assumes the risk of damage to its Facilities located in the Rights-of-Way
and upon City-owned property from activities conducted by the City, its
officers, agents, employees, volunteers, elected and appointed officials,
and contractors, except to the extent any such damage or destruction is
caused by or arises from any grossly negligent, willful, or criminal actions
on the part of the City, its officers, agents, employees, volunteers, or
elected or appointed officials, or contractors. Franchisee releases and
waives any and all such claims against the City, its officers, agents,
employees, volunteers, or elected or appointed officials, or contractors.
Franchisee further agrees to indemnify, hold harmless and defend the City
against any claims for damages, including, but not limited to, business
interruption damages and lost profits, brought by or under users of
Franchisee's Facilities as the result of any interruption of service due to
damage or destruction of Franchisee's Facilities caused by or arising out of
activities conducted by the City, its officers, agents, employees or
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contractors, except to the extent any such damage or destruction is
caused by or arises from the sole negligence or any willful, or criminal
actions on the part of the City, its officers, agents, employees, volunteers,
or elected or appointed officials, or contractors.
17.6 The provisions of this Section 17 shall survive the expiration,
revocation, or termination of this Franchise.
SECTION 18. - Insurance.
18.1 Franchisee shall procure and maintain for so long as Franchisee has
Facilities in the Rights-of-Way, insurance against claims for injuries to
persons or damages to property which may arise from or in connection
with the exercise of rights, privileges and authority granted to Franchisee,
its agents representatives or employees. Franchisee shall require that
every subcontractor maintain insurance coverage and policy limits
consistent with this Section 18 with the exception of umbrella liability,
where contractors of Franchisee shall maintain $5,000,000 per occurrence
and aggregate policy limits. Franchisee shall procure insurance from
insurers with a current A.M. Best rating of not less than A-. Franchisee
shall provide a copy of a certificate of insurance and additional insured
endorsement to the City for its inspection at the time of or prior to
acceptance of this Franchise, and such insurance certificate shall evidence
a policy of insurance that includes:
a. Automobile Liability insurance with limits no less than
$2,000,000 combined single limit per occurrence for bodily injury and
property damage. Franchisee currently maintains a $100,000 per
occurrence deductible;
b. Commercial General Liability insurance, written on an
occurrence basis with limits no less than $3,000,000 combined single limit
per occurrence and $5,000,000 aggregate for personal injury, bodily injury
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and property damage. Coverage shall include but not be limited to:
blanket contractual; premises; operations; independent contractors; stop
gap liability; personal injury; products and completed operations; broad
form property damage; explosion, collapse and underground (XCU); and
employer's liability. Franchisee currently maintains a $25,000 per
occurrence deductible;
C. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington. No deductible is
presently required for this insurance; and
d. Umbrella liability policy with limits not less than $10,000,000
per occurrence and in the aggregate. Franchisee currently maintains a
$10,000 per occurrence deductible.
18.2 Any deductibles or self-insured retentions must be declared to and
approved by the City. Such approval shall not be unreasonably withheld or
delayed. The City acknowledges that Franchisee's current deductibles are
subject to change based on business needs and the commercial insurance
market. Payment of deductible or self-insured retention shall be the sole
responsibility of Franchisee. Additionally, Franchisee shall pay all
premiums for the insurance on a timely basis. Franchisee may utilize
primary and umbrella liability insurance policies to satisfy the insurance
policy limits required in this section. Franchisee's umbrella liability
insurance policy provides "follow form" coverage over its primary liability
insurance policies.
18.3 The insurance policies, with the exception of Workers'
Compensation obtained by Franchisee shall name the City, its officers,
officials, employees, agents, and volunteers ("Additional Insureds"), as an
additional insured with regard to activities performed by or on behalf of
Franchisee. The coverage shall contain no special limitations on the scope
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of protection afforded to the Additional Insureds. In addition, the
insurance policy shall contain a clause stating that 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.
Franchisee shall provide to the City prior to or upon acceptance either (1)
a true copy of the additional insured endorsement for each insurance
policy required in this Section 18 and providing that such insurance shall
apply as primary insurance on behalf of the Additional Insureds or (2) a
true copy of the blanket additional insured clause from the policies.
Receipt by the City of any certificate showing less coverage than required
is not a waiver of Franchisee's obligations to fulfill the requirements.
Franchisee's insurance shall be primary insurance as respects the
Additional Insureds, and the endorsement should specifically state that the
insurance is the primary insurance. Any insurance maintained by the
Additional Insureds shall be in excess of Franchisee's insurance and shall
not contribute with it.
18.4 Franchisee is obligated to notify the City of any cancellation or
intent not to renew any insurance policy, required pursuant to this Section
18, ninety (90) days prior to any such cancellation. Within thirty (30)
days prior to said cancellation or intent not to renew, Franchisee shall
obtain and furnish to the City replacement insurance policies meeting the
requirements of this Section 18. Failure to provide the insurance
cancellation notice and to furnish to the City replacement insurance
policies meeting the requirements of this Section 18 shall be considered a
material breach of this Franchise and subject to the City's election of
remedies described in Section 21 below. Notwithstanding the cure period
described in Section 21.2, the City may pursue its remedies immediately
upon a failure to furnish replacement insurance.
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18.5 Franchisee's maintenance of insurance as required by this Section
18 shall not be construed to limit the liability of Franchisee to the coverage
provided by such insurance, or otherwise limit the City's recourse to any
remedy available at law or equity. Further, Franchisee's maintenance of
insurance policies required by this Franchise shall not be construed to
excuse unfaithful performance by Franchisee.
SECTION 19. - Abandonment of Franchisee's Telecommunications
Network. Upon the expiration, termination, or revocation of the rights
granted under this Franchise, Franchisee shall remove all of its Facilities
from the Rights-of-Way within thirty (30) days of receiving written notice
from the Public Works Director or his/her designee. The Facilities, in
whole or in part, may not be abandoned by Franchisee without written
approval by the City. Any plan for abandonment or removal of
Franchisee's Facilities must be first approved by the Public Works Director
or his/her designee, and all necessary permits must be obtained prior to
such work. Notwithstanding the above, however, the City may permit
Franchisee's improvements to be abandoned and placed in such a manner
as the City may prescribe. Upon permanent abandonment, and
Franchisee's agreement to transfer ownership of the Facilities to the City,
Franchisee shall submit to the City a proposal and instruments for
transferring ownership to the City. Any Facilities that are not permitted to
be abandoned in place and that are not removed within thirty (30) days of
receipt of City's notice shall automatically become the property of the City.
Provided, however, that nothing contained within this Section 19 shall
prevent the City from compelling Franchisee to remove any such Facilities
through judicial action when the City has not permitted the Franchisee to
abandon said Facilities in place. The provisions of this Section 19 shall
survive the expiration, revocation, or termination of this Franchise.
SECTION 20. - Bonds.
