HomeMy WebLinkAboutCity Council Committees - Operations Committee - 11/20/2018
Unless otherwise noted, the Operations Committee meets at 4 p.m. on the first and third
Tuesday of each month in Kent City Hall, Council Chambers East, 220 Fourth Avenue South,
Kent, WA 98032.
For additional information please contact Cathie Everett at 253-856-5705, or via email at
CEverett@KentWA.gov.
Any person requiring a disability accommodation should contact the City Clerk’s Offic e at
253-856-5725 in advance. For TDD relay service call Washington Telecommunications Relay
Service at 7-1-1.
Operations Committee
Agenda
Chair - Les Thomas
Bill Boyce– Dennis Higgins
Tuesday, November 20, 2018
4:00 p.m.
Item Description Action Speaker Time
1. Call to Order Chair 01 MIN.
2. Roll Call Chair 01 MIN.
3. Changes to the Agenda Chair 01 MIN.
4. Approval of November 6, 2018
Minutes
YES Chair 05 MIN.
5. Approval of Check Summary
Report Dated 10/16/2018 to
10/31/2018
YES Chair 05 MIN.
6. Emergency Management
Performance Grant
YES John Madson 05 MIN.
7. Legislative Agenda YES Dana Neuts and
Briahna Murray
20 MIN.
8. Stoplight Traffic Safety Camera
Ordinance
YES Rafael Padilla,Todd
Durham and Ifeoma
Canfield
05 MIN.
9. Stoplight Traffice Safety Camera
Contract
YES Rafael Padilla, Todd
Durham and Ifeoma
Canfield
05 MIN.
10. Highline Water District Franchise YES Derek Matheson 05 MIN.
11. Midway Sewer District Franchise YES Derek Matheson 05 MIN.
12. Consolidating Budget Adjustment
Ordinance for Adjustments
between 7/1/18 and 11/14/18
YES Barbara Lopez 05 MIN.
13. Adjournment Chair 01 MIN.
Page 1 of 5
Approved
Operations Committee
CC Ops Special Meeting
Minutes
November 6, 2018
Date: November 6, 2018
Time: 3:30 PM
Place: Chambers East
Attending: Les Thomas, Committee Chair
Bill Boyce, Councilmember
Dennis Higgins, Councilmember
Toni Troutner, Councilmember
Agenda:
1. Call to Order 3:30 PM
2. Roll Call
Attendee Name Title Status Arrived
Les Thomas Committee Chair Excused
Bill Boyce Councilmember Present
Dennis Higgins Councilmember Present
Toni Troutner Councilmember Present
3. Changes to the Agenda
4. Approval of Minutes dated October 16, 2018
MOTION: Move to approve the Minutes dated October 16, 2018
RESULT: APPROVED [UNANIMOUS]
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
5. Approval of Check Summary Report Dated 10/1/2018 to 10/15/2018
MOTION: Move to approve the check summary report dated
10/1/2018 to 10/15/2018.
RESULT: APPROVED [UNANIMOUS]
MOVER: Dennis Higgins, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
6. Interagency Agreement to Fund DUI Court
MOTION: Move to recommend council authorize the Mayor to sign an
interagency agreement to fund a DUI court, signed by the Presiding
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Operations Committee CC Ops Special Meeting
Minutes
November 6, 2018
Kent, Washington
Page 2 of 5
Judge, between the Washington Traffic Safety Commission and Kent
Municipal Court, subject to final contract terms and conditions
acceptable to the city attorney and Kent Municipal Court.
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS]
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
7. Public Hearing on Regional Fire Authority CIP Update
Chair Boyce opened the public hearing and Long Range Planning Manager
Hayley Bonsteel gave a brief staff presentation regarding the ordinance to
update the Regional Fire Authority capital improvement plan and fire impact
fees. Councilmember Higgins moved to stay the hearing until later in the
meeting when Captain Larry Rabel arrives. Councilmember Troutner
seconded the motion and the motion passed. (The committee moved on to
item nine on the agenda before returning to the public hearing.)
Councilmember Higgins moved to re-open the hearing, Councilmember
Troutner seconded the motion and the motion passed. Captain Rabel
presented additional information regarding updates to the RFA capital
improvement plan and fire impact fees. Rabel recognized three members of
the Citizen's Advisory Committee who were present. Following the
presentation Chair Boyce invited the public to make public comment. There
were no public comments. Councilmember Troutner moved to close the
public hearing, Councilmember Higgins seconded the motion and the motion
was approved.
RESULT: APPROVED [UNANIMOUS]
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
8. Ordinance to update Regional Fire Authority Capital Improvement
Plan & Fire Impact Fees
MOTION: Recommend City Council adopt an ordinance updating the
Capital Facilities Element of the Kent Comprehensive Plan and to
incorporate the Puget Sound Regional Fire Authority’s Capital
Improvement Plan with updated Fire Impact Fees.
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Operations Committee CC Ops Special Meeting
Minutes
November 6, 2018
Kent, Washington
Page 3 of 5
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS]
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
9. Ordinances Amending Comp Plan & City Code to Incorporate School
District Capital Facilities Plans and Update School Impact Fees
Long Range Planning Manager Hayley Bonsteel gave a staff presentation
regarding the annual update to the comprehensive plan to incorporate the
capital facilities plans with updated school impact fees for the Kent, Federal
Way, Auburn and Highline school districts. Councilmember Higgins asked if,
apart from Federal Way, any districts are close to the maximum fee and the
answer is no. A representative from the Auburn School District spoke briefly.
He addressed the fact that their fees have gone up substantially. He pointed
out that they had taken a huge drop last year and the increase this year
brings them close to what the fees were in 2016.
MOTION: Recommend to the City Council adoption of two ordinances
updating the Capital Facilities Element of the Kent Comprehensive
Plan and Chapter 12.13 Kent City Code to incorporate the 2018/19 -
2023/24 Capital Facilities Plans of the Kent, Federal Way, Auburn
and Highline School Districts with updated School Impact Fees.
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS]
MOVER: Dennis Higgins, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
10. Utility Tax Sunset & Allocation Ordinance - Recommend
Finance Director Aaron BeMiller provided a presentation regarding removing
the sunset of 15.38% of the internal utility tax following repayment of an
internal loan as part of the strategy to deal with the fiscal cliff. Those funds
would shift into the general fund for ongoing operations after the debt is
retired in 2021.
MOTION: Recommend Council adopt an ordinance relating to internal
utility taxes amending Kent City Code 3.18.020 to remove the sunset
of 15.38% of the internal utility tax collected, and to reallocate the
funds generated from the 15.38% internal utility tax to the general
fund once the other capital projects fund debt is retired.
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Operations Committee CC Ops Special Meeting
Minutes
November 6, 2018
Kent, Washington
Page 4 of 5
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS]
MOVER: Dennis Higgins, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
11. B & O Tax Amendment Ordinance - Recommend
Finance Director BeMiller presented an updated copy of the B & O tax
amendment ordinance and provided a summary of the ordinance in response
to the "fiscal cliff" that the City has been planning for. Councilmember
Higgins asked if the state's shared revenues are altered or if the state
municipal tax structure was overhauled, if there is anything that would
preclude a future council from making changes to this ordinance. Director
BeMiller indicated that any council in the future can come back and re-amend
or make changes to this ordinance.
MOTION: Recommend Council adopt an ordinance relating to
business and occupation taxes amending Kent City Code 3.28.050 to
increase gross receipt and square footage taxes starting in 2020, and
amending section 3.28.130 to clarify the allocation of revenues
derived from business and occupation taxes.
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS]
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
12. Amend Capital Facilities Element of Comprehensive Plan for 2019-
2024 Capital Improvement Plan
Finance Director BeMiller presented an ordinance to amend the Capital
Facilities Element of the Comprehensive Plan to reflect the updated 2019-
2024 Comprehensive Plan.
MOTION: Recommend Council approve the ordinance amending the
Capital Facilities Element of the Kent Comprehensive Plan to reflect
the 2019-2024 Capital Improvement Plan.
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS]
MOVER: Dennis Higgins, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
13. Property Tax Levy Ordinance - Recommend
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Operations Committee CC Ops Special Meeting
Minutes
November 6, 2018
Kent, Washington
Page 5 of 5
Finance Director BeMiller presented an ordinance to levy a property tax
increase of 1.0% on property, new construction and adjustments over the
prior year for the year 2019.
MOTION: Recommend Council adopt the property tax levy ordinance
for the year 2019 of the 2019-2020 biennial budget.
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS]
MOVER: Dennis Higgins, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
14. 2019-2020 Budget Adoption Ordinance - Recommend
Finance Director BeMiller presented an ordinance to adopt the final 2019-
2020 biennial budget. The total gross expenditure budget for 2019 is
$354,056,300 and 2020 is $322,797,600. Councilmember Troutner
commented on the budget process and her appreciation of the opportunities
to ask questions along the way. Councilmember Higgins echoed that and
commended the Mayor and administration for the community outreach and
communication during this process.
MOTION: Recommend Council adopt the 2019-2020 Budget
Ordinance.
RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS]
MOVER: Toni Troutner, Councilmember
SECONDER: Dennis Higgins, Councilmember
AYES: Boyce, Higgins, Troutner
EXCUSED: Thomas
15. Adjournment 4:28 AM
Cathie Everett
Committee Secretary
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: November 20, 2018
TO: Operations Committee
SUBJECT: Approval of Check Summary
MOTION: Move to approve check summary report dated October 16, 2018
to October 31, 2018.
SUPPORTS STRATEGIC PLAN GOAL:
Sustainable Services
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: November 20, 2018
TO: Operations Committee
SUBJECT: Emergency Management Performance Grant
MOTION: Recommend council authorize the Mayor to accept and sign the
Emergency Management Performance Grant from the Washington Military
Department/Emergency Management Division and the U.S. Department of
Homeland Security, in the amount of $71,321, sign all necessary grant documents
and authorize expenditure of the funds in accordance with final grant terms and
conditions acceptable to the city attorney.
SUMMARY: The Kent Office of Emergency Management applied for and received a
grant in the amount of $71,321 from the Washington Military
Department/Emergency Management Division and the U.S. Department of
Homeland Security.
The purpose of the grant is to assist with the enhancement, sustainment and
improvement of state, local, and tribal emergency management programs.
Activities conducted using grant funds should relate directly to the five elements of
emergency management: prevention, protection, response, recovery, and
mitigation.
The program areas that will benefit from these grant funds include: Public
Education/Community Training, Community Emergency Response Team, Kent
Communication Support Team, Crisis Communications, Public Education and
Information, Community Events, Operational Communication,
Exercises/Testing/Training, School Exercises/Trainings/Professional Development,
Planning, Upgrades/Improvements, Public Information and Warning, Hazard
Mitigation, Marketing and Information Support, and the Local Emergency Planning
Committee.
BUDGET IMPACT: No Impact, this is a pass through grant. Incurred costs
will be paid by the Puget Sound Regional Fire Authority operating budget
and reimbursed from the state.
SUPPORTS STRATEGIC PLAN GOAL:
Thriving City, Evolving Infrastructure
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ATTACHMENTS:
1. Emergency Management Performance Grant Agreement (PDF)
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DHS-FEMA-EMPG-FY 18 Page 1 of 37 City of Kent EMD, E19-150
Washington State Military Department
EMERGENCY MANAGEMENT PERFORMANCE GRANT AGREEMENT FACE SHEET
1. Subrecipient Name and Address:
City of Kent
Emergency Management Division (EMD)
24611 116th Ave SE
Kent, WA 98030-4939
2. Grant Agreement Amount:
$71,321
3. Grant Agreement Number:
E19-150
4. Subrecipient Contact, phone/email:
Robert Goehring, (253) 856-5262
rgoehring@kentwa.gov
5. Grant Agreement Start Date:
June 1, 2018
6. Grant Agreement End Date:
August 31, 2019
7. Department Contact, phone/email:
Gary Stumph, (253) 512-7483
gary.stumph@mil.wa.gov
8. Data Universal Numbering System (DUNS):
020253613
9. UBI # (state revenue):
173-000-002
10. Funding Authority:
Washington State Military Department (the “DEPARTMENT”) and the U.S. Department of Homeland Security (DHS)
11. Federal Funding Identification #:
EMS-2018-EP-00004-S01
12. Federal Award Date:
08/17/2018
13. Catalog of Federal Domestic Assistance (CFDA) # & Title:
97.042 (18EMPG)
14. Total Federal Amount #:
$7,345,832
15. Program Index # & OBJ/SUB-OBJ:
783PT NZ
16. Service Districts:
(BY LEGISLATIVE DISTRICT): 11, 33, 47
(BY CONGRESSIONAL DISTRICT): 8, 9
17. Service Area by County(ies):
King
18. Women/Minority-Owned, State
Certified?: ☒ N/A ☐ NO
☐ YES, OMWBE #_________
19. Agreement Classification
☐ Personal Services ☐ Client Services ☒ Public/Local Gov’t
☐ Research/Development ☐ A/E ☐ Other_______
20. Contract Type (check all that apply):
☐ Contract ☒ Grant ☒ Agreement
☐ Intergovernmental (RCW 39.34) ☐ Interagency
21. Subrecipient Selection Process:
☒ “To all who apply & qualify” ☐ Competitive Bidding
☐ Sole Source ☐ A/E RCW ☐ N/A
☐ Filed w/OFM? ☐ Advertised? ☐ YES ☐ NO
22. Subrecipient Type (check all that apply)
☐ Private Organization/Individual ☐ For-Profit
☒ Public Organization/Jurisdiction ☐ Non-Profit
☐ CONTRACTOR ☒ SUBRECIPIENT ☐ OTHER
23. PURPOSE & DESCRIPTION:
The purpose of the Fiscal Year (FY) 2018 Emergency Management Performance Grant (18EMPG) is to provide U.S. Department
of Homeland Security (DHS)/Federal Emergency Management Agency (FEMA) Federal award funds to local jurisdictions and
tribes with emergenc y management programs to assist in preparing for all hazards through sustainment and enhancement of
those programs as described in the Work Plan.
The Department is the Recipient and Pass-through Entity of the 18EMPG DHS Award Letter for Grant No. EMS-2018-EP-00004-
S01, which is incorporated in and attached hereto as Attachment #1 and has made a subaward of Federal award funds to the
Subrecipient pursuant to this Agreement. The Subrecipient is accountable to the Department for use of Federal award funds
provided under this Agreement and the associated matching funds.
IN WITNESS WHEREOF, the Department and Subrecipient acknowledge and accept the terms of this Agreement, including all referenced
Exhibits and Attachments which are hereby incorporated in an d made a part hereof, and have executed this Agreement as of the date below.
This Agreement Face Sheet; Special Terms & Conditions (Exhibit A); General Terms and Conditions (Exhibit B); Work Plan (Exhib it C);
Timeline (Exhibit D); Budget (Exhibit E); and all other documents, exhibits and attachments expressly referenced and incorporated herein
contain all the terms and conditions agreed upon by the parties and govern the rights and obligations of the parties to this Agreement. No
other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties
hereto.
In the event of an inconsistency in this Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving
precedence in the following order:
1. Applicable Federal and State Statutes and Regulations 4. Special Terms and Conditions
2. DHS/FEMA Award and program documents 5. General Terms and Conditions, and,
3. Work Plan 6. Other provisions of the Agreement incorporated by reference
WHEREAS, the parties hereto have executed this Agreement on the day and year last specified below.
FOR THE DEPARTMENT:
_____________________________________________
Signature Date
Regan Anne Hesse, Chief Financial Officer
Washington State Military Department
BOILERPLATE APPROVED AS TO FORM:
Brian E. Buchholz 8/21/2018
Sr. Assistant Attorney General
FOR THE SUBRECIPIENT:
_____________________________________________
Signature Date
Dana Ralph, Mayor, City of Kent
_____________________________________________
Signature Date
Matthew Morris, Fire Chief, Puget Sound Regional Fire Authority
APPROVED AS TO FORM (if applicable):
_____________________________________________
Applicant’s Legal Review Date
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DHS-FEMA-EMPG-FY 18 Page 2 of 37 City of Kent EMD, E19-150
Exhibit A
SPECIAL TERMS AND CONDITIONS
ARTICLE I. KEY PERSONNEL
The individuals listed below shall be considered key personnel for point of contact under this Agreement. Any
substitution of key personnel by either party shall be made by written notification to the current key personnel.
SUBRECIPIENT DEPARTMENT
Name Robert Goehring Name Gary Stumph
Title City Auditor Title Program Coordinator
E-Mail rgoehring@kentwa.gov E-Mail gary.stumph@mil.wa.gov
Phone 253-856-5262 Phone 253-512-7483
Name Matthew Morris Name Tirzah Kincheloe
Title Fire Chief Title Program Manager
E-Mail mlmorris@pugetsoundfire.org E-Mail tirzah.kincheloe@mil.wa.gov
Phone 253-856-4311 Phone 253-512-7456
Name Jennifer Keizer Name
Title EM Program Coordinator Title
E-Mail jdkeizer@pugetsoundfire.org E-Mail
Phone 253-856-4342 Phone
Name John Madson Name
Title Division Chief - Emergency Management Title
E-Mail jmadson@pugetsoundfire.org E-Mail
Phone 253-856-4316 Phone
Name Joe Root Name
Title Deputy Emergency Manager Title
E-Mail jroot@pugetsoundfire.org E-Mail
Phone 253-856-4345 Phone
ARTICLE II. ADMINISTRATIVE AND/OR FINANCIAL REQUIREMENTS
The Subrecipient shall comply with all applicable state and federal laws, rules, regulations, requirements and
program guidance identified or referenced in this Agreement and the informational documents published by
DHS/FEMA applicable to the 18EMPG Program, including, but not limited to, all criteria, restrictions, and
requirements of The U.S. Department of Homeland Security (DHS) Notice of Funding Opportunity (NOFO) Fiscal
Year (FY) 2018 Emergency Management Performance Grant (EMPG) document, the DHS Award Letter for
Grant No. EMS-2018-EP-00004-S01, and the federal regulations commonly applicable to DHS/FEMA grants, all
of which are incorporated herein by reference. The DHS Award Letter is incorporated in this Agreement as
Attachment 1.
The Subrecipient acknowledges that since this Agreement involves federal award funding, the period of
performance described herein may begin prior to the availability of appropriated federal funds. The Subrecipient
agrees that it will not hold the Department, the State of Washington, or the United States liable for any damages,
claim for reimbursement, or any type of payment whatsoever for services performed under this Agreement prior
to distribution of appropriated federal funds, or if federal funds are not appropriated or in a particular amount.
A. STATE AND FEDERAL REQUIREMENTS FOR DHS/FEMA PREPAREDNESS GRANTS:
The following requirements apply to all DHS/FEMA Preparedness Grants administered by the
Department.
1. SUBAWARDS & CONTRACTS BY SUBRECIPIENT
a. The Subrecipient must make a case-by-case determination whether each agreement it
makes for the disbursement of 18EMPG funds received under this Agreement casts the
party receiving the funds in the role of a Subrecipient or contractor in accordance with 2
CFR 200.330.
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DHS-FEMA-EMPG-FY 18 Page 3 of 37 City of Kent EMD, E19-150
b. If the Subrecipient becomes a pass-through entity by making a subaward to a non-federal
entity as its Subrecipient:
i. The Subrecipient must comply with all federal laws and regulations applicable to
pass-through entities of 18EMPG funds, including, but not limited to, those
contained in 2 CFR 200.
ii. The Subrecipient shall require its subrecipient to comply with all applicable
state and federal laws, rules, regulations, requirements, and program guidance
identified or referenced in this Agreement and the informational documents
published by DHS/FEMA applicable to the 18EMPG Program, including, but
not limited to, all criteria, restrictions, and requirements of The U.S. Department
of Homeland Security (DHS) Notice of Funding Opportunity (NOFO) Fiscal
Year 2018 Emergency Management Performance Grant (EMPG) document,
the DHS Award Letter for Grant No. EMS-2018-EP-00004-S01 in Attachment
1, and the federal regulations commonly applicable to DHS/FEMA grants.
iii. The Subrecipient shall be responsible to the Department for ensuring that all
18EMPG federal award funds, and associated matching funds, provided to its
subrecipients are used in accordance with applicable federal and state statutes
and regulations, and the terms and conditions of the federal award set forth in
Attachment 1 of this Agreement.
2. BUDGET & REIMBURSEMENT
a. Within the total Grant Agreement Amount, travel, sub-contracts, salaries, benefits,
printing, equipment, and other goods and services or other budget categories will be
reimbursed on an actual cost basis unless otherwise provided in this Agreement.
b. The maximum amount of all reimbursement requests permitted to be submitted under this
Agreement, including the final reimbursement request, is limited to and shall not exceed
the total Grant Agreement Amount.
c. If the Subrecipient chooses to include indirect costs within the Budget (Exhibit E), an
indirect cost rate agreement negotiated between the federal cognizant agency and the
Subrecipient establishing approved indirect cost rate(s) as described in 2 CFR 200.414
and Appendix VII to 2 CFR 200 must be submitted to the Department. However, under 2
CFR 200.414(f), if the Subrecipient has never received a negotiated indirect cost rate
agreement establishing federally negotiated rate(s), the Subrecipient may negotiate a rate
with the Department or charge a de minimis rate of 10% of modified total direct costs. The
Subrecipient’s actual indirect cost rate may vary from the approved rate but must not
exceed the approved negotiated indirect cost rate percentage for the time period of the
expenditures. If a Subrecipient chooses to charge the 10% de minimis rate, but did not
charge indirect costs to previous subawards, a request for approval to charge indirect
costs must be submitted to the Department for approval with an explanation for the
change.
d. For travel costs, the Subrecipient shall comply with 2 CFR 200.474 and should consult
their internal policies, state rates set pursuant to RCW 43.03.050 and RCW 43.03.060 as
now existing or amended, and federal maximum rates set forth at http://www.gsa.gov, and
follow the most restrictive. If travel costs exceed set state or federal limits, travel costs
shall not be reimbursed without written approval by Department Key Personnel.
e. Reimbursement requests will include a properly completed State A-19 Invoice Form and
Reimbursement Spreadsheet (in the format provided by the Department) detailing the
expenditures for which reimbursement is sought. Reimbursement requests must be
submitted to Reimbursements@mil.wa.gov no later than the due dates listed within the
Timeline (Exhibit D).
Reimbursement request totals should be commensurate to the time spent processing by
the Subrecipient and the Department. If the reimbursement request isn’t substantial
enough, the Subrecipient should request prior written approval from Department Key
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Personnel to waive the due date in the Timeline (Exhibit D) and once approved submit
those costs on the next scheduled reimbursement due date contained in the Timeline.
f. Receipts and/or backup documentation for any approved items that are authorized under
this Agreement must be maintained by the Subrecipient consistent with record retention
requirements of this Agreement and be made available upon request by the Department
and auditors.
g. Any request for extension of a due date in the Timeline (Exhibit D) will be treated as a
request for Amendment of the Agreement. This request must be submitted to the
Department Key Personnel sufficiently in advance of the due date to provide adequate
time for Department review and consideration, and may be granted or denied within the
Department’s sole discretion.
h. All work under this Agreement must end on or before the Grant Agreement End Date, and
the final reimbursement request must be submitted to the Department within 45 days after
the Grant Agreement End Date, except as otherwise authorized by written amendment of
this Agreement and issued by the Department.
i. No costs for purchases of equipment/supplies will be reimbursed until the related
equipment/supplies have been received by the Subrecipient, its contractor, or any non-
federal entity to which the Subrecipient makes a subaward and is invoiced by the vendor.
j. Failure to submit timely, accurate, and complete reports and reimbursement requests as
required by this Agreement (including, but not limited to, those reports in the Timeline) will
prohibit the Subrecipient from being reimbursed until such complete reports and
reimbursement requests are submitted and the Department has had reasonable time to
conduct its review.
k. Final reimbursement requests will not be approved for payment until the Subrecipient is
current with all reporting requirements contained in this Agreement.
l. A written amendment will be required if the Subrecipient expects cumulative transfers to
budget categories, as identified in the Budget (Exhibit E), to exceed 10% of the Grant
Agreement Amount. Any changes to budget category totals not in compliance with this
paragraph will not be reimbursed without approval from the Department.
m. Subrecipients shall only use federal award funds under this Agreement to supplement
existing funds and will not use them to replace (supplant) non-federal funds that have been
budgeted for the same purpose. The Subrecipient may be required to demonstrate and
document that a reduction in non-federal resources occurred for reasons other than the
receipt or expected receipt of federal funds.
3. REPORTING
a. With each reimbursement request, the Subrecipient shall report how the expenditures, for
which reimbursement is sought, relate to the Work Plan (Exhibit C) activities in the format
provided by the Department.
b. With the final reimbursement request, the Subrecipient shall submit to the Department Key
Personnel a final report describing all completed activities under this Agreement.
c. In conjunction with the final report, the Subrecipient shall submit a separate report detailing
how the EMPG Training requirements were met for all personnel funded by federal or
matching funds under this Agreement.
d. The Subrecipient shall comply with the Federal Funding Accountability and Transparency
Act (FFATA) and related OMB Guidance consistent with Public Law 109-282 as amended
by section 6202(a) of Public Law 110-252 (see 31 U.S.C. 6101 note) and complete and
return to the Department the FFATA Form located at http://mil.wa.gov/emergency-
management-division/grants/requiredgrantforms, which is incorporated by reference and
made a part of this Agreement.
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e. The Subrecipient shall participate in the State’s annual capabilities assessment for the
Stakeholder Preparedness Review (SPR), formerly known as the State Preparedness
Report.
