HomeMy WebLinkAboutCity Council Meeting - Council - Agenda - 05/06/2014 CITY OF KENT
City Council Meeting
Agenda
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May 6, 2014
Mayor Suzette Cooke
Darla Ralph, Council President
Couneilr embers
Jim Berrios
Bill Boyce
Brenda Fir7cher
Dennis Higgins
Deborah Ranniger
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Les Thomas
homas C,-ry CLERK
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KENT CITY COUNCIL AGENDAS
KENT May 6, 2014
w s v ro Council Chambers
Mayor Suzette Cooke
Council President Dana Ralph
Councilmember Jim Berrios Councilmember Bill Boyce
Councilmember Brenda Fincher Councilmember Dennis Higgins
Councilmember Deborah Ranniger Councilmember Les Thomas
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COUNCIL WORKSHOP AGENDA
5 P.M.
Subject Speaker Time
Puget Sound Clean Air Agency Craig Kentworthy 20 min
Economic Development Strategy Ben Wolters 40 min
Grade Separation LIDs Tim LaPorte 30 min
COUNCIL MEETING AGENDA
7 p.m.
1. CALL TO ORDER/FLAG SALUTE
2. ROLL CALL
3. CHANGES TO AGENDA FROM COUNCIL, ADMINISTRATION, OR STAFF
4. PUBLIC COMMUNICATIONS
A. Public Recognition
B. Community Events
1. Kent International Festival
2. Drug Free Coalition Town Hall Meeting, Stacy Judd
C. Proclamation of National Public Works Week
D. Proclamation for TeamUp2CleanUp Kent Day
E. Introduction of Civil Service Commission Reappointee Callius Zaratkiewicz
F. Economic and Community Development Report
G. Intergovernmental Reports
5. PUBLIC HEARING
6. PUBLIC COMMENT - Please state your name and address for the record. You
will have up to three (3) minutes to provide comment. Please address all
comments to the Mayor or the Council as a whole. The Mayor and Council
may not be in a position to answer questions during the meeting. For more
details regarding the public comment process, please refer to the section
titled, "Public Comments," on the reverse side.
(Continued)
COUNCIL MEETING AGENDA CONTINUED
7. CONSENT CALENDAR
A. Minutes of Previous Meetings and Workshop — Approve
B. Payment of Bills — Approve
C. Reappointment to Civil Service Commission - Confirm
D. 2013 Asphalt Grinding Project — Accept as Complete
E. Telecommunications Franchise Ordinance with tw telecom of
washington Ilc — Introduce
F. Puget Sound Energy Conversion, Schedule 74 Project Design
Agreement - Approve
G. Multifamily Tax Exemption Extension, Ordinance — Adopt
H. Resolution amending the Comprehensive Plan Amendment for the Par
3 Golf Course - Adopt
I. Consultant Services Agreement with R.L Evans Company, Inc for
2014/15—Authorize
J. Perkins Building Lease Agreement for City Storage —Authorize
K. Resolution Declaring Emergency and Waiving Bid Requirement for Ice
Plant Equipment Repair at ShoWare Center — Adopt
L. Contract with PermaCold Engineering, Inc. for Ice Plant Equipment at
ShoWare Center — Authorize
M. Horseshoe Bend Levee Improvements East & West River Bend
Secondary Levees Phase II — Accept as Complete
8. OTHER BUSINESS
9. BIDS
A. 2014 Asphalt Grinding Project - Approve
B. 2014 Crack Sealing Project - Approve
10. REPORTS FROM STANDING COMMITTEES, COUNCIL, AND STAFF
11. EXECUTIVE SESSION AND ACTION AFTER EXECUTIVE SESSION
12. ADJOURNMENT
NOTE: A copy of the full agenda packet is available for perusal in the City Clerk's
Office. The Agenda Summary page and complete packet are on the website
at KentWA.gov
An explanation of the agenda format is given on the back of this page.
Any person requiring a disability accommodation should contact the City Clerk's Office
in advance at 253.856.5725. For TDD relay service, call the Washington
Telecommunications Relay Service at 1.800.833.6388.
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COUNCIL WORKSHOP
1) Puget Sound Clean Air Agency, Craig Kentworthy
2) Economic Development Strategy, Ben Wolters
3) Grade Separation LIDS, Tim LaPorte
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CHANGES TO THE AGENDA FROM COUNCIL, ADMINISTRATION, OR STAFF
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PUBLIC COMMUNICATIONS
A) Public Recognition
B) Community Events
1. Kent International Festival
2. Drug Free Coalition Town Hall Meeting, Stacy Judd
C) Proclamation for National Public Works Week
D) Proclamation for TeamUp2CleanUp Kent Day
E) Introduction of Civil Service Reappointee Callius Zaratkiewicz
F) Economic and Community Development Report
G) Intergovernmental Reports
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PUBLIC HEARING
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PUBLIC COMMENT
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Agenda Item: Consent Calendar 7A — 7B
CONSENT CALENDAR
7. City Council Action:
Councilmember moves, Councilmember
seconds to approve Consent Calendar Items A through M.
Discussion
Action
7A. Approval of Minutes.
Approval of the minutes of the workshop and regular Council meeting of April 15,
2014.
7B. Approval of Bills.
There were no bills to approve.
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11 � KENT
WASH IMJ T0N Kent City Council Workshop Minutes
April 15, 2014
The workshop meeting was called to order at 5:00 p.m. by Council President Ralph.
Councilmembers present: Ralph, Boyce, Berrios, Fincher, Higgins, and Thomas.
Councilmember Ranniger arrived at 5:43 p.m.
Council President Ralph highlighted the topics for the workshop and noted that the
order of the agenda has been revised to Neighborhood Councils, Residential Traffic
Calming, and finally Police/Public Safety Building funding options.
Interim Chief Administrative Office Tom Brubaker noted that King County
Councilmember Reagan Dunn would not be attending the Council meeting due to an
illness in his immediate family.
Neighborhood Councils - Interim Chief Administrative Officer Tom Brubaker,
introduced Toni Azzola, Neighborhood Program Coordinator. Azzola noted that the
Neighborhood Program was established in 2006 and reviewed the program goals. She
highlighted what a typical neighborhood council is and what it takes to be one. She
explained the process of becoming a neighborhood council and said there are
currently 25 of them. She highlighted the neigborhood grant matching fund
requirements and what they are used for. Azzola discussed the possibility of having
Community Councils and explained that they are like neighborhood councils, but with
larger footprints. She noted there would potentially be eight community councils with
approximately 4,000 to 5,000 households in each of them. Kent Community Councils,
she said, would have input on policy, City budget items, and undertake improvement
projects through the Neighborhood Grant Program or other means.
Councilmember Thomas confirmed that there is nothing holding residents from
forming community councils now. Residents can get their issues resolved through
staff or the Council already, he said. He felt this is adding two more levels of
bureaucracy and doesn't think Kent residents want to have larger footprints. Azzola
replied that the City's vision was always to have larger footprints for the
neighborhood councils.
Council President Ralph discussed concerns with what distinguishes, other than their
size, a homeowners association (HOA), block watch, neighborhood council, and
community council.
Azzola communicated that a larger community council would work on broader City
issues such as lakes, levees, and regional items with a larger footprint. The smaller
neighborhood councils would work on neighborhood items like local crime prevention.
Councilmember Thomas expressed concerns about having larger community councils.
Councilmember Boyce verified that a resident on a neighborhood council can be on a
community council, too.
Kent City Council Workshop Minutes April 15, 2014
Azzola communicated that there are residents that aren't necessarily within a
neighborhood council area that want to participate in the program and having a
community council addresses that.
Council President Ralph verified with Azzola that HOAs and neighborhood councils
differ. HOAs have bylaws, must file Covenants, Conditions & Restrictions (CC&Rs),
and they can't use any of the matching grant funds for any of their HOA business.
Councilmember Boyce communicated that he supports the neighborhood councils and
said he is trying to understand the statement of work. Azzola replied that the
neighborhood councils work on local issues such as streetscapes, local crime,
beautification of their areas, etc. The community councils would work on citywide
issues such as trains, the City budget, etc.
Councilmember Berrios verified that the downtown group likes the boundary lines and
the draft community council bylaws. However, Azzola communicated that three of the
groups feel included in the downtown, but a member of the Scenic Hill Neighborhood
Council doesn't like the boundaries.
Councilmember Berrios communicated that in 2006 the neighborhood councils were
established by the Council and inquired about neighborhood districts. He stated that
this is evolving into something that he isn't clear on and wondered if there are models
that the City should be looking at. Azzola replied that the district term that was
discussed in the beginning of 2013 and the neighborhood council leaders felt that
residents would misconstrue this meaning that each councilmember represented one
of the areas. She also noted that there are 25 neighborhood councils and going
forward having more of them would make this program more difficult to manage. She
noted that in 2006 the idea of looking at larger footprints was communicated. She
noted that in Spokane, Tacoma, and Seattle they all have larger districts and Seattle
has applied Council representation to each of the districts.
Councilmember Berrios inquired what the impact of having community councils would
be. He inquired if there were going to be any budget implications. Azzola
communicated that she would be supporting the community councils and the
neighborhood councils would be supporting them also. He expressed concern about
not getting a full understanding of this and any budget implications that this may
have.
Councilmember Higgins communicated that this is laid out in the strategic plan and
the neighborhood councils have been funded. He noted that four out of six cities
equivalent to Kent have these larger footprints and there needs to be some bylaws
put into place. Additionally, he said an assurance needs to be given that if we do this
it will be tracked and measured. He said he wants the Council to spend some time
working to formalize this.
Councilmember Fincher asked if conversations have taken place with the
neighborhood councils about the impact this would have on them. Azzola
communicated that when she met with the Mayor and the leadership of neighborhood
councils and some of them are aprehensive about it, but are willing to look at it. She
also noted that it took Tacoma eight years to form their larger community councils.
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Kent City Council Workshop Minutes April 15, 2014
Council President Ralph inquired if, in the future, the shift would be to move away
from neighborhood councils to districts. Azzola replied that the City wouldn't
discourage residents from establishing one, but wouldn't be encouraging them either.
She replied to Council President Ralph and said about half of the neighborhood
councils are active.
Councilmember Boyce stated that he has concerns, but is okay with it. He said the
Neighborhood Council Program seems like a really good program and would hate to
see it go away.
Councilmember Thomas communicated that Azzola may need help with this program.
He communicated that he thinks the neighborhood councils like their autonomy. He
said he likes what Azzola has done thus far, but felt it may work better in a different
format going forward.
Council President Ralph communicated that she is worried about the neighborhood
councils being left out of the loop if community councils are created. She explained
that if the Council doesn't know the needs of the residents and there are six levels
they have to go through get to reach a Councilmember it won't make sense to do
this.
Azzola communicated that she is still learning through other jurisdictions and said she
is open to suggestions.
Councilmember Thomas mentioned that there may be a need for another staff person
in the Neighborhood Program.
Azzola communicated that some of the neighborhood councils have businesses
included in them and stated that there would be even more insight included under the
community council model.
Councilmember Berrios verified with Azzola that there aren't many neighborhood
councils with businesses in them and having them involved would be an opportunity
for the City.
Brubaker suggested the staff go back and report the pros and cons with community
councils and a decision can be made at a later date. He also stated that he doesn't
think any staff can be hired for this.
Council President Ralph suggested a report be done on what the future
communication process will be about this.
Councilmember Berrios stated that there should be a framework implemented of what
this would look like, to include the impact on staff and the residents.
Councilmember Higgins communicated that there are no funds in the grant program
and the Mayor decided not to add any funds in it. He noted that the Council should
look at this.
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Kent City Council Workshop Minutes April 15, 2014
Council President Ralph noted that the funds have run out and Azzola stated that
there is about $1,000 dollars in it.
Brubaker communicated that it wasn't funded in 2014, but it was funded in 2013 with
$25,000.
Councilmember Boyce suggested an allocation for the grant program be introduced
before the next budget cycle.
Brubaker stated that the Council can let Azzola know what the amount of funding
should be. He will then work with her to determine where the funds come from and
present a budget proposal to the Council.
Residential Traffic Calming Program — Environmental Conservation Supervisor
Kelly Peterson discussed the 2014 Residential Traffic Calming Program and its phases.
He discussed the three areas with issues in the City. The first, he said, is 42nd
Avenue South and the proposal is to install three speed bumps. The second area is
100th Avenue Southeast and the proposal is to install six speed bumps and the final
area which has issues is SE 223 Dr and SE 224th Street which can't have speed
bumps due to Metro service. He stated that four traffic circles are proposed for this
area and they would be located between 116th Avenue South and 124th Avenue
South.
Council President Ralph communicated that funding comes from savings in the street
tree program, projects that came in under budget, and the utility tax and gas tax
funds.
City Engineer Chad Beiren noted that the contract is for $250,000.
Councilmember Boyce inquired what the process was for identifying these projects
and have the communities been informed.
Beiren communicated that these areas met the 10 mph over criteria and it has been
communicated to the residents.
Council President Ralph stated that it is a detailed process to get these traffic calming
measures put in place.
Beiren stated that one of the neighborhoods has been working for two years to get
something installed.
Beiren responded to Councilmember Berrios and stated it is difficult to ascertain how
long people have been speeding in these areas. However, it has been going on for at
least the three years that the City has been working with them.
Councilmember Berrios inquired if there are areas that need to be budgeted for in the
future. He noted that this was brought into the scope of the B&O and the City needs
to be responsible with other issues like this and put funds away for them. He
discussed an article that suggested a division in the business and residential
community and said it was incorrect.
4
Kent City Council Workshop Minutes April 15, 2014
Council President Ralph explained that there was a manufactured story that the
Council removed things from the B&O and it was just a menu of items that needed to
be addressed. She noted that the list was assumed to be the City preferring to repair
business streets over residential streets, which wasn't the case. She explained that
the item was at the conversation level and no decisions had been made at that time.
Councilmember Berrios noted that the fire department hates speed bumps and
Peterson communicated that speed bumps are the standard for those streets.
Beiren communicated to Council President Ralph that there will be work in the future
to have the process not take as long. He also verified that there aren't any other
problem areas that have been identified.
Brubaker communicated that B&O taxes are taxes and they go to the General Fund.
The Council chose to use these funds for street improvements and received support
from the residential and business communities. The staff brought forth a potential list
of projects to give the Council the authority to determine what is appropriate. He
noted that his expectation that $250,000 is more than enough for these three
projects and there should be some leftover funds available in this program in 2015.
He added that Beiren should work to check out new technology and make this a more
responsible program for the community. He revised the motion for Consent Calendar
item 73 in the regular Council meeting agenda by deleting the words "up to" and
replacing the word "on" with "including."
Police/Public Safety Building funding options - Police Chief Ken Thomas
provided a brief overview of the need for a public safety building, adding capacity at
the jail, and a better police training facility. He noted that by August 5 the City would
have to inform King County of a bond measure. He stated that he would like this to be
on the November 4 ballot measure. Currently, he stated the City has received three
different proposals from polling companies to work on potential messaging and gauge
the community atmosphere. He noted that there would be a committee established to
generate funds and an attorney would need to be hired to prepare a bond question for
the ballot. The Council would need to pass a resolution by July 15 to place a question
on the ballot. He communicated that the City has an outstanding police department
with 160 police officers in the department in the next few years. He noted that they
are located in an old library with a capacity of 65 people. He stated that the
department needs to increase capacity in the jail to deal with diagnosed mental health
issues, as there is only one cell for them right now. Training, he said, is one of the
reasons why his department does so well and a firing range with an increased
capacity to increase the effectiveness of the police department. He noted that the
Kent police department is different from local jurisdictions because they have
Automated External Defibrillator (AED) units in their vehicles and save lives. The Kent
police department is a service organization that does more than catch bad guys and if
the facilities are better they can do their job better. Thomas communicated that the
approximate cost of the bond measure for a home valued at $300,000 would be a $48
per year increase in property taxes. The total bond amount would be $30 million over
20 years.
5
Kent City Council Workshop Minutes April 15, 2014
Brubaker further explained that we will need to address mental health issues and
currently police officers are broken up into several different locations and tripping
over each other in the current library facility.
Councilmember Berrios communicated that he has toured the current facility and is
impressed how they have adjusted and been creative in making things work. He
inquired if the $30 million facility will accomodate the officers 30 years from now and
Thomas replied that the jail needs to be rewired and replumbed and that will last 30
years. However, this may not accommodate the full police department. He
communicated that this should serve the department well for 20 years.
Councilmember Ranniger discussed the crisis cells and Thomas replied that there is
only one currently and the proposal is to increase the number to four or five.
However, increasing the people in mental health programs better manages the overall
jail capacity.
Thomas communicated that there have been significant uses of force at the jail and
because there was a lack of capacity to deal with it it puts more people at peril than
should be.
Councilmember Fincher confirmed that a crisis cell doesn't have certain amenities in it
and regular cells have everything in them.
Brubaker explained to Councilmember Fincher that the City hires bond counsel when
it does bond work. He noted that municipal attorneys don't handle them. Bond
counsel confirms the language is correct in the documents and ensures the bond is
done property.
Council President Ralph communicated that one of the advantages is having the
detectives located with the rest of the police staff.
Councilmember Boyce discussed the polling and Thomas verified that the City is
analyzing the three proposals and hoping to secure a firm that has experience with
municipal buildings.
Brubaker communicated that by mid-May the polling firm should be chosen.
Councilmember Boyce inquired if every household will be called and Thomas replied
that they may be calling 300 or 400 registered voters in the City.
Brubaker stated that polling allows the City to understand what it needs to do to
message the item and how the community feels about the proposal.
Thomas communicated that a poll was done for the Kent School District bond issue.
Councilmember Berrios asked if there would be some education concerning the need
and Community and Public Affairs Officer Michelle Wilmot confirmed that it will be a
part of the process. She added that determining awareness question will guide the
communication effort over the next few months.
6
Kent City Council Workshop Minutes April 15, 2014
Councilmember Boyce felt that there is minimal awareness of this in the City.
Councilmember Berrios communicated that another need is that there is no protected
place for the police vehicles to be kept.
Wilmot stated that the polling companies are very experienced and she is confident
they will do a great job.
Brubaker stated that within a month or two this will turn into a ballot proposition and
the City can't advance it but will need to heighten its awareness concerning this. Once
the City decides to move forward, the community advocates will need to carry this
forward.
Councilmember Boyce suggested inviting and communicating this to the community
and Wilmot stated that the police community meetings that Thomas has been having
are good for this.