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20.1 Construction Guarantee. As a condition of performing work in the
Right-of-Way, the timely, complete, and faithful performance of all
construction work in the Right-of-Way shall be guaranteed in an amount
equal to one hundred twenty five percent (125%) of the cost estimate
(prepared by a licensed contractor, professional engineer, or architect) of
the construction work. The guarantee may be by performance bond or
irrevocable letter of credit. If Franchisee, in the sole judgment of the City,
has a history of corrections or defaults Franchisee must provide the full
guarantee by assignment of funds. These funds shall guarantee the
following: (1) timely completion of construction; (2) construction in
compliance with all applicable plans, permits, technical codes, and
standards; (3) proper location of the Facilities as specified by the City; (4)
restoration of the Rights-of-Way and other City properties affected by the
construction; (5) submission of as-built drawings after completion of
construction; and (6) timely payment and satisfaction of all claims,
demands, or liens for labor, materials, or services provided in connection
with the work that could be asserted against the City or City property.
The guarantee must remain in full force until the completion of
construction, including final inspection, corrections, and final approval of
the work, recording of all easements, provision of as-built drawings, and
the posting of a maintenance guarantee as described in Section 20.2.
Compliance with the performance guarantee requirement of the City's
current Design and Construction Standards shall satisfy the provisions of
this Section 20.1.
20.2 Maintenance Guarantee. Maintenance and the successful operation
of the Right-of-Way improvements shall be bonded for a period of at least
two (2) years (or other period as required by Kent City Code) from the
date of final construction approval. The bond shall be in an amount to be
determined by the City. The minimum maintenance guarantee shall be
Five Thousand Dollars ($5,000.00) or twenty percent (20%) of the original
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performance construction guarantee as described in Section 20.1,
whichever is greater. At 6-month intervals during this maintenance
period, the City will inspect the improvements and identify to Franchisee
any noted deficiencies. Franchisee will have thirty (30) days to correct
any deficiencies. The satisfactory correction of the work may commence a
new two (2) year maintenance period for the improvements as corrected,
as determined by the City. The City will initiate collection against the
financial guarantee if deficiencies are not satisfactorily addressed by the
end of the 30-day response period. Compliance with the maintenance
guarantee requirement of the City's current Design and Construction
Standards shall satisfy the provisions of this Section 20.2.
20.3 Original financial guarantee amounts described in Section 20.1 and
Section 20.2 above may be reduced one time only prior to the
maintenance period, at the discretion of the City. If an extension to any
associated permits are granted, the financial guarantees may be increased
based on an updated engineer's cost estimate or as determined by the
City. Financial guarantees will be fully released only after all final
punchlist items are accomplished, final construction approval, and the
elapse of the two (2) year maintenance guarantee period with all
corrective actions complete and accepted by the City.
20.4 Franchisee shall provide City with a bond in the amount of Fifty
Thousand Dollars ($50,000.00) ("Franchise Bond") running or renewable
for the term of this Franchise, in a form and substance reasonably
acceptable to City. In the event Franchisee shall fail to substantially
comply with any one or more of the provisions of this Franchise, following
written notice and a reasonable opportunity to cure, then there shall be
recovered jointly and severally from Franchisee and the bond any actual
damages suffered by City as a result thereof, including but not limited to
staff time, material and equipment costs, compensation or indemnification
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of third parties, and the cost of removal or abandonment of Facilities .
Franchisee specifically agrees that its failure to comply with the terms of
this Section 20.4 shall constitute a material breach of this Franchise,
subject to the notice and cure provisions of Section 21.2. Franchisee
further agrees to replenish the Franchise Bond within fourteen (14) days
after written notice from the City that there is a deficiency in the amount
of the Franchise Bond. The amount of the Franchise Bond shall not be
construed to limit Franchisee's liability or to limit the City's recourse to any
remedy to which the City is otherwise entitled at law or in equity.
20.5 All bonds provided to the City under this Section 20 shall be on
forms provided by the City and with sureties registered with the
Washington State Insurance Commissioner or other financial institutions
acceptable to the City.
SECTION 21. - Remedies to Enforce Compliance.
21.1 In addition to any other remedy provided in this Franchise, the City
reserves the right to pursue any remedy available at law or in equity to
compel or require Franchisee and/or its successors and assigns to comply
with the terms of this Franchise and the pursuit of any right or remedy by
the City shall not prevent the City from thereafter declaring a revocation
for breach of the conditions. In addition to any other remedy provided in
this Franchise, Franchisee reserves the right to pursue any remedy
available at law or in equity to compel or require the City, its officers,
employees, volunteers, contractors and other agents and representatives,
to comply with the terms of this Franchise. Further, all rights and
remedies provided herein shall be in addition to and cumulative with any
and all other rights and remedies available to either the City or
Franchisee. Such rights and remedies shall not be exclusive, and the
exercise of one or more rights or remedies shall not be deemed a waiver
of the right to exercise at the same time or thereafter any other right or
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remedy. Provided, further, that by entering into this Franchise, it is not
the intention of the City or Franchisee to waive any other rights, remedies,
or obligations as provided by law, equity or otherwise, and nothing
contained in this Franchise shall be deemed or construed to effect any
such waiver. The parties acknowledge that, in the event of a violation of
this Franchise, the other party shall be entitled to preliminary and
permanent injunctive relief without having to prove actual damages or
immediate or irreparable harm or to post a bond.
21.2 If either party violates or fails to comply with any of the provisions
of this Franchise or a permit issued as required by Section 8.2, or should
it fail to heed or comply with any notice given to such party under the
provisions of this Franchise (the "Defaulting Party"), the other Party (the
"Non-defaulting Party") shall provide the Defaulting Party with written
notice specifying with reasonable particularity the nature of any such
breach and the Defaulting Party shall undertake all commercially
reasonable efforts to cure such breach within thirty (30) days of receipt of
notification. If the Non-defaulting Party reasonably determines the breach
cannot be cured within (30) thirty days, the Non-defaulting Party may
specify a longer cure period, and condition the extension of time on the
Defaulting Party's submittal of a plan to cure the breach within the
specified period, commencement of work within the original thirty (30) day
cure period, and diligent prosecution of the work to completion. If the
breach is not cured within the specified time, or the Defaulting Party does
not comply with the specified conditions, the Non-defaulting Party may
pursue any available remedy at law or in equity as provided in Section
20.1 above, or in the event Franchisee has failed to timely cure the
breach, the City, at its sole discretion, may elect to (1) revoke this
Franchise pursuant to Section 22, (2) claim damages of Two Hundred Fifty
Dollars ($250.00) per day against Franchisee (and collect from the
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Franchise Bond if necessary), or (3) extend the time to cure the breach if
under the circumstances additional time is reasonably required.
SECTION 22. - Revocation. If Franchisee willfully violates or fails
to comply with any material provisions of this Franchise, then at the
election of the Kent City Council after at least thirty (30) days written
notice to Franchisee specifying the alleged violation or failure, the City
may revoke all rights conferred and this Franchise may be revoked by the
Council after a hearing held upon such notice to Franchisee. Such hearing
shall be open to the public and Franchisee and other interested parties
may offer written and/or oral evidence explaining or mitigating such
alleged noncompliance. Within thirty (30) days after the hearing, the Kent
City Council, on the basis of the record, will make the determination as to
whether there is cause for revocation, whether the Franchise will be
terminated, or whether lesser sanctions should otherwise be imposed.