4. EQUIPMENT AND SUPPLY MANAGEMENT
a. The Subrecipient and any non-federal entity to which the Subrecipient makes a subaward
shall comply with 2 CFR 200.318 – 200.326 when procuring any equipment or supplies
under this Agreement, 2 CFR 200.313 for management of equipment, and 2 CFR 200.314
for management of supplies, to include, but not limited to:
i. Upon successful completion of the terms of this Agreement, all equipment and
supplies purchased through this Agreement will be owned by the Subrecipient,
or a recognized non-federal entity to which the Subrecipient has made a
subaward, for which a contract, Subrecipient grant agreement, or other means
of legal transfer of ownership is in place.
ii. All equipment, and supplies as applicable, purchased under this Agreement will
be recorded and maintained in the Subrecipient’s inventory system.
iii. Inventory system records shall include:
A. description of the property
B. manufacturer’s serial number, model number, or other identification
number
C. funding source for the equipment, including the Federal Award
Identification Number (FAIN)
D. Catalog of Federal Domestic Assistance (CFDA) number
E. who holds the title
F. acquisition date
G. cost of the equipment and the percentage of federal participation in the cost
H. location, use, and condition of the equipment at the date the information
was reported
I. disposition data including the date of disposal and sale price of the
property.
iv. The Subrecipient shall take a physical inventory of the equipment, and supplies
as applicable, and reconcile the results with the property records at least once
every two years. Any differences between quantities determined by the physical
inspection and those shown in the records shall be investigated by the
Subrecipient to determine the cause of the difference. The Subrecipient shall, in
connection with the inventory, verify the existence, current utilization, and
continued need for the equipment.
v. The Subrecipient shall be responsible for any and all operational and
maintenance expenses and for the safe operation of their equipment and supplies
including all questions of liability. The Subrecipient shall develop appropriate
maintenance schedules and procedures to ensure the equipment, and supplies
as applicable, are well maintained and kept in good operating condition.
vi. The Subrecipient shall develop a control system to ensure adequate safeguards
to prevent loss, damage, and theft of the property. Any loss, damage, or theft
shall be investigated, and a report generated and sent to the Department.
vii. The Subrecipient must obtain and maintain all necessary certifications and
licenses for the equipment.
viii. If the Subrecipient is authorized or required to sell the property, proper sales
procedures must be established and followed to ensure the highest possible
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DHS-FEMA-EMPG-FY 18 Page 6 of 37 City of Kent EMD, E19-150
return. For disposition, if upon termination or at the Grant Agreement End Date,
when original or replacement supplies or equipment acquired under a federal
award are no longer needed for the original project or program or for other
activities currently or previously supported by a federal awarding agency, the
Subrecipient must comply with the following procedures:
A. For Supplies: If there is a residual inventory of unused supplies exceeding
$5,000 in total aggregate value upon termination or completion of the
project or program and the supplies are not needed for any other federal
award, the Subrecipient must retain the supplies for use on other activities
or sell them, but must, in either case, compensate the federal government
for its share. The amount of compensation must be computed in the same
manner as for equipment.
B. For Equipment:
1) Items with a current per-unit fair-market value of $5,000 or less may
be retained, sold, or otherwise disposed of with no further obligation
to the federal awarding agency.
2) Items with a current per-unit fair-market value in excess of $5,000
may be retained or sold. The Subrecipient shall compensate the
federal awarding agency in accordance with the requirements of 2
CFR 200.313 (e) (2).
ix. Records for equipment shall be retained by the Subrecipient for a period of six
years from the date of the disposition, replacement, or transfer. If any litigation,
claim, or audit is started before the expiration of the six-year period, the records
shall be retained by the Subrecipient until all litigation, claims, or audit findings
involving the records have been resolved.
b. The Subrecipient shall comply with the Department’s Purchase Review Process, which is
incorporated by reference and made part of this Agreement. No reimbursement will be
provided unless the appropriate approval has been received.
c. Allowable equipment categories for the EMPG Program are listed on the Authorized
Equipment List (AEL) located on the FEMA website at http://www.fema.gov/authorized-
equipment-list. It is important that the Subrecipient and any non-federal entity to which
the Subrecipient makes a subaward regard the AEL as an authorized purchasing list
identifying items allowed under the specific grant program and includes items that may not
be categorized as equipment according to the federal, state, local, and tribal definitions of
equipment. The Subrecipient is solely responsible for ensuring and documenting
purchased items under this Agreement are authorized as allowed items by the AEL at time
of purchase.
If the item is not identified on the AEL as allowable under EMPG, the Subrecipient must
contact the Department Key Personnel for assistance in seeking FEMA approval prior to
acquisition.
d. Unless expressly provided otherwise, all equipment must meet all mandatory regulatory
and/or DHS/FEMA adopted standards to be eligible for purchase using federal award
funds.
e. The Subrecipient must pass on equipment and supply management requirements that
meet or exceed the requirements outlined above to any non-federal entity to which the
Subrecipient makes a subaward under this Agreement.
5. ENVIRONMENTAL AND HISTORICAL PRESERVATION
a. The Subrecipient shall ensure full compliance with the DHS/FEMA Environmental
Planning and Historic Preservation (EHP) program. EHP program information can be
found at https://www.fema.gov/media-library/assets/documents/85376 all of which are
incorporated in and made a part of this Agreement.
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DHS-FEMA-EMPG-FY 18 Page 7 of 37 City of Kent EMD, E19-150
b. Projects that have historical impacts or the potential to impact the environment, including,
but not limited to, construction of communication towers; modification or renovation of
existing buildings, structures and facilities; or new construction including replacement of
facilities, must participate in the DHS/FEMA EHP review process prior to initiation.
Modification of existing buildings, including minimally invasive improvements such as
attaching monitors to interior walls, and training or exercises occurring outside in areas
not considered previously disturbed, also require a DHS/FEMA EHP review before project
initiation.
c. The EHP review process involves the submission of a detailed project description that
includes the entire scope of work, including any alternatives that may be under
consideration, along with supporting documentation so FEMA may determine whether the
proposed project has the potential to impact environmental resources and/or historic
properties.
d. The Subrecipient agrees that to receive any federal preparedness funding, all EHP
compliance requirements outlined in applicable guidance must be met. The EHP review
process must be completed and approval received by the Subrecipient before any
work is started for which reimbursement will be later requested. Expenditures for projects
started before completion of the EHP review process and receipt of approval by the
Subrecipient will not be reimbursed.
6. PROCUREMENT
a. The Subrecipient shall comply with all procurement requirements of 2 CFR Part 200.318
through 200.326 and as specified in the General Terms and Conditions, Exhibit B, A.10.
b. For all sole source contracts expected to exceed $150,000, the Subrecipient must submit
to the Department for pre-procurement review and approval the procurement documents,
such as requests for proposals, invitations for bids and independent cost estimates. This
requirement must be passed on to any non-federal entity to which the Subrecipient makes
a subaward, at which point the Subrecipient will be responsible for reviewing and
approving sole source justifications of any non-federal entity to which the Subrecipient
makes a subaward.
7. SUBRECIPIENT MONITORING
a. The Department will monitor the activities of the Subrecipient from award to closeout. The
goal of the Department’s monitoring activities will be to ensure that agencies receiving
federal pass-through funds are in compliance with this Agreement, federal and state audit
requirements, federal grant guidance, and applicable federal and state financial
regulations, as well as 2 CFR Part 200 Subpart F.
b. To document compliance with 2 CFR Part 200 Subpart F requirements, the Subrecipient
shall complete and return to the Department the “2 CFR Part 200 Subpart F Audit
Certification Form” located at http://mil.wa.gov/emergency-management-
division/grants/requiredgrantforms with the signed Agreement and each fiscal year
thereafter until the Agreement is closed, which is incorporated by reference and made a
part of this Agreement.
c. Monitoring activities may include, but are not limited to:
i. review of financial and performance reports
ii. monitoring and documenting the completion of Agreement deliverables
iii. documentation of phone calls, meetings, e-mails and correspondence
iv. review of reimbursement requests and supporting documentation to ensure
allowability and consistency with Agreement work plan, budget, and federal
requirements
v. observation and documentation of Agreement related activities, such as exercises,
training, funded events, and equipment demonstrations
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DHS-FEMA-EMPG-FY 18 Page 8 of 37 City of Kent EMD, E19-150
vi. on-site visits to review equipment records and inventories, to verify source
documentation for reimbursement requests and performance reports, and to verify
completion of deliverables.
d. The Subrecipient is required to meet or exceed the monitoring activities, as outlined
above, for any non-federal entity to which the Subrecipient makes a subaward as a pass-
through entity under this Agreement.
e. Compliance will be monitored throughout the performance period to assess risk.
Concerns will be addressed through a Corrective Action Plan.
8. LIMITED ENGLISH PROFIENCY (CIVIL RIGHTS ACT OF 1964 TITLE VI)
a. The Subrecipient must comply with the Title VI of the Civil Rights Act of 1964 (Title VI)
prohibition against discrimination on the basis of national origin, which requires that
Subrecipients of federal financial assistance take reasonable steps to provide meaningful
access to persons with limited English proficiency (LEP) to their programs and services.
Providing meaningful access for persons with LEP may entail providing language
assistance services, including oral interpretation and written translation. Executive Order
13166, Improving Access to Services for Persons with Limited English Proficiency (August
11, 2000), requires federal agencies to issue guidance to recipients, assisting such
organizations and entities in understanding their language access obligations. DHS
published the required recipient guidance in April 2011, DHS Guidance to Federal
Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 76 Fed. Reg. 21755-21768,
(April 18, 2011). The Guidance provides helpful information such as how a recipient can
determine the extent of its obligation to provide language services, selecting language
services, and elements of an effective plan on language assistance for LEP persons. For
additional assistance and information regarding language access obligations, please refer
to the DHS Recipient Guidance at https://www.dhs.gov/guidance-published-help-
department-supported-organizations-provide-meaningful-access-people-limited and
additional resources on http://www.lep.gov.
9. NIMS COMPLIANCE
a. The National Incident Management System (NIMS) identifies concepts and principles that
answer how to manage emergencies from preparedness to recovery regardless of their
cause, size, location, or complexity. NIMS provides a consistent, nationwide approach
and vocabulary for multiple agencies or jurisdictions to work together to build, sustain, and
deliver the core capabilities needed to achieve a secure and resilient nation.
b. Consistent implementation of NIMS provides a solid foundation across jurisdictions and
disciplines to ensure effective and integrated preparedness, planning, and response.
NIMS empowers the components of the National Preparedness System, a requirement of
Presidential Policy Directive 8, to guide activities within the public and private sector and
describes the planning, organizational activities, equipping, training and exercising
needed to build and sustain the core capabilities in support of the National Preparedness
Goal.
c. In order to receive FY 2018 federal preparedness funding, to include EMPG, the
Subrecipient will ensure all NIMS objectives have been initiated and/or are in progress
toward completion. NIMS Implementation Objectives are located at
https://www.fema.gov/media-library/assets/documents/130743.
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DHS-FEMA-EMPG-FY 18 Page 9 of 37 City of Kent EMD, E19-150
B. EMPG PROGRAM SPECIFIC REQUIREMENTS
1. The Department receives EMPG Program funding from DHS/FEMA, which is provided to assist
state, local, and tribal governments to enhance and sustain all-hazards emergency management
capabilities as authorized by Robert T. Stafford Disaster Relief and Emergency Assistance Act,
as amended (42 U.S.C. §§ 5121 et seq.) and Section 662 of the Post Katrina Emergency
Management Act (6 U.S.C. § 762).
2. A portion of the 18EMPG is passed through to local jurisdictions and tribes with emergency
management programs to supplement their local/tribal operating budgets to help sustain and
enhance emergency management capabilities pursuant to Washington Administrative Code
(WAC) 118-09.
3. The Subrecipient shall use the EMPG funds authorized under this Agreement only to perform
tasks as described in the Work Plan of the Subrecipient’s application for funding, as approved by
the Department and incorporated into this Agreement.
4. Funding may not be used to replace or supplant existing local or tribal government funding of
emergency management programs.
5. The Subrecipient shall provide a fifty percent match of $71,321 of non-federal origin. To meet
matching requirements, the Subrecipient’s cash matching contributions must be considered
reasonable, allowable, allocable, and necessary under the grant program and must comply with
all Federal requirements and regulations, including, but not limited to, 2 CFR Part 200. An
appropriate mechanism must be in place to capture, track, and document matching funds. In the
final report, the Subrecipient shall identify how the match was met and documented.
6. All personnel funded in any part through federal award or matching funds under this Agreement
shall:
a. Complete and record proof of completion for the NIMS training requirements outlined in
the NIMS Training Program located at
https://www.fema.gov/pdf/emergency/nims/nims_training_program.pdf (to include ICS-
100, ICS-200, IS-700, and IS-800 for most personnel). The Subrecipient will report
training course completion by individual personnel along with the final report; and
b. Complete either (1) the FEMA Professional Development Series IS-120, IS-230, IS-235,
IS-240, IS-241, IS-242, and IS-244, or (2) the National Emergency Management Basic
Academy. The Subrecipient will report training course completion by individual personnel
along with the final report.
C. DHS TERMS AND CONDITIONS
As a Subrecipient of 18EMPG program funding, the Subrecipient shall comply with all applicable DHS
terms and conditions of the 18EMPG Award Letter and its incorporated documents for DHS Grant No.
EMS-2018-EP-00004-S01, which are incorporated and made a part of this Agreement as Attachment 1.
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Exhibit B
Washington State Military Department
GENERAL TERMS AND CONDITIONS
Department of Homeland Security (DHS)/
Federal Emergency Management Agency (FEMA)
Grants
A.1 DEFINITIONS
As used throughout this Agreement, the terms will have the same meaning as defined in 2 CFR 200
Subpart A (which is incorporated herein by reference), except as otherwise set forth below:
a. “Agreement” means this Grant Agreement.
b. “Department” means the Washington State Military Department, as a state agency, any division,
section, office, unit or other entity of the Department, or any of the officers or other officials lawfully
representing that Department. The Department is a recipient of a federal award directly from a
federal awarding agency and is the pass-through entity making a subaward to a Subrecipient
under this Agreement.
c. “Subrecipient” when capitalized is primarily used throughout this Agreement in reference to the
non-federal entity identified on the Face Sheet of this Agreement that has received a subaward
from the Department. However, the definition of “Subrecipient” is the same as in 2 CFR 200.93
for all other purposes.
d. “Monitoring Activities” means all administrative, financial, or other review activities that are
conducted to ensure compliance with all state and federal laws, rules, regulations, authorities and
policies.
e. “Investment” means the grant application submitted by the Subrecipient describing the project(s)
for which federal funding is sought and provided under this this Agreement. Such grant
application is hereby incorporated into this Agreement by reference.
A.2 ADVANCE PAYMENTS PROHIBITED
The Department shall make no payments in advance or in anticipation of goods or services to be provided
under this Agreement. Subrecipient shall not invoice the Department in advance of delivery and invoicing
of such goods or services.
A.3 AMENDMENTS AND MODIFICATIONS
The Subrecipient or the Department may request, in writing, an amendment or modification of this
Agreement. However, such amendment or modification shall not be binding, take effect or be
incorporated herein until made in writing and signed by the authorized representatives of the Department
and the Subrecipient. No other understandings or agreements, written or oral, shall be binding on the
parties.
A.4 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, 42 U.S.C. 12101 ET
SEQ. AND ITS IMPLEMENTING REGULATIONS ALSO REFERRED TO AS THE “ADA” 28 CFR Part
35.
The Subrecipient must comply with the ADA, which provides comprehensive civil rights protection to
individuals with disabilities in the areas of employment, public accommodations, state and local
government services, and telecommunication.
A.5 ASSURANCES
The Department and Subrecipient agree that all activity pursuant to this Agreement will be in accordance
with all the applicable current federal, state and local laws, rules and regulations.
A.6 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, OR INELIGIBILITY
As federal funds are a basis for this Agreement, the Subrecipient certifies that the Subrecipient is not
presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participating in this Agreement by any federal department or agency.
The Subrecipient shall complete, sign, and return a Certification Regarding Debarment, Suspension,
Ineligibility, and Voluntary Exclusion form located at http://mil.wa.gov/emergency-management-
division/grants/requiredgrantforms. Any such form completed by the Subrecipient for this Agreement
shall be incorporated into this Agreement by reference.
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Further, the Subrecipient agrees to comply with all applicable federal regulations concerning the federal
debarment and suspension system, including 2 CFR Part 180. The Subrecipient certifies that it will
ensure that potential contractors or Subrecipients or any of their principals are not debarred, suspended,
proposed for debarment, declared ineligible, or voluntarily excluded from participation in “covered
transactions” by any federal department or agency. “Covered transactions” include procurement
contracts for goods or services awarded under a non-procurement transaction (e.g. grant or cooperative
agreement) that are expected to equal or exceed $25,000, and subawards to Subrecipients for any
amount. With respect to covered transactions, the Subrecipient may comply with this provision by
obtaining a certification statement from the potential contractor or Subrecipient or by checking the System
for Award Management (https://sam.gov/portal/SAM/##11) maintained by the federal government. The
Subrecipient also agrees not to enter into any arrangements or contracts with any party on the
Washington State Department of Labor and Industries’ “Debarred Contractor List”
(https://secure.lni.wa.gov/debarandstrike/ContractorDebarList.aspx). The Subrecipient also agrees not
to enter into any agreements or contracts for the purchase of goods and services with any party on the
Department of Enterprise Services’ Debarred Vendor List
(http://www.des.wa.gov/services/ContractingPurchasing/Business/Pages/Vendor-Debarment.aspx).
A.7 CERTIFICATION REGARDING RESTRICTIONS ON LOBBYING
As required by 44 CFR Part 18, the Subrecipient hereby certifies that to the best of its knowledge and
belief: (1) no federally appropriated funds have been paid or will be paid by or on behalf of the
Subrecipient to any person for influencing or attempting to influence an officer or employee of an agency,
a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any federal contract, the making of any federal grant, the making of
any federal loan, the entering into of any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement; (2)
that if any funds other than federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in connection with this
Agreement, grant, loan, or cooperative agreement, the Subrecipient will complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions; (3) and that, as
applicable, the Subrecipient will require that the language of this certification be included in the award
documents for all subawards at all tiers (including sub-contracts, sub-grants, and contracts under grants,
loans, and cooperative agreements) and that all Subrecipients shall certify and disclose accordingly. This
certification is a material representation of fact upon which reliance was placed when this transaction was
made or entered into and is a prerequisite for making or entering into this transaction imposed by section
1352, title 31, U.S. Code.
A.8 CONFLICT OF INTEREST
No officer or employee of the Department; no member, officer, or employee of the Subrecipient or its
designees or agents; no member of the governing body of the jurisdiction in which the project is
undertaken or located; and no other official of the Subrecipient who exercises any functions or
responsibilities with respect to the project during his or her tenure, shall have any personal or pecuniary
gain or interest, direct or indirect, in any contract, subcontract, or the proceeds thereof, for work to be
performed in connection with the project assisted under this Agreement.
The Subrecipient shall incorporate, or cause to incorporate, in all such contracts or subawards, a
provision prohibiting such interest pursuant to this provision.
A.9 COMPLIANCE WITH APPLICABLE STATUTES, RULES AND DEPARTMENT POLICIES
The Subrecipient and all its contractors and subrecipients shall comply with, and the Department is not
responsible for determining compliance with, any and all applicable federal, state, and local laws,
regulations, executive orders, OMB Circulars, and/or policies. This obligation includes, but is not limited
to: nondiscrimination laws and/or policies, Energy Policy and Conservation Act (PL 94-163, as amended),
the Americans with Disabilities Act (ADA), Age Discrimination Act of 1975, Title VI of the Civil Rights Act
of 1964, Civil Rights Act of 1968, the Robert T. Stafford Disaster Relief and Emergency Assistance Act,
(PL 93-288, as amended), Ethics in Public Service (RCW 42.52), Covenant Against Contingent Fees (48
CFR Section 52.203-5), Public Records Act (RCW 42.56), Prevailing Wages on Public Works (RCW
39.12), State Environmental Policy Act (RCW 43.21C), Shoreline Management Act of 1971 (RCW 90.58),
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State Building Code (RCW 19.27), Energy Related Building Standards (RCW 19.27A), Provisions in
Buildings for Aged and Handicapped Persons (RCW 70.92), and safety and health regulations.
In the event of noncompliance or refusal to comply with any applicable law, regulation, executive order,
OMB Circular or policy by the Subrecipient, its contractors or subrecipients, the Department may rescind,
cancel, or terminate the Agreement in whole or in part in its sole discretion. The Subrecipient is
responsible for all costs or liability arising from its failure, and that of its contractors and subrecipients, to
comply with applicable laws, regulations, executive orders, OMB Circulars or policies.
A.10 CONTRACTING & PROCUREMENT
a. The Subrecipient shall use a competitive procurement process in the procurement and award of
any contracts with contractors or subcontractors that are entered into under the original
agreement award. The procurement process followed shall be in accordance with 2 CFR Part
200.318 General procurement standards through 200.326 Contract provisions.
As required by Appendix II to 2 CFR Part 200, all contracts entered into by the Subrecipient under
this Agreement must include the following provisions, as applicable:
1) Contracts for more than the simplified acquisition threshold currently set at $150,000, which
is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and
the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908,
must address administrative, contractual, or legal remedies in instances where contractors
violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
2) All contracts in excess of $10,000 must address termination for cause and for convenience
by the non-federal entity including the manner by which it will be affected and the basis for
settlement.
3) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all
contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part
60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in
accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319,
12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375,
“Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and
implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor.”
4) Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program
legislation, all prime construction contracts in excess of $2,000 awarded by non-federal
entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-
3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part
5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and
Assisted Construction”). In accordance with the statute, contractors must be required to pay
wages to laborers and mechanics at a rate not less than the prevailing wages specified in a
wage determination made by the Secretary of Labor. In addition, contractors must be
required to pay wages not less than once a week. The non-federal entity must place a copy
of the current prevailing wage determination issued by the Department of Labor in each
solicitation. The decision to award a contract or subcontract must be conditioned upon the
acceptance of the wage determination. The non-federal entity must report all suspected or
reported violations to the federal awarding agency. The contracts must also include a
provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as
supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or
Grants from the United States”). The Act provides that each contractor or Subrecipient must
be prohibited from inducing, by any means, any person employed in the construction,
completion, or repair of public work, to give up any part of the compensation to which he or
she is otherwise entitled. The non-federal entity must report all suspected or reported
violations to the federal awarding agency.
5) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable,
all contracts awarded by the non-federal entity in excess of $100,000 that involve the
employment of mechanics or laborers must include a provision for compliance with 40 U.S.C.
3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under
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40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every
mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of
the standard work week is permissible provided that the worker is compensated at a rate of
not less than one and a half times the basic rate of pay for all hours worked in excess of 40
hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction
work and provide that no laborer or mechanic must be required to work in surroundings or
under working conditions which are unsanitary, hazardous or dangerous. These
requirements do not apply to the purchases of supplies or materials or articles ordinarily
available on the open market, or contracts for transportation or transmission of intelligence.
6) Rights to Inventions Made Under a Contract or Agreement. If the federal award meets the
definition of “funding agreement” under 37 CFR §401.2 (a) and the recipient or Subrecipient
wishes to enter into a contract with a small business firm or nonprofit organization regarding
the substitution of parties, assignment or performance of experimental, developmental, or
research work under that “funding agreement,” the recipient or Subrecipient must comply
with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit
Organizations and Small Business Firms Under Government Grants, Contracts and
Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
7) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33
U.S.C. 1251-1387), as amended—Contracts and subgrants of amounts in excess of
$150,000 must contain a provision that requires the non-federal award to agree to comply
with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42
U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C.
1251-1387). Violations must be reported to the federal awarding agency and the Regional
Office of the Environmental Protection Agency (EPA).
8) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2
CFR 180.220) must not be made to parties listed on the government-wide exclusions in the
System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180
that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR
part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the
names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties
declared ineligible under statutory or regulatory authority other than Executive Order 12549.
9) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award
exceeding $100,000 must file the required certification. Each tier certifies to the tier above
that it will not and has not used federal appropriated funds to pay any person or organization
for influencing or attempting to influence an officer or employee of any agency, a member of
Congress, officer or employee of Congress, or an employee of a member of Congress in
connection with obtaining any federal contract, grant or any other award covered by 31
U.S.C. 1352. Each tier must also disclose any lobbying with non-federal funds that takes
place in connection with obtaining any federal award. Such disclosures are forwarded from
tier to tier up to the non-federal award.
10) Procurement of recovered materials -- As required by 2 CFR 200.322, a non-federal entity
that is a state agency or agency of a political subdivision of a state and its contractors must
comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act. The requirements of Section 6002 include procuring only
items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part
247 that contain the highest percentage of recovered materials practicable, consistent with
maintaining a satisfactory level of competition, where the purchase price of the item exceeds
$10,000 or the value of the quantity acquired during the preceding fiscal year exceeded
$10,000; procuring solid waste management services in a manner that maximizes energy
and resource recovery; and establishing an affirmative procurement program for
procurement of recovered materials identified in the EPA guidelines.
11) Notice of awarding agency requirements and regulations pertaining to reporting.
12) Federal awarding agency requirements and regulations pertaining to copyrights and rights in
data.
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13) Access by the Department, the Subrecipient, the federal awarding agency, the Comptroller
General of the United States, or any of their duly authorized representatives to any books,
documents, papers, and records of the contractor which are directly pertinent to that specific
contract for the purpose of making audit, examination, excerpts, and transcriptions.
14) Retention of all required records for six years after the Subrecipient has made final payments
and all other pending matters are closed.