Councilmember Higgins stated that the need has been there for a while and felt it
needs to be said that the police department has done a great job in that small
building and has been performing well for many, many years. He stated that the
awareness needs to get going.
Councilmember Fincher stated that being able to see the facility was very telling for
her and is amazed by the amount of work the police get done out of that building.
The meeting adjourned at 6:33 p.m.
Ronald F. Moore, MMC
City Clerk
7
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KENT
Kent City Council Meeting Minutes
April 15, 2014
The regular meeting of the Kent City Council was called to order at 7:00 p.m. by
Mayor Cooke.
Councilmembers present: Ralph, Berrios, Boyce, Fincher, Higgins, Ranniger, and
Thomas.
CHANGES TO THE AGENDA
A. From Council, Administration, Staff. Council President Ralph announced that
Councilmember Reagan Dunn would not be presenting at the meeting.
B. From the Public. None.
PUBLIC COMMUNICATIONS
A. King County Councilmember Reagan Dunn, State of the County Address.
King County Councilmember Reagan Dunn had to reschedule and will present his State
of the County Address at a June Council meeting.
B. Public Recognition. None.
C. Community Events - Councilmember Thomas communicated that the Kiwanis is
having their senior breakfast event at the Golden Steer.
Mayor Cooke communicated that Congressman Adam Smith will be at Kent Meridian
High School on April 18.
1. Kent Relay for Life — Announcement and Update. Volunteer Wayne Snoey
discussed Kent Relay for Life and noted that he is a cancer survivor. He passed out
brochures and Lance Goodwin noted that the event takes place on May 30 - 31 at
Kent-Meridian High School. He communicated that the website is www.rflkent.org.
D. Proclamation of Earth Day in Kent. - Mayor Cooke presented the proclamation
to Parks, Recreation and Cultural Services Director Jeff Watling. Watling communicated
that the Earth Day event will be held on April 19 from 9 - 12 noon at Morrill Meadows
Park.
E. Proclamation of Arbor Day. - Mayor Cooke presented the proclamation to Parks,
Recreation and Cultural Services Director Jeff Watling. Watling noted that this
celebration will take place on April 21 and there will be some invasive plant removal to
save some trees. This event also is from 9-12 noon at West Fenwick Park.
Council President Ralph added that community service hours are available for high
school seniors who wish to participate and all they need to do is bring their forms.
F. Public Safety Report. - Police Chief Ken Thomas communicated that vehicle
prowls have increased, but there have been five arrests. He noted that there has been
an increase of prowls at Vision Quest. He added that there have been fourteen auto
Kent City Council Meeting Minutes April 15, 2014
theft arrests this month. Thomas communicated that the commanders are working
with the hotel managers to curb vehicle thefts and most of the arrests have come from
hotel parking lots. He noted that robberies continue to be low and there were three
iPhone arrests this month and there is federal legislation being proposed to have
stolen phones inactivated by the cell phone companies to prevent thefts. There were
three residential burglary arrests the past month and commercial burglaries have gone
down. He stated that another trend on the East Hill is criminals breaking into
foreclosed houses and they are working with the banks and code enforcement to lock
up and secure these residences. Code enforcement, he said, notified him that there
are over 150 foreclosed homes in Kent. He communicated that the investigations unit
made an arrest of four people with gang ties and 19 felony drug trafficking charges
were filed.
Thomas introduced newly hired Officer Dan Koehler and Mayor Cooke swore him in.
Thomas introduced new corrections officers Andrehas Rodriguez-Johnston and Bezzell
Lee.
G. Intergovernmental Reports. - Council President Ralph communicated that she
attended the South County Area Transportation Board meeting and they presented
potential new funding mechanism for road repair which would change from a gas tax
to basing the system on vehicle miles traveled. She noted that Oregon will be trying
this type of system in 2015. The thought, she said is to have vehicles taxed by each
mile traveled as opposed to what people are paying in the gas tax. As cars become
more efficient, she explained, those revenues are declining and not enough to sustain
road repairs. The process now is to determine if this is sustainable, what does it look
like, what are the options, and how do you track those miles. She noted that it is in
place in some countries in Europe. They also discussed a possible changing technology
of radar into satellite based systems at airports.
Councilmember Higgins stated the next meeting of the Sound Cities Association Board
of Directors is April 16. He also said there is a King Regional Transit Committee
meeting tomorrow and they will be hearing a presentation on King County Proposition
1 and the Puget Sound Regional Council Boeing Transit Community Grants.
Councilmember Boyce noted that the Sound Cities Association meeting was cancelled
and will be meeting in May.
PUBLIC HEARINGS
A. Consideration of Ordinance Renewing Six-Month Marijuana Zoning and
Business License Moratorium
Assistant City Attorney David Galazin noted that there is a six month moratorium in
place and this item is to renew it for another six months. He noted what the process is
and the current moratorium expires on May 27, 2014. He communicated that
extending the moratorium six months gives the City time to look at all of the
information provided and work with jurisdictions that have gone through this.
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Kent City Council Meeting Minutes April 15, 2014
Councilmember Higgins stated that this is a lengthy process that still needs to be gone
through and confirmed with Galazin and Brubaker that six months would be enough
time to be able to present legislation to the Council this summer.
Mayor Cooke confirmed with Galazin that there aren't any dates tentatively established
to bring this to the Land Use and Planning Board.
Councilmember Thomas Moved to open the public hearing, second by Council
President Ralph.
Mayor Cooke opened the public hearing.
1. John Worthington, Renton - Worthington opposed the item. He noted that the
moratorium doesn't align itself with the growth management act and that the City
needs marijuana. He stated that on a growth management basis the City is making the
wrong decision.
2. Steve Sarich, Seattle - Sarich communicated that he is the Executive Director,
Cannibis Action Coalition and the case against Kent is going to the Supreme Court. He
stated that they are writing new legislation for the 2015 session and has political
support from republicans and democrats.
3. Stefani Quane, SeaTac - Quane communicated the historical reason why marijuana
is deemed negative by society. She noted that marijuana is the best treatment for
cancer. She stated that there are a few places open in Kent that are open and aren't
causing crime and are healing and providing medicine to people. She said marijuana
allows you to eat when you have cancer and fights cancer.
4. Grant Girdner, Bellevue - Girdner is opposed to the moratorium and stated that he
works with many cannabis suppliers. He stated that all the business owners want to do
is address the need and starting a moratorium blocks them from being upstanding
citizens. He noted that this puts money into the hands of the drug dealers and cartels.
He urged the Council to not consider the moratorium and work with the business to
address the concerns.
5. Timothy Peterson, Kent — Peterson addressed Initiative 502 and noted that the City
should have funding from marijuana sales. He wants the Council to stand up for the
citizens who voted for marijuana.
6. Kim Chatman, Kent - Chatman said she didn't want to give her address and it is a
bad idea to tell people where you live on camera. She said she agrees with having
marijuana available for people who need it.
Councilmember Thomas moved to close the public hearing, seconded by
Council President Ralph
Councilmember Boyce moved to adopt Ordinance No. 4109, renewing for
another six-month period, a marijuana zoning and business license
moratorium, seconded by Council President Ralph.
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Kent City Council Meeting Minutes April 15, 2014
Councilmember Higgins stated that he will honor the process and hopes that the Land
Use and Planning Board will have an open mind on this. He stated that he has never
voted for a moratorium before and will only vote for this so the City can get this zoned
in a rational manner.
Councilmember Boyce stated he will be supporting the motion. He said the Council has
been looking at this for quite some time and there are lessons to be learned based on
other jurisdictions. He said has no intentions of voting for another moratorium after
this one and anticipates the legislation coming during the summer.
Council President Ralph communicated that she will be supporting this motion and
noted that it is hard to ensure the City is aligning itself with what Olympia is doing.
She noted that the Liquor Control Board hasn't issued licenses and this doesn't stop
anything from proceeding. She added that no revenue comes to cities from this and all
of the revenue is currently allocated to go to the state. She said she is looking forward
to the public hearing and the legislation that comes from the Land Use and Planning
Board.
Councilmember Thomas agreed with the three previous councilmembers and noted
that the first four speakers are from cities other than Kent.
A vote was taken on the motion on the table to adopt Ordinance No. 4109,
renewing for another six-month period, a marijuana zoning and business
license moratorium, which carried 7-0.
PUBLIC COMMENT
1. Kim Chatman, Kent - Chatman stated that Kent should be working to get funds from
the sale of marijuana. She discussed an incident with a Kent police officer and noted
that nothing has been done with her case and there needs to be a community diversity
commission established in Kent. She stated that things have to change.
2. John Worthington, Renton - Worthington communicated that he has friends that
may want to have collective gardens in the City. He discussed Initiative 502 and stated
that cities didn't get funds from it because cities said they wanted funds for policing.
CONSENT CALENDAR
Council President Ralph moved to approve Consent Calendar Items A through
J, seconded by Councilmember Thomas. Motion carried 7-0.
A. Approval of the minutes — Approve. The workshop and regular Council meeting
minutes of April 1, 2014 were approved.
B. Payment of Bills — Approve. The payment of the bills received through March 15
and paid on March 15 after auditing by the Operations Committee on April 1, 2014 was
approved.
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Kent City Council Meeting Minutes April 15, 2014
C. Consolidating Budget Adiustment Ordinance for Adiustments between July
1, 2013, and December 31, 2013 - Adopt. The Mayor was authorized to Adopt
Ordinance No. 4110, approving the consolidating budget adjustments made between
July 1, 2013 and December 31, 2013, reflecting an overall budget increase of
$38,284,176.
D. Turnkey Park Safety Surface Proiect with Northwest Playground
Equipment, Inc. — Accept as Complete. The Mayor was authorized to accept the
Safety Surfacing Installation Project with Northwest Playground Equipment, Inc. at
Turnkey Park as complete.
E. 2014 Distracted Driving Pilot Proiect Grant - Accept. The Mayor was
authorized to accept the Emergency Medical Services Division of Public Health
Seattle/King County grant in the amount of $7,000, authorize amending the budget,
authorize the Mayor to sign all documents, and authorize expenditure of the funds in
accordance with the grant terms and conditions acceptable to the Police Chief and City
Attorney.
F. Kent Drug Free Coalition Reducing Underage Drinking Proiect Grant -
Accept. The Mayor was authorized to accept the Substance Abuse and Mental Health
Services Administration 2013-2014 grant in the amount of $15,570, authorize
amending the budget, authorize the Mayor to sign all documents, and authorize
expenditure of the funds in accordance with the grant terms and conditions acceptable
to the Police Chief and City Attorney.
G. Goods & Services Agreement with Site Welding for Metal Work at the
Green River Natural Resources Area — Authorize. The Mayor was authorized 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.
H. Consultant Agreement with Aspect Consulting for Landsburg Mine —
Authorize. The Mayor was authorized 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.
I. Consultant Services Agreement with GeoEngineers for Briscoe- Desimone
Levee Reaches 2 & 3 - Authorize. The Mayor was authorized 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.
J. Residential Traffic Calming Program Expenditure — Approve. The Mayor was
authorized to sign the expenditure of $250,000 from the Street Operating Fund for the
installation of residential traffic calming projects including 42nd Avenue S, 100th
Avenue SE, and 223rd Drive/224th Street, and adjust the budget accordingly.
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Kent City Council Meeting Minutes April 15, 2014
OTHER BUSINESS
None.
BIDS
None.
REPORTS FROM STANDING COMMITTEES, STAFF AND SPECIAL COMMITTEES
A. Council President. Council President Ralph discussed the workshop and noted
that the discussion was led by Neighborhood Coordinator Toni Azzoli concerning
neighborhood councils, proposed community councils, and possible funding for the
neighborhood granting program. Additionally, there was presentation concerning the
residential traffic calming program and a revision to the motion that was just approved
for the expenditure of $250,000 for projects in three neighborhoods. She highlighted
the final presentation was about the police department and a potential bond measure
for a new facility. Council President Ralph also thanked Pantera Lago neighborhood for
having her at their quarterly meeting.
B. Mayor.
C. Administration. Brubaker communicated that there will be an executive session
for five minutes concerning property negotiations as authorized by per RCW
42.30.110(c).
D. Economic & Community Development Committee. In the minutes.
E. Operations Committee. In the minutes.
F. Parks and Human Services Committee. Councilmember Ranniger
communicated that the next Parks and Human Services Committee meeting is on April
17 at 5 p.m. and the topic will be an update on the Kent Valley Loop Trail project.
G. Public Safety Committee. In the minutes.
H. Public Works Committee. Councilmember Higgins thanked the Administration
Department for working on getting the funds for the residential traffic calming project.
He noted that at the meeting last week it was verified that there are no leaks in the
Landsburg mine and no contamination to the City's water supply.
Mayor Cooke communicated that there was a water bottling company interested in
setting up their operations at Clark Springs.
I. Regional Fire Authority. Councilmember Thomas announced that the next
meeting of the Regional Fire Authority will be held on May 31 at 5 p.m.
EXECUTIVE SESSION
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Kent City Council Meeting Minutes April 15, 2014
At 8:19 p.m., Mayor Cooke announced that the Council would recess into an
Executive Session for five minutes to discuss property negotiations as
authorized per RCW 42.30.110 (c).
At 8:24 p.m., the Executive Session concluded and Mayor Cooke reconvened
the regular meeting.
ACTION AFTER EXECUTIVE SESSION
None.
ADJOURNMENT
The meeting adjourned at 9:00 p.m.
Ronald F. Moore, MMC
City Clerk
7
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KENT Agenda Item: Consent Calendar — 7C
TO: City Council
DATE: May 6, 2014
SUBJECT: Reappointment to Civil Service Commission - Confirm
MOTION: Confirm the Mayor's reappointment of Callius Zaratkiewicz to the
Kent Civil Service Commission.
SUMMARY: Confirm the reappointment of Callius Zaratkiewicz to the Kent Civil
Service Commission for a six year term ending April 30, 2020.
Callius Zaratkiewicz has served on the Civil Service Commission since August of
1990. He is interested in continuing his service to the Commission and brings a wealth
of knowledge and history of the Commission to this position. His experience working
with union personnel for the Boeing company benefits the City, as well as the
Commission. He ensures that the rules and regulations are being met and fit the
needs of the Police Department and their respective personnel.
Thank you for your consideration and I submit this reappointment for your
confirmation.
RECOMMENDED BY: Mayor Suzette Cooke
YEA: N/A NAY: N/A
BUDGET IMPACTS: None.
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40.
•
KENT Agenda Item: Consent Calendar - 7D
TO: City Council
DATE: May 6, 2014
SUBJECT: 2013 Asphalt Grinding Project - Accept as Complete
MOTION: Accept the 2013 Asphalt Grinding Project as complete and
release retainage to Pyramid Grinding LLC, upon receipt of standard
releases from the state and the release of any liens. The original contract
amount was $64,375.00. The final contract amount was $61,155.49.
SUMMARY: Annually, the City of Kent's Street Department conducts a program of
asphalt overlays of city streets where the asphalt has reached the end of its service
life. As part of the overlay program, the city requires the services of an asphalt
grinder to remove the failing sections of asphalt. This piece of machinery is expensive
and it is not economical for the city to own one of its own. The city solicited bids for
the grinding work and Pyramid Grinding LLC was awarded the contract. This work is
complete and the city is ready to close-out the contract and accept the work as
complete.
EXHIBITS: None.
RECOMMENDED BY: Public Works Director
YEA: N/A NAY: N/A
BUDGET IMPACTS: This project was funded out of 2013 B & 0 funds.
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KENT
° Agenda Item: Consent Calendar — 7E
TO: City Council
DATE: May 6, 2014
SUBJECT: Telecommunications Franchise Ordinance with tw telecom of
washington Ilc - Introduce
MOTION: Introduce an ordinance granting tw telecom of washington Ilc, a
franchise to install and maintain facilities for a telecommunications network
within the City's public right-of-way, subject to final terms and conditions
acceptable to the City Attorney and Public Works Director.
SUMMARY: tw telecom of washington Ilc 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 it a franchise
laying out the terms and conditions under which this equipment will be 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 right-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.
EXHIBITS: Ordinance No. , Franchise Agreement with tw telecom of washington
Ilc
RECOMMENDED BY: Public Works Committee
YEA: Ralph — Higgins - Fincher NAY:
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.
1.1 Pursuant to RCW 35A.47.040, the city of Kent, a Washington
municipal corporation (the "City"), grants to Franchisee, its successors,
1 Franchise — tw telecom
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 40.
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.
SECTION 2, - Authority Limited to Occupation of Public Rights-of-
Way.
2 Franchise — tw telecom
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
Section 8.2. As of the effective date of this Franchise, Franchisee has no
owned Facilities located in the City's Rights-of-Way.
3 Franchise — tw telecom
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,
maintenance, and improvement of all new Rights-of-Way, thoroughfares,
and other public properties of every type and description.
4 Franchise - tw telecom
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.
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
5 Franchise — tw telecom
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
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.
6 Franchise — tw telecom
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
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.
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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
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.
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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.
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.
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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
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
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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
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.
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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
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
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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
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:
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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,
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.
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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
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
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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
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,
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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
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
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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
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
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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
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
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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.
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
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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
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
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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 Eleven
Thousand, Two Hundred, Thirty Seven and 52/100 Dollars ($11,237.52)
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 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.
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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
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
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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.
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
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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 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.
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
25 Franchise — tw telecom
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
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
26 Franchise — tw telecom
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
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,
27 Franchise - tw telecom
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
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.
28 Franchise — tw telecom
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 18. 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
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
29 Franchise — tw telecom
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.
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
30 Franchise - tw telecom
such work. Notwithstanding the above, 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.
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
31 Franchise - tw telecom
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
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
32 Franchise — tw telecom
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
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.
33 Franchise — tw telecom
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
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 reserve the right to seek and obtain injunctive
relief with respect to this Franchise to the extent authorized by applicable
law and that the execution of this Franchise shall not constitute a waiver
or relinquishment of such right. The parties agree that in the event a
party obtains injunctive relief, neither party shall be required to post a
bond or other security and the parties agree not to seek the imposition of
such a requirement.
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
34 Franchise — tw telecom
"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
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
35 Franchise - tw telecom
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.
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
36 Franchise — tw telecom
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.
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.
37 Franchise — tw telecom
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,
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)
38 Franchise — tw telecom
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.
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
39 Franchise — tw telecom
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 Franchise 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.