The Kent City Council may in its sole discretion fix an additional time
period to cure violations. If the deficiency has not been cured at the
expiration of any additional time period or if the Kent City Council does not
grant any additional period, the Kent City Council may by resolution
declare the Franchise to be revoked and forfeited or impose lesser
sanctions. If Franchisee appeals revocation and termination, such
revocation may be held in abeyance pending judicial review by a court of
competent jurisdiction, provided Franchisee is otherwise in compliance
with the Franchise.
SECTION 23. - Non-Waiver. The failure of either party to insist
upon strict performance of any of the covenants and agreements of this
Franchise or to exercise any option conferred in any one or more instances
shall not be construed to be a waiver or relinquishment of any such
covenants, agreements, or option or any other covenants, agreements or
option.
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SECTION 24. - Police Powers and City Reaulations. Nothing within
this Franchise shall be deemed to restrict the City's ability to adopt and
enforce all necessary and appropriate ordinances regulating the
performance of the conditions of this Franchise, including any valid
ordinance made in the exercise of its police powers in the interest of public
safety and for the welfare of the public. The City shall have the authority
at all times to reasonably control by appropriate regulations, consistent
with 47 U.S.C. § 253, the location, elevation, manner of construction, and
maintenance of any Facilities by Franchisee, and Franchisee shall promptly
conform with all such regulations, unless compliance would cause
Franchisee to violate other requirements of law. The City reserves the
right to promulgate any additional regulations of general applicability as it
may find necessary in the exercise of its lawful police powers consistent
with 47 U.S.C. § 253. In the event of a conflict between the provisions of
this Franchise and any other ordinance(s) enacted under the City's police
power authority, such other ordinances(s) shall take precedence over this
Franchise.
SECTION 25. - Cost of Publication. The cost of publication of this
Franchise shall be borne by Franchisee.
SECTION 26. - Acceptance. This Franchise may be accepted by
Franchisee by its filing with the City Clerk of an unconditional written
acceptance, within sixty (60) days from the City's execution of this
Franchise, in the form attached as Exhibit B. Failure of Franchisee to so
accept this Franchise shall be deemed a rejection by Franchisee and the
rights and privileges granted shall cease. In addition, Franchisee shall file
the certificate of insurance and the additional insured endorsements
obtained pursuant to Section 18, any construction guarantees, if
applicable, pursuant to Section 20.1, the Franchise Bond required
pursuant to Section 20.4, and the costs described in Section 15.1.
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SECTION 27. - Survival. All of the provisions, conditions, and
requirements of Section 5, Section 6, Section 8, Section 13, Section 17,
Section 18, Section 19, Section 20, and Section 28 of this Franchise shall
be in addition to any and all other obligations and liabilities Franchisee
may have to the City at common law, by statute, or by contract, and shall
survive this Franchise, and any renewals or extensions, to the extent
provided for in those sections. All of the provisions, conditions,
regulations, and requirements contained in this Franchise shall further be
binding upon the successors, executors, administrators, legal
representatives, and assigns of Franchisee and all privileges, as well as all
obligations and liabilities of Franchisee shall inure to its successors and
assigns equally as if they were specifically mentioned where Franchisee is
named.
SECTION 28. - Changes of Ownership or Control.
28.1 This Franchise may not be directly or indirectly assigned,
transferred, or disposed of by sale, lease, merger, consolidation or other
act of Franchisee, by operation of law or otherwise, unless approved in
writing by the City, which approval shall not be unreasonably withheld,
conditioned or delayed. The above notwithstanding, Franchisee may
freely assign this Franchise in whole or in part to a parent, subsidiary, or
affiliated entity, unless there is a change of control as described in Section
28.2 below. Franchisee shall provide prompt, written notice to the City of
any such assignment. In the case of transfer or assignment as security by
mortgage or other security instrument in whole or in part to secure
indebtedness, such consent shall not be required unless and until the
secured party elects to realize upon the collateral. For purposes of this
Section 28, no assignment or transfer of this Franchise shall be deemed to
occur based on the public trading of Franchisee's stock; provided,
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however, any tender offer, merger, or similar transaction resulting in a
change of control shall be subject the provisions of this Franchise.
28.2 Any transactions that singularly or collectively result in a change of
more than fifty percent (50%) of the: ultimate ownership or working
control of Franchisee, ownership or working control of the Facilities,
ownership or working control of affiliated entities having ownership or
working control of Franchisee or of the Facilities, or of control of the
capacity or bandwidth of Franchisee's Facilities, shall be considered an
assignment or transfer requiring City approval. Transactions between
affiliated entities are not exempt from City approval if there is a change in
control as described in the preceding sentence. Franchisee shall promptly
notify the City prior to any proposed change in, or transfer of, or
acquisition by any other party of control of Franchisee. Every change,
transfer, or acquisition of control of Franchisee shall cause a review of the
proposed transfer. The City shall approve or deny such request for an
assignment or transfer requiring City's consent within one-hundred (120)
days of a completed application from Franchisee, unless a longer period of
time is mutually agreed to by the parties or when a delay in the action
taken by the City is due to the schedule of the City Council and action
cannot reasonably be obtained within the one hundred twenty (120) day
period. In the event that the City adopts a resolution denying its consent
and such change, transfer, or acquisition of control has been effected, the
City may revoke this Franchise, following the revocation procedure
described in Section 22 above. The assignee or transferee must have the
legal, technical, financial, and other requisite qualifications to own, hold,
and operate Franchisee's Services. Franchisee shall reimburse the City for
all direct and indirect costs and expenses reasonably incurred by the City
in considering a request to transfer or assign this Franchise, in accordance
with the provisions of Section 15.3 and Section 15.4, and shall pay the
applicable application fee.
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28.3 Franchisee may, without prior consent from the City: (i) lease the
Facilities, or any portion, to another person; (ii) grant an indefeasible right
of user interest in the Facilities, or any portion, to another person; or (iii)
offer to provide capacity or bandwidth in its Facilities to another person,
provided further, that Franchisee shall at all times retain exclusive control
over its Facilities and remain fully responsible for compliance with the
terms of this Franchise, and Franchisee shall furnish, upon request from
the City, a copy of any such lease or agreement, provided that Franchisee
may redact the name, street address (except for City and zip code), Social
Security Numbers, Employer Identification Numbers or similar identifying
information, and other information considered confidential under
applicable laws provided in such lease or agreement, and the lessee
complies, to the extent applicable, with the requirements of this Franchise
and applicable City codes. Franchisee's obligation to remain fully
responsible for compliance with the terms under this Section 28.3 shall
survive the expiration of this Franchise but only if and to the extent and
for so long as Franchisee is still the owner or has exclusive control over
the Facilities used by a third party.
SECTION 29. - Entire Agreement. This Franchise constitutes the
entire understanding and agreement between the parties as to the subject
matter within this Agreement and no other agreements or understandings,
written or otherwise, shall be binding upon the parties upon execution of
this Franchise.
SECTION 30. - Eminent Domain. The existence of this Franchise
shall not preclude the City from acquiring by condemnation in accordance
with applicable law, all or a portion of Franchisee's Facilities for the fair
market value. In determining the value of such Facilities, no value shall
be attributed to the right to occupy the area conferred by this Franchise.