15) Mandatory standards and policies relating to energy efficiency which are contained in the
state energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94–163, 89 Stat. 871).
b. The Department reserves the right to review the Subrecipient’s procurement plans and
documents, and require the Subrecipient to make changes to bring its plans and documents into
compliance with the requirements of 2 CFR Part 200.318 through 200.326. The Subrecipient
must ensure that its procurement process requires contractors and subcontractors to provide
adequate documentation with sufficient detail to support the costs of the project and to allow both
the Subrecipient and Department to make a determination on eligibility of project costs.
c. All contracting agreements entered into pursuant to this Agreement shall incorporate this
Agreement by reference
A.11 DISCLOSURE
The use or disclosure by any party of any information concerning the Department for any purpose not
directly connected with the administration of the Department's or the Subrecipient's responsibilities with
respect to services provided under this Agreement is prohibited except by prior written consent of the
Department or as required to comply with the state Public Records Act, other law or court order.
A.12 DISPUTES
Except as otherwise provided in this Agreement, when a bona fide dispute arises between the parties
and it cannot be resolved through discussion and negotiation, either party may request a dispute
resolution panel to resolve the dispute. A request for a dispute resolution board shall be in writing, state
the disputed issues, state the relative positions of the parties, and be sent to all parties. The panel shall
consist of a representative appointed by the Department, a representative appointed by the Subrecipient
and a third party mutually agreed upon by both parties. The panel shall, by majority vote, resolve the
dispute. Each party shall bear the cost for its panel member and its attorney fees and costs and share
equally the cost of the third panel member.
A.13 LEGAL RELATIONS
It is understood and agreed that this Agreement is solely for the benefit of the parties to the Agreement
and gives no right to any other party. No joint venture or partnership is formed as a result of this
Agreement.
To the extent allowed by law, the Subrecipient, its successors or assigns, will protect, save and hold
harmless the Department, the State of Washington, and the United States Government and their
authorized agents and employees, from all claims, actions, costs, damages or expenses of any nature
whatsoever by reason of the acts or omissions of the Subrecipient, its subcontractors, subrecipients,
assigns, agents, contractors, consultants, licensees, invitees, employees or any person whomsoever
arising out of or in connection with any acts or activities authorized by this Agreement.
To the extent allowed by law, the Subrecipient further agrees to defend the Department and the State of
Washington and their authorized agents and employees in any litigation; including payment of any costs
or attorneys' fees for any claims or action commenced thereon arising out of or in connection with acts
or activities authorized by this Agreement.
This obligation shall not include such claims, costs, damages or expenses which may be caused by the
sole negligence of the Department; provided, that if the claims or damages are caused by or result from
the concurrent negligence of (1) the Department, and (2) the Subrecipient, its agents, or employees, this
indemnity provision shall be valid and enforceable only to the extent of the negligence of the Subrecipient,
or the Subrecipient's agents or employees.
Insofar as the funding source, the Department of Homeland Security (DHS)/Federal Emergency
Management Agency (FEMA), is an agency of the Federal government, the following shall apply:
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44 CFR 206.9 Non-liability. The Federal government shall not be liable for any claim based upon the
exercise or performance of, or the failure to exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Federal government in carrying out the provisions of the
Stafford Act.
A.14 LIMITATION OF AUTHORITY – AUTHORIZED SIGNATURE
The signatories to this Agreement represent that they have the authority to bind their respective
organizations to this Agreement. Only the Department’s Authorized Signature representative and the
Authorized Signature representative of the Subrecipient or Alternate for the Subrecipient, formally
designated in writing, shall have the express, implied, or apparent authority to alter, amend, modify, or
waive any clause or condition of this Agreement. Any alteration, amendment, modification, or waiver of
any clause or condition of this Agreement is not effective or binding unless made in writing an d signed
by both parties’ Authorized Signature representatives.
Further, only the Authorized Signature representative or Alternate for the Subrecipient shall have
signature authority to sign reimbursement requests, time extension requests, amendment and
modification requests, requests for changes to projects or work plans, and other requests, certifications
and documents authorized by or required under this Agreement.
A.15 LOSS OR REDUCTION OF FUNDING
In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way
after the effective date of this Agreement and prior to normal completion or end date, the Department
may unilaterally reduce the work plan and budget or unilaterally terminate all or part of the Agreement as
a “Termination for Cause” without providing the Subrecipient an opportunity to cure. Alternatively, the
parties may renegotiate the terms of this Agreement under “Amendments and Modifications” to comply
with new funding limitations and conditions, although the Department has no obligation to do so.
A.16 NONASSIGNABILITY
Neither this Agreement, nor any claim arising under this Agreement, shall be transferred or assigned by
the Subrecipient.
A.17 NONDISCRIMINATION
The Subrecipient shall comply with all applicable federal and state non-discrimination laws, regulations,
and policies. No person shall, on the grounds of age, race, creed, color, sex, sexual orientation, religion,
national origin, marital status, honorably discharged veteran or military status, or disability (physical,
mental, or sensory) be denied the benefits of, or otherwise be subjected to discrimination under any
project, program, or activity, funded, in whole or in part, under this Agreement.
A.18 NOTICES
The Subrecipient shall comply with all public notices or notices to individuals required by applicable local,
state and federal laws and regulations and shall maintain a record of this compliance.
A.19 OCCUPATIONAL SAFETY/HEALTH ACT and WASHINGTON INDUSTRIAL SAFETY/ HEALTH ACT
(OSHA/WISHA)
The Subrecipient represents and warrants that its work place does now or will meet all applicable federal
and state safety and health regulations that are in effect during the Subrecipient's performance under this
Agreement. To the extent allowed by law, the Subrecipient further agrees to indemnify and hold harmless
the Department and its employees and agents from all liability, damages and costs of any nature,
including, but not limited to, costs of suits and attorneys' fees assessed against the Department , as a
result of the failure of the Subrecipient to so comply.
A.20 OWNERSHIP OF PROJECT/CAPITAL FACILITIES
The Department makes no claim to any capital facilities or real property improved or constructed with
funds under this Agreement, and by this subaward of funds does not and will not acquire any ownership
interest or title to such property of the Subrecipient. The Subrecipient shall assume all liabilities and
responsibilities arising from the ownership and operation of the project and agrees to indemnify and hold
the Department, the state of Washington and the United States government harmless from any and all
causes of action arising from the ownership and operation of the project.
A.21 POLITICAL ACTIVITY
No portion of the funds provided herein shall be used for any partisan political activity or to further the
election or defeat of any candidate for public office or influence the approval or defeat of any ballot issue.
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A.22 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION
The assistance provided under this Agreement shall not be used in payment of any bonus or commission
for the purpose of obtaining approval of the application for such assistance or any other approval or
concurrence under this Agreement provided, however, that reasonable fees or bona fide technical
consultant, managerial, or other such services, other than actual solicitation, are not hereby prohibited if
otherwise eligible as project costs.
A.23 PUBLICITY
The Subrecipient agrees to submit to the Department prior to issuance all advertising and publicity
matters relating to this Agreement wherein the Department’s name is mentioned, or language used from
which the connection of the Department’s name may, in the Department’s judgment, be inferred or
implied. The Subrecipient agrees not to publish or use such advertising and publicity matters without the
prior written consent of the Department. The Subrecipient may copyright original work it develops in the
course of or under this Agreement; however, pursuant to 2 CFR Part 200.315, FEMA reserves a royalty-
free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize
others to use the work for government purposes.
Publication resulting from work performed under this Agreement shall include an acknowledgement of
FEMA’s financial support, by CFDA number, and a statement that the publication does not constitute an
endorsement by FEMA or reflect FEMA’s views.
A.24 RECAPTURE PROVISION
In the event the Subrecipient fails to expend funds under this Agreement in accordance with applicable
federal, state, and local laws, regulations, and/or the provisions of the Agreement, the Department
reserves the right to recapture funds in an amount equivalent to the extent of noncompliance. Such right
of recapture shall exist for the life of the project following Agreement termination. Repayment by the
Subrecipient of funds under this recapture provision shall occur within 30 days of demand. In the event
the Department is required to institute legal proceedings to enforce the recapture provision, the
Department shall be entitled to its costs and expenses thereof, including attorney fees from the
Subrecipient.
A.25 RECORDS
a. The Subrecipient agrees to maintain all books, records, documents, receipts, invoices and all
other electronic or written records necessary to sufficiently and properly reflect the Subrecipient's
contracts, subawards, grant administration, and payments, including all direct and indirect
charges, and expenditures in the performance of this Agreement (the “records”).
b. The Subrecipient's records related to this Agreement and the projects funded may be inspected
and audited by the Department or its designee, by the Office of the State Auditor, DHS, FEMA or
their designees, by the Comptroller General of the United States or its d esignees, or by other
state or federal officials authorized by law, for the purposes of determining compliance by the
Subrecipient with the terms of this Agreement and to determine the appropriate level of funding
to be paid under the Agreement.
c. The records shall be made available by the Subrecipient for such inspection and audit, together
with suitable space for such purpose, at any and all times during the Subrecipient's normal
working day.
d. The Subrecipient shall retain and allow access to all records related to this Agreement and the
funded project(s) for a period of at least six (6) years following final payment and closure of the
grant under this Agreement. Despite the minimum federal retention requirement of three (3)
years, the more stringent State requirement of six (6) years must be followed.
A.26 RESPONSIBILITY FOR PROJECT/STATEMENT OF WORK/WORK PLAN
While the Department undertakes to assist the Subrecipient with the project/statement of work/work plan
(project) by providing federal award funds pursuant to this Agreement, the project itself remains the sole
responsibility of the Subrecipient. The Department undertakes no responsibility to the Subrecipient, or
to any third party, other than as is expressly set out in this Agreement.
The responsibility for the design, development, construction, implementation, operation and maintenance
of the project, as these phrases are applicable to this project, is solely that of the Subrecipient, as is
responsibility for any claim or suit of any nature by any third party related in any way to the project.
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Prior to the start of any construction activity, the Subrecipient shall ensure that all applicable federal,
state, and local permits and clearances are obtained, including, but not limited to, FEMA compliance with
the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species
Act, and all other environmental laws, regulations, and executive orders.
The Subrecipient shall defend, at its own cost, any and all claims or suits at law or in equity, which may
be brought against the Subrecipient in connection with the project. The Subrecipient shall not look to the
Department, or to any state or federal agency, or to any of their employees or agents, for any
performance, assistance, or any payment or indemnity, including, but not limited to, cost of defense
and/or attorneys’ fees, in connection with any claim or lawsuit brought by any third party related to any
design, development, construction, implementation, operation and/or maintenance of a project.
A.27 SEVERABILITY
If any court of rightful jurisdiction holds any provision or condition under this Agreement or its application
to any person or circumstances invalid, this invalidity does not affect other provisions, terms or conditions
of the Agreement, which can be given effect without the invalid provision. To this end, the terms and
conditions of this Agreement are declared severable.
A.28 SINGLE AUDIT ACT REQUIREMENTS (including all AMENDMENTS)
Non-federal entities, as Subrecipients of a federal award, that expend $750,000 or more in one fiscal
year of federal funds from all sources, direct and indirect, are required to have a single or a program -
specific audit conducted in accordance with 2 CFR Part 200 Subpart F. Non-federal entities that spend
less than $750,000 a year in federal awards are exempt from federal audit requirements for that year,
except as noted in 2 CFR Part 200 Subpart F. As defined in 2 CFR Part 200, the term “non-federal entity”
means a State, local government, Indian tribe, institution of higher education, or non-profit organization
that carries out a federal award as a recipient or Subrecipient.
Subrecipients that are required to have an audit must ensure the audit is performed in accordance with
Generally Accepted Government Auditing Standards (GAGAS) as found in the Government Auditing
Standards (the Revised Yellow Book) developed by the United States Comptroller General and the OMB
Compliance Supplement. The Subrecipient has the responsibility of notifying its auditor and requesting
an audit in compliance with 2 CFR Part 200 Subpart F, to include the Washington State Auditor’s Office,
a federal auditor, or a public accountant performing work using GAGAS, as appropriate. Costs of the
audit may be an allowable grant expenditure as authorized by 2 CFR Part 200.425.
The Subrecipient shall maintain auditable records and accounts so as to facilitate the audit requirement
and shall ensure that any subcontractors also maintain auditable records. The Subrecipient is
responsible for any audit exceptions incurred by its own organization or that of its
subcontractors. Responses to any unresolved management findings and disallowed or questioned costs
shall be included with the audit report. The Subrecipient must respond to Department requests for
information or corrective action concerning audit issues or findings within 30 days of the date of
request. The Department reserves the right to recover from the Subrecipient all disallowed costs
resulting from the audit.
After the single audit has been completed, and if it includes any audit findings, the Subrecipient must
send a full copy of the audit and its corrective action plan to the Department at the following address no
later than nine (9) months after the end of the Subrecipient’s fiscal year(s):
Contracts Office
Washington Military Department
Finance Division, Building #1 TA-20
Camp Murray, WA 98430-5032
If the Subrecipient claims it is exempt from the audit requirements of 2 CFR Part 200 Subpart F, the
Subrecipient must send a completed “2 CFR Part 200 Subpart F Audit Certification Form”
(https://www.mil.wa.gov/emergency-management-division/grants/requiredgrantforms) to the Department
at the address listed above identifying this Agreement and explaining the criteria for exemption no later
than nine (9) months after the end of the Subrecipient’s fiscal year(s).
The Department retains the sole discretion to determine whether a valid claim for an exemption from the
audit requirements of this provision has been established.
The Subrecipient shall include the above audit requirements in any subawards.
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DHS-FEMA-EMPG-FY 18 Page 18 of 37 City of Kent EMD, E19-150
Conducting a single or program-specific audit in compliance with 2 CFR Part 200 Subpart F is a material
requirement of this Agreement. In the absence of a valid claim of exemption from the audit requirements
of 2 CFR Part 200 Subpart F, the Subrecipient’s failure to comply with said audit requirements may result
in one or more of the following actions in the Department’s sole discretion: a percentage of federal awards
being withheld until the audit is completed in accordance with 2 CFR Part 200 Subpart F; the withholding
or disallowing of overhead costs; the suspension of federal awards until the audit is conducted and
submitted; or termination of the federal award.
A.29 SUBRECIPIENT NOT EMPLOYEE
The parties intend that an independent contractor relationship will be created by this Agreement. The
Subrecipient, and/or employees or agents performing under this Agreement are not employees or agents
of the Department in any manner whatsoever. The Subrecipient will not be presented as, nor claim to
be, an officer or employee of the Department by reason of this Agreement, nor will the Subrecipient make
any claim, demand, or application to or for any right or privilege applicable to an officer or employee of
the Department or of the State of Washington by reason of this Agreement, including, but not limited to,
Workmen's Compensation coverage, unemployment insurance benefits, social security benefits,
retirement membership or credit, or privilege or benefit which would accrue to a civil service employee
under Chapter 41.06 RCW.
It is understood that if the Subrecipient is another state department, state agency, state university, state
college, state community college, state board, or state commission, that the officers and employees are
employed by the state of Washington in their own right and not by reason of this Agreement.
A.30 TAXES, FEES AND LICENSES
Unless otherwise provided in this Agreement, the Subrecipient shall be responsible for, pay and maintain
in current status all taxes, unemployment contributions, fees, licenses, assessments, permit charges and
expenses of any other kind for the Subrecipient or its staff required by statute or regulation that are
applicable to Agreement performance.
A.31 TERMINATION FOR CONVENIENCE
Notwithstanding any provisions of this Agreement, the Subrecipient may terminate this Agreement by
providing written notice of such termination to the Department Key Personnel identified in the Agreement,
specifying the effective date thereof, at least thirty (30) days prior to such date.
Except as otherwise provided in this Agreement, the Department, in its sole discretion and in the best
interests of the State of Washington, may terminate this Agreement in whole or in part by providing ten
(10) calendar days written notice, beginning on the second day after mailing to the Subrecipient. Upon
notice of termination for convenience, the Department reserves the right to suspend all or part of the
Agreement, withhold further payments, or prohibit the Subrecipient from incurring additional obligations
of funds. In the event of termination, the Subrecipient shall be liable for all damages as authorized by
law. The rights and remedies of the Department provided for in this section shall not be exclusive and
are in addition to any other rights and remedies provided by law.
A.32 TERMINATION OR SUSPENSION FOR CAUSE
In the event the Department, in its sole discretion, determines the Subrecipient has failed to fulfill in a
timely and proper manner its obligations under this Agreement, is in an unsound financial condition so
as to endanger performance hereunder, is in violation of any laws or regulations that render the
Subrecipient unable to perform any aspect of the Agreement, or has violated any of the covenants,
agreements or stipulations of this Agreement, the Department has the right to immediately suspend or
terminate this Agreement in whole or in part.
The Department may notify the Subrecipient in writing of the need to take corrective action and provide
a period of time in which to cure. The Department is not required to allow the Subrecipient an opportunity
to cure if it is not feasible as determined solely within the Department’s discretion. Any time allowed for
cure shall not diminish or eliminate the Subrecipient’s liability for damages or otherwise affect any other
remedies available to the Department. If the Department allows the Subrecipient an opportunity to cure,
the Department shall notify the Subrecipient in writing of the need to take corrective action. If the
corrective action is not taken within ten (10) calendar days or as otherwise specified by the Department,
or if such corrective action is deemed by the Department to be insufficient, the Agreement may be
terminated in whole or in part.
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DHS-FEMA-EMPG-FY 18 Page 19 of 37 City of Kent EMD, E19-150
The Department reserves the right to suspend all or part of the Agreement, withhold further payments,
or prohibit the Subrecipient from incurring additional obligations of funds during investigation of the
alleged compliance breach, pending corrective action by the Subrecipient, if allowed, or pending a
decision by the Department to terminate the Agreement in whole or in part.
In the event of termination, the Subrecipient shall be liable for all damages as authorized by law, including,
but not limited to, any cost difference between the original Agreement and the replacement or cover
Agreement and all administrative costs directly related to the replacement Agreement, e.g., cost of
administering the competitive solicitation process, mailing, advertising and other associated staff time.
The rights and remedies of the Department provided for in this section shall not be exclusive and are in
addition to any other rights and remedies provided by law.
If it is determined that the Subrecipient: (1) was not in default or material breach, or (2) failure to perform
was outside of the Subrecipient’s control, fault or negligence, the termination shall be deemed to be a
“Termination for Convenience”.
A.33 TERMINATION PROCEDURES
In addition to the procedures set forth below, if the Department terminates this Agreement, the
Subrecipient shall follow any procedures specified in the termination notice. Upon termination of this
Agreement and in addition to any other rights provided in this Agreement, the Department may require
the Subrecipient to deliver to the Department any property specifically produced or acquired for the
performance of such part of this Agreement as has been terminated.
If the termination is for convenience, the Department shall pay to the Subrecipient as an agreed upon
price, if separately stated, for properly authorized and completed work and services rendered or goods
delivered to and accepted by the Department prior to the effective date of Agreement termination, the
amount agreed upon by the Subrecipient and the Department for (i) completed work and services and/or
equipment or supplies provided for which no separate price is stated, (ii) partially completed work and
services and/or equipment or supplies provided which are accepted by the Department, (iii) other work,
services and/or equipment or supplies which are accepted by the Department, and (iv) the protection and
preservation of property.
Failure to agree with such amounts shall be a dispute within the meaning of the "Disputes" clause of this
Agreement. If the termination is for cause, the Department shall determine the extent of the liability of
the Department. The Department shall have no other obligation to the Subrecipient for termination. The
Department may withhold from any amounts due the Subrecipient such sum as the Department
determines to be necessary to protect the Department against potential loss or liability.
The rights and remedies of the Department provided in this Agreement shall not be exclusive and are in
addition to any other rights and remedies provided by law.
After receipt of a notice of termination, and except as otherwise directed by the Department in writing,
the Subrecipient shall:
a. Stop work under the Agreement on the date, and to the extent specified, in the notice;
b. Place no further orders or contracts for materials, services, supplies, equipment and/or facilities
in relation to this Agreement except as may be necessary for completion of such portion of the
work under the Agreement as is not terminated;
c. Assign to the Department, in the manner, at the times, and to the extent directed by the
Department, all of the rights, title, and interest of the Subrecipient under the orders and contracts
so terminated, in which case the Department has the right, at its discretion, to settle or pay any
or all claims arising out of the termination of such orders and contracts;
d. Settle all outstanding liabilities and all claims arising out of such termination of orders and
contracts, with the approval or ratification of the Department to the extent the Department may
require, which approval or ratification shall be final for all the purposes of this clause;
e. Transfer title to the Department and deliver in the manner, at the times, and to the extent directed
by the Department any property which, if the Agreement had been completed, would have been
required to be furnished to the Department;
f. Complete performance of such part of the work as shall not have been terminated by the
Department in compliance with all contractual requirements; and
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DHS-FEMA-EMPG-FY 18 Page 20 of 37 City of Kent EMD, E19-150
g. Take such action as may be necessary, or as the Department may require, for the protection and
preservation of the property related to this Agreement which is in the possession of the
Subrecipient and in which the Department has or may acquire an interest.
A.34 UTILIZATION OF MINORITY AND WOMEN BUSINESS ENTERPRISES (MWBE)
The Subrecipient is encouraged to utilize business firms that are certified as minority-owned and/or
women-owned in carrying out the purposes of this Agreement. The Subrecipient may set utilization
standards, based upon local conditions or may utilize the state of Washington MWBE goals, as identified
in WAC 326-30-041.
A.35 VENUE
This Agreement shall be construed and enforced in accordance with, and the validity and performance
shall be governed by, the laws of the state of Washington. Venue of any suit between the parties arising
out of this Agreement shall be the Superior Court of Thurston County, Washington. The Subrecipient,
by execution of this Agreement acknowledges the jurisdiction of the courts of the State of Washington.
A.36 WAIVERS
No conditions or provisions of this Agreement can be waived unless approved in advance by the
Department in writing. The Department's failure to insist upon strict performance of any provision of the
Agreement or to exercise any right based upon a breach thereof, or the acceptance of any performance
during such breach, shall not constitute a waiver of any right under this Agreement.
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Exhibit C
WORK PLAN
FY 2018 Emergency Management Performance Grant
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DHS-FEMA-EMPG-FY 18 Page 24 of 37 City of Kent EMD, E19-150
Exhibit D
TIMELINE
FY 2018 Emergency Management Performance Grant
DATE TASK
June 1, 2018 Grant Agreement Start Date
April 30, 2019 Submit reimbursement request
August 31, 2019 Grant Agreement End Date
October 15, 2019 Submit final reimbursement request, final report, training
requirement report, and/or other deliverables.
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DHS-FEMA-EMPG-FY 18 Page 25 of 37 City of Kent EMD, E19-150
Exhibit E
BUDGET
FY 2018 Emergency Management Performance Grant
18EMPG AWARD 71,321.00$
SOLUTION
AREA CATEGORY EMPG AMOUNT MATCH AMOUNT
Salaries & Benefits -$ -$
Overtime/Backfill -$ -$
Consultants/Contractors -$ -$
Goods & Services -$ -$
Travel/Per Diem -$ -$
Subtotal -$ -$
Salaries & Benefits -$ 71,321$
Overtime/Backfill -$ -$
Consultants/Contractors -$ -$
Goods & Services 50,821$ -$
Travel/Per Diem -$ -$
Subtotal 50,821$ 71,321$
Salaries & Benefits -$ -$
Overtime/Backfill -$ -$
Consultants/Contractors -$ -$
Goods & Services -$ -$
Travel/Per Diem -$ -$
Subtotal -$ -$
Salaries & Benefits -$ -$
Overtime/Backfill 3,500$ -$
Consultants/Contractors 10,000$ -$
Goods & Services 2,000$ -$
Travel/Per Diem 1,500$ -$
Subtotal 17,000$ -$
Equipment 3,500$ -$
Subtotal 3,500$ -$
Salaries & Benefits -$ -$
Overtime/Backfill -$ -$
Consultants/Contractors -$ -$
Goods & Services -$ -$
Travel/Per Diem -$ -$
Subtotal -$ -$
Indirect -$ -$
Indirect Cost Rate on file 0%
TOTAL Grant Agreement AMOUNT:71,321$ 71,321$
M
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• The Subrecipient will provide a match of $71,321 of non-federal origin, 50% of the total project cost (local
budget plus EMPG award).
• Cumulative transfers to budget categories in excess of 10% of the Grant Agreement Amount will not be
reimbursed without prior written authorization from the Department.
Funding Source: U.S. Department of Homeland Security - PI# 783PT – EMPG
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Attachment 1
18EMPG Award Letter
EMS-2018-EP-00004-S01
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: November 20, 2018
TO: Operations Committee
SUBJECT: Legislative Agenda
MOTION: Move to recommend Council approve Kent’s 2019 State
Legislative Agenda.
SUMMARY: Each year the City of Kent develops a State Legislative Agenda.
Department directors work together with the communications manager and lobbyist
to determine the positions that are most important to bring to the attention of the
Washington State Legislature. These are then compiled in the form of a Legislative
Agenda which is reviewed by the Mayor and Chief Administrative Officer and then
transmitted to the Council for final review and adoption.
SUPPORTS STRATEGIC PLAN GOAL:
Inclusive Community, Thriving City, Evolving Infrastructure, Innovative
Government, Sustainable Services
ATTACHMENTS:
1. 2019 Legislative Priorities Document (PDF)
2. 2019 Legislative Policy Document (PDF)
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Continue Streamlined Sales Tax
(SST) Mitigation Payments
The City requests that Streamlined Sales Tax (SST) Mitigation
payments continue through the 2019-21 biennium. When the
Legislature enacted the Marketplace Fairness Act (MFA), the
Legislature scheduled to eliminate SST mitigation payments in the
2019-21 biennium in anticipation that new revenue from the MFA
would offset the loss of the SST mitigation payments. However, MFA
revenues are insufficient to fully offset the loss of SST mitigation
payments. The City of Kent has received nearly $5 million in SST
mitigation payments annually, even with MFA revenues.