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
40 Franchise — tw telecom
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. - Severabilitv. 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
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
41 Franchise — tw telecom
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
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
42 Franchise - tw telecom
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.
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,
43 Franchise - tw telecom
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 Franchise.
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
44 Franchise — tw telecom
APPROVED AS TO FORM:
ARTHUR FITZPATRICK, ACTING CITY ATTORNEY
PASSED: day of , 20_.
APPROVED: day of , 20_.
PUBLISHED: day of , 20_.
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
PAav1\0rffi e edwttlecm Fmoadse affi e doco
45 Franchise — tw telecom
EXHIBIT A
INCLUDE A DESCRIPTION OF FRANCHISEE'S TELECOMMUNICATIONS
SYSTEM AND SERVICES
46 Franchise — tw telecom
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
[SEAL]
47 Franchise — tw telecom
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•
Nl- KENT Agenda Item: Consent Calendar- 7F
TO: City Council
DATE: May 6, 2014
SUBJECT: Puget Sound Energy Conversion — Schedule 74 Project Design
Agreement - Approve
MOTION: Authorize the Mayor to sign a Project Design Agreement with
Puget Sound Energy for the Upper Russell Road Levee Project 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.
EXHIBITS: Schedule 74 Underground Conversion Project Design Agreement
RECOMMENDED BY: Public Works Committee
YEA: Ralph — Higgins - Fincher NAY:
BUDGET IMPACTS: 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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vnvmpsexorr
PUGET SOUND E-N .RGI
Puget 5ouud Er,igV, 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
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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
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
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
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
i
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
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
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
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KENT
Agenda Item: Consent Calendar — 7G
TO: City Council
DATE: May 6, 2014
SUBJECT: Multifamily Tax Exemption Extension, Ordinance - Adopt
MOTION: Adopt Ordinance No. , extending the multifamily tax
exemption for qualifying projects in the residential targeted area as
depicted in Appendix 1 of the attached ordinance.
SUMMARY: Kent's multifamily tax exemption — established by Ordinance No. 3992 in
2009 — will sunset on June 30, 2014 if it is not extended. This ordinance allows for an
exemption from certain local property taxes for qualifying multifamily and/or mixed
use development in Kent's downtown area. It is considered to be an incentive for
development which is consistent with the vision for downtown. Ordinance No. 3992
established an initial 5-year period of validity which will expire in June, 2014. While
there have been no applications for exemption during this period, staff feels the
ordinance should be extended into the future to continue to provide incentives for the
type of development envisioned in the City's recently adopted Downtown Subarea
Action Plan (DSAP).
An amendment to the residential targeted area is included in this ordinance. That
portion of the North Park neighborhood that is currently zoned MRT has been removed
from the target area. This is consistent with recent actions of the City Council with
respect to the Planned Action Ordinance (PAO) where the same area was removed
from the affected area.
This ordinance will extend the time period for an additional five (5) year period.
EXHIBITS: Ordinance, including Appendix 1.
RECOMMENDED BY: Economic and Community Development Committee
YEA: Berrios - Boyce — Higgins NAY:
BUDGET IMPACTS: None.
This page intentionally left blank.
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, amending Chapter 3.25
of the Kent City Code, entitled "Multifamily
Dwelling Tax Exemptions," amending the
residential targeted area and extending the period
for submission of applications for conditional
certificates to June 30, 2019.
RECITALS
A. Through its adoption of Ordinance No. 3922 on June 16,
2009, the Kent City Council amended the City's multifamily tax exemption
program to adopt the further goals of creating a vibrant downtown to serve
as a destination retail and community gathering place; and to invest in
neighborhood livability and development of neighborhood centers.
B. The City adopted an update of the Downtown Subarea Action
Plan ("DSAP") on November 19, 2013, that encourages high-density,
multifamily development in downtown.
C. The City also adopted a Planned Action Ordinance ("PAO") on
December 10, 2013, that incentivizes development — including high-
density residential development — in downtown by streamlining the
environmental review process.
1
Multifamily dwelling tax exemptions
Ordinance amending KCC 3.25
D. Ordinance No. 3922 established a sunset provision that
prohibited the City from accepting any new applications for conditional
certificates of acceptance of tax exemption under Chapter 3.25 of the Kent
City Code after June 30, 2014.
E. In order to implement the goals of the DSAP and the PAO, the
City now desires to retain the property tax exemption incentive for
multifamily residential development by extending the period for submission
of applications for conditional certificates for an additional five (5) years, in
addition to amending the definition of the residential targeted area and
map depicting the area affected.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Amendment. Section 3.25.050 of the Kent City Code is
amended as follows:
Sec. 3.25.020. Definitions. When used in this chapter, the
following terms shall have the following meanings, unless the context
indicates otherwise:
1. Administrator means the Kent economic development director
or his/her designee.
2
Multifamily dwelling tax exemptions
Ordinance amending KCC 3.25
2. Mixed use means a multi-story multifamily housing residential
project with at least one (1) nonresidential use in one (1) or more multi-
story multifamily housing buildings in the project, such as retail, office,
entertainment, schools, conference centers or a use approved in writing by
the administrator.
3. Multifamily housing means one (1) or more new multi-story
buildings designed for permanent residential occupancy, each with four (4)
or more dwelling units.
4. Owner means the property owner of record.
5. Permanent residential occupancy means multifamily housing
that provides either rental or owner occupancy on a nontransient basis.
This includes owner-occupied or rental accommodation that is leased for a
period of at least one (1) month. This excludes hotels and motels that
predominately offer rental accommodation on a daily or weekly basis.
6. Residential targeted area means the geographic area of
downtown Kent bordered generally by Titus Street, State Route 167, Willis
Street, and Cloudy Street, and only including zones that permit multifamily
housing. See Appendix 1 for map.
SECTION 2. - Amendment. Section 3.25.120 of the Kent City Code is
amended as follows:
Sec. 3.25.120. Sunset of exemption for applications for
conditional certificates.
3
Multifamily dwelling tax exemptions
Ordinance amending KCC 3.25
The city shall not accept new applications for conditional certificates as
provided in this chapter after June 30, 20142019, unless extended by city
council action. Incomplete applications for conditional certificates as of
June 30, 20142019, shall be returned to owners. Notwithstanding the
above, the city shall process (A) pending complete applications for a
conditional certificate and (B) applications for extension of the conditional
certificate or final certificate received after June 30, 20142019, as provided
in this chapter. This chapter shall continue to apply to all properties that
have been or are issued a final certificate of tax exemption under this
chapter until expiration, termination, or cancellation of the tax exemption.
SECTION 3. — Amendment — The map contained in Appendix 1
referenced in KCC 3.25.020 is hereby replaced in its entirety by the map
attached hereto as Appendix 1.
SECTION 4, — SeverabilitY. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this
ordinance and the same shall remain in full force and effect.
SECTION S. — Corrections by City Clerk or Code Reviser. Upon
approval of the City Attorney, the City Clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; references to other local, state or federal laws,
codes, rules, or regulations; or ordinance numbering and
section/subsection numbering.
SECTION 6, — Effective Date. This ordinance shall take effect and
be in force thirty (30) days from and after its passage and publication as
provided by law.
4
Multifamily dwelling tax exemptions
Ordinance amending KCC 3.25
SUZETTE COOKE, MAYOR
ATTEST:
RONALD F. MOORE, CITY CLERK
APPROVED AS TO FORM:
ARTHUR FITZPATRICK, ACTING CITY ATTORNEY
PASSED: day of 2014.
APPROVED: day of 2014.
PUBLISHED: day of 2014.
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
P:\Civil\0rdinance\3.25.120 Multifamily Dwelling Tax Exempdons.doc
5
Multifamily dwelling tax exemptions
Ordinance amending KCC 3.25
Appendix 1 Residential Targeted Area
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KENT
Agenda Item: Consent Calendar — 7H
TO: City Council
DATE: May 6, 2014
SUBJECT: Resolution amending the Comprehensive Plan for the Par 3 Golf Course
- Adopt
MOTION: Adopt Resolution No. , amending the comprehensive plan
on the Par 3 golf course site.
SUMMARY: The fiscal sustainability of the City's golf operations has been the subject
of several City Council workshops over the past year. During this time, City staff has
presented a variety of options to the Council aimed at addressing the fiscal challenges
of operating and maintaining a full golf complex. One of these options is to offer the
Par 3 course for sale to a developer who would, in turn, create a landmark
development worthy of such a prominent, signature site.
To prepare the site for potential development, it is necessary to modify the zoning and
comprehensive plan designations. Currently, and in light of its present use as a golf
course, the site is zoned for low intensity land uses (SR-1) and its designation on the
comprehensive plan is Open Space. Discussions with the City Council have envisioned
a more urban, mixed use scenario which would require a change in zoning and plan
designations.
Amendments to the comprehensive plan are provided for in KCC 12.02 which outlines
an annual cycle which begins each year in September. To accomplish a plan
amendment outside of this cycle, it requires a finding by the City Council that an
"emergency" exists and a resolution authorizing staff to move ahead with the
amendment. An emergency is defined as an issue of"community-wide significance
that promotes the public health, safety, and general welfare." Clearly, the fiscal
sustainability of the golf complex is an issue of community-wide significance that
relates to the general welfare of the public.
EXHIBITS: Resolution
RECOMMENDED BY: Economic and Community Development Committee
YEA: Berrios - Boyce — Higgins NAY:
BUDGET IMPACTS: None.
This page intentionally left blank.
RESOLUTION NO.
A RESOLUTION of the City Council of the
City of Kent, Washington, relating to a revision of
the Kent Comprehensive Plan, and declaring an
emergency for the adoption of a comprehensive
plan amendment. CPA-2014-1 and CPZ-2014-1.
RECITALS
A. One of the City Council's strategic goals is to attain fiscal
sustainability.
B. Another strategic goal of the City Council is to create
neighborhood urban centers.
C. The City's Riverbend Golf Complex has been facing serious
financial challenges throughout its history, and the City Council is desirous
of finding a long-term solution to this problem.
D. The potential development of the Par 3 golf course is seen by
the Council as a potential solution to the long-term viability of the overall
Riverbend Golf Complex. To ready the site for development, certain plan
and zoning amendments need to take place.
E. The Growth Management Act (GMA) requires that the City
establish procedures governing amendments to the comprehensive plan
1 Par 3 Comprehensive
Plan Amendment
that limit amendments to once each year unless certain circumstances
exist. RCW 36.70A.130(2)(b). The City has established a procedure for
amending the comprehensive plan in Chapter 12.02 of the Kent City Code
(KCC) that permits amendments in addition to the standard annual update
if any emergency exists. An emergency is defined as an issue of
community wide significance that promotes the public health, safety, and
general welfare of the City of Kent. KCC 12.02.010(A).
F. On April 14, 2014, the Economic and Community
Development Committee moved to request that staff move forward with
the entitlement process for the Par 3 golf course as depicted in Exhibit 1,
attached and incorporated by this reference.
G. The City Council finds that consideration of proposed
amendments to the comprehensive plan through revision of the Par 3
comprehensive plan and zoning designations is an issue of community-
wide significance that promotes the public health, safety, and general
welfare.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS:
RESOLUTION
SECTION 1, — Recitals. The foregoing recitals are incorporated by
this reference.
SECTION 2, — Emergency. The revision of the comprehensive plan
designation for the Par 3 golf course constitutes an issue of community-
wide significance that promotes the public health, safety, and general
welfare in accordance with the definition of an emergency as set forth in
2 Par 3 Comprehensive
Plan Amendment
KCC 12.02.010(A) of the Kent City Code (KCC). The City Council,
therefore, declares that an emergency exists and authorizes staff and the
Land Use & Planning Board to process this amendment to the
comprehensive plan outside the annual amendment process described in
KCC 12.02.030.
SECTION 3, — Severability. If any section, subsection, paragraph,
sentence, clause or phrase of this resolution is declared unconstitutional or
invalid for any reason, such decision shall not affect the validity of the
remaining portions of this resolution.
SECTION 4, — Effective Date. This resolution shall take effect and
be in force immediately upon its passage.
PASSED at a regular open public meeting by the City Council of the
city of Kent, Washington, this day of 2014.
CONCURRED in by the Mayor of the city of Kent this day of
2014.
SUZETTE COOKE, MAYOR
ATTEST:
RONALD F. MOORE, CITY CLERK
APPROVED AS TO FORM:
ARTHUR FITZPATRICK, ACTING CITY ATTORNEY
3 Par 3 Comprehensive
Plan Amendment
I hereby certify that this is a true and correct copy of Resolution No.
passed by the City Council of the city of Kent, Washington, the
day of 2014.
RONALD F. MOORE, CITY CLERK
P\o,,I\aamIut,on\Par3mmo Pl,n Amandmantdoa
4 Par 3 Comprehensive
Plan Amendment
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This page intentionally left blank.
KENT
Agenda Item: Consent Calendar — 7I
TO: City Council
DATE: May 6, 2014
SUBJECT: Consultant Services Agreement with R.L Evans Company, Inc for
2014/15 - Authorize
MOTION: Authorize the Mayor to sign a Consultant Services Agreement
with R.L. Evans Company, Inc. for brokerage and consulting services in the
amount of $40,000, subject to final terms and conditions acceptable to the
City Attorney and Human Resource Director.
SUMMARY: The city contracts with R.L. Evans Company, Inc. to perform brokerage
and consulting services including negotiating with insurers, analyzing operations and
making recommendations on the City's self-insured and insured health care plans.
The R.L. Evans Company advises the City on plan design issues, plan management,
regulatory updates and ensures compliance with Federal and State laws. The scope of
this contract includes medical/Rx, dental, vision, individual stop loss, aggregate stop
loss and third party administrative (TPA) services. The cost of the contract is
approximately $40,000 and is funded in the Health & Wellness Fund.
EXHIBITS: Consultant Services Agreement
RECOMMENDED BY: Operations Committee
YEA: Thomas — Ralph - Boyce NAY:
BUDGET IMPACTS: Health &Wellness Fund
This page intentionally left blank.
CONSULTANT VICAGREEMENT
between the City of Kent and
R. L. Evans Company,, Inc.
THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation
(hereinafter the "City"), and R. L. Evans Company, Inc. organized under the laws of the State of
Washington, located and doing business at 3535 Factoria Blvd, SE, Suite 120, Bellevue, WA
98006 - 425.455.0501 (hereinafter the "Consultant").
I. DESCRIPTION OF WORK.
Consultant shall perform the following services for the City in accordance with the
following described plans and/or specifications:
Brokerage and Consulting Services — including negotiating with insurers, analyzing options and
making recommendations.
• Advise City on plan design issues, plan management, and potential cost savings
• Work with City and vendors to resolve Eligibility and Claim issues
• Quarterly, or as requested, meetings with City Administration and/or Healthcare
Committee to discuss claim experience, updates and discuss objectives.
• Assistance with plan audits
• Assist employees/retirees with healthcare options after employment with City
• Regulatory updates/ensure compliance
• Manage Plan Changes with Vendors
• Contract and policy review
• Annual Renewal —Recommendations regarding mandates and negotiate carrier
renewals, provide claim data and other required information to actuary for rate analysis
and projections. Meetings with City Administration and Actuary to review funding
projections.
The Scope of Services for this contract includes the following insured and self-funded coverages
or programs:
Medical/Rx Individual Stop Loss
Dental Aggregate Stop Loss
Vision Third Party Administrative (TPA) Services
Consultant further represents that the services furnished under this Agreement will be
performed in accordance with generally accepted professional practices within the Puget Sound
region in effect at the time those services are performed.
CONSULTANT SERVICES AGREEMENT - 1
(Over$10,000)
II. TIME OF COMPLETION. Upon the effective date of this Agreement, Consultant
shall continue the work described in Section I until December 31, 2015. Thereafter the contract
may be renewed for one year increments with approval from both parties.
III. COMPENSATION.
A. The City shall pay the Consultant based on a per employee/retiree per month
(PEPM) rate for all employees/retirees covered under the City's self-funded medical
and dental plans, and on a percentage of premium for the employees enrolled on
the Group Health Cooperative medical plan. The total amount payable to the
Consultant for consulting services described in this Agreement shall not to exceed
Forty Thousand Dollars ($40,000) per year. This is the maximum amount to be
paid under this Agreement for the work described in Section I above, and shall not
be exceeded without the prior written authorization of the City in the form of a
negotiated and executed amendment to this agreement. The Consultant agrees
that the rates charged by it for the services contracted for herein shall be
guaranteed for two years as delineated in Exhibit A.
B. The Consultant's fee will be billed via City's vendors (Premera Blue Cross, Delta
Dental Service and Group Health Cooperative) as part of their monthly
administrative or insured premium billings. If the City objects to all or any portion
of an invoice, it shall notify the Consultant and reserves the option to only pay that
portion of the invoice not in dispute. In that event, the parties will immediately
make every effort to settle the disputed portion.
IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent
Contractor-Employer Relationship will be created by this Agreement. By their execution of this
Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following
representations:
A. The Consultant has the ability to control and direct the performance and
details of its work, the City being interested only in the results obtained
under this Agreement.
B. The Consultant maintains and pays for its own place of business from which
Consultant's services under this Agreement will be performed.
C. The Consultant has an established and independent business that is eligible
for a business deduction for federal income tax purposes that existed before
the City retained Consultant's services, or the Consultant is engaged in an
independently established trade, occupation, profession, or business of the
same nature as that involved under this Agreement.
D. The Consultant is responsible for filing as they become due all necessary tax
documents with appropriate federal and state agencies, including the Internal
Revenue Service and the state Department of Revenue.
E. The Consultant has registered its business and established an account with
the state Department of Revenue and other state agencies as may be
required by Consultant's business, and has obtained a Unified Business
Identifier (UBI) number from the State of Washington.
CONSULTANT SERVICES AGREEMENT - 2
(Over$10,000)
F. The Consultant maintains a set of books dedicated to the expenses and
earnings of its business.
V. TERMINATION. Either party may terminate this Agreement, with or without
cause, upon providing the other party sixty (60) days written notice at its address set forth on
the signature block of this Agreement. After termination, the City may take possession of all
records and data within the Consultant's possession pertaining to this project, which may be
used by the City without restriction. If the City's use of Consultant's records or data is not
related to this project, it shall be without liability or legal exposure to the Consultant.