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SECTION 31. - Vacation. If at any time the City, by ordinance and
in accordance with applicable laws, vacates all or any portion of the area
affected by this Franchise, the City shall not be liable for any damages or
loss to the Franchisee by reason of such vacation. The City shall notify
Franchisee in writing not less than sixty (60) days before vacating all or
any portion of any such area. The City may, after sixty (60) days' written
notice to Franchisee, terminate this Franchise with respect to such vacated
area.
SECTION 32. - Notice. Any notice or information required or
permitted to be given to the parties under this Franchise shall be sent to
the following addresses unless otherwise specified by personal delivery,
overnight mail by a nationally recognized courier, or by U.S. certified mail,
return receipt requested and shall be effective upon receipt or refusal of
delivery:
CITY OF KENT tw telecom of washington Ilc
Attn: City Clerk Attn: Vice President of Regulatory
220 Fourth Avenue South 10475 Park Meadows Drive
Kent, WA 98032 Littleton, CO 80124
Telephone: Telephone: 206-676-8052
with a copy to:
tw telecom of washington Ilc
Attn: SVP and General Counsel
10475 Park Meadows Drive
Littleton, CO 80124
Telephone: 303-566-1279
SECTION 33. - Severability. If any section, sentence, clause, or
phrase of this Franchise should be held to be invalid or unconstitutional by
a court of competent jurisdiction, such invalidity or unconstitutionality
shall not affect the validity or constitutionality of any other section,
sentence, clause, or phrase of this Franchise unless such invalidity or
unconstitutionality materially alters the rights, privileges, duties, or
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obligations, in which event either party may request renegotiation of those
remaining terms of this Franchise materially affected by such court's
ruling.
SECTION 34. - Compliance with all Applicable Laws. Each party
agrees to comply with all present and future federal, state, and local laws,
ordinances, rules, and regulations. This Franchise is subject to ordinances
of general applicability enacted pursuant to the City's police powers. The
City reserves the right at any time to amend this Franchise to conform to
any enacted, amended, or adopted federal or state statute or regulation
relating to the public health, safety, and welfare, or relating to roadway
regulation, or a City ordinance enacted pursuant to such federal or state
statute or regulation, when such statute, regulation, or ordinance
necessitates this Franchise be amended in order to remain in compliance
with applicable laws, but only upon providing Franchisee with thirty (30)
days' written notice of its action setting forth the full text of the
amendment and identifying the statute, regulation, or ordinance requiring
the amendment. Said amendment shall become automatically effective
upon expiration of the notice period unless, before expiration of that
period, Franchisee makes a written request for negotiations regarding the
terms of the amendment. If the parties do not reach agreement as to the
terms of the amendment within thirty (30) days of the call for
negotiations, either party may pursue any available remedies at law or in
equity.
SECTION 35. - Attorney Fees. If a suit or other action is instituted
in connection with any controversy arising out of this Franchise, each
party shall pay all its legal costs and attorney 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
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this section shall be construed to limit the City's right to indemnification
under Section 17 of this Franchise.
SECTION 36. - Hazardous Substances. Franchisee shall not
introduce or use any hazardous substances (chemical or waste), in
violation of any applicable law or regulation, nor shall Franchisee allow any
of its agents, contractors, or any person under its control to do the same.
Franchisee will be solely responsible for and will defend, indemnify, and
hold the City, its officers, officials, employees, agents, and volunteers
harmless from and against any and all claims, costs, and liabilities
including reasonable attorney fees and costs, arising out of or in
connection with the cleanup or restoration of the property to the extent
caused by Franchisee's use, storage, or disposal of hazardous substances,
whether or not intentional, and the use, storage, or disposal of such
substances by Franchisee's agents, contractors, or other persons acting
under Franchisee's control, whether or not intentional. Franchisee shall
have only that responsibility or liability for managing, monitoring, or
abating a hazardous condition that it may have under state or federal law
and this Franchise shall not be interpreted to expand Franchisee's legal
obligations relating to any pre-existing hazardous substances undisturbed
by Franchisee.
SECTION 37. - Licenses Fees and Taxes. Prior to constructing any
Facilities or providing Services within the City, Franchisee shall obtain a
business or utility license from the City, if so required. Franchisee shall
pay all applicable taxes on personal property and Facilities owned or
placed by Franchisee in the Rights-of-Way and shall pay all applicable
license fees, permit fees, and any applicable tax unless documentation of
exemption is provided to the City and shall pay utility taxes and license
fees properly imposed by the City under this Franchise.
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SECTION 38. - Miscellaneous.
38.1 The City and Franchisee respectively represent that their respective
signatories are duly authorized and have full right, power, and authority to
execute this Franchise on such party's behalf.
38.2 This Franchise shall be construed in accordance with the laws of the
State of Washington. The United States District Court for the Western
District of Washington, and King County Superior Court have proper venue
for any dispute related to this Franchise.
38.3 Section captions and headings are intended solely to facilitate the
reading of this Franchise. Such captions and headings shall not affect the
meaning or interpretation of the text within this Franchise.
38.4 Where the context so requires, the singular shall include the plural
and the plural includes the singular.
38.5 Franchisee shall be responsible for obtaining all other required
approvals, authorizations, and agreements from any party or entity and it
is acknowledged and agreed that the City is making no representation,
warranty, or covenant whether any of the foregoing approvals,
authorizations, or agreements are required or have been obtained by
Franchisee.
38.6 This Franchise is subject to all applicable federal, State and local
laws, regulations and orders of governmental agencies as amended,
including but not limited to the Communications Act of 1934, as amended,
the Telecommunications Act of 1996, as amended and the Rules and
Regulations of the FCC. Neither the City nor Franchisee waive any rights
they may have under any such laws, rules or regulations.
38.7 There are no third party beneficiaries to this Agreement.
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38.8 This Franchise may be enforced at both law and in equity.
SECTION 39. — Corrections by City Clerk or Code Reviser. Upon
approval of the City Attorney, the City Clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section or subsection numbering;
or references to other local, state or federal laws, codes, rules, or
regulations.
SECTION 40. — Effective Date. This ordinance shall take effect and
be in force five (5) days from and after its passage and publication as
provided by law.
SUZETTE COOKE, MAYOR
ATTEST:
RONALD F. MOORE, CITY CLERK
APPROVED AS TO FORM:
ARTHUR FITZPATRICK, ACTING CITY ATTORNEY
PASSED: day of 20.
APPROVED: day of , 20_.
PUBLISHED: day of , 20_.
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I hereby certify that this is a true copy of Ordinance No.
passed by the City Council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indicated.
(SEAL)
RONALD F. MOORE, CITY CLERK
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EXHIBIT A
INCLUDE A DESCRIPTION OF FRANCHISEE'S TELECOMMUNICATIONS
SYSTEM AND SERVICES
{ERz1164422.DOCX;4i00085.080003i> 47 Franchise — tw telecom
56
EXHIBIT B
STATEMENT OF ACCEPTANCE
tw telecom of washington Ilc ("TWTC) for itself, its successors and
assigns, accepts and agrees to be bound by all lawful terms, conditions
and provisions of the Franchise attached and incorporated by this
reference. TWTC declares that it has carefully read the terms and
conditions of this Franchise and unconditionally accepts all of the terms
and conditions of the Franchise and agrees to abide by such terms and
conditions. TWTC has relied upon its own investigation of all relevant
facts and it has not been induced to accept this Franchise and it accepts all
reasonable risks related to the interpretation of this Franchise.
tw telecom of washington Ilc
by: tw telecom holdings inc.,
its sole member
By: Date:
Name:
Title:
ACKNOWLEDGEMENT
STATE OF COLORADO )
ss.
