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HomeMy WebLinkAboutCity Council Meeting - Council - Agenda - 05/06/2014 CITY OF KENT City Council Meeting Agenda I�� mt U r rt j � r m May 6, 2014 Mayor Suzette Cooke Darla Ralph, Council President Couneilr embers Jim Berrios Bill Boyce Brenda Fir7cher Dennis Higgins Deborah Ranniger w, Les Thomas homas C,-ry CLERK y � / 'r This page intentionally left blank. 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 ********************************************************************* 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. m 1 W W D J' 1 5 n O a W Vl 3 "o n ^ 9 ^ - W o o m o n "o W n D W N a C O �Ti m 3 < J O A n a 0 0 A m o m 3 y m �' m O S W ^ W 0 3 0 O. N C a � .. m333 � !? a ^n. � M 'm a �� x � rtrt30 W Ja mr. ma � 3 .. o -0 nm •. J n W W m s - 0 m M W _. J -_ J n cn o Q w A � o o ° a m A 01 0 m m 3 am s g,rJ. 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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 This page intentionally left blank. CHANGES TO THE AGENDA FROM COUNCIL, ADMINISTRATION, OR STAFF This page intentionally left blank. 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 This page intentionally left blank. PUBLIC HEARING This page intentionally left blank. PUBLIC COMMENT This page intentionally left blank. 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. This page intentionally left blank. 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. 2 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. 3 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 This page intentionally left blank. 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. 2 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. 3 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. 4 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. 5 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 6 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 This page intentionally left blank. 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. This page intentionally left blank. 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. This page intentionally left blank. 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. This page intentionally left blank. 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. 7 Franchise — tw telecom 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. 8 Franchise - tw telecom 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. 9 Franchise — tw telecom 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 10 Franchise - tw telecom 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. 11 Franchise — tw telecom 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 12 Franchise — tw telecom 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: 13 Franchise — tw telecom 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. 14 Franchise — tw telecom 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 15 Franchise — tw telecom 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, 16 Franchise - tw telecom 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 17 Franchise - tw telecom 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 18 Franchise - tw telecom 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 19 Franchise - tw telecom 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 20 Franchise - tw telecom 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 21 Franchise — tw telecom 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. 22 Franchise - tw telecom 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 23 Franchise — tw telecom 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 24 Franchise - tw telecom 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 This page intentionally left blank. • 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. This page intentionally left blank. 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 i i Cc: A.YurovchA B. Swart T.Quann Design Agreement Letter rn 3 D 2m 0 0 �' ❑ ' a € a ' ,y F " C � _ zM no no H 3 m O D n o � � a' 3 v 7 m 2' tt N a N O QIQ lji O fR n i a — o w ao .d y W JR T c o G v w c c a It b ° a' ° T Q o Q r > T EY Cd n' w a Vl � n � r w c a ❑o❑ p + z 3 a m a c E A U 4-1 5 � p C U D O 69 � J b J W O � (7 in N 0 m N_ 3 w m T a 0 I I 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 This page intentionally left blank. 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 NCORD W COLEST I I CLOUDY ST a SOULD I J Q z CLOUDY ST [C zuj Z ST It 4 E GEOFGE OQ 71 W 1 a O Q �� I W KENT ST Q ST Q CEDAR S Y RA W Si '':4 z 1 y` W Ac 1 v 0 , I N �+�1 T. I O ; m RIM Ell] ZI ill E:l FP:PEl 1 O � M� �H PPI, TACO 1 1 W y a a 1 i DEAN ST 1 m s . . . . . . . . . R1 �P Pilo WILLIS ST � � � J U 4 Z W z 'a CROW ST RUSSELLST z 0 RACHAELPL Legend c 'a a; iz rn I Residential Targeted Area WATERMAr¢8T (/} (n UD L. a a a <! Tax Parcel QC N i J i OVERLOOK$T Cc r �'*��•��^°'�KENT PHnning5enices-APrIIM14 Nn S-. 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. 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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 This page intentionally left blank. 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 LEASE AGREEMENT— Page 7 of 15 (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. LEASE AGREEMENT— Page 8 of 15 (between the City of Kent and Perkins) li 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) i 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 i 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. i 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. i 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 I i I j LEASE AGREEMENT— Page 12 of 15 (between the City of Kent and Perkins) i 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 I LEASE AGREEMENT— Page 13 of 15 (between the City of Kent and Perkins) i 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 (between the City of Kent and Perkins) This page intentionally left blank. 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 This page intentionally left blank. '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. This page intentionally left blank. 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. This page intentionally left blank. 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 This page intentionally left blank. 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. This page intentionally left blank. 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 This page intentionally left blank. 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 This page intentionally left blank. EXECUTIVE SESSION ACTION AFTER EXECUTIVE SESSION This page intentionally left blank.