Capital Funding to Complete Mill
Creek Flood Plain Stabilization
The City of Kent requests an additional $2 million to complete the
Mill Creek Flood Plain Stabilization Project along 76th Avenue to
improve a salmon-bearing stream and protect against flooding in
an area that is home to 5,800 businesses. The total project cost is $10
million, of which $8 million has already been secured through other
funding sources ($2 million in state funds and $6 million in city funds).
Early Delivery of the Puget
Sound Gateway Project
The Puget Sound Gateway project completes State Routes 509 and
167 to provide essential connections to the Ports of Tacoma and
Seattle for improved freight movement and congestion relief. The
City of Kent supports efforts to ensure on-time and early delivery of
the project, including authorizing tolling on the newly-constructed
corridor and supporting creative financing mechanisms to expedite
the project schedule. The Connecting Washington package assumes
$180 million in toll revenue to complete the project; without that
revenue, the project cannot be constructed.
Transportation Funding Request:
224th Phase 2
The City of Kent requests $2 million to complete 224th Phase
2, which completes the Veterans Drive/228th Street Corridor
– a project decades in the making to provide a key east-west
connection to move regional traffic through the City of Kent.
This corridor connects five state highways and is a freight
corridor supporting the Kent Valley – one of the region’s and
state’s largest job-generating centers. The City has identified
multiple fund sources to complete the $24 million project,
including $12 million in local business contributions through
a local improvement district and $5 million in Transportation
Improvement Board funds.
Authorize Pilot Program to
Address Street Racing
Hundreds of street racers congregate in the City of Kent to
engage in high-speed street racing that endangers themselves
and puts innocent bystanders at risk of severe injury or
death. The City requests that the Legislature authorize a pilot
program allowing the City to utilize a new technology that
automatically issues tickets for vehicles with illegal exhaust
systems. The City is hopeful this new technology will deter
future street racing.
2019 CITY OF KENT
LegislativePriorities
Kent – where people choose to live
and businesses change the world““ad
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POLICY DOCUMENT | 11/14/18
2019 CITY OF KENTPolicy Document
ADMINISTRATION
Public Records – The City of Kent will monitor proposals to amend the Public Records Act and will support
proposals that provide increased cost recovery to the City while maintaining transparency. The City of Kent has
adopted the state’s recommended fee schedule for public records requests. In 2017, the City processed over 3,000
public record requests.
ECONOMIC & COMMUNITY DEVELOPMENT
Economic Development Tools – The City of Kent joins the Association of Washington Cities in requesting
economic development tools that assist in maintaining, expanding and modernizing local infrastructure to help
spur local private sector investment. By supporting value capture financing, the Legislature can partner with cities
to advance the shared goals of building a robust and diverse economy for communities around the state.
Local Land Use Control – The City of Kent opposed legislation that preempts local control over land use decisions.
Condominium Liability Reform – The City of Kent supports legislation that incentivizes the construction
of condominiums by reducing the liability developers incur for construction defects, while simultaneously
continuing to balance consumer protection provisions.
Affordable Housing Tools – The City of Kent supports new funding tools for affordable housing. Any new tools
should allow funding to be utilized for renovation in addition to new construction and should require affordable
housing to be equitably distributed throughout the region.
FINANCE
Unfunded Mandates – The City of Kent urges the Legislature to refrain from imposing new unfunded or
underfunded mandates on cities and to protect local revenue authority critical to enabling cities to provide core
services their residents depend upon.
State-Shared Revenues – The City of Kent supports ongoing funding for state-shared revenues, including SST
Mitigation ($4.65 million), liquor excise tax ($636,500), liquor profit revenue ($1,060,300), and municipal criminal
justice revenue ($517,500). (Numbers are 2018 annual estimates).
B&O Tax Apportionment – The City of Kent will advocate to ensure that any legislation on local business &
occupation tax apportionment is revenue-neutral and achievable for cities.
1% Property Tax – The City of Kent supports legislative proposals that remove or increase the 1% cap on property
tax increases.
FileLocal Flexibility – The City of Kent supports legislative proposals that provide FileLocal with flexibility in
onboarding cities for the administration of business licenses and local business & occupation tax collection. The
City of Kent is in the process of joining the FileLocal system and anticipates joining the system prior to the 2020
statutory deadline.
Sharing Tax Information – The City of Kent supports proposals that allow cities to share tax information amongst
one another to ensure that sales tax sourcing laws are being implemented accurately.
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HUMAN RESOURCES
Personnel – The City of Kent opposes legislation that would add new costs and requirements to employee benefit
programs without accompanying funds.
Presumptive Disease – The City of Kent opposes legislation that expands the definition of “presumptive diseases”
under worker’s compensation that does not adequately address cost concerns and require a sound science
foundation for decision-making.
Wrongful Death – The City of Kent opposes legislation that expands those individuals who can bring forward
wrongful death claims.
INFORMATION TECHNOLOGY
Right-of-Way Access – The City of Kent opposes any legislation that limits the City’s control over the right-of-way.
MUNICIPAL COURT
Notice of Disqualification – The City of Kent supports legislation allowing parties to lift notices of disqualification
for municipal and district courts in the same manner as is allowed in superior courts. Additionally, the City also
supports allowing a judge to set arraignment after a notice of disqualification has been filed in municipal, district
or superior court.
Exempt Judge Residential Address – The City of Kent supports legislation that exempts municipal judges from
disclosing their residential address to the Public Disclosure Commission (PDC). Under current law, judges must apply
to the PDC to exempt their residential address, the City supports legislation that makes this exemption automatic.
Court Commissioner Marriages & Search Warrants – The City of Kent supports legislation allowing court
commissioners to issue search warrants and perform marriage ceremonies.
PARKS
Washington Wildlife and Recreation Grant Program – The City of Kent supports full funding for the Washington
Wildlife and Recreation Grant Program.
Youth Athletic Field Grant Funding – The City of Kent requests that the Legislature fully fund the Youth Athletic
Field Grant Program. If the program is fully funded, the City of Kent will receive $95,500 for the Service Club
Ballfields Park Drainage. The Service Club Ballfields Park is a regional baseball and softball complex located in the
south east corner of Kent.
Local Option Funding Tools for Park Maintenance & Operations – The City of Kent supports identifying locally-
imposed funding sources for park maintenance and operations.
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PUBLIC SAFETY
Basic Law Enforcement Academy Funding – The City of Kent joins the Association of Washington Cities and the
Washington Association of Sheriffs and Police Chiefs in securing funding for additional training classes at the Basic
Law Enforcement Academy, and supports legislation reducing the statutory deadline for when training needs to be
completed. The Kent Police Department will need to hire and train officers to fill as many as 20 positions in the near future.
Use of Police Deadly Force – The City of Kent supports amendments to I-940 regarding use of police deadly force that
align with the compromise language developed during the 2018 legislative session.
Police Body-Worn Cameras – The City of Kent will monitor any legislation regulating police body-worn cameras. The
City of Kent is in the process of developing local policies for the deployment of police body-worn cameras.
Automated Traffic Safety Devices – The City of Kent utilizes red-light cameras and will oppose any legislation
removing City authority to utilize this technology.
Forfeiture – The City of Kent opposes legislation that undermines the ability of law enforcement to conduct drug
and property forfeiture operations. These forfeitures are an important tool in addressing illegal drug activity in the
community and throughout South King County.
PUBLIC WORKS
Transportation Benefit District Authority – The City of Kent supports legislation allowing transportation benefit
districts to impose a local sales tax for local street maintenance needs councilmatically, rather than with voter approval.
Grant Programs – The City of Kent supports ongoing funding to the Transportation Improvement Board and the
Freight Mobility Strategic Investment Board. The City has successfully secured multiple grants from these important
grant projects.
Stormwater Funding – The City of Kent supports increased grant funding for jurisdictions to meet the new NPDES
permit requirements.
Project De-Federalization – The City of Kent supports proposals that de-federalize projects throughout the state and
result in greater efficiencies and cost savings.
Puget Sound Acquisition and Restoration Program – The City of Kent supports $80 million for salmon recovery
projects under the Puget Sound Acquisition and Restoration Program.
Public Works Assistance Account – The City of Kent supports funding tools for infrastructure, such as the Public Works
Assistance Account.
Litter Control Hotline – The City of Kent supports re-establishing funding for a Litter Control Hotline at the state level.
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: November 20, 2018
TO: Operations Committee
SUBJECT: Stoplight Traffic Safety Camera Ordinance
MOTION: Recommend Council adopt an ordinance amending Chapter 9.36 of the
Kent City Code by adding the new section 9.36.150 entitled, “Stoplight traffic safety
cameras.”
SUMMARY: The Police Department consistently receives calls from residents
complaining about various safety issues surrounding the neighborhood, including
speeding, near-misses in crosswalks and congestion. However, the Police
Department does not have staffing levels to provide a constant presence in troubled
areas, while also performing daily functions of the traffic patrol unit such as
responding to city-wide complaints, collisions, and general traffic issues.
RCW 46.63.170 authorizes local jurisdictions to use automated traffic safety
cameras to enforce traffic laws within its jurisdiction. Pursuant to RCW 46.63.170,
this ordinance establishes the City’s use of stoplight traffic safety cameras, and sets
forth the restrictions, public notice, and signage requirements, as well as the
processing and procedural requirements for use of the cameras. The ordinance also
establishes the fine for stoplight violations that are detected with cameras.
As required by RCW 46.63.170, the City’s Police Department and American Traffic
Solutions performed an analysis of the following locations:
104th Ave SE and SE 240th St: E/B and W/B approaches
104th Ave SE and SE 256th St: N/B and E/B approaches
84th Ave S and S 212th St: N/B and S/B approaches
Central Ave N and E James St: N/B and E/B approaches
Central Ave N and E Smith St: N/B and S/B approaches
S Kent Des Moines Rd and Pacific Hwy S: E/B approach
A summary of the analysis of these locations is attached to the ordinance as Exhibit
A. Staff is recommending that cameras be located at these locations.
Funds derived from the use of the cameras will be used to cover the costs of
administering the program. Excess funds will be used for criminal justice-related
purposes.
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BUDGET IMPACT: Some revenue is expected.
SUPPORTS STRATEGIC PLAN GOAL:
Inclusive Community, Thriving City, Innovative Government
ATTACHMENTS:
1. Ordinance - Stoplight Traffic Safety Cameras (PDF)
2. ATS Exhibit A. Stop Light Camera Analysis - All Sites July 10 2018 (PDF)
3. ATS 2018 Collision Locations (PDF)
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1 KCC 9.36.150
Traffic Safety Cameras Ordinance
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, amending Chapter 9.36
of the Kent City Code, entitled "Traffic Code" by
adding a new section 9.36.150, entitled "Stoplight
traffic safety cameras," authorizing use of
automated traffic cameras to detect stoplight
violations; adopting the statutory standards and
restrictions regarding use of automated traffic
safety cameras; and setting the monetary penalty
for infractions detected by an automated traffic
safety camera.
RECITALS
A. Traffic accidents involving right-angle collisions at high rates
of speed are often the result of stoplight violations, and studies have
shown that these accidents involve more serious injury than other kinds of
accidents at signalized intersections.
B. The strategic placement of automated traffic safety cameras
at traffic control signal intersections has been shown to reduce the
frequency of violations, thereby reducing the risks to the public.
C. The City of Kent has numerous intersections that would
benefit from the placement of automated traffic safety cameras.
D. RCW 46.63.170 authorizes local jurisdictions to use
automated traffic safety cameras to enforce stoplight violations at
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2 KCC 9.36.150
Traffic Safety Cameras Ordinance
intersections of two arterials with traffic control signals that have yellow
change interval durations.
E. Consistent with the requirements of RCW 47.36.022, the
duration of the yellow change intervals at the City’s signalized intersections
are at least as long as the minimum yellow change interval identified in the
manual on uniform traffic control devices.
F. Pursuant to RCW 46.63.170, this ordinance establishes the
City’s use of automated traffic safety cameras at intersections where two
arterial roadways intersect, and sets forth the restrictions, public notice,
and signage requirements, as well as the processing and procedural
requirements for use of the automated traffic safety cameras.
G. As required by RCW 46.63.170, the Kent Police Department
and American Traffic Solutions performed an analysis of the following
intersections of two arterials: 104th Ave SE and SE 240th St – Eastbound
and Westbound approaches; 104th Ave SE and SE 256th St – Northbound
and Eastbound approaches; 84th Ave S and S 212th St – Northbound and
Southbound approaches; Central Ave N and E James St – Northbound and
Eastbound approaches; Central Ave N and E Smith St – Northbound and
Southbound approaches; and S Kent Des Moines Rd and Pacific Hwy S –
Eastbound approach. A summary of the analysis of these locations is
attached hereto as Exhibit A.
H. Funds derived from the use of automated traffic safety
cameras shall be used to cover the costs of administering the program.
Funds in excess of those used to cover the costs of administering the
program shall be utilized for enforcement and processing of traffic and
criminal laws in the city.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
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3 KCC 9.36.150
Traffic Safety Cameras Ordinance
ORDINANCE
SECTION 1. - Amendment. Chapter 9.36 of the Kent City Code,
entitled “Traffic Code,” is amended by adding a new section 9.36.150
entitled, “Stoplight traffic safety cameras,” as follows:
Sec. 9.36.150. Stoplight traffic safety cameras.
A. Authorized Use of Automated Traffic Safety Cameras. Pursuant to
the authority of RCW 46.63.170, the city is authorized to use automated
traffic safety cameras and related automated systems in order to detect,
record, and enforce and prosecute stoplight violations.
B. Limitation on Photos – Use of Photos.
1. Limitation on Photos. Automated traffic safety cameras may
only take pictures of the vehicle and vehicle license plate and only while an
infraction is occurring. The picture must not reveal the face of the driver or
of passengers in the vehicle.
2. Use of Photos. Notwithstanding any other provision of law, all
photographs, microphotographs, or electronic images prepared under this
section are for the exclusive use of law enforcement in the discharge of
duties under this section and are not open to the public and may not be
used in a court in a pending action or proceeding unless the action or
proceeding relates to a violation under this section. No photograph,
microphotograph, or electronic image may be used for any purpose other
than enforcement of violations under this section nor retained longer than
necessary to enforce this section.
C. Infraction Processing – Responsibilities - Presumption.
1. In General. Infractions detected through the use of
automated traffic safety cameras are not part of the registered owner's
driving record under RCW 46.52.101 and 46.52.120. Additionally,
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4 KCC 9.36.150
Traffic Safety Cameras Ordinance
infractions generated by the use of automated traffic safety cameras shall
be processed in the same manner as parking infractions, including for the
purposes of RCW 3.50.100, 35.20.220, 46.16A.120, and 46.20.270(3).
2. Notice of Infraction. A notice of infraction must be mailed to
the registered owner of the vehicle within fourteen days of the violation, or
to the renter of a vehicle within fourteen days of establishing the renter's
name and address under subsection C.4 of this section. The law
enforcement officer issuing the notice of infraction shall include with it a
certificate or facsimile thereof, based upon inspection of photographs,
microphotographs, or electronic images produced by an automated traffic
safety camera, stating the facts supporting the notice of infraction. This
certificate or facsimile is prima facie evidence of the facts contained in it
and is admissible in a proceeding charging a violation under this section.
Any citation or notice of infraction issued pursuant to this section may be
initiated by electronic signature of the issuing police officer. The
photographs, microphotographs, or electronic images evidencing the
violation must be available for inspection and admission into evidence in a
proceeding to adjudicate the liability for the infraction. A person receiving
a notice of infraction based on evidence detected by an automated traffic
safety camera may respond to the notice by mail.
3. Registered Owner Responsible – Rental Car Business. The
registered owner of a vehicle is responsible for an infraction issued
pursuant to this section unless the registered owner overcomes the
presumption in subsection C.5 of this section, or, in the case of a rental car
business, satisfies the conditions under subsection C.4 of this section. If
appropriate under the circumstances, a renter identified under subsection
C.4 of this section is responsible for an infraction.
4. Rental Cars. If the registered owner of the vehicle is a rental
car business, the law enforcement agency shall, before a notice of
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5 KCC 9.36.150
Traffic Safety Cameras Ordinance
infraction is issued under this section, provide a written notice to the rental
car business that a notice of infraction may be issued to the rental car
business if the rental car business does not, within eighteen days of
receiving the written notice, provide to the issuing agency by return mail:
a. A statement under oath stating the name and known
mailing address of the individual driving or renting the vehicle when the
infraction occurred; or
b. A statement under oath that the business is unable to
determine who was driving or renting the vehicle at the time the infraction
occurred because the vehicle was stolen at the time of the infraction. A
statement provided under this subsection must be accompanied by a copy
of a filed police report regarding the vehicle theft; or
c. In lieu of identifying the vehicle operator, the rental car
business may pay the applicable penalty.
Timely mailing of the statements described in subsections C.4.a and C.4.b
to the issuing law enforcement agency relieves a rental car business of any
liability under this section for the notice of infraction.
5. Presumption. Pursuant to RCW 46.63.075, in a traffic
infraction case involving an infraction detected through the use of an
automated traffic safety camera under this section, proof that the
particular vehicle described in the notice of traffic infraction was in
violation of a law enforced through the use of the automated traffic safety
camera, together with proof that the person named in the notice of traffic
infraction was at the time of the violation the registered owner of the
vehicle, constitutes in evidence a prima facie presumption that the
registered owner of the vehicle was the person in control of the vehicle at
the point where, and for the time during which, the violation occurred.
This presumption may be overcome only if the registered owner states,
under oath, in a written statement to the court or in testimony before the
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6 KCC 9.36.150
Traffic Safety Cameras Ordinance
court that the vehicle involved was, at the time, stolen or in the care,
custody, or control of some person other than the registered owner.
D. Infraction - Penalty. A driver facing a steady red traffic control signal
shall stop and shall remain stopped until an indication to proceed is shown.
It shall be an infraction to proceed through a stoplight at the intersections
of two arterials enforced through the use of an automated traffic safety
camera. The penalty for a stoplight infraction detected through the use of
an automated traffic safety camera shall be $124.00. In addition to the
fine provided herein, a violator may be assessed any costs and
assessments as required or permitted by state law or court rule.
E. Signs – Payment to vendor – Alternative enforcement.
1. Stoplight locations must be signed. All locations where an
automated traffic safety camera is used must be clearly marked at least
thirty days prior to activation of the camera by placing signs in locations
that clearly indicate to a driver that he or she is entering a zone where
traffic laws are enforced by an automated traffic safety camera.
2. Payment made to vendor. The compensation paid by the city
to the manufacturer or vendor of the automated traffic safety camera
equipment must be based only upon the value of the equipment and
services provided or rendered in support of the system, and may not be
based upon a portion of the fine or civil penalty imposed or the revenue
generated by the equipment.
3. Alternative enforcement. Nothing in this section prohibits a
law enforcement officer from issuing a notice of traffic infraction to a
person in control of a vehicle at the time a violation occurs pursuant to
RCW 46.63.030(1)(a), (b), or (c).
F. Use of funds. Funds derived from the use of automated traffic
safety cameras shall be used to pay the costs of administering the
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7 KCC 9.36.150
Traffic Safety Cameras Ordinance
automated traffic safety camera program, including, but not limited to
personnel costs, vendor costs, and equipment costs. Funds in excess of
these costs may be used to fund personnel, programs, services and
equipment related to the enforcement and processing of traffic and
criminal laws within the city.
G. Definition. For the purposes of this section, "automated traffic safety
camera" means a device that uses a vehicle sensor installed to work in
conjunction with an intersection traffic control system, a railroad grade
crossing control system, or a speed measuring device, and a camera
synchronized to automatically record one or more sequenced photographs,
microphotographs, or electronic images of the rear of a motor vehicle at the
time the vehicle fails to stop when facing a steady red traffic control signal or
an activated railroad grade crossing control signal, or exceeds a speed limit in
a school speed zone as detected by a speed measuring device.
SECTION 2. – 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 3. – Corrections by City Clerk or Code Reviser. Upon
approval of the city attorney, the city clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section, or subsection numbering; or
references to other local, state, or federal laws, codes, rules, or regulations.
SECTION 4. – Effective Date. This ordinance shall take effect and
be in force thirty days from and after its passage, as provided by law.
DANA RALPH, MAYOR Date Approved
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8 KCC 9.36.150
Traffic Safety Cameras Ordinance
ATTEST:
KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted
Date Published
APPROVED AS TO FORM:
ARTHUR “PAT” FITZPATRICK, CITY ATTORNEY
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
SR391 SP4; 1x;
NB 104th Ave SE / SR 515 SE 240th St *
3.4
N/A1
-1 -1 0 0 0 0 0 0
0 -1 -1 0 0 0 0 0 4.5
-1
-1
0SLS
SR391 SP4; 1x;
SB 104th Ave SE / SR 515 SE 240th St *
4.4
N/A2
-1 -1 -1 0 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
EB SE 240th St 104th Ave SE / SR 515 *
7.0
N/A3
-1 -1 -1 -1 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
WB SE 240th St 104th Ave SE / SR 515 *
7.0
N/A4
-1 -1 -1 -1 0 0 0 0 -1 0SLS
Sunday, July 08, 2018 Page 1 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
8.b
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
NB 104th Ave SE / SR 515 SE 256th St / SR 516 *
4.9
N/A5
-1 -1 -1 0 0 0 0 0 -1 0SLS
SB 104th Ave SE / SR 515 SE 256th St / SR 516 Not
Constructable
6
Not
Constructable
SR391 SP4; 1x;
EB SE 256th St / SR 516 104th Ave SE / SR 515 *
4.9
N/A7
-1 -1 -1 0 0 0 0 0 -1 0SLS
SR391 SP4; 11’ to 20’ mast
arm; 1x;
WB SE 256th St / SR 516 104th Ave SE / SR 515 *
4.0
N/A8
-1 -1 -1 0 0 0 0 0 -1 0SLS
Sunday, July 08, 2018 Page 2 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
8.b
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
NB 84th Ave S S 212th St
5.4
N/A9
0 0 -1 -1 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
SB 84th Ave S S 212th St
6.4
N/A10
-1 -1 -1 -1 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
EB S 212th St 84th Ave S
5.2
N/A11
-1 -1 -1 -1 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
WB S 212th St 84th Ave S
5.2
N/A12
0 -1 -1 -1 0 0 0 0 -1 0SLS
Sunday, July 08, 2018 Page 3 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
8.b
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
SR391 SP4; 2x;
NB Central Ave N E James St
7.0
N/A13
0 -1 -1 -1 0 0 0 0
-1 -1 -1 -1 0 0 0 0 7.0
-1
-1
0SLS
SR391 SP4; 1x;
SR391 SP4; 11’ to 20’ mast
arm; 2x;
SB Central Ave N E James St
4.5
N/A14
0 0 -1 -1 0 0 0 0
-1 -1 -1 -1 0 0 0 0 4.9
-1
-1
0SLS
SR391 SP4; 1x;
SR391 SP4; 2x;
EB E James St Central Ave N
3.8
N/A15
-1 -1 -1 0 0 0 0 0
-1 -1 -1 -1 0 0 0 0 7.0
-1
-1
0SLS
WB E James St Central Ave N Not
Constructable
16
Not
Constructable
Sunday, July 08, 2018 Page 4 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
8.b
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
NB Central Ave N E Smith St / SR 516 *
4.9
N/A17
-1 -1 -1 0 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
SB Central Ave N E Smith St / SR 516 *
4.8
N/A18
-1 -1 -1 0 0 0 0 0 -1 0SLS
EB E Smith St / SR 516 Central Ave N *Not
Constructable
19
Not
Constructable
SR391 SP4; 1x;
WB E Smith St / SR 516 Central Ave N *
4.7
N/A20
0 -1 -1 0 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
NB Kent Kangley Rd / SR 516 SE 256th St *
1.8
N/A21
-1 -1 0 0 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
WB SE 256th St Kent Kangley Rd / SR 516 *
Major tree
trim;
3.7
N/A22
-1 -1 0 0 0 0 0 0 -1 0SLS
Sunday, July 08, 2018 Page 5 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
8.b
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Kent, WA
Direction Street Cross Street Overall Comments
* WA = States that Require Justification Reports (JRs) - state roads only
1 option 1: drop L3 and monitor L1-2 only w/ radar after driveawy, angle will cause us to
loose L3;
option 2: drop L1 and monitor L2-3 only w/ radar;
NB 104th Ave SE / SR 515 SE 240th St *
2 single pole rear radar in range on shoulder after driveway;SB 104th Ave SE / SR 515 SE 240th St *
3 single pole rear radar in range before driveway;EB SE 240th St 104th Ave SE / SR 515 *
4 single pole rear radar in range before driveway;WB SE 240th St 104th Ave SE / SR 515 *
5 single pole rear radar in range before driveway;NB 104th Ave SE / SR 515 SE 256th St / SR 516 *
6 not recommended due to large driveway on shoulder in pole area;SB 104th Ave SE / SR 515 SE 256th St / SR 516
7 single pole rear radar in range after driveway;EB SE 256th St / SR 516 104th Ave SE / SR 515 *
8 single pole rear radar in range on shoulder before driveway, mast arm required
shooting over L4;
WB SE 256th St / SR 516 104th Ave SE / SR 515 *
9 driveway limits rear pole placement, radar recommended on shoulder before driveway
for L3-4 only;
NB 84th Ave S S 212th St
10 single pole rear radar in range on shoulder for all lanes;SB 84th Ave S S 212th St
11 single pole rear radar in range on shoulder before driveway;EB S 212th St 84th Ave S
12 LT not recommended due to distance from rear pole to signal head, rear radar in
range on shoulder for L2-4;
WB S 212th St 84th Ave S
13 low hanging overhead wires;
limited rear pole offset due to fence up against sidewalk, pole required in sidewalk;
overlapping RT signal requires 2nd system;
option 1: drop L1 and monitor L2-4;
option 2: monitor all lanes w/ 2nd system required for the LT lane;
NB Central Ave N E James St
14 option 1: single pole rear radar in range between driveways for L3-4 only;
option 2: montor all lanes on shoulder before driveway w/ mast arm required and 2nd
system to get to LT lanes;
SB Central Ave N E James St
15 overlapping RT signal requires 2nd system;
option 1: drop L4 and monitor L1-3 on shoulder after driveway;
option 2: monitor all lanes w/ 2nd pole before driveway for RTs;
EB E James St Central Ave N
16 not recommended due to driveway on shoulder;WB E James St Central Ave N
17 single pole rear radar in range on shoulder after driveway;NB Central Ave N E Smith St / SR 516 *
18 single pole rear radar in range on shoulder after driveway;SB Central Ave N E Smith St / SR 516 *
19 not recommended due to driveways on shoulder;EB E Smith St / SR 516 Central Ave N *
20 single pole rear radar in range on shoulder before driveway for L2-3;WB E Smith St / SR 516 Central Ave N *
21 single pole rear radar in range on shoulder after RT connection;NB Kent Kangley Rd / SR 516 SE 256th St *
22 single pole rear radar in range on shoulder after driveway and before bust stop;WB SE 256th St Kent Kangley Rd / SR 516 *
Sunday, July 08, 2018 Page 6 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
8.b
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2018 Collisions: Busiest Intersections
Each dot on the map represents one or more collisions at a location. Therefore, using the Density feature, you can
visually see how many collisions occurred in a specific area. The darker the density “blob”, the more collisions in close
proximity to each other in a specific area. The yellow on the density map shows the highest concentrated area, again
based upon the number of collisions in proximity to each other. The yellow area, centered upon Kent Station,
encompassing the area from 4th to Central, James to Smith, has had a total of 94 collions.