VI. DISCRIMINATION. In the hiring of employees for the performance of work under
this Agreement or any subcontract, the Consultant, its subcontractors, or any person acting on
behalf of the Consultant or subcontractor shall not, by reason of race, religion, color, sex, age,
sexual orientation, national origin, or the presence of any sensory, mental, or physical disability,
discriminate against any person who is qualified and available to perform the work to which the
employment relates. Consultant shall execute the attached City of Kent Equal Employment
Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion
of the contract work, file the attached Compliance Statement.
VII. INDEMNIFICATION. Consultant shall defend, indemnify and hold the City, its
officers, officials, employees, agents and volunteers harmless from any and all claims, injuries,
damages, losses or suits, including all legal costs and attorney fees, arising out of or in
connection with the Consultant's performance of this Agreement, except for that portion of the
injuries and damages caused by the City's negligence.
The City's inspection or acceptance of any of Consultant's work when completed shall not
be grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Consultant
and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability
hereunder shall be only to the extent of the Consultant's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF
IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF
THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY
NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this
Agreement.
VIII. INSURANCE. The Consultant shall procure and maintain for the duration of the
Agreement, insurance of the types and in the amounts described in Exhibit B attached and
incorporated by this reference.
IX. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide
reasonable accuracy of any information supplied by it to Consultant for the purpose of
completion of the work under this Agreement.
CONSULTANT SERVICES AGREEMENT - 3
(Over$10,000)
X. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents,
drawings, designs, reports, or any other records developed or created under this Agreement
shall belong to and become the property of the City. All records submitted by the City to the
Consultant will be safeguarded by the Consultant. Consultant shall make such data, documents,
and files available to the City upon the City's request. The City's use or reuse of any of the
documents, data and files created by Consultant for this project by anyone other than
Consultant on any other project shall be without liability or legal exposure to Consultant.
XI. CITY'S RIGHT OF INSPECTION. Even though Consultant is an independent
contractor with the authority to control and direct the performance and details of the work
authorized under this Agreement, the work must meet the approval of the City and shall be
subject to the City's general right of inspection to secure satisfactory completion.
XII. WORK PERFORMED AT CONSULTANT'S RISK. Consultant shall take all
necessary precautions and shall be responsible for the safety of its employees, agents, and
subcontractors in the performance of the contract work and shall utilize all protection necessary
for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be
responsible for any loss of or damage to materials, tools, or other articles used or held for use in
connection with the work.
XIII. MISCELLANEOUS PROVISIONS.
A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City
requires its contractors and consultants to use recycled and recyclable products whenever
practicable. A price preference may be available for any designated recycled product.
B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of
any of the covenants and agreements contained in this Agreement, or to exercise any option
conferred by this Agreement in one or more instances shall not be construed to be a waiver or
relinquishment of those covenants, agreements or options, and the same shall be and remain in
full force and effect.
C. Resolution of Disputes and Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. If the parties are unable
to settle any dispute, difference or claim arising from the parties' performance of this
Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by
filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court,
King County, Washington, unless the parties agree in writing to an alternative dispute resolution
process. In any claim or lawsuit for damages arising from the parties' performance of this
Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or
bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award
provided by law; provided, however, nothing in this paragraph shall be construed to limit the
City's right to indemnification under Section VII of this Agreement.
D. Written Notice. All communications regarding this Agreement shall be sent to the
parties at the addresses listed on the signature page of the Agreement, unless notified to the
contrary. Any written notice hereunder shall become effective three (3) business days after the
date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to
the addressee at the address stated in this Agreement or such other address as may be
hereafter specified in writing.
CONSULTANT SERVICES AGREEMENT - 4
(Over$10,000)
E. Assignment. Any assignment of this Agreement by either party without the written
consent of the non-assigning party shall be void. If the non-assigning party gives its consent to
any assignment, the terms of this Agreement shall continue in full force and effect and no
further assignment shall be made without additional written consent.
F. Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
the City and Consultant.
G. Entire Agreement. The written provisions and terms of this Agreement, together
with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or
other representative of the City, and such statements shall not be effective or be construed as
entering into or forming a part of or altering in any manner this Agreement. All of the above
documents are hereby made a part of this Agreement. However, should any language in any of
the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms
of this Agreement shall prevail.
H. Compliance with Laws. The Consultant agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become applicable
to Consultant's business, equipment, and personnel engaged in operations covered by this
Agreement or accruing out of the performance of those operations.
I. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, and all of which will together constitute this one
Agreement.
IN WITNESS, the parties below execute this Agreement, which shall become
effective on the last date entered below.
CONSULTANT: CITY OF (GENT:
By: By:
(signature) (signature)
Print Name: Douglas Evans Print Name: Suzette Cooke
Its President Its Mayor
(title)
DATE: DATE:
NOTICES TO BE SENT TO: NOTICES TO BE SENT TO:
CONSULTANT: CITY OF (GENT:
Douglas Evans Lorraine Patterson
R. L. Evans Company, Inc. City of Kent
3535 Factoria Blvd SE, Suite 120 220 Fourth Avenue South
Bellevue, WA 98006 Kent, WA 98032
425.455.0501 (telephone) (253) 856-5276 (telephone)
425.467.5264 (facsimile) (253) 856-6270 (facsimile)
CONSULTANT SERVICES AGREEMENT - 5
(Over$10,000)
APPROVED AS TO FORM:
Kent Law Department
[In this field,you may enter the electronic Glepath the contract has been saved]
CONSULTANT SERVICES AGREEMENT - 6
(Over$10,000)
DECLARATION
CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY
The City of Kent is committed to conform to Federal and State laws regarding equal opportunity.
As such all contractors, subcontractors and suppliers who perform work with relation to this
Agreement shall comply with the regulations of the City's equal employment opportunity
policies.
The following questions specifically identify the requirements the City deems necessary for any
contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative
response is required on all of the following questions for this Agreement to be valid and binding.
If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the
directives outlines, it will be considered a breach of contract and it will be at the City's sole
determination regarding suspension or termination for all or part of the Agreement;
The questions are as follows:
1. I have read the attached City of Kent administrative policy number 1.2.
2. During the time of this Agreement I will not discriminate in employment on the basis of
sex, race, color, national origin, age, or the presence of all sensory, mental or physical
disability.
3. During the time of this Agreement the prime contractor will provide a written statement to
all new employees and subcontractors indicating commitment as an equal opportunity
employer.
4. During the time of the Agreement I, the prime contractor, will actively consider hiring and
promotion of women and minorities.
5. Before acceptance of this Agreement, an adherence statement will be signed by me, the
Prime Contractor, that the Prime Contractor complied with the requirements as set forth
above.
By signing below, I agree to fulfill the five requirements referenced above.
Dated this day of 2014.
By:
For:
Title:
Date:
EEO COMPLIANCE DOCUMENTS - 3
CITY OF KENT
ADMINISTRATIVE POLICY
NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998
SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996
CONTRACTORS APPROVED BY Jim White, Mayor
POLICY:
Equal employment opportunity requirements for the City of Kent will conform to federal and
state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee
equal employment opportunity within their organization and, if holding Agreements with the City
amounting to $10,000 or more within any given year, must take the following affirmative steps:
1. Provide a written statement to all new employees and subcontractors indicating
commitment as an equal opportunity employer.
2. Actively consider for promotion and advancement available minorities and women.
Any contractor, subcontractor, consultant or supplier who willfully disregards the City's
nondiscrimination and equal opportunity requirements shall be considered in breach of contract
and subject to suspension or termination for all or part of the Agreement.
Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public
Works Departments to assume the following duties for their respective departments.
1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these
regulations are familiar with the regulations and the City's equal employment opportunity
policy.
2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines.
EEO COMPLIANCE DOCUMENTS - 4
CITY OF (CENT
EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT
This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the
Agreement.
I, the undersigned, a duly represented agent of
Company, hereby acknowledge and declare that the before-mentioned company was the prime
contractor for the Agreement known as that was entered into on the_
(date) , between the firm I represent and the City of Kent.
I declare that I complied fully with all of the requirements and obligations as outlined in the City
of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity
Policy that was part of the before-mentioned Agreement.
Dated this day of 200 .
By:
For:
Title:
Date:
EEO COMPLIANCE DOCUMENTS - 5
EXHIBIT A
FEES AND PAYMENT SCHEDULE
The CITY shall compensate the CONSULTANT for services pursuant to this Agreement as follows:
For services rendered under this Agreement, Consultant will be paid as follows;
During Calendar Year 2014
For each employee/retiree covered under the City's self-funded medical/Rx
plan the Consultant will be paid at the rate of$2.50 per month.
For each employee/retiree covered under the City's self-funded dental/vision
plan, the Consultant will be paid at the rate of$.38 per month.
For employees enrolled on the fully-insured Group Health Cooperative plan
the Consultant will be paid 2.5% of the paid premium.
During Calendar Year 2015
For each employee/retiree covered under the City's self-funded medical/Rx
plan the Consultant will be paid at the rate of$3.00 per month.
For each employee/retiree covered under the City's self-funded dental/vision
plan, the Consultant will be paid at the rate of$.50 per month.
For employees enrolled on the fully-insured Group Health Cooperative plan
the Consultant will be paid 2.5% of the paid premium.
* The City recognizes that the Consultant may qualify for contingency bonuses from insurance companies with
whom the Contractor conducts business. As these amounts are not guaranteed and are typically earned based
on factors that are not client-specific, any such payments received by Consultant will not be offset against the
fees noted above. Upon request Consultant will provide a detail listing of all contingency commissions received
for the prior year.
Any services that are requested by the CITY that are outside of the scope of work as noted in "I.
DESCRIPTION OF WORK", or not covered by a separate agreement, will be billed at the rate of
$300/hour for Lead Broker/Consultant and $175/hour for Account Manager
EEO COMPLIANCE DOCUMENTS - I
EXHIBIT B
INSURANCE COVERAGE
The Consultant shall procure and maintain for the duration of the Agreement, insurance of the
types and in the amounts described below;
® Agents' and Brokers' Errors & Omissions insurance with a minimum limit of $2,000,000
® General Liability Coverage with a minimum limit of $1,000,000
EEO COMPLIANCE DOCUMENTS - 2
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KENT
Agenda Item: Consent Calendar — 73
TO: City Council
DATE: May 6, 2014
SUBJECT: Perkins Building Lease Agreement for City Storage - Authorize
MOTION: Authorize the Mayor to sign the Lease Agreement with Charlie
Perkins for property located at 715 W. Smith Street to be used as a city
storage facility, subject to final terms and conditions acceptable to the City
Attorney and the Parks Director.
SUMMARY: This is a renewal of a lease that began in 2006 when the city sold the
"Red Barn" on Railroad Avenue. The property at 715 W. Smith Street consists of 6,350
square feet of building space and a 25,000 square foot lot. This property provides
storage for Facilities, Home Repair, Cultural Arts, and the Kent Lions Club. The City
subleases space to the Lions Club for storage of equipment and supplies used for their
many functions that occur in Kent throughout the year. The city shall pay the Landlord
the amount of $4,750.00 per month for the first two years of the Lease Term, $5,000
per month for the remaining three years of the Lease Term. The increase after two
years is due to trend. Currently, the city collects $1,000, plus $55.00 (electricity) per
month for subleasing a portion of the building to Kent Lions. In June, 2014, city staff
will negotiate a sublease with Kent Lions to continue charging $1,000, plus $55.00 for
electricity per month for the first two years of the Lease Term and then increasing to
approximately $1,050, plus $55.00 (electricity) per month for years three through
five.
Home Repair uses it to store building supplies used for their community-based repair
program. Cultural Arts stores equipment and supplies used for their programs and
events. Facilities uses the space to store furniture parts, basketball hoops, HVAC
filters and other miscellaneous equipment and supplies needed to be stored until such
time as it can be used.
EXHIBITS: Lease Agreement
RECOMMENDED BY: Parks and Human Services Committee
YEA: Ranniger - Higgins — Fincher NAY:
BUDGET IMPACTS: Facilities Lease Agreement
This page intentionally left blank.
I
LEASE AGREEMENT
THIS LEASE is entered into between CHARLIE AND SHIRLEY PERKINS, a married
couple ("Landlord"), whose mailing address is 17817 146`h Avenue SE, Renton, WA 98058,
and THE CITY OF KENT, a Washington municipal corporation ("Tenant"), whose mailing
address is 220 Fourth Avenue South, Kent, Washington 98032.
1. PREMISES
The Landlord hereby lets and leases to Tenant the property located at 715 W. Smith,
Kent, Washington. The area so leased is hereinafter called "the Premises" and is depicted in
Exhibit "A" attached and incorporated by this reference.
2. USE
The Premises shall be used only for any legal use, and for no other business or purpose
without the prior written consent of Landlord. No act shall be done on or around the Premises
that is unlawful or that will increase the existing rate of insurance on the Premises. Tenant
shall not commit or allow to be committed any waste upon the Premises, or any public or
private nuisance.
3. TERM
The Term of this Lease shall commence on April 1, 2014 (the "Commencement Date"),
and shall continue for a period of five (5) years. This Term can only be extended by written
agreement between the parties. Except as specified elsewhere in this Lease, Landlord
represents and warrants to Tenant that the Premises, including the structural condition of the
Premises and the condition of all mechanical, electrical and other systems on the Premises are
in a safe, good and usable condition sufficient to meet Tenant's intended uses. Prior to the end
of the Term, Tenant may terminate this Lease by giving Landlord twenty (20) days written
notice prior to the end of the month. Landlord may only terminate this Agreement under an
Event of Default by Tenant, as provided in this Lease.
4. RENT
Tenant shall pay Landlord the amount of Four Thousand Seven Hundred Fifty and
No/100 Dollars ($4,750.00) per month for the first two (2) years of the Lease Term, and shall
pay Five Thousand Dollars per month for the remaining three (3) years of the Lease Term.
Tenant shall pay Landlord on or before the first day of each month during the Lease Term, and
will pay for the annual catch basin cleaning, and any other additional payments due to
Landlord (collectively the "Rent") when required under this Lease. Payments for any partial
month at the beginning or end of the Lease Term shall be prorated.
Tenant shall endeavor to pay Landlord under this Lease by the fifth (51h) day of each
month. If any sums payable by Tenant to Landlord under this Lease are not received by the
fifteenth (15`h) day of each month, Tenant shall pay Landlord, at Landlord's option, One
Hundred and No/100 Dollars ($100.00) in addition to the amount due, for the cost of collecting
and handling such late payment. In addition, all delinquent sums payable by Tenant to
Landlord and not paid within fifteen (15) days of the due date shall, at Landlord's option, bear
interest at the rate of eight percent (8%) per annum. Interest on all delinquent amounts shall
be calculated from the original due date to the date of payment.
LEASE AGREEMENT— Page 1 of 15
(between the City of Kent and Perkins)
5. SECURITY DEPOSIT
Landlord acknowledges that Tenant has paid the sum of One Thousand and No/100
Dollars ($1,000.00) to Landlord as a Security Deposit under the prior lease for the Premises
between the parties dated March 28, 2006. Landlord may commingle the Security Deposit
with its other funds. If Tenant breaches an covenant or condition of this Lease, including but
not limited to the payment of Rent, Landlord may apply all or any part of the Security Deposit
to the payment of any sum in default and any damage suffered by Landlord as a result of
Tenant's breach. In such event, Tenant shall, within five (5) days after written demand
therefore by Landlord, deposit with Landlord the amount so applied. Any payment to Landlord
from the Security Deposit shall not be construed as a payment of liquidated damages for any
default. If Tenant complies with all of the covenants and conditions of this Lease throughout
the Lease Term or any earlier termination as provided for in Section 3, the Security deposit
shall be repaid to Tenant without interest within thirty (30) days after the vacation of the
Premises by Tenant.
6. TAXES
Tenant shall reimburse Landlord for all Taxes applicable to the Premises during the
Lease Term. Landlord shall present to Tenant a copy of a statement showing the amount paid
by Landlord for Taxes, along with satisfactory evidence that payment of Taxes has been made
by Landlord. Tenant shall then reimburse Landlord for Taxes with Tenant's next rent
installment. If any Taxes paid by Tenant cover any period of time before or after the
expiration of the Term or any earlier termination as provided for in Section 3, Tenant's share of
those Taxes paid will be prorated to cover only the period of time within the tax fiscal year
during which this Lease was in effect, and Landlord shall promptly reimburse Tenant to the
extent required.
The term "Taxes" shall mean: (i) any form of real estate tax or assessment imposed
on the Premises by any authority, including any city, state or federal government, or any
improvement district, as against any legal or equitable interest of Landlord or Tenant in the
Premises or in the real property of which the Premises are a part, or against rent paid for
leasing the Premises; and (ii) any form of personal property tax or assessment imposed on any
personal property, fixtures, furniture, tenant improvements, equipment, inventory, or other
items, and all replacements, improvements, and additions to them, located on the Premises,
I
whether owned by Landlord or Tenant. "Taxes" shall include any net income tax imposed on
Landlord for income that Landlord receives under this Lease.
Tenant may contest the amount or validity, in whole or in part, of any Taxes at its sole
expense. Upon the termination of any such proceedings, Tenant shall pay the amount of such
Taxes or part of such Taxes as finally determined, together with any costs, fees, interest
penalties, or other related liabilities. Landlord shall cooperate with Tenant in contesting any
Taxes, provided Landlord incurs no expense or liability in doing so.
li
7. RE-DELIVERY
Tenant, at the expiration of the Term, any extension of the Term, or upon any sooner
termination of this Lease, will, without notice, quit and deliver up the Premises to the Landlord
peaceably, quietly, and in as good order and condition as the same now are, reasonable use
and wear excepted.
8. ALTERATIONS
LEASE AGREEMENT—Page 2 of 15
(between the City of Kent and Perkins)
Tenant may make alterations, additions or improvements to the Premises
("Alterations"), with the prior written consent of Landlord, which shall not be unreasonably
withheld. The term "Alterations" shall not include the installation of shelves, moveable
partitions, Tenant's equipment, and trade fixtures that may be performed without damaging
existing improvements or the structural integrity of the Premises, and Landlord's consent shall
not be required for Tenant's installation of those items. Tenant shall complete the Alterations
at Tenant's expense in compliance with all applicable laws and in accordance with plans and
specifications approved by Landlord, and using contractors approved by Landlord. Landlord
shall be deemed the Owner of all Alterations except for those which Landlord requires to be
removed at the end of the Lease Term or any earlier termination of the Lease. Tenant shall
remove all Alterations at the end of the Lease Term or any earlier termination of the Lease
unless Landlord conditioned its consent upon Tenant leaving a specified Alteration at the
Premises, in which case Tenant shall not remove such Alteration. Tenant shall repair any
damages to the Premises caused by the removal of Alterations. If Tenant performs work with
the consent of the Landlord, Tenant agrees to comply with all laws, ordinances, rules, and
regulations of the City, County, and any other authorized public authority.
