HomeMy WebLinkAboutCity Council Committees - Public Works Committee - 08/21/2017 (2)Public Works Committee Agenda
Councilmembers: Brenda FincherDana Ralph•Dennis Higgins, Chair
Director: Timothy J. LaPorte, P.E.
Unless otherwise noted, the Public Works Committee meets at 4:00 p.m. on the 1st & 3rd Mondays of each month.
Council Chambers East, Kent City Hall, 220 4th Avenue South, Kent, 98032-5895. For information please contact
Public Works Administration (253) 856-5500.
Any person requiring a disability accommodation should contact the City Clerk’s Office at
(253) 856-5725 in advance. For TDD relay service call the Washington Telecommunications Relay
Service at 1-800-833-6388.
August 21, 2017
4:00 p.m.
Item Description Action Speaker Time Page
1. Call to Order -- Chair Higgins 01 --
2. Roll Call -- Chair Higgins 01 --
3. Changes to the Agenda -- Chair Higgins 01 --
4. Approval of August 7, 2017 Minutes -
Approve
YES None 03 03
5. Transportation Improvement Board (TIB)
Acceptance of Grant Funds for S 224th
Street Project - Recommend
YES Carla Maloney 10 07
6. Verizon Fiber Franchise Agreement –
Recommend
YES Christina Schuck 10 11
7. Consultant Contract with JECB for S 212th
Way Overlay Project – Recommend
YES Eric Connor 10 61
8. Info Only/Next Steps Litter - Update NO Gina Hungerford 10 79
9. Info Only/Annual Water System Update NO Sean Bauer 20 81
10. Info Only/Quiet Zone Update NO Chad Bieren 05 83
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PUBLIC WORKS COMMITTEE August 7, 2017
Minutes City of Kent, WA
Summary Minutes
Date: August 7, 12017
Time: 4:00 p.m.
Place: Chambers East
1. Call to Order: The meeting was called to order at 4:01 p.m., by Committee
member Dana Ralph.
2. Roll Call: Committee members Dana Ralph and Brenda Fincher were present.
Committee member Ralph chaired the meeting.
Absent: Committee Chair Dennis Higgins
3. Changes to the Agenda: Added Item 15 regarding air quality
4. Approval of Minutes, Dated July 17, 2017
Committee member Fincher MOVED to approve the Minutes of July 17, 2017. The
motion was SECONDED by Committee member Ralph and PASSED 2 - 0.
5. Contract with Harris and Associates for LID 363: S 224th Street
Improvements 84th Ave S to 88th Ave S - Recommend
Jason Bryant, Capital Projects Manager noted that Harris and Associates will provide
bridge inspection services related to the placement of concrete, asphalt, and steel
reinforcement for the S 224th Street Improvements project (84th Ave S to 88th Ave S).
Committee member Fincher MOVED recommend Council authorize the Mayor to
sign a Contract with Harris and Associates for LID 363: S 224th Street
Improvements 84th Ave S to 88th Ave S, subject to final terms and conditions
acceptable to the City Attorney and Public Works Director and was SECONDED by
Committee member Ralph. The motion PASSED 2 - 0.
6. Contract with Mayes Testing Engineers, Inc. for LID 363: S 224th Street
Improvements 84th Ave S to 88th Ave S - Recommend
Jason Bryant, Capital Projects Manager, noted that Mayes Testing Engineers, Inc. will
provide materials testing for concrete, asphalt and steel reinforcement related to the
South 224th Street Improvements Project (84th Ave S to 88th Ave S).
Committee member Fincher MOVED to recommend Council authorize the Mayor
to sign a Contract with Mayes Testing Engineers, Inc. for LID 363: S 224th Street
Improvements 84th Ave S to 88th Ave S , subject to final terms and conditions
acceptable to the City Attorney and Public Works Director and was SECONDED by
Committee member Ralph. The motion PASSED 2 - 0.
7. Upper Mill Creek Dam Improvements Project King County Flood Control
District Sub-Regional Opportunity Fund - Recommend
Stephen Lincoln, P.E., Environmental Engineer II noted that the King County Flood Control
District (District) collects an annual levy from properties within g King County. Through
the District’s Sub-Regional Opportunity Fund ten percent of the levy collected within each
jurisdiction is granted back to the jurisdiction to be used for stormwater or habitat
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projects. Staff’s suggests that the city’s portion of the Opportunity Fund be directed to the
Upper Mill Creek Dam project in the amount of $191,815.00.