COUNTY OF DOUGLAS )
I, a Notary Public in and for the State of
Colorado, do hereby certify that
of tw telecom holdings inc., sole member of tw telecom of washington Ilc,
did personally appear before me affixing his/her signature on the attached
document.
Sworn and Subscribed this day of
2014.
Notary Public
My commission expires
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[SEAL]
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PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH IN GTO N Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: April 18, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: April 21, 2014
From: Toby Hallock, P.E., Environmental Engineer II
Through: Chad Bieren, P.E., City Engineer
Subject: Puget Sound Energy - Project Design Agreement Schedule 74
Underground Conversion State Route 516 to S. 2315t Way /Russell
Road Upper Levee — James Street and Russell Road Intersection
South Reach Levee
Item - 3
Motion:
Move to recommend Council authorize the Mayor to sign a Project Design
Agreement with Puget Sound Energy for the Upper Russell Road Levee in an
amount not to exceed $21,000 subject to final terms and conditions
acceptable to the City Attorney and Public Works Director.
Summary:
Portions of the SR 516 to S. 231't Way/Russell Road Upper Levee along the James
Street and Russell Road intersection require repairs to meet federal levee safety
standards. Existing overhead electrical power and other utilities at this location will
need to be relocated underground as part of the project improvements.
The schedule 74 underground conversation design agreement with Puget Sound Energy
(PSE) allows PSE to prepare designs to relocate their overhead power facilities to
underground. Costs to convert the power lines to underground would be part of the
levee reconstruction project, which would be completed under an agreement with the
King County Flood Control District.
PSE has estimated the cost to design the underground conversion to be $21,000. The
design costs include engineering, management, and overhead costs.
The conversion with PSE is governed by Schedule 74 Tariff G, administered by the
Washington Utilities and Transportation Commission. Pursuant to the tariff PSE will pay
60% of the conversion and the city pays 40%. The city also provides the trench and
backfill.
Budget Impact:
There will be no unbudgeted fiscal impacts, as this project will be paid through an
agreement with the King County Flood Control District.
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vnvmpsexom
61
PU ET SOUND E-N .RGI
Puget 5ound Energy, Inc.
6905 South 228th Street
Kent, V✓A 98032
April 16,2014
Mr.Toby Hallock
City of Kent
400 West Gowe Street
Kent, WA 98032
RE: James St&Russell Rd Intersection
Schedule 74 Design Agreement
Dear Toby:
Puget Sound Energy(PSE)has reviewed the City of Kent's(City)request for three Schedule 74
Conversions for the above referenced project. As part of the proposed improvements,the City has
requested PSE to convert its existing overhead electric distribution to an underground system
consistent with PSE's Rate Schedule 74.
I have enclosed two(2) original Design Agreements for signature by the appropriate City
representative. Once signed, please return both originals to me for execution by PSE. I will return
one of the originals to you for your file. Within ten(10)business days from the date the agreements
are fully executed,the City will need to provide PSE with a written scope of work for the Conversion
Project,a list of key milestone dates for the Conversion Project and a statement indicating as to
whether the City desires to install the ducts and vaults for the Conversion Project.
Within 10 business days after receiving the above items from the City,PSE will prepare and submit to
the City a reasonably detailed good faith estimate of the cost to perform the Design Work and a
proposed schedule for the completion of the Design Work. The City then has another ten(10)
business days to either provide PSE with a written notice to proceed with the Design or a written
notice to terminate the Agreement without cost to the City.
We look forward to working with the City on these projects. Please feel free to contact me at 253-
395-6867 if you have any questions.
Sin•erely,
Douglas 1. Corbin
Municipal Liaison Manager
i
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Cc: A.YurovchA
B. Swart
T.Quann
Design Agreement Letter
62
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SCHEDULE 74 UNDERGROUND CONVERSION
Project Design Agreement
Project Name: James St& Russell Rd Intersection Schedule 74 Conversion
THIS Agreement, dated as of this day of , 20 , is made by and between
the CITY of KENT, a Municipal Corporation (the "Government Entity"), and PUGET SOUND ENERGY,
Inc., a Washington Corporation (the "Company").
RECITALS
A. The Company is a public service company engaged in the sale and distribution of electric
energy and, pursuant to its franchise or other rights from the Government Entity, currently locates its
electric distribution facilities within the jurisdictional boundaries of the Government Entity.
i
B. The Government Entity is considering conversion of the Company's existing overhead electric
distribution system to a comparable underground electric distribution, as more specifically described in the
Scope of Work (as defined in paragraph 2, below) furnished to the Company by the Government Entity
(the"Conversion Project").
C. The Government Entity has requested that the Company perform certain engineering design
services and otherwise work cooperatively with the Government Entity to develop a mutually acceptable
Project Plan (as defined in paragraph 6, below) for the Conversion Project, in accordance with and subject
to the terms and conditions of this Agreement(the"Design Work").
D. The Government Entity and the Company wish to execute this written contract in accordance
with Schedule 74 of the Company's Electric Tariff G ("Schedule 74")to govern the Design Work for the
Conversion Project.
i
` I
AGREEMENT
The Government Entity and the Company therefore agree as follows:
1. Unless specifically defined otherwise herein, all terms defined in Schedule 74 shall have the same
meanings when used in this Agreement.
2. The Government Entity shall, within ten (10) business days after the date of this Agreement, provide
the Company with a written scope of work for the Conversion Project which includes, among other
things, (a) a reasonably detailed description of the scope of the work required for the Conversion
Project, (b) a list of the key milestone dates for the Conversion Project, (c) reasonably detailed
drawings showing any associated planned improvements to the Public Thoroughfare, and (d)a
statement as to whether the Government Entity desires to install the ducts and vaults for the
Conversion Project(the"Scope of Work"). The Government Entity shall provide the Company two (2)
hard copies of the Scope of Work and a copy of the relevant electronic file(s) in a mutually agreed
electronic format.
3. Within ten (10) business days of its receipt of the Scope of Work, the Company shall prepare and
submit to the Government Entity (a) a reasonably detailed, good faith estimate of the cost to perform
the Design Work (the "Design Cost Estimate"), and (b) a proposed schedule for completion of the
Design Work which, to the extent reasonably practicable, reflects the applicable key milestone dates
specified in the Scope of Work and provides for completion of the Design Work within ninety (90)
Design Agreement, Attachment"A" to Schedule 74, Page 1
City of Kent—James St& Russell Rd Conversion
64
business days from the date the Company receives the Government Entity's notice to proceed under
paragraph 5, below (the "Design Schedule"). The proposed Design Cost Estimate and the proposed
Design Schedule shall be based upon the then-current Scope of Work. Unless otherwise specified in
the Scope of Work, the Design Work shall not include negotiation or acquisition of third party property
rights but shall include preliminary planning between the Company and the Government Entity
regarding their respective obligations for negotiating and acquiring third party property rights.