9. REPAIRS AND MAINTENANCE
The Premises are being leased "as is." Landlord is not obligated to make any repairs to
the Premises, except as described in this Section. Tenant shall, at its sole expense, maintain
the Premises in good condition and promptly make all repairs and replacements, whether
structural or non-structural, necessary to keep the Premises in safe operating condition,
including all utilities and other systems serving the Premises, but excluding the roof,
foundation and exterior walls, which Landlord shall maintain in good condition and repair at
Landlord's expense. Tenant shall not damage any demising wall or disturb the structural
integrity of the Premises and shall promptly repair any damage or injury done to any such
demising walls or structural elements caused by Tenant or its employees, agents, contractors,
or invitees. Tenant shall maintain the landscape in a neat and attractive manner.
Notwithstanding anything in this Section to the contrary, Tenant shall not be responsible for
any repairs to the Premises made necessary by the negligence or willful misconduct of
Landlord or its agents, employees, contractors or invitees therein.
10. ACCESS AND RIGHT OF ENTRY
After reasonable notice from Landlord (except in cases of emergency, where no notice
is required), Tenant shall permit Landlord and its agents, employees and contractors to enter
the Premises at all reasonable times to make repairs, inspections, alterations or improvements.
This Section shall not impose any repair or other obligation upon Landlord not expressly stated
elsewhere in this Lease. After reasonable notice to Tenant, Landlord shall have the right to
enter the Premises for the purpose of showing the Premises to prospective purchasers or
lenders at any time, and to prospective tenants within 180 days prior to the expiration or
sooner termination of the Lease Term, and for posting "for lease" signs within 180 days prior
to the expiration or sooner termination of the Lease Term.
11. SIGNAGE
Tenant shall obtain Landlord's written consent before installing any signs upon the
Premises, which shall not be unreasonably withheld or delayed. Tenant shall install any
approved signage at Tenant's sole expense and in compliance with all applicable laws. Tenant
shall not damage or deface the Premises in installing or removing signage and shall repair any
injury or damage to the Premises caused by such installation or removal.
LEASE AGREEMENT— Page 3 of 15
(between the City of Kent and Perkins)
i
12. DESTRUCTION OR CONDEMNATION
a. Damage and Repair. If the Premises are entirely destroyed or partially damaged by
fire or other casualty, then Tenant may, at its sole option, within fourteen (14) days of
the event causing the damage, terminate this Lease by providing Landlord written
notice of termination. If Tenant does not terminate this Lease and if the Premises are
partially damaged but not rendered untenantable, Landlord shall diligently restore the
Premises. Landlord shall have no obligation to restore the Premises if insurance
proceeds are not available to pay the entire cost of such restoration. If insurance
proceeds are available to Landlord but are not sufficient to pay the entire cost of
restoring the Premises, the Landlord may elect to terminate this Lease and keep the
insurance proceeds, by notifying Tenant within thirty (30) days of the date of such
casualty.
If the Premises are entirely destroyed and rendered untenantable, by fire or other
casualty, and if Tenant has not exercised its right to terminate as provided above,
Landlord may, at its option: (a) terminate this Lease as provided herein, or (b) restore
the Premises to their previous condition.
If Landlord restores the Premises under this Section, Landlord shall proceed with
reasonable diligence to complete the work, and the base monthly rent shall be abated
in the same proportion as the untenantable portion of the Premises bears to the whole
Premises, provided that there shall be a rent abatement only if the damage or
destruction of the Premises did not result from, or was not contributed to directly or
indirectly by the act, fault or neglect of Tenant, or Tenant's officers, contractors,
licensees, subtenants, agents, servants, employees, guests, invitees or visitors.
Provided Landlord complies with its obligations under this Section, no damages,
compensation or claim shall be payable by Landlord for inconvenience, loss of business,
or annoyance directly, incidentally or consequentially arising from any repair or
restoration for any portion of the Premises. Landlord will not carry insurance of any
kind for the protection of Tenant or any improvements paid for by Tenant or as
provided in Exhibit e or on Tenant's furniture or on any fixtures, equipment,
improvements or appurtenances of Tenant under this Lease, and Landlord shall not be
obligated to repair any damage thereto or replace the same unless the damage is
caused by Landlord's negligence or willful misconduct.
b. If the Premises are made untenantable by eminent domain, or conveyed under a threat
of condemnation, this Lease shall automatically terminate as of the earlier of the date
title vests in the condemning authority or the condemning authority first has possession
of the Premises and all Rents and other payments shall be paid to that date. In case of
taking of a part of the Premises that does not render the Premises untenantable, then
this Lease shall continue in full force and effect and the base monthly rental shall be
equitably reduced based on the proportion by which the floor area of any structures is
reduced, such reduction in Rent to be effective as of the earlier of the date the
condemning authority first has possession of such portion or title vests in the
condemning authority. Landlord shall be entitled to the entire award from the
condemning authority attributable to the value of the Premises and Tenant shall make
no claim for the value of its leasehold. Tenant shall be permitted to make a separate
claim for the value of its leasehold. Tenant shall be permitted to make a separate claim
against the condemning authority for moving expenses or damages resulting from
interruption in its business, provided that in no event shall Tenant's claim reduce
Landlord's award.
LEASE AGREEMENT— Page 4 of 15
(between the City of Kent and Perkins)
13. UTILITIES
Landlord shall not be responsible for providing any utilities to the Premises, but
represents and warrants to Tenant that as of the Commencement Date, electricity, water,
sewer and telephone utilities are available at or adjacent to the Premises. Tenant shall
determine whether the available capacity of such utilities will meet Tenant's needs. Tenant
shall install and connect, if necessary, and directly pay for all water, sewer, gas, janitorial,
electricity, garbage removal, heat, telephone and other utilities and services used by Tenant on
the Premises during the Term, whether or not such services are billed directly to Tenant.
Tenant will also procure, or cause to be procured, without cost to Landlord, all necessary
permits, licenses or other authorizations required for the lawful and proper installation,
maintenance, replacement and removal on or from the Premises of wires, pipes, conduits,
tubes and other equipment and appliances for use in supplying all utilities or services to the
Premises. Landlord, upon request of Tenant, and at the sole expense and liability of Tenant,
shall join with Tenant in any application required for obtaining or continuing such utilities or
services.
14. INSURANCE
a. Liability insurance. During the Lease Term, Tenant shall pay for and maintain
commercial general liability insurance with broad form property damage and
contractual liability endorsements. At Landlord's option, this policy shall name
Landlord and Landlord's lender(s) as an additional insured. This policy shall insure
Tenant's activities and those of Tenant's employees, officers, contractors, licensees,
agents, servants, employees, guests, invitees or visitors with respect to the
Premises against loss, damage or liability for personal injury or bodily injury
(including death) or loss or damage to property with a combined single limit of not
less than $1,000,000, and a self-insured retention of not more than $100,000. The
insurance will be non-contributory with any liability insurance carried by Landlord.
b. Property insurance. During the Lease Term, Tenant shall pay for and maintain
special form property insurance (with coverage for earthquake and, if the Premises
are in a flood plain, flood damage) for the Premises, in an amount sufficient to
prevent Landlord or Tenant from becoming a co-insurer under the terms of the
policy, and in an amount not less than the full replacement cost of the Premises,
with a deductible of not more than $10,000. The property insurance policy shall
name Tenant as the insured and Landlord and Landlord's lender(s) as additional
insureds, with loss payable to Landlord, Landlord's lender(s), and Tenant as their
interests may appear. In the event of a casualty loss on the Premises, Landlord
may apply insurance proceeds under the property insurance policy in the manner
described in Section 12(a).
c. Miscellaneous. Insurance required under this Section shall be with companies
rated A-V or better in Best's Insurance Guide, and which are authorized to transact
business in the State of Washington. No insurance policy shall be cancelled or
reduced in coverage and each such policy shall provide that it is not subject to
cancellation or a reduction in coverage except after thirty (30) days prior written
notice to Landlord. At Landlord's option, Tenant shall deliver to Landlord upon
commencement of the Lease and from time to time thereafter, copies of the
insurance policies or certificates of insurance and copies of endorsements required
by this Section. In no event shall the limit of such policies be considered as limiting
the liability of Tenant under this Lease.
LEASE AGREEMENT— Page 5 of 15
(between the City of Kent and Perkins)
d. Waiver of Subrogation. Landlord and Tenant hereby release each other and any
other tenant, their agents or employees, from responsibility for, and waive their
entire claim of recovery for any loss or damage arising from any cause covered by
insurance required to be carried by each of them. Each party shall provide notice to
the insurance carrier or carriers of this mutual waiver of subrogation, and shall
cause its respective insurance carriers to waive all rights of subrogation against the
other. This waiver shall not apply to the extent of the deductible amounts to any
such policies or to the extent of liabilities exceeding the limits of such policies.
15. INDEMNIFICATION/HOLD HARMLESS
Tenant shall defend, indemnify and hold Landlord harmless against all liabilities,
damages, costs and expenses, including attorneys' fees, for personal injury, bodily injury
(including death) or property damage arising from any negligent or wrongful act or omission of
Tenant or Tenant's officers, contractors, licensees, subtenants, agents, servants, employees,
guests, invitees, or visitors on or around the Premises, or arising from any breach of this Lease
by Tenant. Tenant shall use legal counsel acceptable to Landlord in defense of any action
within Tenant's defense obligation. Landlord shall defend, indemnify and hold Tenant harmless
against all liabilities, damages, costs, and expenses, including attorneys' fees, for personal
injury, bodily injury (including death) or property damage arising from any negligent or
wrongful act or omission of Landlord or Landlord's officers, contractors, licensees, agents,
servants, employees, guests invitees or visitors on or around the Premises, or arising from any
breach of this Lease by Landlord. Landlord shall use legal counsel acceptable to Tenant in
defense of any action within Landlord's defense obligation. The provisions of this Section shall
survive expiration or termination of this Lease.
16. LIENS AND INSOLVENCY
Tenant shall keep the Premises and property in which the Premises are situated, free
from any liens arising out of any work performed, materials furnished, or obligations incurred
by Tenant. Tenant shall indemnify and hold Landlord harmless from liability for any such liens
including, without limitation, liens arising from any Alterations. If a lien is filed against the
Premises by an person claiming by, through or under the Tenant, Tenant shall, upon request of
Landlord, at Tenant's expense, immediately furnish to Landlord a bond in form and amount
and issued by a surety satisfactory to Landlord, indemnifying Landlord and the Premises
against all liabilities, costs and expenses, including attorneys' fees, which Landlord could
reasonably incur as a result of such lien(s).
17. ASSIGNMENT
Tenant shall not assign, sublet, mortgage, encumber or otherwise transfer any interest
in this Lease (collectively referred to as a "Transfer") or any part of the Premises, without first
obtaining Landlord's written consent, which shall not be unreasonably withheld or delayed. No
Transfer shall relieve Tenant of any liability under this Lease notwithstanding Landlord's
consent to such Transfer. Consent to any such Transfer shall not operate as a waiver of the
necessity for Landlord's consent to any subsequent Transfer.
As a condition to Landlord's approval, if given, any potential assignee or sublessee
otherwise approved by Landlord shall assume all obligations of Tenant under this Lease and
shall be jointly and severally liable with Tenant and any guarantor, if required, for the payment
of Rent and performance of all terms of this Lease. In connection with any Transfer, Tenant
LEASE AGREEMENT— Page 6 of 15
(between the City of Kent and Perkins)
shall provide Landlord with copies of all assignments, subleases and assumption instruments.
This Lease shall be assignable by Landlord without the consent of Tenant. In the event
of any transfer or transfers of Landlord's interest in the Premises, other than a transfer for
security purposes only, upon the assumption of this Lease by the transferee, Landlord shall be
automatically relieved of obligations and liabilities accruing from and after the date of such
transfer, except for any retained security deposit or prepaid rent, and Tenant shall attorn to
the transferee.
Notwithstanding the foregoing, on June 8, 2011, Landlord consented in writing to allow
Tenant to enter into a sublease agreement with the Kent Lions Club for a portion of the
Premises, and Landlord's consent for the sublease with the Kent Lions Club remains in effect
for this Lease.
18. DEFAULT
The following occurrences shall each be deemed an Event of Default:
a. Failure to Pay. Tenant fails to pay any sum, including Rent, due under this Lease
following fourteen (14) days written notice from Landlord of the failure to pay.
b. Vacation/Abandonment. Tenant vacates the Premises (defined as an absence for at
least fifteen (15) consecutive days without prior notice to Landlord), or Tenant
abandons the Premises (defined as an absence,of five (5) days or more while Tenant is
in breach of some other term of this Lease). Tenant's vacation or abandonment of the
Premises shall not be subject to any notice or right to cure.
c. Insolvency. Tenant becomes insolvent, voluntarily or involuntarily bankrupt, or a
receiver, assignee or other liquidating officer is appointed for Tenant's business,
provided that in the event of any involuntary bankruptcy or other insolvency
proceedings, the existence of such proceeding shall constitute an Event of Default only
if such proceeding is not dismissed or vacated within sixty (60) days after its institution
or commencement.
d. Levy or Execution. Tenant's interest in this Lease or the Premises, or any part
thereof, is taken by execution or other process of law directed against Tenant, or is
taken upon or subjected to any attachment by any creditor of Tenant, if such
attachment is not discharged within fifteen (15) days after being levied.
e. Other Non-Monetary Defaults. Tenant breaches any agreement, term or covenant
of this Lease other than one requiring the payment of money and not otherwise
enumerated in this Section, and the breach continues for a period of thirty (30) days
after notice by Landlord to Tenant of the breach.
19. REMEDIES
Landlord shall have the following remedies upon an Event of Default. Landlord's rights
and remedies under this Lease shall be cumulative, and none shall exclude any other right or
remedy allowed by law.
a. Termination of Lease. If an Event of Default occurs, Landlord may terminate
Tenant's interest under the Lease by giving thirty (30) days written notice of
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(between the City of Kent and Perkins)
termination from Landlord to Tenant. The Lease shall terminate on the date specified
in the notice of termination. Upon termination of this Lease, Tenant will remain liable
to Landlord for damages in an amount equal to the rent and other sums that would
have been owing by Tenant under this Lease for the balance of the Lease Term, less
the net proceeds, if any, of re-letting of the Premises by Landlord subsequent to the
termination, after deducting all Landlord's Reletting Expenses (as defined below).
Landlord shall be entitled to either collect damages from Tenant monthly on the days
on which rent or other amounts would have been payable under the Lease, or
alternatively, Landlord may accelerate Tenant's obligations under the Lease and recover
from Tenant: (i) unpaid rent which had been earned at the time of termination; (ii) the
amount by which the unpaid rent which would have been earned after termination until
the time the award exceeds the amount of rent loss that Tenant proves could
reasonably have been avoided; (iii) the amount by which the unpaid rent for the
balance of the Term of the Lease after the time of the award exceeds the amount of
rent loss that Tenant proves could reasonably be avoided (discounting such amount by
the discount rate of the Federal Reserve Bank of San Francisco at the time of the
award, plus 1%); and (iv) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations under
the Lease, or which in the ordinary course would be likely to result from the Event of
Default, including without limitation, Reletting Expenses described in the following
Section.
b. Re-Entry and Resetting. Landlord may continue this Lease in full force and effect,
and without demand or notice, re-enter and take possession of the Premises or any
part thereof, expel the Tenant from the Premises and anyone claiming through or under
the Tenant, and remove the personal property of either. Landlord may relet the
Premises, or any part of them, in Landlord's or Tenant's name for the account of
Tenant, for such period of time and at such other terms and conditions, as Landlord, in
its discretion, may determine. Landlord may collect and receive the rents for the
Premises. Re-entry or taking possession of the Premises by Landlord under this Section
shall not be construed as an election on Landlord's part to terminate this Lease, unless
a written notice of termination is given to Tenant. Landlord reserves the right following
any re-entry or reletting, or both, under this Section to exercise its right to terminate
the Lease. Tenant will pay Landlord the rent and other sums which would be payable
under this Lease if repossession had not occurred, less the net proceeds, if any, after
reletting the Premises, after deducting Landlord's Reletting Expenses. "Reletting
Expenses" is defined to include all expenses incurred by Landlord in connection with
reletting the Premises, including without limitation, all repossession costs, brokerage
commissions, attorneys' fees, remodeling and repair costs, costs for removing and
storing Tenant's property and equipment, and tenant improvements and rent
concessions granted by Landlord to any new Tenant, for a period of six (6) months
from date of default.
c. Waiver of Redemption Rights. Tenant, for itself, and on behalf of any and all
persons claiming through or under Tenant, including creditors of any kinds, hereby
waives and surrenders all rights and privileges which they may have under any present
or future law, to redeem the Premises or to have a continuance of this Lease for the
Lease Term, as it may have been extended.
d. Nonpayment of Additional Rent. All costs which Tenant agrees to pay to Landlord
pursuant to this Lease shall in the event of nonpayment be treated as if they were
payments of Rent, and Landlord shall have all the rights herein provided for in case of
nonpayment of Rent.
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(between the City of Kent and Perkins)
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e. Failure to Remove Property. If Tenant fails to remove any of its property from the
Premises at Landlord's request following an uncured Event of Default, Landlord may, at
its option, remove and store the property at Tenant's expense and risk. If Tenant does
not pay the storage costs within five (5) days of Landlord's request, Landlord may, at
its option, have any or all of such property sold at public or private sale (and Landlord
may become a purchaser at such sale), in such manner as Landlord deems proper,
upon written notice to Tenant. Landlord shall apply the proceeds of such sale: (i) to
the expense of such sale, including reasonable attorneys' fees actually incurred; (ii) to
the payment of the costs or charges for storing such property; (iii) to the payment of
any other sums of money which may then be or thereafter become due Landlord from
Tenant under any of the terms hereof; and (iv) the balance, if any to Tenant. Nothing
in this Section shall limit Landlord's right to sell Tenant's personal property as permitted
by law or to foreclose Landlord's lien for unpaid rent.
20. HAZARDOUS MATERIALS
Landlord represents and warrants to Tenant that to the best of Landlord's knowledge,
there is no "Hazardous Material" (as defined below) on, in or under the Premises as of the
Commencement Date, excepts as otherwise disclosed to Tenant in writing before the execution
of this Lease.