Committee member Fincher MOVED to recommend Council authorize the Mayor
to direct staff to accept the King County Flood Control District Sub-Regional
Opportunity Fund in the amount of $191,815, subject to final terms and
conditions acceptable to the City Attorney and Public Works Director and was
SECONDED by Committee member Ralph . The motion PASSED 2 - 0.
8. Consultant Services Agreement Amendment with AECOM for the Upper Mill
Creek Dam Improvements Project - Recommend
Stephen Lincoln, P.E., Environmental Engineer II, noted that we are near the final phase
of design for the Upper Mill Creek Dam Improvements project. The U.S. Army Corps of
Engineers permitting process established many conditions for this project. The conditions
necessitate design changes to the project and added an entirely new condition of required
stream channel mitigation work. The contract with AECOM will complete the design
modifications and stream channel mitigation design.
Committee member Fincher MOVED to recommend Council authorize the Mayor
to sign a Consultant Services Agreement Amendment with AECOM for the Upper
Mill Creek Dam Improvements Project , subject to final terms and conditions
acceptable to the City Attorney and Public Works Director and was SECONDED by
Committee member Ralph the motion PASSED 2 - 0.
9. Information Only/Water Resource Inventory Area (WRIA) 8 Chinook
Salmon Conservation Plan Update
Mike Mactutis, Environmental Engineering Manager noted that WRIA 8 includes the Cedar
River watershed area, of which Rock Creek is a tributary. The City of Kent’s Clark Springs
municipal water supply is located in the Rock Creek sub-watershed and is the city’s main
water supply. WRIA 8 also encompasses the Lake Washington and Ship Canal watersheds
as well as Puget Sound near shore areas from the ship canal north to Mukilteo.
WRIA 8, including Kent, developed a plan to protect and restore salmon habitat in
response to the 1999 listing of chinook salmon as endangered. The first plan was by all of
the jurisdictions in WRIA 8, in 2005.
The WRIA 8 Forum recently completed a draft update to the Chinook Habitat Plan and
made it available to agencies for review. The intent of the plan is to update
recommendations for actions to restore and protect salmon habitat as well as an approach
to implementing these actions over the next ten years. Comments are requested by
August 18, 2017, and city staff is reviewing it.
Mactutis stated that the only project the City has in association with the plan is the
Habitat Conservation Plan. The WRIA 8 Chinook Salmon Conservation Plan should finalize
in September and it will be brought to the Committee and Council in March.
10. Information Only/Transportation Grant Update
Kelly Peterson, Transportation Engineering Manager noted that the Transportation
Improvement Board has issued a call for projects for the Urban Arterial Program and the
Sidewalk Program. $40.7 million is available for the Puget Sound Region for the Urban
Arterial Program and $2.71 million is available for the Sidewalk Program. Kent staff
reviewed the grant criteria and recommend submitting applications for the following
projects:
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1) Urban Arterial Program – SE 248th Street – 104th Ave. SE to the 111th Ave. SE;
full width improvements
2) Urban Arterial Program - 76th Ave S. – 21600 block to the 22200 block; full width
improvements
3) Sidewalk Program – 132nd Ave SE – west side only SE 240th Street to SE 248th
Street and SE 276th Street to SE 278th Pl.
The TIB grants require Kent to a minimum match of provide 20% for projects in both the
Urban Arterial and Sidewalk Programs. Points can be earned on the Urban Arterial Grant
Program for every 4% above the minimum match, up to 5 points, and the Sidewalk
Program provides 1 point for each 1 percent above the minimum up to a maximum of 5
points.
Transportation Alternatives Program – Public Works and ECD staff are working to identify
potential projects which includes non-motorized projects. PSRC is hosting workshops the
week of August 7, 2017.
11. Information Only/South 248th Street Update
Kelly Peterson, Transportation Engineering Manager noted that the SE 248th Street
Corridor Plan includes preliminary cost estimates from 94th Ave S. to 132nd Ave SE
consistent with Kent Construction Standards for Residential Collector Arterials; 3 lane
roadway, bike lanes, planter strip and sidewalks. The planned YMCA facility is adjacent to
this corridor.
12. Information Only/Hawley Road Levee Connection to SR-167 and
Horseshoe Bend Levee Outfall Repair - Update
Richard Schleicher, , P.E., Environmental Engineer II noted that the City recently obtained
permission from the Washington State Department of Transportation (WSDOT) to
construct the final segment of the Hawley Road Levee, which will connect to SR-167. This
connection will provide a certified levee from Foster Park to Signature Point, which will
complete the levee along Hawley Road.
For the Horseshoe Bend Levee, the U.S. Army Corps of Engineers has identified a
deteriorating City-owned pipe as a levee deficiency, requiring repair or replacement. This
levee is the City’s only FEMA accredited levee and repairing this pipe is necessary.