So far in 2018, the city has had a total of 2,084 Collisions. The Top 7 intersections for collisions have been:
I gave three different counts above: the actual intersection, within a block of the intersection, and within the density
“blob”, which is about an 8 block (½ mile) radius around the intersection.
With 39 collisions, the most so far in 2008, 108th/208th accounted for only 1.8% of all collisions in the city. But if you take
the ½ mile radius around the 104/240 intersection, that area, with 104 collisions, accounted for 5% of all collisions city-
wide.
Intersection Count Count within 1 block Density blob
108/208 39 44 74
104/240 27 46 104
James/Cental 20 23 70
Smith/Central 20 22 87
104/256 18 33 85
84/212 15 27 57
Meeker/Washington 13 24 57
Density Map Collision locations overlaid
on top of Density Map
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: November 20, 2018
TO: Operations Committee
SUBJECT: Stoplight Traffice Safety Camera Contract
MOTION: Authorize the Mayor to enter into a contract or contract amendment with
American Traffic Solutions for stoplight traffic safety cameras, subject to final terms
and conditions acceptable to the city attorney and police chief.
SUMMARY: The Police Department consistently receives calls from residents
complaining about various safety issues surrounding the neighborhood, including
speeding, near-misses in crosswalks and congestion. However, the Police
Department does not have staffing levels to provide a constant presence in troubled
areas, while also performing daily functions of the traffic patrol unit such as
responding to city-wide complaints, collisions, and general traffic issues.
RCW 46.63.170 authorizes local jurisdictions to use automated traffic safety
cameras to detect and enforce stoplight violations within its jurisdiction. Pursuant
to RCW 46.63.170, an ordinance will be offered in support of the establishment of
the City’s use of stoplight traffic safety cameras. The ordinance will set forth the
restrictions, public notice, and signage requirements, as well as the processing and
procedural requirements for use of the cameras. The ordinance will also establish
the fine for stoplight violations that are detected with cameras.
A traffic study has been conducted, and based upon the study, it appears that the
following locations will benefit from the traffic safety cameras.
• 104th Ave SE and SE 240th St: E/B and W/B approaches
• 104th Ave SE and SE 256th St: N/B and E/B approaches
• 84th Ave S and S 212th St: N/B and S/B approaches
• Central Ave N and E James St: N/B and E/B approaches
• Central Ave N and E Smith St: N/B and S/B approaches
• S Kent Des Moines Rd and Pacific Hwy S: E/B approach
BUDGET IMPACT: Program should cover cost of contract.
SUPPORTS STRATEGIC PLAN GOAL:
Inclusive Community, Thriving City, Innovative Government
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ATTACHMENTS:
1. Second Amendment to Kent-Verra Mobility Agreement_102318 (PDF)
2. ATS Exhibit A. Stop Light Camera Analysis - All Sites July 10 2018 (PDF)
3. ATS 2018 Collision Locations (PDF)
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SECOND AMENDMENT TO
PROFESSIONAL SERVICES AGREEMENT
This Second Amendment (“Second Amendment”) to the Agreement, as amended, is made
between American Traffic Solution Inc., doing business as Verra Mobility (“Verra Mobility”), a corporation
duly registered under the laws of the State of Kansas and with its principal place of business at 1150 N.
Alma School Rd, Mesa, Arizona 85201 and the City of Kent, Washington (“Customer”), with principal
offices at 220 Fourth Ave. S. Kent, Washington, a municipal corporation of the State of Washington and is
effective upon the last signature date below (“Effective Date”). Verra Mobility and Customer are each
individually a “Party” or collectively the “Parties”. Capitalized terms used in this Second Amendment shall
have the meaning given to such term in the Agreement.
RECITALS
WHEREAS, Customer and Verra Mobility entered into a Professional Services Agreement dated
May 30, 2013; and
WHEREAS, Customer requests Verra Mobility to provide additional services by installing C amera
Systems that record images of the rear of a motor vehicle at the time the vehicle fails to stop when facing a
steady red traffic control signal; and
WHEREAS, Section 15.0 of the Agreement requires any amendments, modifications, or alterations
to the terms and conditions of the Agreement to be in writing and duly executed by the parties; and
WHEREAS, the City and Verra Mobility mutually desire to amend, modify or alter certain terms and
conditions of the Agreement.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the mutual covenants and promises contained in this
Second Amendment, the Customer and Verra Mobility do hereby agree as set forth below:
1. The above recitals are true and correct and are incorporated herein.
2. Throughout the Agreement any and all references to “ATS” shall be replaced with “Verra Mobility”.
3. Subsection 2., of Section I. Definitions of the Agreement, is hereby deleted in its entirety and replaced
with the following:
“2. “Camera System” or “Camera”: A photo-traffic monitoring device consisting of one (1) rear camera,
strobe, and traffic monitoring device (including the wiring associated with each) capable of accurately
detecting a Violation on up to six (6) contiguous lanes, and up to two (2) signal phases, which records
such data with one (1) or more images of such vehicle. “Camera System”, where the context requires,
also includes any enclosure or cabinet, wiring, and related appurtenances in which the equipment is
stationed. “Camera System” may refer to either a red light or fixed site school zone speed safety camera
system, depending on the context.”
4. Subsection 14., of Section I. Definitions of the Agreement, is hereby deleted in its entirety and replaced
with the following:
“14. “Violation”: A failure to obey an applicable traffic law or regulation, including, without limitation,
operating a motor vehicle in excess of the posted speed limit or violating a traffic control signal.”
5. Subsection 14.1(III) of the Agreement is hereby modified to apply to both red light and speed Camera
Systems.
6. The address for American Traffic Solutions, Inc. in Section 22. Notices of the Agreement is hereby
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modified to read as follows:
American Traffic Solutions, Inc.
1150 N. Alma School Road
Mesa, AZ 85201
Attn: Legal Department
7. Section 1.0 Description of Pricing of Exhibit A Service Fee Schedule is hereby deleted in its entirety and
replaced with the following:
Product Description
Fee per Camera
per Month
1-4 Lane Red Light Safety Camera System – the parties shall mutually agree on the
number of units to be installed. Fee is for a single Camera System monitoring a single
direction of travel.
$4,750
4-6 Lane Red Light Safety Camera System – the parties shall mutually agree on the
number of units to be installed. Fee is for two Camera Systems monitoring a single
direction of travel.
$5,750
1-4 Lane Fixed Site School Zone Speed Safety Camera System – includes existing
Camera Systems and Camera Systems installed subsequent to the effective date of
this Agreement - the parties shall mutually agree on the number of units to be installed.
Fee is for a single Camera System monitoring a single direction of travel.
Fee includes up to 800 issued infractions per camera per month.
$4,750
Service Fees: All Service Fees per Camera System above includes all costs required and associated with
a Camera System installation, routine maintenance, and use of Axsis Syst em for back-office operations,
Event processing services, DMV records access, First Class mailing of notice of infra ction with return
envelope, call center support for general Program questions and public awareness Program support This
pricing applies to all Cameras installed within the first twelve (12) months of the term of this Agreement.
Service fees for Cameras installed after the first 12 months of term of this Agreement shall be subject to a
negotiated fee or extension of the term of this Agreement. Monthly service fee includes postage for the
first class mailing of the 1st notice.
Fee for Optional Services
1. Fee per 1st notice of infraction issued above the first 800 per camera per month $5.00
8. Subsection 1.1.1 of Exhibit B Scope of Work is hereby deleted in its entirety and replaced with the
following:
“1.1.1 Verra Mobility agrees to provide Camera System(s), use of the Axsis System and related services
to Customer as outlined in this Agreement, excluding those items identified in Section 2 . Customer Scope
of Work. Verra Mobility and Customer understand and agree that new or previously unforeseen
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requirements may, from time to time, be identified and that the Parties shall negotiate in good faith to
assign the proper Party the responsibility and cost for such items. In general, if work is to be performed
by Customer, unless otherwise specified, Customer shall not charge Verra Mobility for the cost
9. Subsection 1.1.3 of Exhibit B Scope of Work is hereby deleted in its entirety and replaced with the
following:
1.1.3 Client will enforce speed and traffic control signal violations using Verra Mobility Camera System(s)
at a number of locations to be mutually agreed upon by the Parties and after completion of Site S election
Analysis. In addition to any initial locations the Parties may agree to add to the quantities and Locations
where the Camera System(s) are installed and maintained.
10. Except as expressly amended or modified by the terms of this Second Amendment, all terms of the
Agreement, as amended by the First Amendment, shall remain in full force and effect. In the event of a
conflict between the terms of this Second Amendment and the Agreement, as amended by the First
Amendment, the terms of this Second Amendment shall prevail and control.
11. The provisions of the Agreement, as amended by the First and Second Amendments, including the
recitals, comprise all of the terms, conditions, agreements, and representations of the Parties with
respect to the subject matter hereof.
12. This Second Amendment may be executed in one or more counterparts, each of which shall constitute
an original, but all of which taken together shall constitute one and the same instrument.
13. Each Party represents and warrants that the representative signing this Second Amendment on its
behalf has all right and authority to bind and commit that Party to the terms and conditions of this
Second Amendment.
IN WITNESS WHEREOF, the Parties hereto have executed this Second Amendment.
CITY OF KENT
By:
City Manager Date
ATTEST:
By:
City Clerk Date
AMERICAN TRAFFIC SOLUTIONS, INC.:
By:
Elizabeth Caracciolo
EVP/GM Government Solutions
Date
9.a
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
SR391 SP4; 1x;
NB 104th Ave SE / SR 515 SE 240th St *
3.4
N/A1
-1 -1 0 0 0 0 0 0
0 -1 -1 0 0 0 0 0 4.5
-1
-1
0SLS
SR391 SP4; 1x;
SB 104th Ave SE / SR 515 SE 240th St *
4.4
N/A2
-1 -1 -1 0 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
EB SE 240th St 104th Ave SE / SR 515 *
7.0
N/A3
-1 -1 -1 -1 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
WB SE 240th St 104th Ave SE / SR 515 *
7.0
N/A4
-1 -1 -1 -1 0 0 0 0 -1 0SLS
Sunday, July 08, 2018 Page 1 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
9.b
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
NB 104th Ave SE / SR 515 SE 256th St / SR 516 *
4.9
N/A5
-1 -1 -1 0 0 0 0 0 -1 0SLS
SB 104th Ave SE / SR 515 SE 256th St / SR 516 Not
Constructable
6
Not
Constructable
SR391 SP4; 1x;
EB SE 256th St / SR 516 104th Ave SE / SR 515 *
4.9
N/A7
-1 -1 -1 0 0 0 0 0 -1 0SLS
SR391 SP4; 11’ to 20’ mast
arm; 1x;
WB SE 256th St / SR 516 104th Ave SE / SR 515 *
4.0
N/A8
-1 -1 -1 0 0 0 0 0 -1 0SLS
Sunday, July 08, 2018 Page 2 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
9.b
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
NB 84th Ave S S 212th St
5.4
N/A9
0 0 -1 -1 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
SB 84th Ave S S 212th St
6.4
N/A10
-1 -1 -1 -1 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
EB S 212th St 84th Ave S
5.2
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-1 -1 -1 -1 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
WB S 212th St 84th Ave S
5.2
N/A12
0 -1 -1 -1 0 0 0 0 -1 0SLS
Sunday, July 08, 2018 Page 3 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
9.b
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Site Location System
Kent, WA
Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
SR391 SP4; 2x;
NB Central Ave N E James St
7.0
N/A13
0 -1 -1 -1 0 0 0 0
-1 -1 -1 -1 0 0 0 0 7.0
-1
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0SLS
SR391 SP4; 1x;
SR391 SP4; 11’ to 20’ mast
arm; 2x;
SB Central Ave N E James St
4.5
N/A14
0 0 -1 -1 0 0 0 0
-1 -1 -1 -1 0 0 0 0 4.9
-1
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0SLS
SR391 SP4; 1x;
SR391 SP4; 2x;
EB E James St Central Ave N
3.8
N/A15
-1 -1 -1 0 0 0 0 0
-1 -1 -1 -1 0 0 0 0 7.0
-1
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WB E James St Central Ave N Not
Constructable
16
Not
Constructable
Sunday, July 08, 2018 Page 4 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
9.b
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Site Location System
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Direction Street Cross Street OptionsPredicted Violations
after Maturity
Internally
Approved
Conditions
Kent WA-2018-3-22; ;
* WA = States that Require Justification Reports (JRs) - state roads only
SR391 SP4; 1x;
NB Central Ave N E Smith St / SR 516 *
4.9
N/A17
-1 -1 -1 0 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
SB Central Ave N E Smith St / SR 516 *
4.8
N/A18
-1 -1 -1 0 0 0 0 0 -1 0SLS
EB E Smith St / SR 516 Central Ave N *Not
Constructable
19
Not
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SR391 SP4; 1x;
WB E Smith St / SR 516 Central Ave N *
4.7
N/A20
0 -1 -1 0 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
NB Kent Kangley Rd / SR 516 SE 256th St *
1.8
N/A21
-1 -1 0 0 0 0 0 0 -1 0SLS
SR391 SP4; 1x;
WB SE 256th St Kent Kangley Rd / SR 516 *
Major tree
trim;
3.7
N/A22
-1 -1 0 0 0 0 0 0 -1 0SLS
Sunday, July 08, 2018 Page 5 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
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Direction Street Cross Street Overall Comments
* WA = States that Require Justification Reports (JRs) - state roads only
1 option 1: drop L3 and monitor L1-2 only w/ radar after driveawy, angle will cause us to
loose L3;
option 2: drop L1 and monitor L2-3 only w/ radar;
NB 104th Ave SE / SR 515 SE 240th St *
2 single pole rear radar in range on shoulder after driveway;SB 104th Ave SE / SR 515 SE 240th St *
3 single pole rear radar in range before driveway;EB SE 240th St 104th Ave SE / SR 515 *
4 single pole rear radar in range before driveway;WB SE 240th St 104th Ave SE / SR 515 *
5 single pole rear radar in range before driveway;NB 104th Ave SE / SR 515 SE 256th St / SR 516 *
6 not recommended due to large driveway on shoulder in pole area;SB 104th Ave SE / SR 515 SE 256th St / SR 516
7 single pole rear radar in range after driveway;EB SE 256th St / SR 516 104th Ave SE / SR 515 *
8 single pole rear radar in range on shoulder before driveway, mast arm required
shooting over L4;
WB SE 256th St / SR 516 104th Ave SE / SR 515 *
9 driveway limits rear pole placement, radar recommended on shoulder before driveway
for L3-4 only;
NB 84th Ave S S 212th St
10 single pole rear radar in range on shoulder for all lanes;SB 84th Ave S S 212th St
11 single pole rear radar in range on shoulder before driveway;EB S 212th St 84th Ave S
12 LT not recommended due to distance from rear pole to signal head, rear radar in
range on shoulder for L2-4;
WB S 212th St 84th Ave S
13 low hanging overhead wires;
limited rear pole offset due to fence up against sidewalk, pole required in sidewalk;
overlapping RT signal requires 2nd system;
option 1: drop L1 and monitor L2-4;
option 2: monitor all lanes w/ 2nd system required for the LT lane;
NB Central Ave N E James St
14 option 1: single pole rear radar in range between driveways for L3-4 only;
option 2: montor all lanes on shoulder before driveway w/ mast arm required and 2nd
system to get to LT lanes;
SB Central Ave N E James St
15 overlapping RT signal requires 2nd system;
option 1: drop L4 and monitor L1-3 on shoulder after driveway;
option 2: monitor all lanes w/ 2nd pole before driveway for RTs;
EB E James St Central Ave N
16 not recommended due to driveway on shoulder;WB E James St Central Ave N
17 single pole rear radar in range on shoulder after driveway;NB Central Ave N E Smith St / SR 516 *
18 single pole rear radar in range on shoulder after driveway;SB Central Ave N E Smith St / SR 516 *
19 not recommended due to driveways on shoulder;EB E Smith St / SR 516 Central Ave N *
20 single pole rear radar in range on shoulder before driveway for L2-3;WB E Smith St / SR 516 Central Ave N *
21 single pole rear radar in range on shoulder after RT connection;NB Kent Kangley Rd / SR 516 SE 256th St *
22 single pole rear radar in range on shoulder after driveway and before bust stop;WB SE 256th St Kent Kangley Rd / SR 516 *
Sunday, July 08, 2018 Page 6 of 6
The information provided in this report is an estimate and shall not be considered as binding. The actual numbers may be different.
Internally Approved: Yes = Site given internal approval by ATS; No = Site rejected by ATS; Green Arrow = Monitored Lane, Red Arrow = Not
Monitored Lane, Gray Arrow = TBD; Highlight = ATS Preferred Option
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2018 Collisions: Busiest Intersections
Each dot on the map represents one or more collisions at a location. Therefore, using the Density feature, you can
visually see how many collisions occurred in a specific area. The darker the density “blob”, the more collisions in close
proximity to each other in a specific area. The yellow on the density map shows the highest concentrated area, again
based upon the number of collisions in proximity to each other. The yellow area, centered upon Kent Station,
encompassing the area from 4th to Central, James to Smith, has had a total of 94 collions.
So far in 2018, the city has had a total of 2,084 Collisions. The Top 7 intersections for collisions have been:
I gave three different counts above: the actual intersection, within a block of the intersection, and within the density
“blob”, which is about an 8 block (½ mile) radius around the intersection.
With 39 collisions, the most so far in 2008, 108th/208th accounted for only 1.8% of all collisions in the city. But if you take
the ½ mile radius around the 104/240 intersection, that area, with 104 collisions, accounted for 5% of all collisions city-
wide.
Intersection Count Count within 1 block Density blob
108/208 39 44 74
104/240 27 46 104
James/Cental 20 23 70
Smith/Central 20 22 87
104/256 18 33 85
84/212 15 27 57
Meeker/Washington 13 24 57
Density Map Collision locations overlaid
on top of Density Map
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: November 20, 2018
TO: Operations Committee
SUBJECT: Highline Water District Franchise
MOTION: Recommend the City Council approve an ordinance establishing a
15-year franchise agreement with Highline Water District, and adjust the
general fund budget accordingly.
SUMMARY: For the past year, the City and Highline Water District (Highline) have
been negotiating this franchise agreement which governs the operations,
installation, construction and maintenance of Highline’s facilities within the City’s
rights-of-way and charges Highline a franchise fee. In 2017, the City entered into
its first utility franchise agreement with Water District #111. The Highline franchise
is modeled after the Water District #111 franchise, but its provisions differ slightly.
The Highline franchise runs for a period of fifteen years, with an automatic
extension of an additional five years, unless a party provides the specified notice to
terminate. Following the five-year extension, the franchise renews automatically for
one-year periods until terminated. It establishes a franchise fee of six percent of
Highline’s “revenue,” which is a specifically defined term within the franchise. In
consideration of the franchise fee, the City agrees not to assume the water district
and also to forgo any legal authority it has to impose a utility or other excise tax
upon Highline.
The franchise also addresses other issues regarding Highline’s facilities within the
rights-of-way. Specifically, the franchise contains detailed terms on the relocation
of Highline’s facilities to accommodate a City project or other project including
coordination, consideration of alternatives that avoid relocation, and how to split
the costs of relocating the facilities. These terms are particularly important because
Highline’s facilities are located in an area in which the City expects significant
redevelopment to take place over the term of the franchise.
BUDGET IMPACT: It is estimated that this will bring in $100,000 in revenue each
year.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure, Sustainable Services
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ATTACHMENTS:
1. Highline Water District Franchise - 110518 (PDF)
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1 Franchise -
Highline Water District
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting Highline Water
District a non-exclusive 15-year franchise to
construct, maintain, operate, replace and repair a
water system within public rights-of-way of the City
of Kent, imposing a franchise fee in the amount of six
percent on the District’s revenues and setting forth
other provisions concerning the relocation of District
facilities to accommodate projects caused by the City
and other projects not caused by the City.
RECITALS
A. Highline Water District, a Washington special purpose
municipal corporation (“District"), owns and operates water facilities
(“Facilities”) and provides retail utility water service to customers located
within the District’s corporate and approved retail water utility service area
boundary; a portion of the District’s Facilities are located in the City of
Kent, a Washington non-charter municipal code city ("City"), within the
City’s right-of-way as hereinafter defined; and
B. The City also owns and operates a water utility system and
provides retail water utility services to customers located with the City’s
corporate and approved retail water utility service area boundary.
C. Portions of the District’s and the City’s corporate and retail
water utility service area boundaries are adjacent.
D. RCW 57.08.005 (3) authorizes the District to conduct water
throughout the District and any city and town therein, and construct and
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2 Franchise -
Highline Water District
lay facilities along and upon public highways, roads and streets within and
without the District; and
E. RCW 35A.47.040 authorizes the City to grant non-exclusive
franchises for the use of the public streets above or below the surface of
the ground by publicly owned and operated water facilities; and
F. The City and the District have prepared a Franchise
Agreement (“Franchise” or “Agreement”) to provide for the operation of
District Facilities within the City right-of-way, to impose a franchise fee of
six percent on District revenues and to govern the relocation of District
facilities;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Definitions. Where used in this Franchise these
terms have the following meanings:
A. "City" means the City of Kent, a Washington municipal corporation,
and its respective successors and assigns.
B. "District" means Highline Water District, a Washington municipal
corporation, and its respective successors and assigns.
C. “Facility” or "Facilities" means tanks, reservoirs, water treatment
facilities, meters, pipes, mains, services, valves, blow offs, vaults, fire
suppression water facilities, risers, generators, electrical control panels,
power meters, telephone connections, pressure reducing valves ("PRVs"),
pump stations, meter stations, interties, lines, and all other necessary or
convenient facilities and appurtenances thereto for the purpose of operating a
water utility system, whether the same be located over or under ground.
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3 Franchise -
Highline Water District
D. "Franchise Area" means every and all of the public roads, streets,
avenues, alleys, highways and rights-of-way of the City as now or hereafter
laid out, platted, dedicated or improved in District's service area within the
present corporate boundaries of the City, and as such corporate boundaries
may be extended within District's service area by annexation or otherwise.
E. "Ordinance" means this Ordinance No. ________, which sets forth
the terms and conditions of this Franchise.
F. "Party" or "Parties" means the City or the District individually, or
collectively as addressed in this Franchise.
G. "Revenue" means income received by the District from the sale of
metered water to direct retail customers whose connections to the District's
water system are located within the City. Revenue shall not include: late
fees; shut-off and reconnect fees; delinquent service charge collection costs
and expenses; surcharges; impact or mitigation fees; permit fees and costs;
any type of connection charges, general facilities charges, or local facilities
charges; local improvement district and utility local improvement district
assessments and payments; grants; contributed assets (contributions in aid
of construction); loans; income from legal settlements not related to water
sales to District customers; income from telecommunication leases or
licenses; income from real property or from real property sales; income from
the sale of surplus equipment, tools or vehicles; interest income; penalties;
hydraulic modeling fees; water availability document fees and charges; water
system extension agreement fees and charges; income from street lights;
labor, equipment and materials charges and the Franchise Fee.
SECTION 2. - Franchise.
A. The City does hereby grant to District the right, privilege, authority
and franchise to construct, install, lay, support, attach, maintain, repair,
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4 Franchise -
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renew, replace, remove, enlarge, operate and use Facilities in, upon, over,
under, along, through and across open city right-of-ways within the
Franchise Area for purposes of its water utility functions as defined in Title
57 RCW beginning on the Effective Date of this Franchise; provided the
City's grant of the right to use the Franchise Area to the District as
provided herein for its Facilities shall not be construed to require the
District to provide such Facilities to the City.
B. Nothing contained in this Ordinance is to be construed as granting
permission to District to go upon any other public place other than those
types of public places specifically designated as the Franchise Area in this
Ordinance. Permission to go upon any other property owned or controlled
by the City must be sought on a case-by-case basis from the City.