Tenant shall not cause or permit any Hazardous Material to be brought upon, kept or
used in or about, or disposed of on the Premises by Tenant, its agents, employees, contractors
or invitees, except in strict compliance with all applicable federal, state and local laws,
regulations, codes and ordinances
As used herein, the term "Hazardous Material" means any hazardous, dangerous, toxic
or harmful substance, material or waste including biomedical waste which is or becomes
regulated by any local governmental authority, the State of Washington or the United States
government due to its potential harm to the health, safety or welfare of humans or the
environment. The provisions of this Section shall survive expiration or termination of this
Lease.
21. NOTICES
All notices to be given by the parties hereto shall be in writing and effective (i) when
delivered in person, or (ii) three (3) days after being sent by United States registered or
certified mail, postage prepaid, to Landlord or Tenant at the below-listed addresses or a later
changed address provided in writing:
LANDLORD:
Charlie and Shirley Perkins
17817 1461h Avenue SE
Renton, WA 98058
(425) 226-1953
TENANT:
City of Kent
Attn: Facilities Management Superintendent
LEASE AGREEMENT— Page 9 of 15
(between the City of Kent and Perkins)
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220 Fourth Avenue S
Kent, Washington 98032
(253) 856-5700
22. NON-WAIVER
The failure of Landlord to insist upon strict performance of any of the covenants and
agreements of this Lease, or to exercise any option herein conferred in any one or more
instances, shall not be construed to be a waiver or relinquishment of the covenants and
agreements of this Lease, or any other covenant or agreements, but the same shall be and
remain in full force and effect. The acceptance by Landlord of Rent or other amounts due by
Tenant hereunder shall not be deemed to be a waiver of any breach by Tenant preceding such
acceptance.
23. COSTS AND ATTORNEYS FEES
If by reason of any default on the part of Tenant it becomes necessary for Landlord to
use an attorney, or if Tenant shall bring any action for any relief against Landlord, declaratory
or otherwise, arising out of this Lease, each party shall pay its own legal costs and attorney
fees, including costs and fees for any appeals.
24. HEIRS AND SUCCESSORS
Subject to the assignment and subletting provisions, the covenants and agreements of
this Lease shall bind the heirs, executors, administrators, legal representatives, successors and
assigns of any or all of the parties.
25. HOLDOVER
If Tenant shall, without the written consent of Landlord, holdover after the expiration or
termination of this Lease, such tenancy shall be a month to month tenancy, terminable as
provided by the laws of the State of Washington. During such tenancy, the rate of rental shall
remain equal to the rate last payable under this Lease.
26. SUBORDINATION j
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This Lease shall automatically be subordinate to any mortgage or deed of trust created
by Landlord which is no existing or hereafter placed upon the Premises including any advances,
interest, modifications, renewals, replacements or extensions ("Landlord's Mortgage"),
provided the holder of any Landlord's Mortgage or any person(s) acquiring the Premises at any
sale or other proceeding under any such Landlord's Mortgage shall elect to continue this Lease
in full force and effect. Tenant shall attorn to the holder of any Landlord's Mortgage or any
person(s) acquiring the Premises at any sale or other proceeding under any Landlord's
Mortgage provided such person(s) assume the obligations of Landlord under this Lease.
Tenant shall promptly and in no event later than fifteen (15) days after request execute,
acknowledge and deliver documents which the holder of any Landlord's Mortgage may
reasonably require as further evidence of this subordination and attornment. Notwithstanding
the foregoing, Tenant's obligations under this Section are conditioned on the holder of each
Landlord's Mortgage and each person acquiring the Premises at any sale or other proceeding
under any such Landlord's Mortgage not disturbing Tenant's occupancy and other rights under
this Lease, so long as no uncured Event of Default exists.
LEASE AGREEMENT— Page 10 of 15
(between the City of Kent and Perkins)
27. QUIET ENJOYMENT
So long as Tenant pays the Rent and performs all of its obligations in this Lease,
Tenant's possession of the Premises will not be disturbed by Landlord or any claiming by,
through, or under Landlord, or by the holders of any mortgage of Landlord, or any successor
thereto.
28. GENERAL
a. Entire Agreement. This Lease contains all of the covenants and agreements between
Landlord and Tenant relating to the Premises. No prior or contemporaneous
agreements or understanding pertaining to the Lease shall be valid or of any force or
effect and the covenants and agreements of this Lease shall not be altered, modified or
added to except in writing signed by Landlord and Tenant.
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b. Severability. Any provision of this Lease which shall prove to be invalid, void or illegal
shall in no way affect, impair or invalidate any other provision of this Lease.
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c. Force Majeure. Tim periods for either party's performance under any provisions of
this Lease (excluding payment of Rent) shall be extended for periods of time during
which the party's performance is prevented due to circumstances beyond such party's
control, including without limitation, fires, floods, earthquakes, lockouts, strikes,
embargoes, governmental regulations, acts of God, public enemy, war or other strife.
d. Governing Law. This Lease shall be governed by and construed in accordance with
the laws of the State of Washington.
e. Authority of Parties. Any individual signing this Lease on behalf of an entity
represents and warrants to the other that such individual has authority to do so and,
upon such individual's execution, that this Lease shall be binding upon and enforceable
against the party on behalf of whom such individual is signing.
f. Effective Date: This Lease Agreement shall take effect and commence on the last
date entered under the Landlord's or the Tenant's signatures below.
The foregoing conditions are mutually agreed to by Landlord and Tenant.
LANDLORD(S): TENANT:
CITY OF KENT
Charlie Perkins By: Suzette Cooke
Dated: Its: Mayor
Dated:
Shirley Perkins
Dated:
APPROVED AS TO FORM:
Kent Law Department
LEASE AGREEMENT—Page 11 of 15
(between the City of Kent and Perkins)
PACivillFiles%Open Filask0105-2074-Parks GeneralTerkins Storage Lease Agreement for Facilities.rlocx
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LEASE AGREEMENT— Page 12 of 15
(between the City of Kent and Perkins)
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STATE OF WASHINGTON )
ss.
COUNTY OF KING )
On this day of 2014, before me a Notary Public in and for the
State of Washington, personally appeared Charlie Perkins, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument and acknowledged it to be his/her free and voluntary act
and deed for the uses and purposes mentioned in this instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
NOTARY PUBLIC, in and for the State
of Washington, residing at
My appointment expires
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day of , 2014, before me a Notary Public in and for the
State of Washington, personally appeared Shirley Perkins, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument and acknowledged it to be his/her free and voluntary act
and deed for the uses and purposes mentioned in this instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
NOTARY PUBLIC, in and for the State
of Washington, residing at
My appointment expires
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LEASE AGREEMENT— Page 13 of 15
(between the City of Kent and Perkins)
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STATE OF WASHINGTON )
ss.
COUNTY OF KING )
I hereby certify that I know or have satisfactory evidence that Suzette Cooke
is the person who appeared before me, and said person acknowledged that she
signed this instrument, on oath stated that she is authorized to execute the
instrument on behalf of the City of Kent as its Mayor, and such execution to be the
free and voluntary act of such party for the uses and purposes mentioned in the
foregoing instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
NOTARY PUBLIC, in and for the State
of Washington, residing at
My appointment expires
LEASE AGREEMENT— Page 14 of 15
(between the City of Kent and Perkins)
EXHIBIT A
[Legal Description]
SCHEDULE A
- (CDAUoucd)
Order NO.: 1301203
1'DUTNu.: w r.rvsav a.n.vttvr
LEGAL IIESCRIMON MIM171
(Puagr4p64DIScNcdulOAwniiamtiDe)
PARCEL A.
ALL OF TILE FOLLOWING DESCRIBED PROPERTY, SITUATED IN SECTION 24, TOWNSHIP 22
NORTH, RANGE 4 EAST OF H.M., 2N KINO COUM, WASNINGTON,
BEGINNING AT TEE POINT OF INTERSECTION OF THE FAST LIME OF THAT PORTION
COW VE M TO THE CITY OF VERY FOR ALLEY PURPOSES 3Y DEED UNDER KINO O3NTTY
RECORDING NUMB'v'1 4512994 AND THE NORTHERLY LINE OF SMITH STREET IFORMEILY
PHOTON AS NEST SHINIT STP,EEEV CGNVLYED 10 THU MET OF NEWT HY OECD RECORDm
.IAENARY 13, 1908 UNDER KING COMM RECORDING N"ER 529263, SAID POINT OF
INTERSECTION BEING THE SOIRHNFST CORNER OF THE PARCEL CONVEYED To STANDARD
OIL COMPANY OF CALIFORNIA IT THAT CERTAIN USED DATED MARCH 17, 1517, AS FILED
FOR RSOAT) HARCY 19, 1917 AS OOC.HWUTT N UR 1122126 IN VOLUME 975 OF DELD5
AT PAGE 503, RECORDS OF KING COUNTY, WASHINGTOINN
THENCT EASTERLY ALONG SAID NORTHERLY LINE OF SAID SMITH SLP.U:'T 120 FEET, NOTE
OR LE55, TO THE a]VIIMFST comm OF THAT PORTION C umm TO LIEBY, TimmL
AND LISSY, A NAINE CORPORATION, SY DEED DATED MARCH 13, 1930 AND RECORDED
MARC9 31, 1930 UNDER RECORDING NUMBER 25958JO;
THESICE NORTHEYVi ALONG THE-YIEST`ERLY LINE OF SAID LIRSY, MCNITm AND LISBY
TRACT TO A POINT ON :FIE SOUTHERLY LIN£ OF TILE CHICAGO, MILWAUKEE AND ST,
PAUL 5.1UR TRACK 60 HOT RIGHT OF HAY BEING A POINT ON A NR c HAVING A RDIUS
OF 435.37 FEES! I
THENC NORTHWESTERLY ALONG SAID CJRVS TO A POINT OF THE INTUIlSECTON OF THE
E.SYdl'SY LINE OF SAID PORTION CONVEYED TO THE CITY OF M. Fr FOR ALLUr
PURPOSES, SAID POINT INT:ERSECFIOH BEING THE NORTHWEST CORNER OF SAID Pum
CUNNz= TO STANDARD OIL COMPANY OF CALIFORNIA;
THENCE 50119t3OILY ALONG SAID ES`-,ZR.-..LY LINE OF ALLEY TO THE POINT OF EEINHING.
PAR[3Z H,
ALT, 0, THE FOLL74ING DF9LREPED PROPERTY, SITUATED IH SECTION 24, TOWNSHIP 22
NORTH, RANGE 4 EASr OF W.H., IN KING COUI•T.Y, WASNINGION.
COlOMTCINO AT THE INTERSECTION OF THE EAST LINE OF A TRACT OF LAND CDNVFYE➢
TO TNT CTT•Y OF KENT FOR ALLEY PURPOSES BY DIED ACCORDED INHIUR I WG COlNiTt
RECORDING NUMBER 4512994, AND THE NORTH LINE OF SMITH STRICT (FOAMERLY IHOn7T '..
AS WEST SHINDI STRECTI SAID POINT OP ITTTCRSUCi1ON REIlNG THE SOUTHWEST DEENER
OF A FARM OF LAND CONVEYED TO STAIWD OIL COMPANY OF CALIFORNIA By DEED
RECCADm ON= KING COUNTY RECORDING HIR'S R 112ZL26 1N VOLUME 975 OF DEEDS AT
PAGE 103;
THma NORTH 00,59,14, FAST ALONG TR6 FAST LIN£ OF SAID ALLEY 229.30 FEET TO
i,
IV INTERSECTION WITH THE ARC OF A CURVE ON THE SOUTHERLY LINE OF THE CHICAGO,
MILWAUKEE AND Sr. PAUL RAILWAY COWPANNt SPUR T UK RIGHT OF WAY AND THE POINT
OF SEEMING;
THENCE CO MIJOING NORTH 00r54'14' EAST 34.06 FEET TO AN INTERSECTION WITH 7HI
CEIM•FR LINE GF SAID SPUR TRACK RIGHT OF WAY ON TWtE AAC OF A CURVE THE RADIUS
POINT OF WHICH SEARS NORTH 11W45']2^ PAST 383.D6 FEET FROM SAID INTERSECTION,
THUNCE SOVMtp$"SRLY ALONG SAID CENTER LINE ON THE ARC OF SAID CURVE 129.55
FEET;
THLYCE SOUM 00.59'14' HEST 30.06 FEET TO AN INTTER5ECTTOH WITH THE SOUTHERLY
LINE OF SAID RIGHT OF WAY ON THE ARC OF A CDEVE ALSO RUING THE NORTHWEST
CDFNER OF PARCEL 'R' OF SNORT PIAT NUMB^<P SRC-76.30 AS FEW THE SHORT PLAT'
RECORDED lN,0SR RING COUNTY RECORDING NUMBER 7}01070442, THE RADIUS POINT OF
SAID CURB BEARING NORTH 11'33'IS' E447 A DISTANCE OF 413.06 FEET FRO" SAID
PDIM OF INTERSECTION;
TH-1'CE NORTHWESTERLY ALONG SATO SOUTHERLY LINE 128.04 FEEL TO THE POINT OF
H�INIIEVG.
LEASE AGREEMENT— Page 15 of 15
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KENT
Agenda Item: Consent Calendar — 7K
TO: City Council
DATE: May 6, 2014
SUBJECT: Resolution Declaring Emergency and Waiving Bid Requirement for Ice
Plant Equipment Repair at ShoWare Center - Adopt
MOTION: Adopt Resolution No. declaring an emergency and waiving
the advertised bid requirement for repair of the ice plant equipment at the
ShoWare Center.
SUMMARY: For some time, the ice plant equipment at the ShoWare Center has been
experiencing various problems that have affected ice temperature, including the
presence of rust in the chiller system and sludge in the compressors. These problems
have been unforeseen given the short amount of time the system has been in
operation, and these problems are usually associated with much older systems. Given
the City's contractual obligation to provide ice to the Thunderbirds Hockey Team,
diagnosis and repair efforts have been hampered by the need to keep the system
running.
On April 21, 2014, an engineering consultant hired by the City provided its preliminary
findings and a proposed course of action to address the ongoing problems. The City
now has a limited 3-month window within which to repair the ice plant equipment and
bring it back online before hockey season begins again in August. Because this work
involves repairing a public facility, it is generally subject to the advertised bid process.
That process requires a call for bids be published in a newspaper at least 13 days
before the bid submittal deadline set by the City, an additional 2-4 days' notice to the
newspaper prior to the publication date, and the creation of plans, specifications, and
a cost estimate that would take a City-hired engineer approximately 3-4 weeks to
create. This bid preparation time is something, unfortunately, the City just does not
have available in this particular circumstance.
Despite these bid requirements, state law does allow Council to waive them in the
event it determines an emergency exists due to unforeseen circumstances beyond the
City's control that present a real, immediate threat to the proper performance of
essential functions. If the City is not able to fully repair the ice plant equipment and
bring it back into operation by August 1st, the City's contract with the Thunderbirds
Hockey Team requires that alternate ice and facilities be provided, likely at a
substantial cost to the City. Given these particular circumstances, and in consultation
with the City Attorney's Office, staff requests that Council adopt the proposed
resolution declaring the presence of an emergency that justifies waiving the advertised
bid requirement for repair of the ice plant equipment at the ShoWare Center.
EXHIBITS: Resolution
RECOMMENDED BY: Presented to Operations Committee same night as Council.
YEA: N/A NAY: N/A
BUDGET IMPACTS: None for adoption of the resolution.
RESOLUTION NO.
A RESOLUTION of the City Council of the
City of Kent, Washington, declaring an emergency
and waiving competitive bidding procedures for
repair of the ice plant equipment, including the
compressors and chiller, installed at the ShoWare
Center.
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES
HEREBY RESOLVE AS FOLLOWS:
RESOLUTION
SECTION 1. Findings. The City Council of the City of Kent,
Washington, makes the following findings and declares an emergency
exists that justifies waiving the competitive bidding requirements pursuant
to RCW 39.04.280:
A. The ice plant equipment installed at the ShoWare Center
involves a complicated system of oil and ammonia compressors and pumps
that work together to cool a salt water brine that maintains the
temperature of the ice floor needed by the Thunderbirds Hockey Team
1 Emergency Resolution
ShoWare Center Ice Plant Equipment
during its training and competitive season. Each year, hockey season
begins in August with the Thunderbirds training camp. Regular season
play usually ends the following March. During the 2013-2014 season,
however, the Thunderbirds were in the playoffs chasing the championship.
As such, playoff action did not end for the Thunderbirds until April 9, 2014.
B. For some time, the ShoWare Center has been experiencing
various problems with its ice plant equipment that have affected ice
temperature. These problems have been unforeseen by City staff as the
ice plant equipment has only been in operation for approximately five (5)
years, and these problems, including the presence of rust in the chiller
system and sludge and debris in the compressors, are typically seen in
much older systems.
C. When problems occur during the hockey season, diagnostic
and repair efforts are often complicated because the system must continue
to run so that ice may be maintained for the Thunderbirds. Many repairs
cannot be conducted until the system is taken off-line.
D. When the season concluded, the City of Kent brought in
PermaCold Engineering, Inc. to inspect the ice plant equipment, discuss the
problems with staff, review the prior maintenance work that has been
conducted on the ice plant equipment, diagnose the existing problems, and
recommend a course of action to correct the problems. PermaCold
2 Emergency Resolution
Sho Ware Center Ice Plant Equipment
provided its preliminary findings to the City on April 21, 2014, though
continued analysis is still underway.
E. All repairs on the ice plant equipment must be completed by
August 1, 2014, so the system can be brought back online and ice made
and ready when the Thunderbirds Hockey School begins August 4, 2014.
The City of Kent is contractually obligated to provide ice for the
Thunderbirds at the start of Hockey School and the following team Training
Camp, and the inability to make and maintain ice at the ShoWare Center
would require alternate ice and facilities to be located for the Thunderbirds,
likely at a substantial cost to the City of Kent. Therefore, the City of Kent
has three (3) months within which to fully repair the ice plant equipment
and bring it back into operation. Based on the preliminary findings of
PermaCold and advice from SMG, the City's operator and manager of the
ShoWare Center, all of this time will be needed to effect repairs, and run
the overhauled and repaired system through testing and trials to ensure it
is operating properly by August 1, 2014.