4. Within ten (10) business days after the Government Entity's receipt of the proposed Design Cost
Estimate and the proposed Design Schedule from the Company, the Government Entity and the
Company shall meet in order to (a) review the proposed Design Cost Estimate, (b) review the
proposed Design Schedule; (c) review the Scope of Work, and (d) make any changes necessary to
create a final Scope of Work, final Design Cost Estimate, and final Design Schedule that are
reasonably acceptable to both parties. If the parties are unable to agree upon a final version of the
Scope of Work, Design Cost Estimate, and/or Design Schedule, then either party may, by written
notice to the other party, submit the matter for resolution pursuant to the dispute resolution procedures
in paragraph 16, below. The final Scope of Work, Design Cost Estimate and Design Schedule, once
determined in accordance with this paragraph 4, may thereafter be changed or amended only in
accordance with the change procedures set forth in paragraph 13, below.
5. The Government Entity shall, within ten (10) business days after determination of the final of the
Scope of Work, Design Cost Estimate, and Design Schedule, issue (a) a written notice to proceed
which shall delineate the final Scope of Work, Design Cost Estimate, and Design Schedule, or (b) a
written notice to terminate this Agreement without cost to the Government Entity. If the Government
Entity terminates this Agreement, the costs incurred by the Company in preparing and submitting the
Design Cost Estimate and the Design Schedule shall not be reimbursable to the Company, and the
rights and obligations of the parties under this Agreement shall be terminated in their entirety and
without liability to either party.
6. Following the Company's receipt of the notice to proceed, and within the applicable time period
specified in the Design Schedule, the Company shall, with the cooperation and assistance of the
Government Entity as outlined in this Agreement, prepare a project plan for the Conversion Project
(the "Project Plan")which shall include, among other things, the following: (a) a detailed description of
the work that is required to be performed by each party and any third party in connection with the
Conversion Project(the"Construction Work"), (b) the applicable requirements, drawings, and
specifications for the Construction Work, (c) a description of any operating and other property rights
that are required to be obtained by each party for the Conversion Project(and the requirements and
specifications with respect thereto), (d) a detailed estimate of the costs to be incurred by each party in
its performance of the Construction Work, and (e) a detailed schedule for completing the Construction
Work (including, without limitation, the dates for delivery of the ducts and vaults and other materials
for use at the site of the Construction Work).
7. The Government Entity shall be responsible for coordinating the Design Work with all other design
work to be performed in connection with the Conversion Project and any associated planned
improvements to the Public Thoroughfare. The parties shall work together in an effort to mitigate the
costs of the Conversion Project to each party, including, without limitation, identifying ways to
accommodate the facilities of the Company to be installed as part of the Conversion Project within the
Public Thoroughfare.
8. Within the applicable time period specified in the Design Schedule, the Company shall prepare and
submit to the Government Entity a proposed initial draft of the Project Plan. The parties understand
and acknowledge that the proposed Project Plan submitted by the Company shall be preliminary in
nature and shall not include, without limitation, information required to be supplied by the Government
Entity (e.g., scope and estimate of the cost of the Construction Work to be performed by the
Government Entity).
Design Agreement, Attachment"A" to Schedule 74, Page 2
City of Kent—James St& Russell Rd Conversion
65
9. Within the applicable time period specified in the Design Schedule, the Government Entity shall
(a) review the proposed Project Plan submitted by the Company, (b) complete any information
required to be supplied by the Government Entity, (c) make any changes required to conform the
proposed Project Plan to the Scope of Work and this Agreement, and (d) return the amended Project
Plan to the Company.
10, Within the applicable time period specified in the Design Schedule, the Company shall review the
amended Project Plan submitted by the Government Entity and notify the Government Entity in writing
of either the Company's acceptance of, or the Company's specific objections to, the amended Project
Plan. If the Company makes any objection to the amended Project Plan, and the parties are unable to
resolve the objections and mutually agree upon the Project Plan prior to the final design date specified
in the Design Schedule, then either party may, by written notice to the other party, submit the matter
for resolution pursuant to the dispute resolution procedures in paragraph 16, below. The Project Plan,
as mutually agreed upon by the parties or established through the dispute resolution process, shall be
attached to and incorporated in a Project Construction Agreement substantially in the form attached
hereto as Exhibit A(the"Construction Agreement")which is to be signed by the parties prior to
commencement of the Construction Work.
11. The parties intend and agree that the Design Work and the Project Plan in its final form shall conform
to the following requirements:
(a) The Project Plan shall, if requested by the Government Entity in its initial Scope of Work, specify
that the Government Entity shall install the ducts and vaults for the Conversion Project; provided
that(i)the parties mutually agree upon and set forth in the Project Plan (A) the costs of such
installation work to be included in the Cost of Conversion, and (B)the specifications and
standards applicable to such installation work, and (ii) such installation work is accomplished by
the Government Entity in accordance with the applicable design and construction specifications
provided by the Company and set forth in the Project Plan.
(b) Each estimate of the costs to be incurred by a party shall, at a minimum, be broken down by
(i) the design and engineering costs, (ii) property and related costs, including any costs of
obtaining operating rights, and (III) construction costs, including and listing separately inspection,
labor, materials, and equipment.
(c) All facilities of the Company installed as part of the Conversion Project shall be located, and all
related property and operating rights shall be obtained, in the manner set forth in the applicable
provisions of Schedule 74. The Project Plan shall describe in detail the location of such facilities,
any related property and operating rights required to be obtained, and the relative responsibilities
of the parties with respect thereto.
(d) The schedule set forth in the Project Plan for completing the Construction Work shall include, at a
minimum, milestone time periods for completion of the Trenching, installation of ducts and vaults,
the construction and removal of any Temporary Service, and the removal of overhead facilities.
(e) The Project Plan may include the specification of work and requirements for Government-
Requested Upgrades and Company-Initiated Upgrades; provided, however, that the costs
incurred by the Company with respect to the design and engineering of Company-Initiated
Upgrades shall not be included in the costs reimbursable to the Company under this Agreement
or the Construction Agreement. For purposes of the foregoing, (i)the term "Government-
Requested Upgrade" shall mean any feature of the Underground Distribution System which is
requested by the Government Entity and is not reasonably required to make the Underground
Distribution System comparable to the overhead distribution system being replaced, and (ii) the
term "Company-Initiated Upgrade"shall mean any feature of the Underground Distribution System
which is required by the Company and is not reasonably required to make the Underground
Distribution System comparable to the overhead distribution system being replaced. For
Design Agreement, Attachment"A" to Schedule 74, Page 3
City of Kent—James St& Russell Rd Conversion
66
purposes of subparagraph (ii), above, a"comparable" system shall include, unless the parties
otherwise agree, the number of empty ducts (not to exceed two (2), typically having a diameter of
6" or less)of such diameter and number as may be specified and agreed upon in the final Scope
of Work necessary to replicate the load-carrying capacity (system amperage class) of the
overhead system being replaced. For purposes of subparagraph (i), above, any empty ducts
installed at the request of the Government Entity shall be a Government-Requested Upgrade.