C. In addition to the rights granted to the District to undertake and
perform activities within the Franchise Area as provided herein, District
shall have the right to discharge District water supply to and into the City’s
storm water system while performing water system flushing and other
District activities, provided any District water to be discharged to the City’s
storm water system must comply with all applicable federal and state
water quality standards and the City’s NPDES permit relating to the City’s
storm water system.
D. At all times during the term of this Franchise, District shall fully
comply with all applicable federal, state, and local laws and regulations.
SECTION 3. - Non-interference of Facilities.
A. Survey monuments shall not be removed or destroyed without the
District first obtaining the required Department of Natural Resources (DNR)
permit in accordance with RCW 58.09.130 and WAC 332-120-030, and as
such statute and regulation may be modified and amended. All survey
monuments which have been distributed or displaced by such work shall
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5 Franchise -
Highline Water District
be restored pursuant to all federal, state and local standards and
specifications. District agrees to promptly complete all restoration work
and to promptly repair any damage caused by such work at its sole
expense.
B. If it is determined that the District has failed to restore the right-of-
way in accordance with this Section, the City shall provide the District with
written notice, which shall include a description of actions the City believes
necessary to restore the right-of-way. If the right-of-way is not restored in
accordance with the City's notice within fifteen (15) days of that notice, or
such longer period as may be specified in the notice, the City, or its
authorized agent, may restore the right-of-way and District shall be
responsible for all reasonable costs and expenses incurred by the City in
restoring the right-of-way in accordance with this Section. The rights
granted to the City under this Section shall be in addition to those
otherwise provided by this Franchise.
SECTION 4. - Relocation of Facilities.
A. Subject to each Party’s prior and consistent compliance with the
Section 6 Planning Coordination requirements below, whenever the City
causes the grading or widening of the Franchise Area or undertakes
construction of storm drainage lines, lighting, signalization, sidewalk
improvement, pedestrian amenities, or other public street improvements
(for purposes other than those described in Section 4(D) below) and such
project requires the relocation of the District's then existing Facilities
within the Franchise Area, the City shall:
1. Pursuant to RCW 35.21.905, or as amended, consult with the
District in the predesign phase of any such project; and
2. After receipt of written notice from the City, the District shall
design and relocate such Facilities within the Franchise Area within ninety
(90) days for a smaller project and two hundred forty (240) days for a
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6 Franchise -
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larger project to accommodate the City project, unless the Parties agree
on a different time; in any event, the City and the District will, in good
faith, use their best efforts to coordinate their project schedules to avoid
delay to the City’s project. A smaller project includes but is not limited to
adjusting at minimal time and cost, a water service line or a meter to a
new grade or location, adjustment of a valve box, relocation or extension
of a fire hydrant, or relocation of an air vac assembly or blow off.
Notwithstanding the above, the District may, at any time within thirty (30)
calendar days after receipt of written notice requesting the relocation of its
Facilities, submit to the City written alternatives to such relocations. The
City shall within a reasonable time evaluate such alternatives and advise
the District in writing whether one or more of the alternatives is suitable to
accommodate work that would otherwise necessitate relocation of the
Facilities. If so requested by the City, District shall submit such additional
information as is necessary to assist the City in making such evaluation.
The City shall give each alternative full and fair consideration. In the
event the City reasonably determines there is no other reasonable or
feasible alternative, the City shall provide the District with further written
notice to that effect. In that event, the City shall provide the District with
conceptual plans and specifications for the City project and the District
shall then relocate its Facilities by the date so established.
3. Coordinate and work with the District to minimize conflicts
between existing Facilities and the public improvements where possible,
and to avoid having the District relocate its Facilities whenever possible.
The City and the District agree that coordination under this Section 4 shall
include evaluating the costs of alternative plans that achieve the essential
function of the public improvement most efficiently for both the District
and the City, and to the greatest extent possible, avoid the relocation of
District Facilities.
B. If relocation of District Facilities cannot be avoided through the
coordination requirements in this Section 4 and a city project causes the
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7 Franchise -
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relocation of District Facilities, the cost of relocating such Facilities existing
within the Franchise Area shall be paid as follows:
1. If the relocation occurs within fifteen (15) years after the
District or a third party on the District’s behalf initially constructed such
Facility, then the City shall pay fifty percent (50%) of the cost of such
relocation and the District shall pay the remaining fifty percent (50%);
2. If the relocation occurs more than fifteen (15) years after the
District or a third party on the District’s behalf initially constructed such
Facility, then the relocation shall be at the District's sole cost.
3. For the purposes of this Section 4, the date of the Facility’s
acceptance by the District Board of Commissioners shall determine the age
of the Facility.
C. Whenever any person or entity, other than the City, requires the
relocation of District Facilities to accommodate the work of such person or
entity within the Franchise Area, the City agrees not to require the District
to relocate its Facilities. District shall have the right as a pre-condition of
such relocation to require such person or entity to:
1. Make payment to District at a time and upon terms
acceptable to the District for any and all costs and expense incurred by the
District in the relocation of District Facilities; and
2. Protect, defend, indemnify and save the District harmless
from any and all claims and demands made against it on account of injury
or damage to the person or property of another arising out of or in
conjunction with the relocation of District Facilities, to the extent such
injury or damage is caused by the negligence or willful misconduct of the
person or entity requesting the relocation of District Facilities or other
negligence or willful misconduct of the agents, servants or employees of
the person or entity requesting the relocation of District Facilities.
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8 Franchise -
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D. This Section 4 shall govern all relocations of District's Facilities
required in accordance with this Franchise. Any cost or expense in
connection with the location or relocation of any Facilities existing under
benefit of easement or other right not in the Franchise Area shall be borne
by the City, provided the City obtains the District's prior consent to such
location or relocation.
E. For the purpose of this Section 4, a project or improvement is
considered to be caused by the City (as described in Section 4(A) above) if
it is permitted by the City and both of the following conditions exist:
1. The City is the lead agency for the project or improvement; and
2. Developer assessments, impact fees, contributions in aid of
construction, and contributions in lieu of construction make up a minority
of the overall costs of the improvement or project.
F. If a City project requires the relocation of then existing Facilities
within the Franchise Area as provided in this Section 4, the District and the
City may agree to include the relocation of any Facilities as part of the
City’s public works project under terms and conditions agreed between the
City and the District.
SECTION 5. - Right-of-Way Management.
A. Excavation. Whenever the District excavates in any right-of-way for
the purpose of installation, construction, operation, maintenance, repair or
relocation of its Facilities, it shall apply to the City for a permit to do so in
accordance with the ordinances and regulations of the City requiring
permits to operate in City right-of-way. No District work shall commence
within any City right-of-way without a permit, except as otherwise
provided in this Franchise and applicable City Ordinance.
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B. Restoration after Construction. The District shall, after any
installation, construction, relocation, operation, maintenance or repair of
Facilities within the Franchise Area, restore the right-of-way as nearly as
reasonably possible to its condition prior to any such work. The District
agrees to promptly complete all restoration work and to promptly repair
any damage to the right-of-way caused by such work at its sole cost and
expense. If it is determined the District has failed to restore the right-of-
way in accordance with this Franchise and other applicable City
regulations, the City shall provide the District with written notice including
a description of the actions the City believes necessary to restore the
right-of-way.
C. Bonding Requirement. The District, as a public agency, shall not be
required to comply with the City's standard bonding requirement for
working in the City's right-of-way.
D. Emergency Work, Permit Waiver. In the event of an emergency
where any District Facilities located in the right-of-way are broken or
damaged, or if the District's construction area for the District's Facilities is
in a condition as to place health or safety of any person or property in
imminent danger, the District shall immediately take any necessary
emergency measures to repair, replace or remove its Facilities without first
applying for and obtaining a permit as required by this Franchise; provided
the District shall notify the City as soon as reasonably possible relative to
such emergency activity and shall immediately obtain a permit for such
activity if required by this Franchise or City Ordinance.
E. City Work Zones. The District shall not be required to obtain a City
right-of-way permit to undertake utility work to accommodate a City-
initiated project when the City and the District are jointly undertaking a
project in the Franchise Area and the District work is located within the
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City "work zone" for which the City has already approved a traffic control,
pedestrian safety or other applicable plans.
F. Complete Right-of-Way Permit Applications. If the District is
required to obtain any permit from the City to undertake utility work in the
Right-of-Way in the Franchise Area, the City shall provide written review
comments within twenty-one (21) calendar days of receiving a complete
application for such permit. If the permit application requires resubmittal
by the District, the City shall complete all subsequent reviews within
fourteen (14) days of the receipt of such submittal. To be considered
complete for purposes of this section, the application must show existing
utilities, hard surfaces and proposed restoration.
G. City Invoices. The City shall invoice the District for all City fees and
charges relating to the issuance of any City permits to the District, such as
a City right-of-way permit or franchise street use permit, to undertake
utility work in the Franchise Area, including inspection fees and charges,
on a monthly basis, and the City’s final fees and charges within sixty (60)
calendar days of the completion of any District work in City right-of-way
subject to a City permit, and the City’s final acceptance of any such District
work. The District shall pay all such City fees and charges within thirty
(30) calendar days of receipt of the City’s invoice for such fees and
charges, except for any disputed fees and charges.
H. Regular Maintenance. The City will not require the District to obtain
a right-of-way permit, or any other City-issued permit, to conduct regular
maintenance of the District’s Facilities, including, but not limited to,
flushing mains, video inspecting mains, valve, blow-off or hydrant
adjustments, or repairing surface areas around existing Facilities, unless
such maintenance impacts a traffic lane or a high pedestrian area on SR
99; SR 516; Military Road; South 272nd Street; 30th Avenue South; or
South 259th Place/ South 260th Street.
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SECTION 6. - Planning Coordination.
A. The Parties agree to participate in the development of, and
reasonable updates to, the other Party's planning documents to the extent
they apply to the District’s service area within the City limits as follows:
1. Each Party will participate in a cooperative effort to develop
their respective Comprehensive Plan Utilities Elements that meet the
requirements described in RCW 36.70A.070 (4).
2. Each Party will participate in a cooperative effort with the
other Party to ensure that the Utilities Elements of their Comprehensive
Plans are accurate as they relate to their operations and are updated to
ensure continued relevance at reasonable intervals.
3. Each Party shall submit information related to the general
location, proposed location, and capacity of all existing and proposed
Facilities as requested by the other Party within a reasonable time, not
exceeding sixty (60) days from receipt of a written request for such
information, provided that such information is in the non-requesting
Party’s possession, or can be reasonably developed from the information in
the non-requesting Party’s possession.
4. Each Party will provide information relevant to their
operations within a reasonable period of written request to assist the other
Party in the development or update of their respective Comprehensive
Plan(s), provided that such information is in the non-requesting Party’s
possession, or can be reasonably developed from the information in the
non-requesting Party’s possession.
B. District and City shall each assign a representative whose
responsibility shall be to coordinate planning for capital improvement plan
projects including those that involve undergrounding. At a minimum, such
coordination shall include:
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1. For the purpose of planning, the District and the City shall
provide each other with a copy of their respective current adopted Capital
Improvement Plan annually and upon request by the other Party.
2. By February 1st of each year, District shall provide the City
with a schedule of the District's planned capital improvements which may
affect the rights-of-way for that year.
3. By February 1st of each year, City shall provide the District
with a schedule of City's planned capital improvements which may affect
the rights-of-way for that year including but not limited to street overlays
and repairs, storm drainage improvements and construction, and all other
rights-of-way activities that could affect District capital improvements and
infrastructure.
4. The District shall meet with the City, and other franchisees
and users of the right-of-way, as necessary, to schedule and coordinate
construction activities.
5. All construction locations, activities, and schedules should be
coordinated to minimize public inconvenience, disruption or damages.
6. The City and the District agree to cooperate in the planning
and implementation of emergency operations response procedures.
7. Without charge to either Party, both Parties agree to provide
each other with as-built plans, maps and records in electronic format as
available that show the location of its facilities within rights-of-way.
SECTION 7. - Indemnification.
A. District shall indemnify, defend and hold the City, its agents,
officers, employees, volunteers and assigns harmless from and against any
and all claims, demands, liability, loss, cost, damage or expense of any
nature whatsoever, including all costs and attorney's fees, made against
them on account of injury, sickness, death or damage to persons or
property which is caused by or arises out of, in whole or in part, the willful,
tortious or negligent acts, failures and/or omissions of District or its
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agents, servants, employees, contractors, subcontractors or assigns in
exercising the rights granted District in this Franchise; provided, however,
such indemnification shall not extend to injury or damage to the extent
caused by the negligence or willful misconduct of the City, its agents,
officers, employees, volunteers or assigns.
B. City shall indemnify, defend and hold the District, its agents,
officers, employees, volunteers and assigns harmless from and against any
and all claims, demands, liability, loss, cost, damage or expense of any
nature whatsoever, including all costs and attorney's fees, made against
them on account of injury, sickness, death or damage to persons or
property which is caused by or arises out of, in whole or in part, the willful,
tortious or negligent acts, failures and/or omissions of City or its agents,
servants, employees, contractors, subcontractors or assigns in exercising
the rights granted City in this Franchise; provided, however, such
indemnification shall not extend to injury or damage to the extent caused
by the negligence or willful misconduct of the District, its agents, officers,
employees, volunteers or assigns.
C. In the event any such claim or demand be presented to or filed with
the District or the City arising out of or relating to the acts or omissions in
whole or in part of the other Party, the Party shall promptly notify the
other Party thereof, and the notified Party shall have the right, at its
election and at its sole cost and expense, to settle and compromise such
claim or demand.
D. Should a court of competent jurisdiction determine that this
Franchise 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 City and District,
their officers, employees and agents, District's liability hereunder shall be
only to the extent of District's negligence. It is further specifically and
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expressly understood that the indemnification provided herein constitutes
the parties' waiver of immunity under Industrial Insurance, Title 51 RCW,
solely for the purposes of this indemnification.
SECTION 8. - Default. If the District fails to comply with any of the
provisions of this Franchise, unless otherwise provided for herein, the City
may serve upon the District a written order to so comply within thirty (30)
days from the date such order is received by the District. If the District is
not in compliance with this Franchise after expiration of said thirty (30)
day period, the City may act to remedy the violation and may charge the
costs and expenses of such action to District. The City may act without
the thirty (30) day notice in case of an emergency.
SECTION 9. - Non-exclusive Franchise. This Franchise is not and
shall not be deemed to be an exclusive Franchise. This Franchise shall not
in any manner prohibit the City from granting other and further franchises
over, upon, and along the Franchise Area, which do not interfere with
District's rights under this Franchise. This Franchise shall not prohibit or
prevent the City from using the Franchise Area or affect the jurisdiction of
the City over the same or any part thereof.
SECTION 10. - Franchise Term. This Franchise shall have a term of
fifteen (15) years from its Effective Date as defined in Section 29 herein;
provided, this Franchise shall be automatically extended for one additional
five (5) year period unless either Party at least one hundred eighty (180)
days prior to the termination date of the Franchise provides written notice
to the other Party of its intent to terminate the Franchise at the end of the
Franchise term; provided, at the end of the five (5) year term, this
Franchise shall be automatically extended for successive one (1) year
periods unless either Party at least one hundred twenty (120) prior to the
termination date of any one (1) year extension provides written notice to
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the other Party of its intent to terminate the Franchise at the end of the
then current Franchise term.
SECTION 11. - Non-assumption. In consideration of the District's
payment of the Franchise Fee to the City as provided in Section 12 herein,
and the District's acceptance of the other terms and conditions of this
Franchise, the City agrees not to exercise and to forbear its statutory
authority pursuant to chapter 35.13A RCW or other statutes to attempt to
assume jurisdiction over all or part of the District or any District
responsibilities, property, facilities, equipment or utility customers located
within or without the City's corporate limits during the term of this
Franchise. The City's agreement and forbearance includes not facilitating
or cooperating with any other city or town to attempt pursuant to RCW
35.13A.060 or as such statute may be amended or superseded to assume
jurisdiction over the District or any District responsibilities, property,
facilities, equipment or utility customers located within or without the
City's corporate limits during the term of this Franchise.
SECTION 12. - Franchise Fee.
A. In consideration of the rights granted the District under this
Franchise, the District shall pay to the City a franchise fee (“Franchise
Fee”) in the amount of six percent (6.0%) of the District's Revenue
beginning the first day of the first calendar quarter occurring at least sixty
(60) days after the Effective Date of this Franchise, subject to the
provisions of Section 12(B) herein.
B. Franchise Fees shall be paid to the City in bi-monthly installments
due and payable within thirty (30) days following the end of the bi-monthly
period.
C. Should the District be prevented by judicial or legislative action from
paying any or all of the Franchise Fees, the District shall be excused from
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paying that portion of the Franchise Fee and this Franchise agreement will
immediately terminate, unless the Parties otherwise agree.
D. In consideration of the District's payment of a Franchise Fee to the
City as provided in Section 12 herein, and the District's acceptance of the
other terms and conditions of this Franchise, the City agrees not to
exercise and to forbear any legal authority it may have to impose a utility,
business and occupation tax, public utility tax, privilege tax, excise tax or
any other tax (collectively, "Excise Tax") upon the District based on the
District's revenues, gross receipts, or gross income during the term of this
Franchise. However, if a court of competent jurisdiction determines the
City may not agree to forbear its statutory authority to impose an Excise
Tax upon the District based on the District's revenues, gross receipts, or
gross income during the term of this Franchise, or to limit any such Excise
Tax on the District’s revenues, gross receipts, or gross income, the District
shall have the right and option, at its sole election, to (1) terminate this
Franchise and the payment of Franchise Fees to the City, and if the City
determines to impose an Excise Tax on the District, the District shall have
the right to bring an action to challenge the legal validity of any such
Excise Tax, or (2) if the Parties mutually agree, elect not to terminate this
Franchise and the District may agree to pay any such Excise Tax, provided
the District’s Franchise Fees herein to the City shall be credited against any
such Excise Tax the City may impose.
E. In consideration of the District’s payment of a Franchise Fee to the
City as provided herein, and the District’s acceptance of the other terms
and conditions of this Franchise, the City agrees not to exercise and to
forbear any legal authority it may have to impose compensation or a rental
fee (collectively, “Rental Fee”) upon the District for the District’s use of the
Franchise Area as provided for herein.
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F. The District shall have the right to recover the Franchise Fee from
the District's ratepayers residing within the City and may identify the
Franchise Fee as a separate billing item on utility customer billings by
using the following line item:
“Effect of City of Kent Franchise Fee: $X.xx”
SECTION 13. - Compliance with Codes and Regulations;
Annexations; Service Area Boundary.
A. The rights, privileges and authority herein granted are subject to
and governed by this ordinance and all other applicable City ordinances
and codes, as they now exist or may hereafter be amended, provided the
City shall not unreasonably affect or modify any portion of this Franchise
without District's written approval. Nothing in this ordinance limits the
City's lawful power to exercise its police power to protect the safety and
welfare of the general public. Any location, relocation, erection or
excavation by District shall be performed by District in accordance with
applicable federal, state and City rules and regulations, including the City
public works policies and pre-approved plans, and any required permits,
licenses or regulatory fees, and applicable safety standards then in effect.
B. If any territory served by District is annexed to the City after the
Effective Date of this Franchise, this Franchise shall be deemed to be the
new agreement required to be granted to a franchisee in annexed territory
by RCW 35A.14.900 for whatever period of time is then remaining under
this Franchise for the Franchise Area, unless a longer time period is
required by that statute. Such territory shall then be governed by the
terms and conditions contained herein upon the effective date of such
annexation. The first Franchise Fee for any annexed area shall be
calculated pro rata from the effective date of the annexation to the end of
the next bi-monthly period and paid to the City at the same time as the
fee for the Franchise Area is paid for that quarter.
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C. The District's and the City's exclusive retail water service area
boundaries have been established and approved pursuant to chapter
70.116 RCW, the Public Water System Coordination Act of 1977. In
accordance with the South King County Coordinated Water System Plan
prepared pursuant to the Act, the District and the City have been
designated the exclusive water service purveyors within their respective
authorized water service areas. The District's and the City's retail water
service area boundaries have also been established and approved
pursuant to water system plans approved by the Washington State
Department of Health, King County and other public agencies with
jurisdiction. The water system plans designate the District and the City as
the exclusive water service purveyors within their respective authorized
water service areas. The District and the City have reviewed certain
service areas where their water service areas are adjacent to determine
which Party is the most logical provider of water service to the property
located within such areas based on the sizing and proximity of the Parties'
respective water systems to such property. Based on such review, the
Parties have determined to adjust and confirm the exclusive retail water
service area boundary between the Parties. Therefore, the Parties agree
that their respective exclusive retail water service area boundaries shall be
modified, adjusted and confirmed as described and depicted on Exhibit A
attached hereto and incorporated herein by this reference (“City of Kent-
Highline Water District Retail Water Service Area Boundary” or “Retail
Water Service Area Boundary”). The Parties agree to cooperatively
participate in obtaining any required approvals by public agencies with
jurisdiction to reflect and confirm the exclusive retail water service area
boundary as depicted on Exhibit A. The respective exclusive retail water
service area boundaries as provided herein shall survive any termination
or expiration of this Franchise. Any modification of the exclusive retail
water service area boundary provided herein shall be by written
agreement between the Parties. This provision and the agreed exclusive
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retail water service area boundary between the Parties shall supersede,
rescind, and cancel all prior agreements between the Parties relative to
the Parties’ respective retail water service area boundaries.
SECTION 14. - Location of Facilities and Equipment. With the
exception of components that are traditionally installed above ground such
as fire hydrants, blow offs, vault lids, risers, pump stations, generators,
electrical control panels, power meters, telephone connections, automated
reading equipment and appurtenances, and utility markers, all Facilities
and equipment to be installed within the Franchise Area shall be installed
underground; provided, however, that such Facilities may be installed
above ground if so authorized by the City, which authorization shall not be
unreasonably withheld, conditioned or delayed, consistent with the
provisions of the City's land use and zoning code and applicable
development pre-approved plans.
SECTION 15. - Record of Installations and Service. With respect to
excavations by District and the City within the Franchise Area, District and
the City shall each comply with its respective obligations pursuant to
chapter 19.122 RCW, and as such statute may be modified and amended,
and any other applicable state law.
Upon written request of the City, District shall provide the City with the
most recent update available of any plan of potential improvements to its
Facilities within the Franchise Area; provided, however, any such plan so
submitted shall only be for informational purposes within the Franchise
Area, nor shall such plan be construed as a proposal to undertake any
specific improvements within the Franchise Area.
Upon written request of District, the City shall provide District with the
most recent update available of any plan of potential improvements to its
improvements located within the Franchise Area; provided, however, any
such plan so submitted shall only be for informational purposes within the
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Franchise Area, nor shall such plan be construed as a proposal to
undertake any specific improvements within the Franchise Area.
Available as-built drawings of the location of any Facilities located within
the Franchise Area shall be made available to the requesting Party within a
reasonable time, which should typically not exceed fourteen (14) calendar
days of request.
SECTION 16. - Shared Use of Excavations.
A. District and the City shall exercise best efforts to coordinate
construction work that either Party may undertake within the Franchise
Area so as to promote the orderly and expeditious performance and
completion of such work as a whole. Such efforts shall include, at a
minimum, reasonable and diligent efforts to keep the other Party and other
utilities within the Franchise Areas informed of its intent to undertake such
construction work. District and the City shall further exercise best efforts
to minimize any delay or hindrance to any construction work undertaken
by themselves or other utilities within the Franchise Area.
B. If at any time, or from time to time, either District, the City, or
another franchisee, shall cause excavations to be made within the
Franchise Area, the Party causing such excavation to be made shall afford
the others, upon receipt of a written request to do so, an opportunity to
use such excavation, provided that:
1. No statutes, laws, regulations, ordinances or District policies
prohibit or restrict the proximity of other utilities or facilities to District's
Facilities installed or to be installed within the area to be excavated;
2. Such joint use shall not unreasonably delay the work of the
Party causing the excavation to be made;
3. Such joint use shall be arranged and accomplished on terms
and conditions satisfactory to both Parties. The Parties shall each
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21 Franchise -
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cooperate with other utilities in the Franchise Area to minimize hindrance
or delay in construction.
SECTION 17. - Insurance. District shall maintain in full force and
effect throughout the term of this Franchise, a minimum of Two Million
Dollars ($2,000,000.00) liability insurance for property damage and bodily
injury. In satisfying the insurance requirement set forth in this Section,
District may self-insure against such risks in such amounts as are
consistent with good utility practice. Upon request, the District shall
provide the City with sufficient written evidence, as determined by the City
in its reasonable discretion, that such insurance (or self-insurance) is being
so maintained by District. Such written evidence shall include, to the
extent available from District's insurance carrier, a written certificate of
insurance with respect to any insurance maintained by District in
compliance with this Section.
SECTION 18. - Abandonment and/or Removal of District Facilities.
The Parties agree that the standard practice will be to abandon
underground District Facilities in-place whenever practical, subject to the
following conditions:
1. The District shall continue to own and be responsible for any
such facilities abandoned within the Franchise Area.
2. The City shall have the right to require the District to remove
any Facilities abandoned within the Franchise Area if the City reasonably
determines the removal of the abandoned Facility is required to facilitate
the construction or installation of a City project within the Franchise Area
and the City determines there is no other reasonable or feasible alternative
to the removal of the Facility. The City will make reasonable efforts to
avoid conflicts with abandoned Facilities whenever possible, however,
whenever a conflict cannot be resolved except by removal from the right-
of-way of previously abandoned District Facilities, then the District shall, at
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22 Franchise -
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the District's expense, remove such abandoned Facilities by their own
forces or by participating in the City’s public works project. When
necessary, removal of abandoned Facilities shall be limited to the area of
direct conflict. In removing such material, the District shall conform to all
local, state, and federal regulations applicable to asbestos abatement,
when applicable.