F. The ice plant equipment is a substantial piece of equipment
that is physically installed at the ShoWare Center and incorporated into this
public facility. As such it is a "public work" as defined in Ch. 39.04 RCW,
and is subject to the competitive bid requirements of RCW 35A.40.210 and
RCW 35.23.352. A call for bids on a public work must be published in the
newspaper and advertised at least 13 days before the bid submittal
3 Emergency Resolution
ShoWare Center Ice Plant Equipment
deadline set by the City. In addition, most newspapers require
approximately two to four additional days' notice prior to the publication
date. In addition, when a public work is subject to bid, the City of Kent is
required by RCW 39.04.020 to prepare plans, specifications, and a cost
estimate of the work that must be available to those contractors interested
in bidding on the project. The City anticipates that it would take at least
three to four additional weeks for a hired engineer to prepare the
necessary plans, specifications, and cost estimate for the work. These
statutory bid requirements substantially limit the amount of time available
to repair the ice plant equipment.
G. The above-described situation constitutes an emergency that
results from an unforeseen circumstance that was beyond the control of
the City that presents a real, immediate threat to the proper performance
of the City of Kent's contractual obligations to the Thunderbirds Hockey
Team. Therefore, the Kent City Council finds that it is appropriate for the
City of Kent to enter into an emergency public works contract for the repair
of the ice plant equipment at the ShoWare Center.
SECTION 2. Emergency Declared; Competitive Bidding
Requirements Waived. Based on the preceding findings, an emergency
exists, and in accordance with RCW 39.04.280, it is appropriate to waive
competitive bidding requirements and to directly contract with a contractor
the City determines is best able to repair the ice plant equipment installed
4 Emergency Resolution
Sho Ware Center Ice Plant Equipment
at the ShoWare Center. City staff is directed to employ its best efforts to
obtain the most advantageous pricing for this work, given the existence of
this emergency.
SECTION 3. - Severabilitv. If any section, subsection, paragraph,
sentence, clause or phrase of this resolution is declared unconstitutional or
invalid for any reason, such decision shall not affect the validity of the
remaining portions of this resolution.
SECTION 4. - Effective Date. This resolution shall take effect and
be in force immediately upon its passage.
PASSED at a regular open public meeting by the City Council of the
City of Kent, Washington, this day of May, 2014.
CONCURRED in by the Mayor of the City of Kent this day of May,
2014.
SUZETTE COOKE, MAYOR
ATTEST:
RONALD MOORE, CITY CLERK
APPROVED AS TO FORM:
ARTHUR"PAT" FITZPATRICK,
ACTING CITY ATTORNEY
5 Emergency Resolution
Sho Ware Center Ice Plant Equipment
I hereby certify that this is a true and correct copy of Resolution No.
passed by the City Council of the City of Kent, Washington, the
day of May, 2014.
RONALD MOORE, CITY CLERK
P A0vipPasolufion4Sho W zre®nta,-IreFlzntEQulpmentEmeryen,y do-
6 Emergency Resolution
Sho Ware Center Ice Plant Equipment
KENT
Agenda Item: Consent Calendar — 7L
TO: City Council
DATE: May 6, 2014
SUBJECT: Contract with PermaCold Engineering, Inc. for Ice Plant Equipment at
ShoWare Center - Authorize
MOTION: Authorize the Mayor to sign a contract with PermaCold
Engineering, Inc. to repair and recommission the ice plant equipment at the
ShoWare Center, in an amount not to exceed $95,000 unless authorized by
the Economic Community Development Director and the Mayor and within
the established ShoWare Center budget, and in accordance with those final
terms and conditions acceptable to the City Attorney.
SUMMARY: On this same date, and immediately preceding this item, Council was
presented with a resolution requesting that it adopt a resolution declaring an
emergency and waiving the advertised bid requirement for repair of the ice plant
equipment at the ShoWare Center. Should Council adopt that resolution, staff would
request that Council further authorize the Mayor to enter into a contract with
PermaCold Engineering, Inc. to complete the necessary repairs and recommission the
ice plant equipment.
PermaCold Engineering is the company the City hired to inspect the system after
hockey season ended this Spring. After its inspection, PermaCold Engineering
provided the City with its repair recommendations and a preliminary cost estimate.
However, the actual repairs necessary and their attendant costs will not be known
until the system can be fully opened and inspected. Therefore, if additional repairs
are necessary that take the contract cost above the maximum amount stated in the
contract and approved by Council, the short window during which repairs must be
made would be delayed by the requirement that additional Council approval be
obtained before repair work could continue. Additionally, depending upon the repairs
necessary, the problem could be exacerbated if the system is left open to
contamination while repair work is halted pending further Council approval.
Therefore, for these reasons, staff requests that Council authorize the Mayor to sign
the contract with PermaCold Engineering in an amount not to exceed $95,000, unless
authorized by both the Mayor and the Economic and Community Development Director
and within the established ShoWare Center budget. This authorization will give staff
flexibility to ensure all necessary repairs are completed, while still allowing Council to
maintain control by tying that flexible authorization to the established ShoWare Center
budget.
EXHIBITS: Public Works Agreement with PermaCold Engineering
RECOMMENDED BY: Presented to Operations Committee same night as Council
YEA: N/A NAY: N/A
BUDGET IMPACTS: ShoWare Operating Account
`� KENT
PUBLIC WORKS AGREEMENT
between City of Kent and
PermaCold Engineering, Inc.
THIS AGREEMENT is made by and between the City of Kent, a Washington municipal
corporation (hereinafter the "City"), and PermaCold Engineering, Inc., organized under the laws
of the State of Oregon, located and doing business at 2945 NE Argyle Street, Portland, OR
97211, (hereinafter the "Contractor").
AGREEMENT
The parties agree as follows:
I. DESCRIPTION OF WORK.
Contractor shall perform the following services for the City in accordance with the
following described plans and/or specifications:
Conduct, arrange, and coordinate repair and other work necessary to recommission
the ice plant equipment at the City of Kent's ShoWare Center in accordance with
Contractor's April 21, 2014, recommendation report, attached and incorporated as
Exhibit A, including replacing that portion of the ammonia deemed necessary, and
conducting all other authorized work to bring and maintain the ice plant equipment
in full and proper working condition.
In carrying out the work under this Agreement, the City has appointed SMG and its
employee, Tim Higgins, General Manager of the ShoWare Center, as its representative agent to
manage Contractor's work and the terms of this Agreement. Mr. Higgins will in turn consult with
the City, as necessary and in accordance with the terms and conditions of the operator
agreement entered into between the City and SMG.
Contractor further represents that the services furnished under this Agreement will be
performed in accordance with generally accepted professional practices within the Puget Sound
region in effect at the time such services are performed.
II. TIME OF COMPLETION. The parties agree that work will begin on the tasks
described in Section I above immediately upon execution of this Agreement. Upon the effective
date of this Agreement, Contractor shall complete all work described in Section I and necessary
to bring the ice plant equipment back into full and proper working condition by July 31, 2014.
III. COMPENSATION. The City shall pay the Contractor a total amount not to exceed
$95,000, including any applicable Washington State Sales Tax, for the work and services
contemplated in this Agreement. This compensation amount is an estimate only. The actual
PUBLIC WORKS AGREEMENT - 1
cost of Contractor's work will be assessed based on time and materials. Any work not directly
performed by Contractor, but instead coordinated and arranged by Contractor, shall be billed to
the City based on time and materials, plus %. Should unexpected repairs become
necessary once the ice plant equipment system is opened, any additional expense that causes
the cost of Contractor's work to exceed this maximum compensation amount shall be negotiated
between the parties through a mutually agreeable Change Order to this Agreement. The
Contractor shall invoice the City monthly. The City will pay for the portion of the work described
in the invoice that has been completed by the Contractor and approved by the City. The City's
payment shall not constitute a waiver of the City's right to final inspection and acceptance of the
project.
A. Payment and Performance Bond. Pursuant to Chapter 39.08 RCW, the
Contractor, shall provide the City a payment and performance bond for the
full contract amount.
B. Retainaae. The City shall hold back a retainage in the amount of five percent
(5%) of any and all payments made to contractor for a period of sixty (60)
days after the date of final acceptance, or until receipt of all necessary
releases from the State Department of Revenue, the State Department of
Labor & Industries, and the State Employment Security Department, and
until settlement of any liens filed under Chapter 60.28 RCW, whichever is
later. The amount retained shall be placed in a fund by the City pursuant to
RCW 60.28.011(4)(a), unless otherwise instructed by the Contractor within
fourteen (14) calendar days of Contractor's signature on the Agreement.
C. Defective or Unauthorized Work. The City reserves its right to withhold
payment from Contractor for any defective or unauthorized work. Defective
or unauthorized work includes, without limitation: work and materials that
do not conform to the requirements of this Agreement; and extra work and
materials furnished without the City's written approval. If Contractor is
unable, for any reason, to satisfactorily complete any portion of the work, the
City may complete the work by contract or otherwise, and Contractor shall be
liable to the City for any additional costs incurred by the City. "Additional
costs" shall mean all reasonable costs, including legal costs and attorney
fees, incurred by the City beyond the maximum Contract price specified
above. The City further reserves its right to deduct the cost to complete the
Contract work, including any Additional Costs, from any and all amounts due
or to become due the Contractor.
D. Final Payment: Waiver of Claims. THE CONTRACTOR'S ACCEPTANCE OF
FINAL PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL CONSTITUTE A
WAIVER OF CONTRACTOR'S CLAIMS, EXCEPT THOSE PREVIOUSLY AND
PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE
TIME FINAL PAYMENT IS MADE AND ACCEPTED.
IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent
Contractor-Employer Relationship will be created by this Agreement. By their execution of this
Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following
representations:
PUBLIC WORKS AGREEMENT - 2
A. The Contractor has the ability to control and direct the performance and
details of its work, the City being interested only in the results obtained
under this Agreement.
B. The Contractor maintains and pays for its own place of business from which
Contractor's services under this Agreement will be performed.
C. The Contractor has an established and independent business that is eligible
for a business deduction for federal income tax purposes that existed before
the City retained Contractor's services and is a service other than that
furnished by the City, or the Contractor is engaged in an independently
established trade, occupation, profession, or business of the same nature as
that involved under this Agreement.
D. The Contractor is responsible for filing as they become due all necessary tax
documents with appropriate federal and state agencies, including the Internal
Revenue Service and the state Department of Revenue.
E. The Contractor has registered its business and established an account with
the state Department of Revenue and other state agencies as may be
required by Contractor's business, and has obtained a Unified Business
Identifier (UBI) number from the State of Washington.
F. The Contractor has a valid contractor registration pursuant to Ch. 18.27 RCW
or an electrical contractor license pursuant to Ch. 19.28 RCW.
G. The Contractor maintains a set of books dedicated to the expenses and
earnings of its business.
V. TERMINATION. The City may terminate this Agreement for good cause. "Good
cause" shall include, without limitation, any one or more of the following events:
A. The Contractor's refusal or failure to supply a sufficient number of properly
skilled workers or proper materials for completion of the Contract work.
B. The Contractor's failure to complete the work within the time specified in this
Agreement.
C. The Contractor's failure to make full and prompt payment to subcontractors
or for material or labor.
D. The Contractor's persistent disregard of federal, state or local laws, rules or
regulations.
E. The Contractor's filing for bankruptcy or becoming adjudged bankrupt.
F. The Contractor's breach of any portion of this Agreement.
If the City terminates this Agreement for good cause, the Contractor shall not receive any
further money due under this Agreement until the Contract work is completed. After
termination, the City may take possession of all records and data within the Contractor's
possession pertaining to this project which may be used by the City without restriction.
PUBLIC WORKS AGREEMENT - 3
VI. PREVAILING WAGES. Contractor shall file a "Statement of Intent to Pay
Prevailing Wages," with the State of Washington Department of Labor & Industries prior to
commencing the Contract work. Contractor shall pay prevailing wages in effect on the date the
bid is accepted or executed by Contractor, and comply with Chapter 39.12 of the Revised Code
of Washington, as well as any other applicable prevailing wage rate provisions. The latest
prevailing wage rate revision issued by the Department of Labor and Industries is attached.
VII. CHANGES. The City may issue a written change order for any change in the
Contract work during the performance of this Agreement. If the Contractor determines, for any
reason, that a change order is necessary, Contractor must submit a written change order
request to the person listed in the notice provision section of this Agreement, section XV(D),
within fourteen (14) calendar days of the date Contractor knew or should have known of the
facts and events giving rise to the requested change. If the City determines that the change
increases or decreases the Contractor's costs or time for performance, the City will make an
equitable adjustment. The City will attempt, in good faith, to reach agreement with the
Contractor on all equitable adjustments. However, if the parties are unable to agree, the City
will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed
with the change order work upon receiving either a written change order from the City or an oral
order from the City before actually receiving the written change order. If the Contractor fails to
require a change order within the time specified in this paragraph, the Contractor waives its
right to make any claim or submit subsequent change order requests for that portion of the
contract work. If the Contractor disagrees with the equitable adjustment, the Contractor must
complete the change order work; however, the Contractor may elect to protest the adjustment
as provided in subsections A through E of Section VIII, Claims, below.
The Contractor accepts all requirements of a change order by: (1) endorsing it, (2)
writing a separate acceptance, or (3) not protesting in the way this section provides. A change
order that is accepted by Contractor as provided in this section shall constitute full payment and
final settlement of all claims for contract time and for direct, indirect and consequential costs,
including costs of delays related to any work, either covered or affected by the change.
VIII. CLAIMS. If the Contractor disagrees with anything required by a change order,
another written order, or an oral order from the City, including any direction, instruction,
interpretation, or determination by the City, the Contractor may file a claim as provided in this
section. The Contractor shall give written notice to the City of all claims within fourteen (14)
calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14)
calendar days of the date the Contractor knew or should have known of the facts or events
giving rise to the claim, whichever occurs first . Any claim for damages, additional payment for
any reason, or extension of time, whether under this Agreement or otherwise, shall be
conclusively deemed to have been waived by the Contractor unless a timely written claim is
made in strict accordance with the applicable provisions of this Agreement.
At a minimum, a Contractor's written claim shall include the information set forth in
subsections A, items 1 through 5 below.
FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM
WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY
CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS
SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY.
PUBLIC WORKS AGREEMENT - 4
A. Notice of Claim. Provide a signed written notice of claim that provides the following
information:
1. The date of the Contractor's claim;
2. The nature and circumstances that caused the claim;
3. The provisions in this Agreement that support the claim;
4. The estimated dollar cost, if any, of the claimed work and how that
estimate was determined; and
5. An analysis of the progress schedule showing the schedule change or
disruption if the Contractor is asserting a schedule change or
disruption.
B. Records. The Contractor shall keep complete records of extra costs and time
incurred as a result of the asserted events giving rise to the claim. The City shall
have access to any of the Contractor's records needed for evaluating the protest.
The City will evaluate all claims, provided the procedures in this section are
followed. If the City determines that a claim is valid, the City will adjust payment
for work or time by an equitable adjustment. No adjustment will be made for an
invalid protest.
C. Contractor's Duty to Complete Protested Work. In spite of any claim, the
Contractor shall proceed promptly to provide the goods, materials and services
required by the City under this Agreement.
D. Failure to Protest Constitutes Waiver. By not protesting as this section provides,
the Contractor also waives any additional entitlement and accepts from the City any
written or oral order (including directions, instructions, interpretations, and
determination).
E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures
of this section, the Contractor completely waives any claims for protested work and
accepts from the City any written or oral order (including directions, instructions,
interpretations, and determination).
IX. LIMITATION OF ACTIONS. CONTRACTOR MUST, IN ANY EVENT, FILE ANY
LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR
DAYS FROM THE DATE THE CONTRACT WORK IS COMPLETE OR CONTRACTOR'S ABILITY TO
FILE THAT CLAIM OR SUIT SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY
APPLICABLE STATUTORY LIMITATIONS PERIOD.
X. WARRANTY. Upon acceptance of the contract work, Contractor must provide the
City a one-year warranty bond in a form and amount acceptable to the City. The Contractor
shall correct all defects in workmanship and materials within one (1) year from the date of the
City's acceptance of the Contract work. In the event any parts are repaired or replaced, only
original replacement parts shall be used—rebuilt or used parts will not be acceptable. When
defects are corrected, the warranty for that portion of the work shall extend for one (1) year
from the date such correction is completed and accepted by the City. The Contractor shall begin
to correct any defects within seven (7) calendar days of its receipt of notice from the City of the
defect. If the Contractor does not accomplish the corrections within a reasonable time as
determined by the City, the City may complete the corrections and the Contractor shall pay all
costs incurred by the City in order to accomplish the correction.
PUBLIC WORKS AGREEMENT - 5
XI. DISCRIMINATION. In the hiring of employees for the performance of work under
this Agreement or any sub-contract, the Contractor, its sub-contractors, or any person acting on
behalf of the Contractor or sub-contractor shall not, by reason of race, religion, color, sex, age,
sexual orientation, national origin, or the presence of any sensory, mental, or physical disability,
discriminate against any person who is qualified and available to perform the work to which the
employment relates.
Contractor shall execute the attached City of Kent Equal Employment Opportunity Policy
Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract
work, file the attached Compliance Statement.
XII. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its
officers, officials, employees, agents and volunteers harmless from any and all claims, injuries,
damages, losses or suits, including all legal costs and attorney fees, arising out of or in
connection with the Contractor's performance of this Agreement, except for that portion of the
injuries and damages caused by the City's negligence.
The City's inspection or acceptance of any of Contractor's work when completed shall not
be grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Contractor
and the City, its officers, officials, employees, agents and volunteers, the Contractor's liability
hereunder shall be only to the extent of the Contractor's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONTRACTOR'S WAIVER OF
IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF
THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY
NEGOTIATED THIS WAIVER.
In the event Contractor refuses tender of defense in any suit or any claim, if that tender
was made pursuant to this indemnification clause, and if that refusal is subsequently determined
by a court having jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the
Contractor's part, then Contractor shall pay all the City's costs for defense, including all
reasonable expert witness fees and reasonable attorneys' fees, plus the City's legal costs and
fees incurred because there was a wrongful refusal on the Contractor's part.
The provisions of this section shall survive the expiration or termination of this
Agreement.
XIII. INSURANCE. The Contractor shall procure and maintain for the duration of the
Agreement, insurance of the types and in the amounts described in Exhibit B attached and
incorporated by this reference.