(f) The Project Plan shall set forth all specifications, design standards and other requirements for the
Construction Work and the Conversion Project, including, but not limited to, the following:
(i) applicable federal and state safety and electric codes and standards, (ii) applicable construction
and other standards of the Company, and (iii)applicable street design and other standards of the
Government Entity which are in effect as of the commencement of the Conversion Project.
12. Upon request of the Government Entity, and in any event at the times specified in the Design
Schedule, the Company shall provide periodic reports which compare the actual costs of the Design
Work incurred to that point in time to the Design Cost Estimate, as changed or amended in
accordance with paragraph 13, below. Further, if at any time the Company reasonably expects that
the actual cost of the Design Work will exceed the Design Cost Estimate, as changed or amended in
accordance with paragraph 13, below, the Company shall notify the Government Entity immediately.
Upon receipt of the Company's notice, the Government Entity may, at its option,
(a) notify the Company in writing that this Agreement is terminated; or
(b) request a reasonably detailed explanation supported by documentation (reasonably satisfactory to
the Government Entity) to establish that the actual costs in excess of the Design Cost Estimate
are:
(i) reasonable,
(ii) consistent with the Scope of Work, and
(iii) consistent with sound engineering practices.
If the Government Entity requests an explanation, the Government Entity shall, within ten (10)
business days after receipt of the explanation,
(a) change the Scope of Work in accordance with paragraph 13, below, or
(b) direct the Company to continue with the Design Work without a change in the Scope of Work, but
reserving to the Government Entity the right to dispute the reasonableness of the costs to be paid
the Company under paragraph 14, below, in accordance with the dispute resolution procedures in
paragraph 16, below, or
(c) direct the Company to discontinue performing the Design Work pending resolution, pursuant to
paragraph 16, below, of any dispute regarding the reasonableness of the costs, in which event the
Design Schedule will be adjusted to reflect the delay, or
(d) notify the Company in writing that this Agreement is terminated.
In the event the Government Entity terminates this Agreement or discontinues the performance of the
Design Work under subparagraph (c), above, for more than ninety(90) days, the Government Entity
shall pay the Company for all costs incurred by the Company in its performance of the Design Work
prior to the date the Company receives the Government Entity's notice of termination, plus any costs
incurred by the Company for materials and other items ordered or procured by the Company with the
prior authorization of the Government Entity in order to meet the schedule for the Conversion Project.
The foregoing payment obligation shall survive any termination of this Agreement.
Design Agreement, Attachment"A"to Schedule 74, Page 4
City of Kent—James St& Russell Rd Conversion
67
13. (a) Either party may, at any time, by written notice thereof to the other party, request changes to the
Scope of Work (a "Request for Change"). No Request for Change shall be effective and binding
upon the parties unless signed by an authorized representative of each party. If any approved
Request for Change would cause an increase in the cost of, or the time required for, the
performance of any part of the Design Work, an equitable adjustment in the Design Cost Estimate
and the Design Schedule shall be made to reflect such increase. The parties shall negotiate in
good faith with the objective of agreeing in writing on a mutually acceptable equitable adjustment.
If the parties are unable to agree upon the terms of the equitable adjustment, either party may
submit the matter for resolution pursuant to the dispute resolution procedures in paragraph 16,
below. Notwithstanding any dispute or delay in reaching agreement or arriving at a mutually
acceptable equitable adjustment, each party shall, if requested by the other party, proceed with
the Design Work in accordance with the Request for Change. Any such request to proceed must
be accompanied by a written statement setting forth the requesting party's reasons for rejecting
the proposed equitable adjustment of the other party.
(b) The Design Cost Estimate and/or the Design Schedule shall be equitably adjusted from time to
time to reflect any change in the costs or time required to perform the Design Work to the extent
such change is caused by: (i) any Force Majeure Event under paragraph 17, below, (ii)the
discovery of any condition within the Conversion Area which affects the scope, cost, schedule or
other aspect of the Design Work and was not known by or disclosed to the affected party prior to
the date of this Agreement, or(iii) any change or inaccuracy in any assumptions regarding the
scope, cost, schedule or other aspect of the Design Work which are expressly identified by the
parties in the final Scope of Work. Upon the request of either party, the parties will negotiate in
good faith with the objective of agreeing in writing on a mutually acceptable equitable adjustment.
If, at any time thereafter, the parties are unable to agree upon the terms of the equitable
adjustment, either party may submit the matter for resolution pursuant to the dispute resolution
provisions in paragraph 16, below.
14. Upon completion of the Design Work(i.e., the date on which the Project Plan is final under
paragraph 10, above, either by mutual agreement of the parties or as established through the dispute
resolution procedures), the Government Entity shall pay the Company all actual, reasonable costs to
the Company for the Design Work(which, if disputed in good faith by the Government Entity, may be
submitted by either party for resolution pursuant to the dispute resolution provisions in paragraph 16,
below), plus any costs incurred by the Company for materials and other items ordered by the
Company with the prior authorization of the Government Entity in order to meet the schedule for the
Conversion Project. If, thereafter, the Construction Agreement is executed by the parties and the
Conversion Project is completed within five (5) years from the date of this Agreement, the full amount
of the costs incurred by the Company in its performance of the Design Work shall be included in the
"Shared Company Costs" under the Construction Agreement and any payment of such amounts
under this Agreement shall be credited to the Government Entity in calculating the"Net Amount"
payable under the Construction Agreement.
15. Within sixty (60) business days after completion of the Design Work, the Company shall issue to the
Government Entity an itemized invoice for the amounts payable under this Agreement. Such invoice
shall be in a form mutually agreed upon by the Company and the Government Entity and shall, at a
minimum, itemize the design and engineering costs, including and listing separately inspection, labor,
materials and equipment. In the event the Government Entity does not verify such invoice within ten
(10) business days of receipt, the Government Entity shall provide a written request to the Company
specifying the additional information needed to verify the invoice. The Company will provide, within a
reasonable period after receipt of any request, such documentation and information as the
Government Entity may reasonably request to verify such invoice. The Government Entity shall pay
the Company all amounts payable under this Agreement within thirty (30) days after receipt of the
Company's invoice. Payment as provided in this Agreement shall be full compensation for the
Company's performance of the Design Work, including without limitation all services rendered and all
materials, supplies, equipment, and incidentals necessary to complete the Design Work.
Design Agreement, Attachment"A"to Schedule 74, Page 5
City of Kent—James St& Russell Rd Conversion
68
16. Dispute Resolution Procedures:
(a) Any dispute, disagreement or claim arising out of or concerning this Agreement must first be
presented to and considered by the parties. A party who wishes dispute resolution shall notify the
other party in writing as to the nature of the dispute. Each party shall appoint a representative
who shall be responsible for representing the party's interests. The representatives shall
exercise good faith efforts to resolve the dispute. Any dispute that is not resolved within ten (10)
business days of the date the disagreement was first raised by written notice shall be referred by
the parties' representatives in writing to the senior management of the parties for resolution. In
the event the senior management are unable to resolve the dispute within twenty(20) business
days (or such other period as the parties may agree upon), each party may pursue resolution of
the dispute through other legal means consistent with the terms of this Agreement. All
negotiations pursuant to these procedures for the resolution of disputes shall be confidential and
shall be treated as compromise and settlement negotiations for purposes of the state and federal
rules of evidence.