3. Within forty-five (45) calendar days of the District’s
permanent cessation of use of any of its Facilities as determined by the
District, or any portion thereof, the District will, in good faith, use its best
efforts to provide as-built drawings locating the abandoned Facilities or if
unable to provide as-built drawings, will provide the most complete and
accurate drawings the District can make available to provide adequate
notice of the location of all abandoned Facilities.
4. District Facilities that are abandoned in-place shall be
abandoned pursuant to City Standards, to the satisfaction of the Public
Works Director.
5. The Parties expressly agree that this section shall survive the
expiration, revocation or termination of this Franchise, unless modified by
separate agreement.
SECTION 19. - Vacation of Franchise Area. If the City determines
to vacate any right-of-way which is part of the Franchise Area where
District Facilities are located or maintained, any ordinance vacating such
right-of-way shall provide and condition such vacation on the District
obtaining, at no cost to the District, a permanent easement at least fifteen
(15) feet wide in such vacated right-of-way for the construction, operation,
maintenance, repair and replacement of its Facilities located and to be
located in such vacated right-of-way.
SECTION 20. - Assignment. All of the provisions, conditions, and
requirements herein contained shall be binding upon the District, and no
right, privilege, license or authorization granted to the District hereunder
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23 Franchise -
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may be assigned or otherwise transferred without the prior written
authorization and approval of the City, which the City may not
unreasonably withhold, condition or delay, provided that a merger or
consolidation of District with or into another Title 57 water-sewer district
shall not be considered an assignment for the purposes of this provision
and shall not be subject to the City's approval.
SECTION 21. - Notice. Unless applicable law requires a different
method of giving notice, any and all notices, demands or other
communications required or desired to be given hereunder by any Party
(collectively, "notices") shall be in writing and shall be validly given or
made to another Party if delivered either personally or by Federal Express
or other overnight delivery service of recognized standing, or if deposited
in the United States Mail, certified, registered, or express mail with
postage prepaid, or if sent by e-mail with electronic confirmation. If such
notice is personally delivered, it shall be conclusively deemed given at the
time of such delivery. If such notice is delivered by Federal Express or
other overnight delivery service of recognized standing, it shall be deemed
given one (1) business day after the deposit thereof with such delivery
service. If such notice is mailed as provided herein, such shall be deemed
given three (3) business days after the deposit thereof in the United States
Mail. If such notice is sent by email, it shall be deemed given at the time
of the sender's receipt of electronic confirmation. Each such notice shall
be deemed given only if properly addressed to the Party to whom such
notice is to be given as follows:
To City:
City Clerk
City of Kent
220 Fourth Avenue South
Kent, WA 98032
Phone: (253) 856-5725
Fax: (253) 856-6725
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24 Franchise -
Highline Water District
To District:
General Manager
Highline Water District
23828 – 30th Ave. S.
Kent, WA 98032
Phone: (206) 824-0375
Fax: (206) 824-0806
Any Party may change its address for the purpose of receiving notices as
herein provided by a written notice given in the manner required by this
Section to the other Party.
SECTION 22. - Non-Waiver. The failure of either Party to enforce
any breach or violation by the other Party or any provision of this
Franchise shall not be deemed to be a waiver or a continuing waiver by the
non-breaching Party of any subsequent breach or violation of the same or
any other provision of this Franchise.
SECTION 23. - Alternate Dispute Resolution. If the Parties are
unable to resolve disputes arising from the terms of this Franchise, prior to
resorting to a court of competent jurisdiction, the Parties shall submit the
dispute to mediation or other non-binding alternate dispute resolution
process agreed to by the Parties. Unless otherwise agreed upon between
the Parties or determined herein, the cost of that process shall be shared
equally by the Parties.
SECTION 24. - Governing Law/Venue. This Franchise shall be
governed by the laws of the State of Washington. Any suit to enforce or
relating to this Agreement shall only be filed in King County Superior
Court, King County, Washington.
SECTION 25. - Entire Agreement. The Recitals set forth above are
hereby incorporated herein in full by this reference. This Franchise
constitutes the entire understanding and agreement between the Parties
as to the subject matter herein and no other agreements or
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25 Franchise -
Highline Water District
understandings, written or otherwise, shall be binding upon the Parties
upon execution and acceptance hereof. This Franchise shall supersede,
rescind and cancel any prior franchise or agreement granted by the City to
the District to locate and operate a public water system within the
Franchise Area.
SECTION 26. - Amendment. This Franchise may be amended only
by written instrument, signed by both Parties, which specifically states that
it is an amendment to this Franchise, and is approved and executed in
accordance with the laws of the State of Washington. Without limiting the
generality of the foregoing, this Franchise (including, without limitation,
Section 7 “Indemnification” above) shall govern and supersede and shall
not be changed, modified, deleted, added to, supplemented or otherwise
amended by any permit, approval, license, agreement or other document
required by or obtained from the City in conjunction with the exercise (or
failure to exercise) by District of any and all rights, benefits, privileges,
obligations, or duties in and under this Franchise, unless such permit,
approval, license, agreement or document specifically:
1. References this Franchise; and
2. States that it supersedes this Franchise to the extent it
contains terms and conditions which change, modify, delete, add to,
supplement or otherwise amend the terms and conditions of this
Franchise.
In the event of any conflict or inconsistency between the provisions of this
Franchise and the provisions of any such permit, approval, license,
agreement or other document that does not comply with Subsections (1)
and (2) referenced immediately above, the provisions of this Franchise
shall control.
SECTION 27. - Directions to City Clerk. The City Clerk is hereby
authorized and directed to forward certified copies of this ordinance to the
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26 Franchise -
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District as set forth in this ordinance. The District shall have thirty (30)
days from the date of receipt of the certified copy of this ordinance to
accept in writing the terms of the Franchise granted to the District by this
ordinance and file with the City Clerk the executed statement of
Acceptance of Franchise, attached hereto as Exhibit B and incorporated
herein by this reference.
SECTION 28. - District Acceptance of Franchise. District shall have
no rights under this Franchise nor shall District be bound by the terms and
conditions of this Franchise unless District shall, within thirty (30) days
after the receipt of the certified copy of this ordinance as addressed in
Section 27 herein, file with the City its written acceptance of this
Franchise.
SECTION 29. - Effective Date of Franchise. The terms and
conditions of this ordinance shall not be binding on the City and the District
unless the District Board of Commissioners within thirty (30) days of the
receipt of the certified copy of this ordinance as addressed in Section 27
herein adopts a resolution accepting this Franchise, and the date of the
adoption of such resolution by the District Board of Commissioners shall be
the effective date ("Effective Date") of the Franchise.
SECTION 30. – Severability. If any one or more section,
subsection, or sentence of this franchise is held to be unconstitutional or
invalid, such decision shall not affect the validity of the remaining portion
of this franchise and the same shall remain in full force and effect.
SECTION 31. – 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.
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27 Franchise -
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SECTION 32. - Effective Date of Ordinance. This ordinance shall
take effect and be in force five (5) days after its publication, as provided
by law.
DANA RALPH, MAYOR Date Approved
ATTEST:
KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted
Date Published
APPROVED AS TO FORM:
ARTHUR “PAT” FITZPATRICK, CITY ATTORNEY
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68 Av S
W James St
Reith Rd
S 212 St
S 260 St
S 216 St
W Meeker St
84 Av S
S 200 St
64 Av S
W Smith St
RussellRdS
E S m ith St
S 188 St
2
4
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Pacific Hwy S
4 Av N
4 Av S
Central Av N
S 228 St
S 259 Pl
36 Av S
S 277 St
80 Av S
V e t e r a n s D r
76 Av S
24
Av
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S 272 St
S Star Lake Rd
Central Av S
S 196 St
S 208 St
Military Rd S
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Burlington Northern Railroad
Kent/Highline Water District Boundary
Kent Citylimits
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Data provided by Highline Water Districtand City of Kent GISMay 2018
Exhibit A
City of Kent - Highline Water District Retail Water Service Area Boundary Map
Kent retail water service areaHighline retail water service area
May 2018
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29 Franchise -
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EXHIBIT B
ACCEPTANCE OF FRANCHISE
The undersigned authorized representative of Highline Water District
(District) hereby declares on the District’s behalf the District’s acceptance
of the nonexclusive franchise to Highline Water District approved by the
City of Kent City Council on ____________, ___________, 2018, by the
adoption of City of Kent Ordinance No. ______.
DATED this ______ day of ________________, 2018.
Highline Water District
By: ______________________________
Its: ______________________________
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: November 20, 2018
TO: Operations Committee
SUBJECT: Midway Sewer District Franchise
MOTION: Recommend the City Council approve an ordinance establishing a
15-year franchise agreement with Midway Sewer District, and adjust the
general fund budget accordingly.
SUMMARY: For the past year, the City and Midway Sewer District (Midway) have
been negotiating this franchise agreement which governs the operations,
installation, construction and maintenance of Midway’s facilities within the City’s
rights-of-way and charges Midway a franchise fee. The Midway franchise was
negotiated simultaneously with the Highline Water District franchise, which means
that the franchises are substantively the same, with adjustments to account for the
differences in the type of facilities involved.
The Midway franchise runs for a period of fifteen years, with an automatic extension
of an additional five years, unless a party provides the specified notice to terminate.
Following the five-year extension, the franchise renews automatically for one-year
periods until terminated. It imposes a franchise fee of six percent on Midway’s
“revenue,” which is a specifically defined term within the franchise. In consideration
of the franchise fee, the City agrees not to assume the water district and also to
forgo any legal authority it has to impose a utility or other excise tax upon Midway.
The franchise also addresses other issues regarding Midway’s facilities within the
rights-of-way. Specifically, the franchise contains detailed terms on the relocation
of Midway’s facilities to accommodate a City project or other project including
coordination, consideration of alternatives that avoid relocation, and how to split
the costs of relocating the facilities. These terms are particularly important because
Midway’s facilities are located in an area in which the City expects significant
redevelopment to take place over the term of the franchise.
BUDGET IMPACT: It is estimated this will produce $45,000 in revenue each year.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure, Sustainable Services
ATTACHMENTS:
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1. Midway Sewer District Franchise - 110518 (PDF)
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1 Franchise -
Midway Sewer District
648928.2 - 356659 -0002
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting Midway Sewer
District a non-exclusive 15-year franchise to
construct, maintain, operate, replace and repair a
sewer system within public rights-of-way of the
City of Kent, imposing a franchise fee in the
amount of six percent on the District’s revenues
and setting forth other provisions concerning the
relocation of District facilities to accommodate
projects caused by the City and other projects not
caused by the City.
RECITALS
A. Midway Sewer District, a Washington special purpose
municipal corporation (“District"), owns and operates sewer facilities
(“Facilities”) and provides retail utility sewer service to customers located
within the District’s corporate and approved sewer utility service area
boundary; a portion of the District’s Facilities are located in the City of
Kent, a Washington non-charter municipal code city ("City"), within the
City’s right-of-way as hereinafter defined; and
B. The City also owns and operates a sewer utility system and
provides sewer utility services to customers located with the City’s
corporate and approved sewer utility service area boundary.
C. Portions of the District’s and the City’s corporate and sewer
utility service area boundaries are adjacent.
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2 Franchise -
Midway Sewer District
648928.2 - 356659 -0002
D. RCW 57.08.005 (5) authorizes the District to conduct sewage
throughout the District and any city and town therein, and construct and
lay facilities along and upon public highways, roads and streets within and
without the District; and
E. RCW 35A.47.040 authorizes the City to grant non-exclusive
franchises for the use of the public streets above or below the surface of
the ground by publicly owned and operated sewer facilities; and
F. The City and the District have prepared a Franchise
Agreement (“Franchise” or “Agreement”) to provide for the operation of
District Facilities within the City right-of-way, to impose a franchise fee of
six percent on District revenues and to govern the relocation of District
facilities;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Definitions. Where used in this Franchise these
terms have the following meanings:
A. "City" means the City of Kent, a Washington municipal corporation,
and its respective successors and assigns.
B. "District" means Midway Sewer District, a Washington municipal
corporation, and its respective successors and assigns.
C. “Facility” or "Facilities" means manholes, pipes, mains, laterals,
forcemains, valves, vaults, risers, generators, electrical control panels,
power meters, telephone connections, lift stations, lines and all other
necessary or convenient facilities and appurtenances thereto for the
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3 Franchise -
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purpose of operating a wastewater utility system, whether the same be
located at the surface or underground.
D. "Franchise Area" means every and all of the public roads, streets,
avenues, alleys, highways and rights-of-way of the City as now or
hereafter laid out, platted, dedicated or improved in District's service area
within the present corporate boundaries of the City, and as such corporate
boundaries may be extended within District's service area by annexation or
otherwise.
E. "Ordinance" means this Ordinance No. ________, which sets forth
the terms and conditions of this Franchise.
F. "Party" or "Parties" means the City or the District individually, or
collectively as addressed in this Franchise.
G. "Revenue" means income received by the District from the provision
of sewer service to direct retail customers whose connections to the
District's sewer system are located within the City. Revenue shall not
include: late fees; shut-off and reconnect fees; delinquent service charge
collection costs and expenses; surcharges; impact or mitigation fees;
permit fees and costs; any type of connection charges, general facilities
charges, or local facilities charges; local improvement district and utility
local improvement district assessments and payments; grants; contributed
assets (contributions in aid of construction); loans; income from legal
settlements not related to the provision of sewer service to District
customers; income from telecommunication leases or licenses; income
from real property or from real property sales; income from the sale of
surplus equipment, tools or vehicles; interest income; penalties; hydraulic
modeling fees; sewer availability document fees and charges; sewer
system extension agreement fees and charges; income from street lights;
labor, equipment and materials charges, and the Franchise Fee.
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SECTION 2. - Franchise.
A. The City does hereby grant to District the right, privilege, authority
and franchise to construct, install, lay, support, attach, maintain, repair,
renew, replace, remove, enlarge, operate and use Facilities in, upon, over,
under, along, through and across open city right-of-ways within the
Franchise Area for purposes of its sewer utility functions as defined in Title
57 RCW beginning on the Effective Date of this Franchise; provided the
City's grant of the right to use the Franchise Area to the District as
provided herein for its Facilities shall not be construed to require the
District to provide such Facilities to the City.
B. Nothing contained in this Ordinance is to be construed as granting
permission to District to go upon any other public place other than those
types of public places specifically designated as the Franchise Area in this
Ordinance. Permission to go upon any other property owned or controlled
by the City must be sought on a case-by-case basis from the City.
C. At all times during the term of this Franchise, District shall fully
comply with all applicable federal, state, and local laws and regulations.
SECTION 3. - Non-interference of Facilities.
A. Survey monuments shall not be removed or destroyed without the
District first obtaining the required Department of Natural Resources (DNR)
permit in accordance with RCW 58.09.130 and WAC 332-120-030, and as
such statute and regulation may be modified and amended. All survey
monuments which have been distributed or displaced by such work shall
be restored pursuant to all federal, state and local standards and
specifications. District agrees to promptly complete all restoration work
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and to promptly repair any damage caused by such work at its sole
expense.
B. If it is determined that the District has failed to restore the right-of-
way in accordance with this Section, the City shall provide the District with
written notice, which shall include a description of actions the City
reasonably believes necessary to restore the right-of-way. If the right-of-
way is not restored in accordance with the City's notice within fifteen (15)
days of that notice, or such longer period as may be specified in the notice,
the City, or its authorized agent, may restore the right-of-way and District
shall be responsible for all reasonable costs and expenses incurred by the
City in restoring the right-of-way in accordance with this Section. The
rights granted to the City under this Section shall be in addition to those
otherwise provided by this Franchise.
SECTION 4. - Relocation of Facilities.
A. Subject to each Party’s prior and consistent compliance with the
Section 6 Planning Coordination requirements below, whenever the City
causes the grading or widening of the Franchise Area or undertakes
construction of storm drainage lines, lighting, signalization, sidewalk
improvement, pedestrian amenities, or other public street improvements
(for purposes other than those described in Section 4(D) below) and such
project requires the relocation of the District's then existing Facilities
within the Franchise Area, the City shall:
1. Pursuant to RCW 35.21.905, or as amended, consult with the
District in the predesign phase of any such project; and
2. After receipt of written notice from the City, the District shall
design and relocate such Facilities within the Franchise Area within ninety
(90) days for a smaller project and two hundred forty (240) days for a
larger project to accommodate the City project, unless the Parties agree
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on a different time; in any event, the City and the District will, in good
faith, use their best efforts to coordinate their project schedules to avoid
delay to the City’s project. A smaller project includes but is not limited to
adjusting at minimal time and cost, a sewer service line or a manhole
frame and cover to a new grade or location, adjustment of a valve box, or
relocation of an air vac assembly. Notwithstanding the above, the District
may, at any time within thirty (30) calendar days after receipt of written
notice requesting the relocation of its Facilities, submit to the City written
alternatives to such relocations. The City shall within a reasonable time
evaluate such alternatives and advise the District in writing whether one or
more of the alternatives is suitable to accommodate work that would
otherwise necessitate relocation of the Facilities. If so requested by the
City, District shall submit such additional information as is necessary to
assist the City in making such evaluation. The City shall give each
alternative full and fair consideration. In the event the City reasonably
determines there is no other reasonable or feasible alternative, the City
shall provide the District with further written notice to that effect. In that
event, the City shall provide the District with conceptual plans and
specifications for the City project and the District shall then relocate its
Facilities by the date so established.
3. Coordinate and work with the District to minimize conflicts
between existing Facilities and the public improvements where possible,
and to avoid having the District relocate its Facilities whenever possible.
The City and the District agree that coordination under this Section 4 shall
include evaluating the costs of alternative plans that achieve the essential
function of the public improvement most efficiently for both the District
and the City, and to the greatest extent possible, avoid the relocation of
District Facilities.
B. If relocation of District Facilities cannot be avoided through the
coordination requirements in this Section 4 and a city project causes the
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relocation of District Facilities, the cost of relocating such Facilities existing
within the Franchise Area shall be paid as follows:
1. If the relocation occurs within fifteen (15) years after the
District or a third party on the District’s behalf initially constructed such
Facility, then the City shall pay fifty percent (50%) of the cost of such
relocation and the District shall pay the remaining fifty percent (50%);
2. If the relocation occurs more than fifteen (15) years after the
District or a third party on the District’s behalf initially constructed such
Facility, then the relocation shall be at the District's sole cost.
3. For the purposes of this Section 4, the date of the Facility’s
acceptance by the District Board of Commissioners shall determine the age
of the Facility.
C. Whenever any person or entity, other than the City, requires the
relocation of District Facilities to accommodate the work of such person or
entity within the Franchise Area, the City agrees not to require the District
to relocate its Facilities. District shall have the right as a pre-condition of
such relocation to require such person or entity to:
1. Make payment to District at a time and upon terms
acceptable to the District for any and all costs and expense incurred by the
District in the relocation of District Facilities; and
2. Protect, defend, indemnify and save the District harmless
from any and all claims and demands made against it on account of injury
or damage to the person or property of another arising out of or in
conjunction with the relocation of District Facilities, to the extent such
injury or damage is caused by the negligence or willful misconduct of the
person or entity requesting the relocation of District Facilities or other
negligence or willful misconduct of the agents, servants or employees of
the person or entity requesting the relocation of District Facilities.
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D. This Section 4 shall govern all relocations of District's Facilities
required in accordance with this Franchise. Any cost or expense in
connection with the location or relocation of any Facilities existing under
benefit of easement or other right not in the Franchise Area shall be borne
by the City, provided the City obtains the District's prior consent to such
location or relocation.
E. For the purpose of this Section 4, a project or improvement is
considered to be caused by the City (as described in Section 4(A) above) if
it is permitted by the City and both of the following conditions exist:
1. The City is the lead agency for the project or improvement; and
2. Developer assessments, impact fees, contributions in aid of
construction, and contributions in lieu of construction make up a minority
of the overall costs of the improvement or project.
F. If a City project requires the relocation of then existing Facilities
within the Franchise Area as provided in this Section 4, the District and the
City may agree to include the relocation of any Facilities as part of the
City’s public works project under terms and conditions agreed between the
City and the District.
SECTION 5. - Right-of-Way Management.
A. Excavation. Except as provided in Section 5(H) herein, whenever
the District excavates in any right-of-way for the purpose of installation,
construction, operation, maintenance, repair or relocation of its Facilities, it
shall apply to the City for a permit to do so in accordance with the
ordinances and regulations of the City requiring permits to operate in City
right-of-way. No District work shall commence within any City right-of-
way without a permit, except as otherwise provided in this Franchise and
applicable City Ordinance.
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B. Restoration after Construction. The District shall, after any
installation, construction, relocation, operation, maintenance or repair of
Facilities within the Franchise Area, restore the right-of-way as nearly as
reasonably possible to its condition prior to any such work. The District
agrees to promptly complete all restoration work and to promptly repair
any damage to the right-of-way caused by such work at its sole cost and
expense. If it is determined the District has failed to restore the right-of-
way in accordance with this Franchise and other applicable City
regulations, the City shall provide the District with written notice including
a description of the actions the City reasonably believes necessary to
restore the right-of-way.
C. Bonding Requirement. The District, as a public agency, shall not be
required to comply with the City's standard bonding requirement for
working in the City's right-of-way.
D. Emergency Work, Permit Waiver. In the event of an emergency
where any District Facilities located in the right-of-way are broken,
damaged or plugged, or if the District's construction area for the District's
Facilities is in a condition as to place health or safety of any person or
property in imminent danger, the District shall immediately take any
necessary emergency measures to repair, replace or remove its Facilities
without first applying for and obtaining a permit as required by this
Franchise; provided the District shall notify the City as soon as reasonably
possible relative to such emergency activity and shall immediately obtain a
permit for such activity if required by this Franchise or City Ordinance.
E. City Work Zones. The District shall not be required to obtain a City
right-of-way permit to undertake utility work to accommodate a City-
initiated project when the City and the District are jointly undertaking a
project in the Franchise Area and the District work is located within the
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City "work zone" for which the City has already approved a traffic control,
pedestrian safety or other applicable plans.
F. Complete Right-of-Way Permit Applications. If the District is
required to obtain any permit from the City to undertake utility work in the
Right-of-Way in the Franchise Area, the City shall provide written review
comments within twenty-one (21) calendar days of receiving a complete
application for such permit. If the permit application requires resubmittal
by the District, the City shall complete all subsequent reviews within
fourteen (14) days of the receipt of such submittal. To be considered
complete for purposes of this section, the application must show existing
utilities, hard surfaces and proposed restoration.
G. City Invoices. The City shall invoice the District for all City fees and
charges relating to the issuance of any City permits to the District, such as
a City right-of-way permit or franchise street use permit, to undertake
utility work in the Franchise Area, including inspection fees and charges,
on a monthly basis, and the City’s final fees and charges within sixty (60)
calendar days of the completion of any District work in City right-of-way
subject to a City permit, and the City’s final acceptance of any such District
work. The District shall pay all such City fees and charges within thirty
(30) calendar days of receipt of the City’s invoice for such fees and
charges, except for any disputed fees and charges.
H. Regular Maintenance. The City will not require the District to obtain
a right-of-way permit, or any other City-issued permit, to conduct regular
maintenance of the District’s Facilities, including, but not limited to,
flushing mains, video inspecting mains, or manhole adjustments, or
repairing surface areas around existing facilities, unless such maintenance
impacts a traffic lane or a high pedestrian area on SR 99; SR 516; Military
Road; South 272nd Street; 30th Avenue South; or South 259th Place/
South 260th Street.
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SECTION 6. - Planning Coordination.
A. The Parties agree to participate in the development of, and
reasonable updates to, the other Party's planning documents to the extent
they apply to the District’s service area within the City limits as follows:
1. Each Party will participate in a cooperative effort to develop
their respective Comprehensive Plan Utilities Elements that meet the
requirements described in RCW 36.70A.070 (4).
2. Each Party will participate in a cooperative effort with the
other Party to ensure that the Utilities Elements of their Comprehensive
Plans are accurate as they relate to their operations and are updated to
ensure continued relevance at reasonable intervals.
3. Each Party shall submit information related to the general
location, proposed location, and capacity of all existing and proposed
Facilities as requested by the other Party within a reasonable time, not
exceeding sixty (60) days from receipt of a written request for such
information, provided that such information is in the non-requesting
Party’s possession, or can be reasonably developed from the information in
the non-requesting Party’s possession.
4. Each Party will provide information relevant to their
operations within a reasonable period of written request to assist the other
Party in the development or update of their respective Comprehensive
Plan(s), provided that such information is in the non-requesting Party’s
possession, or can be reasonably developed from the information in the
non-requesting Party’s possession.
B. District and City shall each assign a representative whose
responsibility shall be to coordinate planning for capital improvement plan
projects. At a minimum, such coordination shall include:
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1. For the purpose of planning, the District and the City shall
provide each other with a copy of their respective current adopted Capital
Improvement Plan annually and upon request by the other Party.
2. By February 1st of each year, District shall provide the City
with a schedule of the District's planned capital improvements which may
affect the rights-of-way for that year.
3. By February 1st of each year, City shall provide the District
with a schedule of City's planned capital improvements which may affect
the rights-of-way for that year including but not limited to street overlays
and repairs, storm drainage improvements and construction, and all other
rights-of-way activities that could affect District capital improvements and
infrastructure.
4. The District shall meet with the City, and other franchisees
and users of the right-of-way, as necessary, to schedule and coordinate
construction activities.
5. All construction locations, activities, and schedules should be
coordinated to minimize public inconvenience, disruption or damages.