XIV. WORK PERFORMED AT CONTRACTOR'S RISK. Contractor shall take all
necessary precautions and shall be responsible for the safety of its employees, agents, and
subcontractors in the performance of the contract work and shall utilize all protection necessary
for that purpose. All work shall be done at Contractor's own risk, and Contractor shall be
PUBLIC WORKS AGREEMENT - 6
responsible for any loss of or damage to materials, tools, or other articles used or held for use in
connection with the work.
XV. MISCELLANEOUS PROVISIONS.
A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City
requires its contractors and consultants to use recycled and recyclable products whenever
practicable. A price preference may be available for any designated recycled product.
B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of
any of the covenants and agreements contained in this Agreement, or to exercise any option
conferred by this Agreement in one or more instances shall not be construed to be a waiver or
relinquishment of those covenants, agreements or options, and the same shall be and remain in
full force and effect.
C. Resolution of Disputes and Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. If the parties are unable
to settle any dispute, difference or claim arising from the parties' performance of this
Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by
filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court,
King County, Washington, unless the parties agree in writing to an alternative dispute resolution
process. In any claim or lawsuit for damages arising from the parties' performance of this
Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or
bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award
provided by law; provided, however, nothing in this paragraph shall be construed to limit the
City's right to indemnification under Section XII of this Agreement.
D. Written Notice. All communications regarding this Agreement shall be sent to the
parties at the addresses listed on the signature page of the Agreement, unless notified to the
contrary. Any written notice hereunder shall become effective three (3) business days after the
date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to
the addressee at the address stated in this Agreement or such other address as may be
hereafter specified in writing.
E. Assignment. Any assignment of this Agreement by either party without the written
consent of the non-assigning party shall be void. If the non-assigning party gives its consent to
any assignment, the terms of this Agreement shall continue in full force and effect and no
further assignment shall be made without additional written consent.
F. Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
the City and Contractor.
G. Entire Agreement. The written provisions and terms of this Agreement, together
with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or
other representative of the City, and such statements shall not be effective or be construed as
entering into or forming a part of or altering in any manner this Agreement. All of the above
documents are hereby made a part of this Agreement. However, should any language in any of
the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms
of this Agreement shall prevail. Further, the representative signing this Agreement on behalf of
the Contractor warrants that he or she is authorized to enter into this Agreement on behalf of
the Contractor, and that action is binding on the Contractor.
PUBLIC WORKS AGREEMENT - 7
H. Compliance with Laws. The Contractor agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become applicable
to Contractor's business, equipment, and personnel engaged in operations covered by this
Agreement or accruing out of the performance of those operations.
I. City Business License Required. Prior to commencing the tasks described in Section
I, Contractor agrees to provide proof of a current city of Kent business license pursuant to
Chapter 5.01 of the Kent City Code.
J. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, and all of which will together constitute this one
Agreement.
IN WITNESS, the parties below execute this Agreement, which shall become
effective on the last date entered below.
CONTRACTOR: CITY OF KENT:
By: By:
(signature) (signature)
Print Name: Print Name: Suzette Cooke
Its Its Mayor
(title)
DATE: DATE:
NOTICES TO BE SENT TO: NOTICES TO BE SENT TO:
CONTRACTOR: CITY OF KENT:
Ben Wolters, Director
Mr. Gordon Anderson, Office Manager City of Kent Economic & Community
PermaCold Engineering, Inc. Development Department
2100 196th Street SW, Suite 113 220 Fourth Avenue South
Lynnwood, WA 98036 Kent, WA 98032
(425) 678-8905 (telephone) (253) 856-5454 (telephone)
(425) 678-8709 (facsimile) (253) 856-6454 (facsimile)
APPROVED AS TO FORM:
Kent Law Department
PUBLIC WORKS AGREEMENT - 8
DECLARATION
CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY
The City of Kent is committed to conform to Federal and State laws regarding equal opportunity.
As such all contractors, subcontractors and suppliers who perform work with relation to this
Agreement shall comply with the regulations of the City's equal employment opportunity
policies.
The following questions specifically identify the requirements the City deems necessary for any
contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative
response is required on all of the following questions for this Agreement to be valid and binding.
If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the
directives outlines, it will be considered a breach of contract and it will be at the City's sole
determination regarding suspension or termination for all or part of the Agreement;
The questions are as follows:
1. I have read the attached City of Kent administrative policy number 1.2.
2. During the time of this Agreement I will not discriminate in employment on the basis of
sex, race, color, national origin, age, or the presence of all sensory, mental or physical
disability.
3. During the time of this Agreement the prime contractor will provide a written statement to
all new employees and subcontractors indicating commitment as an equal opportunity
employer.
4. During the time of the Agreement I, the prime contractor, will actively consider hiring and
promotion of women and minorities.
5. Before acceptance of this Agreement, an adherence statement will be signed by me, the
Prime Contractor, that the Prime Contractor complied with the requirements as set forth
above.
By signing below, I agree to fulfill the five requirements referenced above.
By:
For:
Title:
Date:
EEO COMPLIANCE DOCUMENTS - 1
CITY OF KENT
ADMINISTRATIVE POLICY
NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998
SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996
CONTRACTORS APPROVED BY Jim White, Mayor
POLICY:
Equal employment opportunity requirements for the City of Kent will conform to federal and
state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee
equal employment opportunity within their organization and, if holding Agreements with the City
amounting to $10,000 or more within any given year, must take the following affirmative steps:
1. Provide a written statement to all new employees and subcontractors indicating
commitment as an equal opportunity employer.
2. Actively consider for promotion and advancement available minorities and women.
Any contractor, subcontractor, consultant or supplier who willfully disregards the City's
nondiscrimination and equal opportunity requirements shall be considered in breach of contract
and subject to suspension or termination for all or part of the Agreement.
Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public
Works Departments to assume the following duties for their respective departments.
1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these
regulations are familiar with the regulations and the City's equal employment opportunity
policy.
2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines.
EEO COMPLIANCE DOCUMENTS - 2
CITY OF KENT
EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT
This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the
Agreement.
I, the undersigned, a duly represented agent of
Company, hereby acknowledge and declare that the before-mentioned company was the prime
contractor for the Agreement known as that was entered into on
the (date), between the firm I represent and the City of
Kent.
I declare that I complied fully with all of the requirements and obligations as outlined in the City
of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity
Policy that was part of the before-mentioned Agreement.
By:
For:
Title:
Date:
EEO COMPLIANCE DOCUMENTS - 3
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'Irani/4a EXHIBIT A
X,Wl" �PermaCold
dr...V jngineering, Inc
w', 9
April 21, 2014
Attn: Ms. Tammy White
Assistant City Attorney
220 Fourth Avenue South
Kent, Washington 98032
Ms. White,
Following are cost estimates for performing our recommendations for the ShoWare Center ice
rink refrigeration system.
Three(3) Mycom N8WB piston compressors overhaul
Recommended parts per machine:
1. O-ring set
2. Shaft seal
3. Suction valves
4. Suction valve springs
5. Rod bearings
6. Piston ring set
7. Discharge valves
8. Discharge valve springs
9. Cuno oil filter
Cost for parts and labor per machine: $12,198.00 x (3)_ $36,594.00. Cost includes pressure
testing each oil cooler. In the unlikely event a piston or cylinder sleeve is required the additional
cost for each is: Piston $367.00 Cylinder sleeve $556.00. This will be determined at
disassembly of each machine.
Compressor head cooling glycol system
Recommended parts:
1. One (1) water flow indicator per machine
2. One (1) air vent
Cost for parts and labor to install flow indicators in each machine, one (1) vent in glycol line and
remove air from system is $5,242.00.
Oil
Recommended oil:
1. PC-717 One (1) 55 gallon drum
Cost for oil, removing oil from compressors and installing new oil is $1,282.00; This to be done
at time of compressor overhaul.
2945 NE Argyle Street • Portland, OR 97211 • (503) 249-8190 • (800) 455-8585 • Fax (503) 249-8322
email: permaCapermacold.com www.permacold.com CCB#95654
Ammonia PePryeratmm
to I/
X ��PermaCold
O „Engineering, Inc
Pressure test heat exchangers:
Cost to pressure test two (2) glycol heat exchangers including nitrogen is $2,565.00.
Pressure test Brine Chiller: This test was recently done.
1. Pressure test chiller with nitrogen. If leak(s) is discovered the repair of the leak(s)
will be done on a time and material basis at cost plus 25%.
Cost for performing pressure test on brine chiller including nitrogen is $2,460.00.
Non-destructive test on Brine Chiller tubes:
Cost for non-destructive test on brine chiller estimated at $11,360.00.
Liquid level control:
Recommended parts:
1. Phillips 275A high side float internal parts
2. Phillips 70OXH pilot operated valve
Cost for the valves and installation is $2,078.00.
Oil separators:
Recommended parts:
1. Two (2) Chill-Con oil separators with replaceable coalescent filters
2. Related piping materials to retro-fit new oil separators.
3. Nitrogen gas pressure test.
Cost for the two (2) oil separators installed is $20,863. Compressor number two recently had a
new oil separator installed, so we are not recommending a new one. However, the coalescent
filter cannot be changed in this separator. The two (2) separators proposed, for compressors one
and two have replaceable coalescent filters.
Ms. White, at your convenience, please let me know if you have any questions. Thank you for
the opportunity to participate in your valued project.
Respectfully,
ad('19 �`
Senior Sales Engineer
PermaCold Engineering, Inc.
2945 NE Argyle Street • Portland, OR 97211 • (503) 249-8190 • (800) 455-8585 • Fax (503) 249-8322
email: permaCapermacold.com www.permacold.com CCB#95654
Ammonia PePryeratmm
EXHIBIT B
INSURANCE REQUIREMENTS FOR
PUBLIC WORKS AGREEMENT WITH PERMACOLD ENGINEERING, INC.
Insurance
The Contractor shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may
arise from or in connection with the performance of the work hereunder by the
Contractor, their agents, representatives, employees or subcontractors.
A. Minimum Scope of Insurance
Contractor shall obtain insurance of the types described below:
1. Commercial General Liability insurance shall be written on ISO
occurrence form CG 00 01 and shall cover liability arising from
premises, operations, independent contractors, products-completed
operations, personal injury and advertising injury, and liability
assumed under an insured contract. The City shall be named as an
insured under the Contractor's Commercial General Liability insurance
policy with respect to the work performed for the City using ISO
additional insured endorsement CG 20 10 11 85 or a substitute
endorsement providing equivalent coverage.
2. Automobile Liability insurance covering all owned, non-owned, hired
and leased vehicles. Coverage shall be written on Insurance Services
Office (ISO) form CA 00 01 or a substitute form providing equivalent
liability coverage. If necessary, the policy shall be endorsed to provide
contractual liability coverage.
3. Workers' Compensation coverage as required by the Industrial
Insurance laws of the State of Washington.
B. Minimum Amounts of Insurance
Contractor shall maintain the following insurance limits:
1. Commercial General Liability insurance shall be written with limits no
less than $2,000,000 each occurrence, $2,000,000 general aggregate
and a $2,000,000 products-completed operations aggregate limit.
2. Automobile Liability insurance with a minimum combined single limit
for bodily injury and property damage of $1,000,000 per accident.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following
provisions for Automobile Liability and Commercial General Liability insurance:
1. The Contractor's insurance coverage shall be primary insurance as respect
the City. Any Insurance, self-insurance, or insurance pool coverage
EXHIBIT B - INSURANCE REQUIREMENTS
Public Works Agreement with PermaCold Engineering, Inc.
maintained by the City shall be excess of the Contractor's insurance and shall
not contribute with it.
2. The Contractor's insurance shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty (30) days prior written notice
by certified mail, return receipt requested, has been given to the City.
3. The City of Kent shall be named as an additional insured on all policies
(except Professional Liability) as respects work performed by or on behalf of
the contractor and a copy of the endorsement naming the City as additional
insured shall be attached to the Certificate of Insurance. The City reserves
the right to receive a certified copy of all required insurance policies. The
Contractor's Commercial General Liability insurance shall also contain a
clause stating that coverage shall apply separately to each insured against
whom claim is made or suit is brought, except with respects to the limits of
the insurer's liability.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less
than A:VII.
E. Verification of Coverage
Contractor shall furnish the City with original certificates and a copy of the
amendatory endorsements, including but not necessarily limited to the additional
insured endorsement, evidencing the insurance requirements of the Contractor
before commencement of the work.
F. Subcontractors
Contractor shall include all subcontractors as insureds under its policies or shall
furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the same insurance
requirements as stated herein for the Contractor.
P:\Civil\Files\Open Flies\1719-ShoWare Center-Ice Plant Equipment\ExhibitB-Perma ColdContract.docx
EXHIBIT B - INSURANCE REQUIREMENTS
Public Works Agreement with PermaCold Engineering, Inc.
KENT
Agenda Item: Consent Calendar — 7M
TO: City Council
DATE: May 6, 2014
SUBJECT: Horseshoe Bend Levee Improvements East & West River Bend
Secondary Levees Phase II — Accept as Complete
MOTION: Accept the Horseshoe Bend Levee Improvements East & West
River Bend Secondary Levees Phase II Project with SCI Infrastructure, LLC
as complete.
SUMMARY: This project consisted of the construction of approximately 1,450 linear
feet of flood protection walls (sheet pile walls) and 740 feet of earthen berm levee
including an asphalt path, flood gates, utility relocation, road improvements and other
miscellaneous work. The work was completed within 1.5% of the original contract. The
final value of the contract is $4,425,667.17; the awarded contract was $4,361,315.19.
The Conditional Letter of Map Revision (CLOMR) for Horseshoe bend was approved by
Federal Emergency Management Agency (FEMA) in June. This project was required in
order to move ahead with FEMA accreditation. We are working to complete the
accreditation for this levee reach by the end of 2014.
The City is in receipt of the Contractor's completed affidavits from the state and
retainage will be released after acceptance by the Council.
EXHIBITS: None.
RECOMMENDED BY: Public Works Director
YEA: N/A NAY: N/A
BUDGET IMPACTS: This project was funded through a combination of a state grant,
City drainage funds and a request to the King County Flood Control Zone District. The
state grant reimbursed the City roughly $3-million. The remaining funding came from
City drainage fund monies.
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KENT
Agenda Item: Bids - 9A
TO: City Council
DATE: May 6, 2014
SUBJECT: 2014 Asphalt Grinding Project - Award
MOTION: Move to award the 2014 Asphalt Grinding project to Puget Paving
& Construction, Inc. in the amount of $46,500.00 and authorize the Mayor
to sign all necessary documents, subject to final terms and conditions
acceptable to the City Attorney and Public Works Director.
SUMMARY: The project consists of planing approximately 10-foot wide sections of
pavement for approximately 83,000 feet on various roadways throughout the city of
Kent.
The City's Street Department will be paving many segments of roadways this summer.
Prior to performing these overlays the failing portions of the asphalt must be ground
out. The city does not own a grinding machine. This contractor will provide the
grinding work needed to allow the city crews to complete the overlay work.
EXHIBITS: Memorandum, dated 4/30/2014
RECOMMENDED BY: Public Works Director
YEA: N/A NAY: N/A
BUDGET IMPACTS: This contract will be funded out of Business & Occupation Funds.
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PUBLIC WORKS DEPARTMENT
Timothy ]. LaPorte, P.E.,
Public Works Director
N.147 KENT Address: 220 Fourth Avenue S.
bVPSAINO-0N Kent, WA. 98032-5895
Phone: 253-856-5500
Fax: 253-856-6500
DATE: April 30, 2014
TO: Mayor Cooke and Kent City Council
FROM: Timothy ]. LaPorte, P.E. Public Works Director
RE: 2014 Asphalt Grinding Project
Bid opening for this project was held on Tuesday, April 29, 2014 with three bids
received. The lowest responsible and responsive bid was submitted by Puget Paving
& Construction, Inc. in the amount of $46,500.00. The Engineer's estimate was
$76,000.00. The Public Works Director recommends awarding this contract to Puget
Paving & Construction, Inc.
Bid Summary
01. Puget Paving & Construction, Inc. $ 46,500.00
02. Reece Trucking & Excavating $ 46,799.99
03. Pyramid Grinding, LLC $ 49,104.00
Engineer's Estimate $76,000.00
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KENT
Agenda Item: Bids - 9B
TO: City Council
DATE: May 6, 2014
SUBJECT: 2014 Crack Sealing Project- Award
MOTION: Move to award the 2014 Crack Sealing project to Evergreen
Asphalt & Concrete in the amount of $231,297.50 and authorize the Mayor
to sign all necessary documents, subject to final terms and conditions
acceptable to the City Attorney and Public Works Director.
SUMMARY: The project consists of installing approximately 24 tons of rubberized
asphalt for crack sealing asphalt on various roadways around the city. Crack sealing
helps prevent water from infiltrating the roadway base, thereby extending the service
life of the road until an asphalt overlay can be performed.
Four bids were received with Evergreen Asphalt & Concrete submitting the lowest bid.
EXHIBITS: Memorandum, dated 4/29/2014
RECOMMENDED BY: Public Works Director
YEA: N/A NAY: N/A
BUDGET IMPACTS: This contract will be funded out of Business & Occupation Funds.
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PUBLIC WORKS DEPARTMENT
Timothy ]. LaPorte, P.E.,
Public Works Director
N.147 KENT Address: 220 Fourth Avenue S.
bVPSAINO-0N Kent, WA. 98032-5895
Phone: 253-856-5500
Fax: 253-856-6500
DATE: April 29, 2014
TO: Mayor Cooke and Kent City Council
FROM: Timothy ]. LaPorte, P.E. Public Works Director
RE: 2014 Crack Sealing
Bid opening for this project was held on Tuesday, April 29, 2014 with four bids
received. The lowest responsible and responsive bid was submitted by Evergreen
Asphalt & Concrete in the amount of $231,297.50. The Engineer's estimate was
$294,925.00. The Public Works Director recommends awarding this contract to
Evergreen Asphalt & Concrete.
Bid Summary
01. Evergreen Asphalt & Concrete $231,297.50
02. C.R. Contracting $237,945.00
03. Doolittle Construction $268,980.00
04. Northwest Asphalt, Inc. $309,212.15
Engineer's Estimate $294,925.00
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REPORTS FROM STANDING COMMITTEES, COUNCIL, AND STAFF
A. Council President
B. Mayor
C. Administration
D. Economic & Community Development
E. Operations
F. Parks & Human Services
G. Public Safety
H. Public Works
I. Regional Fire Authority
J. Other
K. Other
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EXECUTIVE SESSION
ACTION AFTER EXECUTIVE SESSION
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