(b) Any claim or dispute arising hereunder which relates to the Scope of Work, Design Cost
Estimate, and Design Schedule under paragraph 4, above; the Project Plan under paragraph 10,
above; or any Request for Change (including, without limitation, any associated equitable
adjustment) under paragraph 13, above, and is not resolved by senior management within the
time permitted under paragraph 16(a), above, shall be resolved by arbitration in Seattle,
Washington, under the Construction Industry Arbitration Rules of the American Arbitration
Association then in effect. The decision(s)of the arbitrator(s) shall be final, conclusive and
binding upon the Parties. All other disputes shall be resolved by litigation in any court or
governmental agency, as applicable, having jurisdiction over the Parties and the dispute.
(c) In connection with any arbitration under this paragraph 16, costs of the arbitrator(s), hearing
rooms and other common costs shall be divided equally among the parties. Each party shall
bear the cost and expense of preparing and presenting its own case (including, but not limited to,
its own attorneys'fees); provided, that, in any arbitration, the arbitrator(s) may require, as part of
his or her decision, reimbursement of all or a portion of the prevailing party's costs and expenses
by the other party.
(d) Unless otherwise agreed by the parties in writing, the parties shall continue to perform their
respective obligations under this Agreement during the pendency of any dispute.
17. In the event that either party is prevented or delayed in the performance of any of its obligations under
this Agreement by reason beyond its reasonable control (a"Force Majeure Event"), then that party's
performance shall be excused during the Force Majeure Event. Force Majeure Events shall include,
without limitation, war, civil disturbance, flood, earthquake or other Act of God; storm, earthquake or
other condition which necessitates the mobilization of the personnel of a party or its contractors to
restore utility service to customers; laws, regulations, rules or orders of any governmental agency;
sabotage; strikes or similar labor disputes involving personnel of a party, its contractors or a third
party; or any failure or delay in the performance by the other party, or a third party who is not an
employee, agent or contractor of the party claiming a Force Majeure Event, in connection with the
Work or this Agreement. Upon removal or termination of the Force Majeure Event, the party claiming
a Force Majeure Event shall promptly perform the affected obligations in an orderly and expedited
manner under this Agreement or procure a substitute for such obligation. The parties shall use all
commercially reasonable efforts to eliminate or minimize any delay caused by a Force Majeure Event.
18. This Agreement is subject to the General Rules and Provisions set forth in Tariff Schedule 80 of the
Company's electric Tariff G and to Schedule 74 of such Tariff as approved by the Washington Utilities
and Transportation Commission and in effect as of the date of this Agreement.
Design Agreement, Attachment"A" to Schedule 74, Page 6
City of Kent—James St& Russell Rd Conversion
69
19. Any notice under this Agreement shall be in writing and shall be faxed (with a copy followed by mail or
hand delivery), delivered in person, or mailed, properly addressed and stamped with the required
postage, to the intended recipient as follows:
If to the Government Entity: City of Kent
400 West Gowe St.
Kent, WA 98032
Attn: Toby Hallock
Fax: 253-856-6500
If to the Companv: Puget Sound Energy, Inc.
6905 S. 228"St.
Kent, WA 98032
Attn: Doug Corbin
Fax: 253-395-6882
Either party may change its address specified in this paragraph by giving the other party notice of such
change in accordance with this paragraph.
20. This Agreement shall in all respects be interpreted, construed and enforced in accordance with the
laws of the State of Washington (without reference to rules governing conflict of laws), except to the
extent such laws may be preempted by the laws of the United States of America.
21. This Agreement constitutes the entire agreement of the parties with respect to the subject matter
hereof and all other agreements and understandings of the Parties, whether written or oral, with
respect to the subject matter of this Agreement are hereby superseded in their entireties.
22. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns,
purchasers, and transferees of the parties, including but not limited to, any entity to which the rights or
obligations of a party are assigned, delegated, or transferred in any corporate reorganization, change
of organization, or purchase or transfer of assets by or to another corporation, partnership,
association, or other business organization or division thereof.
Government Entity: Company:
City of Kent PUGET SOUND ENERGY, INC.
BY BY
ITS ITS Municipal Liaison Manager
Date Signed Date Signed
Approved as to form:
Design Agreement, Attachment"A° to Schedule 74, Page 7
City of Kent—James St& Russell Rd Conversion
70
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71
PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte, P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH IN GTO N Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: April 17, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: April 21, 2014
From: Monica Whitman, Senior Transportation Planner
Through: Chad Bieren, P.E., City Engineer
Subject: Information Only/Safe Routes to School Grant Funding — Local
Match
Item - 4
Motion:
Information Only/No Motion Required
Summary:
The purpose of the Safe Routes to School (SRTS) program is to provide grants for
projects that increase the number of children walking and biking to school. There are
three elements to each Safe Routes to School program: engineering, education, and
enforcement. The Public Works Department in partnership with the Kent Police
Department will be submitting three Safe Routes to School grant requests: Meridian
Elementary, Daniel Elementary, and Neely O'Brien Elementary.
Meridian Elementary is located near the intersection of SE 256th Street and 140th
Avenue SE, increased development in the area has resulted in heavy traffic around
the school. The proposed project is estimated to cost $448,000 and will provide a
traffic signal and asphalt walkway adjacent to the signal to assist crossing guards,
parents, students, and motorists.
Daniel Elementary is located near SE 248th Street and 116th Avenue SE. The
proposed project is estimated to cost $100,000 and will relocate an existing
crosswalk and overhead crosswalk sign to provide improved access for students
walking to and from school. This project will also improve traffic flow through this
segment of SE 248th Street.
Neely O'Brien Elementary is located near 64th Avenue South and South 236th Street.
The proposed project is estimated to cost $350,000 and will include installation of a
new traffic signal and pedestrian crosswalk at the intersection of 64th Avenue South
and South 236th Street. This project also includes the relocation and installation of
traffic enforcement cameras.
The level of funding provided this grant cycle is significantly less than in previous
years, making this particular program increasingly competitive. While no match is
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required, preference is given to projects that provide a local match. Public Works
engineering staff analyzed the amount of local matching funds successful
jurisdictions have provided in recent years for similar projects. The majority of the
projects that were awarded funding provided a local match in the range of 5 -15%.
Currently $8 million is anticipated, statewide, for both the Pedestrian and Bicycle
Program and the Safe Routes to School Program for the 2015-2017; whereas, $30
million was awarded in the 2013-2015 cycle. Given that funding has been
significantly reduced, staff anticipates that local funding will be necessary to remain
competitive.
Applications are due May 5, 2014. By December 15, 2014 a prioritized list of
projects will be submitted to the Governor's office and the state legislature The
legislature will include the final list in its budget, with award announcements
expected by June 2015.
Budget Impact:
A 5% match for each of the three projects would require a total of $44,900 in city
funds.
Potential funding sources include: Revenue from school speed zone traffic safety
cameras and/or School Pedestrian Walkways funding which currently has a fund
balance of approximately $43,000.