6. The City and the District agree to cooperate in the planning
and implementation of emergency operations response procedures.
7. Without charge to either Party, both Parties agree to provide
each other with as-built plans, maps and records in electronic format as
available that show the location of its facilities within rights-of-way.
SECTION 7. - Indemnification.
A. District shall indemnify, defend and hold the City, its agents,
officers, employees, volunteers and assigns harmless from and against any
and all claims, demands, liability, loss, cost, damage or expense of any
nature whatsoever, including all costs and attorney's fees, made against
them on account of injury, sickness, death or damage to persons or
property which is caused by or arises out of, in whole or in part, the willful,
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tortious or negligent acts, failures and/or omissions of District or its
agents, servants, employees, contractors, subcontractors or assigns in
exercising the rights granted District in this Franchise; provided, however,
such indemnification shall not extend to injury or damage to the extent
caused by the negligence or willful misconduct of the City, its agents,
officers, employees, volunteers or assigns.
B. City shall indemnify, defend and hold the District, its agents,
officers, employees, volunteers and assigns harmless from and against any
and all claims, demands, liability, loss, cost, damage or expense of any
nature whatsoever, including all costs and attorney's fees, made against
them on account of injury, sickness, death or damage to persons or
property which is caused by or arises out of, in whole or in part, the willful,
tortious or negligent acts, failures and/or omissions of City or its agents,
servants, employees, contractors, subcontractors or assigns in exercising
the rights granted City in this Franchise; provided, however, such
indemnification shall not extend to injury or damage to the extent caused
by the negligence or willful misconduct of the District, its agents, officers,
employees, volunteers or assigns.
C. In the event any such claim or demand be presented to or filed with
the District or the City arising out of or relating to the acts or omissions in
whole or in part of the other Party, the Party shall promptly notify the
other Party thereof, and the notified Party shall have the right, at its
election and at its sole cost and expense, to settle and compromise such
claim or demand.
D. Should a court of competent jurisdiction determine that this
Franchise 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 City and District,
their officers, employees and agents, District's liability hereunder shall be
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only to the extent of District's negligence. It is further specifically and
expressly understood that the indemnification provided herein constitutes
the parties' waiver of immunity under Industrial Insurance, Title 51 RCW,
solely for the purposes of this indemnification.
SECTION 8. - Default. If the District fails to comply with any of the
provisions of this Franchise, unless otherwise provided for herein, the City
may serve upon the District a written order to so comply within thirty (30)
days from the date such order is received by the District. If the District is
not in compliance with this Franchise after expiration of said thirty (30)
day period, the City may act to remedy the violation and may charge the
costs and expenses of such action to District. The City may act without
the thirty (30) day notice in case of an emergency.
SECTION 9. - Non-exclusive Franchise. This Franchise is not and
shall not be deemed to be an exclusive Franchise. This Franchise shall not
in any manner prohibit the City from granting other and further franchises
over, upon, and along the Franchise Area, which do not interfere with
District's rights under this Franchise. This Franchise shall not prohibit or
prevent the City from using the Franchise Area or affect the jurisdiction of
the City over the same or any part thereof.
SECTION 10. - Franchise Term. This Franchise shall have a term of
fifteen (15) years from its Effective Date as defined in Section 29 herein;
provided, this Franchise shall be automatically extended for one additional
five (5) year period unless either Party at least one hundred eighty (180)
days prior to the termination date of the Franchise provides written notice
to the other Party of its intent to terminate the Franchise at the end of the
Franchise term; provided, at the end of the five (5) year term, this
Franchise shall be automatically extended for successive one (1) year
periods unless either Party at least one hundred twenty (120) prior to the
termination date of any one (1) year extension provides written notice to
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15 Franchise -
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648928.2 - 356659 -0002
the other Party of its intent to terminate the Franchise at the end of the
then current Franchise term.
SECTION 11. - Non-assumption. In consideration of the District's
payment of the Franchise Fee to the City as provided in Section 12 herein,
and the District's acceptance of the other terms and conditions of this
Franchise, the City agrees not to exercise and to forbear its statutory
authority pursuant to chapter 35.13A RCW or other statutes to attempt to
assume jurisdiction over all or part of the District or any District
responsibilities, property, facilities, equipment or utility customers located
within or without the City's corporate limits during the term of this
Franchise. The City's agreement and forbearance includes not facilitating
or cooperating with any other city or town to attempt pursuant to RCW
35.13A.060 or as such statute may be amended or superseded to assume
jurisdiction over the District or any District responsibilities, property,
facilities, equipment or utility customers located within or without the
City's corporate limits during the term of this Franchise.
SECTION 12. - Franchise Fee.
A. In consideration of the rights granted the District under this
Franchise, the District shall pay to the City a franchise fee (“Franchise
Fee”) in the amount of six percent (6.0%) of the District's Revenue
beginning the first day of the first calendar quarter occurring at least sixty
(60) days after the Effective Date of this Franchise, subject to the
provisions of Section 12(B) herein.
B. Franchise Fees shall be paid to the City in bi-monthly installments
(meaning, every two months) due and payable within thirty (30) days
following the end of the bi-monthly period.
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C. Should the District be prevented by judicial or legislative action from
paying any or all of the Franchise Fees, the District shall be excused from
paying that portion of the Franchise Fee and this Franchise agreement will
immediately terminate, unless the Parties otherwise agree.
D. In consideration of the District's payment of a Franchise Fee to the
City as provided in Section 12 herein, and the District's acceptance of the
other terms and conditions of this Franchise, the City agrees not to
exercise and to forbear any legal authority it may have to impose a utility,
business and occupation tax, public utility tax, privilege tax, excise tax or
any other tax (collectively, "Excise Tax") upon the District based on the
District's revenues, gross receipts, or gross income during the term of this
Franchise. However, if a court of competent jurisdiction determines the
City may not agree to forbear its statutory authority to impose an Excise
Tax upon the District based on the District's revenues, gross receipts, or
gross income during the term of this Franchise, or to limit any such Excise
Tax on the District’s revenues, gross receipts, or gross income, the District
shall have the right and option, at its sole election, to (1) terminate this
Franchise and the payment of Franchise Fees to the City, and if the City
determines to impose an Excise Tax on the District, the District shall have
the right to bring an action to challenge the legal validity of any such
Excise Tax, or (2) if the Parties mutually agree, elect not to terminate this
Franchise and the District may agree to pay any such Excise Tax, provided
the District’s Franchise Fees herein to the City shall be credited against any
such Excise Tax the City may impose.
E. In consideration of the District’s payment of a Franchise Fee to the
City as provided herein, and the District’s acceptance of the other terms
and conditions of this Franchise, the City agrees not to exercise and to
forbear any legal authority it may have to impose compensation or a rental
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fee (collectively, “Rental Fee”) upon the District for the District’s use of the
Franchise Area as provided for herein.
F. The District shall have the right to recover the Franchise Fee from
the District's ratepayers residing within the City and may identify the
Franchise Fee as a separate billing item on utility customer billings by
using the following line item:
“Effect of City of Kent Franchise Fee: $X.xx”
SECTION 13. - Compliance with Codes and Regulations;
Annexations; Service Area Boundary.
A. The rights, privileges and authority herein granted are subject to
and governed by this ordinance and all other applicable City ordinances
and codes, as they now exist or may hereafter be amended, provided the
City shall not unreasonably affect or modify any portion of this Franchise
without District's written approval. Nothing in this ordinance limits the
City's lawful power to exercise its police power to protect the safety and
welfare of the general public. Any location, relocation, erection or
excavation by District shall be performed by District in accordance with
applicable federal, state and City rules and regulations, including the City
public works policies and pre-approved plans, and any required permits,
licenses or regulatory fees, and applicable safety standards then in effect.
B. If any territory served by District is annexed to the City after the
Effective Date of this Franchise, this Franchise shall be deemed to be the
new agreement required to be granted to a franchisee in annexed territory
by RCW 35A.14.900 for whatever period of time is then remaining under
this Franchise for the Franchise Area, unless a longer time period is
required by that statute. Such territory shall then be governed by the
terms and conditions contained herein upon the effective date of such
annexation. The first Franchise Fee for any annexed area shall be
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calculated pro rata from the effective date of the annexation to the end of
the next bi-monthly period and paid to the City at the same time as the
fee for the Franchise Area is paid for that quarter.
C. The District's and the City's exclusive retail sewer service area
boundaries have been established and approved by agencies with
jurisdiction, including the Washington State Department of Ecology and
King County. The Parties agree that their respective exclusive retail sewer
service area boundaries are confirmed as described and depicted on
Exhibit A attached hereto and incorporated herein by this reference (“City
of Kent-Midway Sewer District Retail Sewer Service Area Boundary” or
“Retail Sewer Service Area Boundary”). The respective exclusive retail
sewer service area boundaries as provided herein shall survive any
termination or expiration of this Franchise. Any modification of the
exclusive retail sewer service area boundary provided herein shall be by
written agreement between the Parties. This provision and the agreed
exclusive retail sewer service area boundary between the Parties shall
supersede, rescind, and cancel all prior agreements between the Parties
relative to the Parties’ respective retail sewer service area boundaries.
SECTION 14. - Location of Facilities and Equipment. With the
exception of components that are traditionally installed at ground level or
above such as manhole frame and covers, vault lids, risers, lift stations,
electrical control panels, power meters, telephone connections, and utility
markers, all Facilities and equipment to be installed within the Franchise
Area shall be installed underground; provided, however, that such Facilities
may be installed above ground if so authorized by the City, which
authorization shall not be unreasonably withheld, conditioned or delayed,
consistent with the provisions of the City's land use and zoning code and
applicable development pre-approved plans.
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SECTION 15. - Record of Installations and Service. With respect to
excavations by District and the City within the Franchise Area, District and
the City shall each comply with its respective obligations pursuant to
chapter 19.122 RCW, and as such statute may be modified and amended,
and any other applicable state law.
Upon written request of the City, District shall provide the City with the
most recent update available of any plan of potential improvements to its
Facilities within the Franchise Area; provided, however, any such plan so
submitted shall only be for informational purposes within the Franchise
Area, nor shall such plan be construed as a proposal to undertake any
specific improvements within the Franchise Area.
Upon written request of District, the City shall provide District with the
most recent update available of any plan of potential improvements to its
improvements located within the Franchise Area; provided, however, any
such plan so submitted shall only be for informational purposes within the
Franchise Area, nor shall such plan be construed as a proposal to
undertake any specific improvements within the Franchise Area.
Available as-built drawings of the location of any Facilities located within
the Franchise Area shall be made available to the requesting Party within a
reasonable time, which should typically not exceed fourteen (14) calendar
days of request.
SECTION 16. - Shared Use of Excavations.
A. District and the City shall exercise best efforts to coordinate
construction work that either Party may undertake within the Franchise
Area so as to promote the orderly and expeditious performance and
completion of such work as a whole. Such efforts shall include, at a
minimum, reasonable and diligent efforts to keep the other Party and other
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utilities within the Franchise Areas informed of its intent to undertake such
construction work. District and the City shall further exercise best efforts
to minimize any delay or hindrance to any construction work undertaken
by themselves or other utilities within the Franchise Area.
B. If at any time, or from time to time, either District, the City, or
another franchisee, shall cause excavations to be made within the
Franchise Area, the Party causing such excavation to be made shall afford
the others, upon receipt of a written request to do so, an opportunity to
use such excavation, provided that:
1. No statutes, laws, regulations, ordinances or District policies
prohibit or restrict the proximity of other utilities or facilities to District's
Facilities installed or to be installed within the area to be excavated;
2. Such joint use shall not unreasonably delay the work of the
Party causing the excavation to be made;
3. Such joint use shall be arranged and accomplished on terms
and conditions satisfactory to both Parties. The Parties shall each
cooperate with other utilities in the Franchise Area to minimize hindrance
or delay in construction.
SECTION 17. - Insurance. District shall maintain in full force and
effect throughout the term of this Franchise, a minimum of Two Million
Dollars ($2,000,000.00) liability insurance for property damage and bodily
injury. In satisfying the insurance requirement set forth in this Section,
District may self-insure against such risks in such amounts as are
consistent with good utility practice. Upon request, the District shall
provide the City with sufficient written evidence, as determined by the City
in its reasonable discretion, that such insurance (or self-insurance) is being
so maintained by District. Such written evidence shall include, to the
extent available from District's insurance carrier, a written certificate of
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insurance with respect to any insurance maintained by District in
compliance with this Section.
SECTION 18. - Abandonment and/or Removal of District Facilities.
The Parties agree that the standard practice will be to abandon
underground District Facilities in-place whenever practical, subject to the
following conditions:
1. The District shall continue to own and be responsible for any
such facilities abandoned within the Franchise Area.
2. The City shall have the right to require the District to remove
any Facilities abandoned within the Franchise Area if the City reasonably
determines the removal of the abandoned Facility is required to facilitate
the construction or installation of a City project within the Franchise Area
and the City determines there is no other reasonable or feasible alternative
to the removal of the Facility. The City will make reasonable efforts to
avoid conflicts with abandoned Facilities whenever possible, however,
whenever a conflict cannot be resolved except by removal from the right-
of-way of previously abandoned District Facilities, then the District shall, at
the District's expense, remove such abandoned Facilities by their own
forces or by participating in the City’s public works project. When
necessary, removal of abandoned Facilities shall be limited to the area of
direct conflict. In removing such material, the District shall conform to all
local, state, and federal regulations applicable to asbestos abatement,
when applicable.
3. Within forty-five (45) calendar days of the District’s
permanent cessation of use of any of its Facilities as determined by the
District, or any portion thereof, the District will, in good faith, use its best
efforts to provide as-built drawings locating the abandoned Facilities or if
unable to provide as-built drawings, will provide the most complete and
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accurate drawings the District can make available to provide adequate
notice of the location of all abandoned Facilities.
4. District Facilities that are abandoned in-place shall be
abandoned pursuant to City Standards, to the reasonable satisfaction of
the Public Works Director.
5. The Parties expressly agree that this section shall survive the
expiration, revocation or termination of this Franchise, unless modified by
separate agreement.
SECTION 19. - Vacation of Franchise Area. If the City determines
to vacate any right-of-way which is part of the Franchise Area where
District Facilities are located or maintained, any ordinance vacating such
right-of-way shall provide and condition such vacation on the District
obtaining, at no cost to the District, a permanent easement at least fifteen
(15) feet wide centered on the Facilities to the extent possible in such
vacated right-of-way for the construction, operation, maintenance, repair
and replacement of its Facilities located and to be located in such vacated
right-of-way.
SECTION 20. Assignment. All of the provisions, conditions, and
requirements herein contained shall be binding upon the District, and no
right, privilege, license or authorization granted to the District hereunder
may be assigned or otherwise transferred without the prior written
authorization and approval of the City, which the City may not
unreasonably withhold, condition or delay, provided that a merger or
consolidation of District with or into another Title 57 water-sewer district
shall not be considered an assignment for the purposes of this provision
and shall not be subject to the City's approval.
SECTION 21. - Notice. Unless applicable law requires a different
method of giving notice, any and all notices, demands or other
communications required or desired to be given hereunder by any Party
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(collectively, "notices") shall be in writing and shall be validly given or
made to another Party if delivered either personally or by Federal Express
or other overnight delivery service of recognized standing, or if deposited
in the United States Mail, certified, registered, or express mail with
postage prepaid, or if sent by e-mail with electronic confirmation. If such
notice is personally delivered, it shall be conclusively deemed given at the
time of such delivery. If such notice is delivered by Federal Express or
other overnight delivery service of recognized standing, it shall be deemed
given one (1) business day after the deposit thereof with such delivery
service. If such notice is mailed as provided herein, such shall be deemed
given three (3) business days after the deposit thereof in the United States
Mail. If such notice is sent by email, it shall be deemed given at the time
of the sender's receipt of electronic confirmation. Each such notice shall
be deemed given only if properly addressed to the Party to whom such
notice is to be given as follows:
To City:
City Clerk
City of Kent
220 Fourth Avenue South
Kent, WA 98032
Phone: (253) 856-5725
Fax: (253) 856-6725
To District:
General Manager
Midway Sewer District
P.O. Box 3487
Kent, WA 98089-0209
Phone: (206) 824-4960
Any Party may change its address for the purpose of receiving notices as
herein provided by a written notice given in the manner required by this
Section to the other Party.
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SECTION 22. - Non-Waiver. The failure of either Party to enforce
any breach or violation by the other Party or any provision of this
Franchise shall not be deemed to be a waiver or a continuing waiver by the
non-breaching Party of any subsequent breach or violation of the same or
any other provision of this Franchise.
SECTION 23. - Alternate Dispute Resolution. If the Parties are
unable to resolve disputes arising from the terms of this Franchise, prior to
resorting to a court of competent jurisdiction, the Parties shall submit the
dispute to mediation or other non-binding alternate dispute resolution
process agreed to by the Parties. Unless otherwise agreed upon between
the Parties or determined herein, the cost of that process shall be shared
equally by the Parties.
SECTION 24. - Governing Law/Venue. This Franchise shall be
governed by the laws of the State of Washington. Any suit to enforce or
relating to this Agreement shall only be filed in King County Superior
Court, King County, Washington.
SECTION 25. - Entire Agreement. The Recitals set forth above are
hereby incorporated herein in full by this reference. This Franchise
constitutes the entire understanding and agreement between the Parties
as to the subject matter herein and no other agreements or
understandings, written or otherwise, shall be binding upon the Parties
upon execution and acceptance hereof. This Franchise shall supersede,
rescind and cancel any prior franchise or agreement granted by the City to
the District to locate and operate a public sewer system within the
Franchise Area.
SECTION 26. - Amendment. This Franchise may be amended only
by written instrument, signed by both Parties, which specifically states that
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it is an amendment to this Franchise, and is approved and executed in
accordance with the laws of the State of Washington. Without limiting the
generality of the foregoing, this Franchise (including, without limitation,
Section 7 “Indemnification” above) shall govern and supersede and shall
not be changed, modified, deleted, added to, supplemented or otherwise
amended by any permit, approval, license, agreement or other document
required by or obtained from the City in conjunction with the exercise (or
failure to exercise) by District of any and all rights, benefits, privileges,
obligations, or duties in and under this Franchise, unless such permit,
approval, license, agreement or document specifically:
1. References this Franchise; and
2. States that it supersedes this Franchise to the extent it contains
terms and conditions which change, modify, delete, add to, supplement or
otherwise amend the terms and conditions of this Franchise.
In the event of any conflict or inconsistency between the provisions of this
Franchise and the provisions of any such permit, approval, license,
agreement or other document that does not comply with Subsections (1)
and (2) referenced immediately above, the provisions of this Franchise
shall control.
SECTION 27. - Directions to City Clerk. The City Clerk is hereby
authorized and directed to forward certified copies of this ordinance to the
District as set forth in this ordinance. The District shall have thirty (30) days
from the date of receipt of the certified copy of this ordinance to accept in
writing the terms of the Franchise granted to the District by this ordinance
and file with the City Clerk the executed statement of Acceptance of
Franchise, attached hereto as Exhibit B and incorporated herein by this
reference.
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26 Franchise -
Midway Sewer District
648928.2 - 356659 -0002
SECTION 28. - District Acceptance of Franchise. District shall have
no rights under this Franchise nor shall District be bound by the terms and
conditions of this Franchise unless District shall, within thirty (30) days after
the receipt of the certified copy of this ordinance as addressed in Section 27
herein, file with the City its written acceptance of this Franchise.
SECTION 29. - Effective Date of Franchise. The terms and
conditions of this ordinance shall not be binding on the City and the District
unless the District Board of Commissioners within thirty (30) days of the
receipt of the certified copy of this ordinance as addressed in Section 27
herein adopts a resolution accepting this Franchise, and the date of the
adoption of such resolution by the District Board of Commissioners shall be
the effective date ("Effective Date") of the Franchise.
SECTION 30. – Severability. If any one or more section,
subsection, or sentence of this franchise is held to be unconstitutional or
invalid, such decision shall not affect the validity of the remaining portion
of this franchise and the same shall remain in full force and effect.
SECTION 31. – 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 32. - Effective Date of Ordinance. This ordinance shall
take effect and be in force five (5) days after its publication, as provided by
law.
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27 Franchise -
Midway Sewer District
648928.2 - 356659 -0002
DANA RALPH, MAYOR Date Approved
ATTEST:
KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted
Date Published
APPROVED AS TO FORM:
ARTHUR “PAT” FITZPATRICK, CITY ATTORNEY
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Sources: Esri, DeLorme, NAVTEQ, USGS, Intermap, iPC, NRCAN, EsriJapan, METI, Esri China (Hong Kong), Esri (Thailand), TomTom, 2013µKent City Limits
Midway Sewer District Boundary
Exhibit A
City of Kent - Midway Sewer DistrictRetail Sewer Service AreaJune 2018
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29 Franchise -
Midway Sewer District
648928.2 - 356659 -0002
EXHIBIT B
ACCEPTANCE OF FRANCHISE
The undersigned authorized representative of Midway Sewer District
(District) hereby declares on the District’s behalf the District’s acceptance
of the nonexclusive franchise to Midway Sewer District approved by the
City of Kent City Council on ____________, ___________, 2018, by the
adoption of City of Kent Ordinance No. ______.
DATED this ______ day of ________________, 2018.
Midway Sewer District
By: ______________________________
Its: ______________________________
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OPERATIONS COMMITTEE
Derek Matheson, Chief Administrative Officer
220 Fourth Ave S
Kent, WA 98032
256-856-5712
DATE: November 20, 2018
TO: Operations Committee
SUBJECT: Consolidating Budget Adjustment Ordinance for Adjustments
between 7/1/18 and 11/14/18
MOTION: Recommend Council adopt a consolidating budget adjustment
ordinance for adjustments made between July 1, 2018 and November 14,
2018, reflecting an overall budget increase of $22,989,456.
SUMMARY: Authorization is requested to approve the technical gross budget
adjustment ordinance reflecting an overall budget increase of $22,989,456.
Adjustments totaling $11,440,194 have previously been approved by Council and
are summarized as follows:
A total of $4,860,376 in grants:
$3,000,000 WSDOT grant for Willis & 4th Ave Roundabout
$716,876 RCO grant for Walla Acquisition
$485,000 DOC grant for South 228th Street Interurban Trail Connector Project
$300,000 King County Flood Control grant
$229,000 criminal justice program grants
$129,500 for other Parks project and program related grants
$6,579,818 in transfers and use of proceeds from the sale of the Par 3 property at
Riverbend Golf Course, in alignment with Riverbend’s August 2017 Business Plan,
as follows:
$2,573,754 in transfers out of the golf operating fund to golf capital projects,
plus another $2,573,754 to budget use of those funds on specific projects,
including driving range expansion/remodel, clubhouse expansion/remodel,
course renovations and improvements and driving range ball machine
$727,770 to recognize the value of new leased equipment and the first year
lease payment (principal and interest) and $704,540 to transfer funds out of
golf operating fund to golf debt service to set aside monies for future year
principal and interest payments on leased equipment.
Adjustments totaling $11,549,262 have not been approved by Council, including:
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$1,750,000 transfer of General Fund reserves in excess of 18% to augment
fund balances of the several funds, including LEOFF1 Retiree Benefits Fund
($1,000,000), Medical Fund ($250,000), Liability Insurance Fund ($300,000),
Golf Fund ($200,000) and Parks Scholarships (100,000)
$2,300,000 transfer of General Fund reserves in excess of 18% to provide
funding for the following projects, plus another $2,300,000 to establish the
project budget in the appropriate fund:
o Place-making/Meet Me on Meeker ($300,000)
o 228th Street (1,800,000)
o Parks Lifecycle ($200,000)
Targeted increases to ensure sufficient budget authority for the following
funds:
o $1,090,000 increase in the Workers Compensation Fund to cover a large
claim paid earlier in the year. The City will be reimbursed by the
insurance company for $590,000, leaving a net cost to the City of
$500,000
o $650,000 for the Street Operating Fund to reflect a lesser amount of costs
allocated to other funds, as those costs are covered by permitting
revenues over the budgeted amount.
o $400,000 for the LEOFF1 Retiree Benefits Fund to cover anticipated long
term care costs
o $250,000 to cover the expected cost of claims in the Liability Insurance
Fund
o $150,000 additional transfer out from the Capital Improvement Fund to
pay down debt in the Other Capital Project Fund, due to the expectation
that the 2% internal utility tax revenues dedicated to paying this debt will
exceed budget by this amount.
o $100,000 increase to the Solid Waste Fund’s temporary/overtime salaries
& benefits
o $60,000 for marketing costs the Lodging Tax Fund
Highlights of other projects and transfers include:
o $500,000 transfer out of the Criminal Justice Fund for Corrections Center
plumbing upgrades, plus another $500,000 to establish the Facilities
project budget
o $126,922 increase in the Housing & Community Development Fund to
realign it to the 2018 CDBG allocation
o $694,900 recognize King County Levy proceeds and use of proceeds for
Lake Fenwick, Kent Loop Trail, Hogan Field and Lake Meridian
o $250,000 transfer out of Street, Water and Sewerage to provide funding
for the Public Works Asset Management System, plus another $250,000
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to increase the IT project budget. This increases the project budget to
match the approved contract amount, including contingency. To the
extent the contingency is not needed, the remaining funds will be
returned when the project is complete.
o $240,000 use of Parks Lifecycle funds for Hogan Field and KMP
Playground & Whiffle Ball Field
o $240,500 use of Light Pole funds for Hogan Field
o $145,000 use of IT Tech Plan funds for JDE SOW’s, Lawbase and
AmorerLink projects
BUDGET IMPACT: These expenditures are funded by grants, existing fund
balance, or other revenues.
SUPPORTS STRATEGIC PLAN GOAL:
Sustainable Services
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