Pending favorable contractor bids in August and a continuation of dry-weather conditions
this late summer and early fall, our goal is to complete the construction work this year.
13. Meet Me on Meeker Online Survey – Preliminary Findings
Haley Bonsteel, Senior Long Range Planner (ECD) and William Ellis, Economic
Development Analyst (ECD) noted that Meet Me on Meeker, the collaborative redesign of a
key gateway and commercial “main street” connecting the Green River to our historic
downtown, has included community input since the project’s inception in 2015. The latest
outreach efforts have included participation at a Kent Elementary carnival event and
deployment of an online survey that has garnered over 220 responses so far.
Initiated as an action item of the Economic Development Plan, the project’s current phase
includes updating the Design and Construction Standards with a “Meeker Overlay.” The
City’s Complete Streets ordinance, adopted in 2016, requires all future transportation
standards to consider all modes—making this update the first instance of applying this
requirement. Developing the new standards requires public input to help staff ensure the
relevance of design and engineering choices to the community who lives, works or walks
along Meeker today.
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Staff shared preliminary findings as well as comments and ideas from the community as
to how Meeker can better serve their needs. A community forum targeting the property
owners along Meeker Street is being planned for mid-August.
14. Information Only/Quiet Zone Update
Chad Bieren, P.E., Deputy Director/ City Engineer stated that the channelization devices
contract has been held pending additional information from Union Pacific. Staff has
information that we are able to move forward. Staff plans to start construction in late Fall.
Peterson stated that the City is receiving fewer calls from the public following installation
of informational signs near the railroad crossings they appear to be contacting the
railroads.
The Federal Railroad Administration is on-site this week doing an investigation on the
Union Pacific signals and the issues they are having with the signals and arms.
15. Information Only/Air Quality – Added Item
Chad Bieren, P.E., Deputy Director/ City Engineer suggested that the public go to the
State of Washington Ecology’s website https://fortress.wa.gov/ecy/enviwa/ for an up to
date status on air quality.
Adjournment
At 5:11 p.m., Committee Chair Ralph declared the meeting adjourned.
Wendy Wakefield,
Administrative Asst. I
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PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: August 21, 2017
TO: Public Works Committee Members
FROM: Carla Maloney, P.E., Design Engineering Manager
THROUGH: Chad Bieren P.E., Deputy Director / City Engineer
SUBJECT: Acceptance of Additional Transportation Improvement Board (TIB)
Grant Funds for LID 363: S. 224th Street Project
SUMMARY: The S. 224th St. Improvements Project – 84th Ave. S. to 88th Ave. S. is the
first phase of the S. 224th Project that will connect the valley floor with Kent’s East Hill
neighborhoods and businesses. This project includes a new bridge crossing over SR 167.
The project was advertised with an engineer’s estimate of $14.1 Million. The lowest four
bids were within $500K and the lowest bid was $15.3 Million. The narrow range of bids
indicates that bidders had clarity with the plans and specifications. The higher bids
reflect a regional trend of higher construction prices.
Additional funds ($750,000) were requested from the Transportation Improvement
Board (TIB). As our funding partner, the TIB authorized this higher grant amount which
was a significant win for the project! It also demonstrates that the TIB is well aware of
construction inflation affecting the Puget Sound region. Council needs to officially accept
the funds.
EXHIBIT: Authorization to award construction contract letter.
BUDGET IMPACT: Increase in budget by $750,000 for the S. 224th St Improvements
Project – 84th Ave. S. to 88th Ave. S. from the Transportation Improvement Board.
Motion: Move to recommend Council authorize the Mayor to accept
additional Grant Funds from the Transportation Improvement Board (TIB)
for the South 224th Street Project in the amount of $750,000, amend the
project budget and authorize the expenditure of funds.
Subject to final terms and conditions acceptable to the City Attorney and
Public Works Director.
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Washington Sfafe
Transportation lmprovement Board
TIB Members
Commissione¡ Richard stevens,
. chair
èrdnt county
Mayor Pâtty Lent, Vice Chair
CW oÍ Brcmerton
J¡m Albert
Offiæ ol Flnqnc¡dl Mqndgement
Jeff Carpenter, P.E.
WSDOT
May 5, 2017
Mr. Tim LaPorte, P.E.
Public Works Director
City of Kent
220 4th Avenue South
Kent, WA 98032-5838
RËr:F.Ëwffi#
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Elizabeth chamberla¡n
City oJ Wøllo Wølla
Wendy Clark-Getz¡n, P.E.
Cløllqm Trqns¡t
Gary Ekstedt, P.E.
Ydk¡mo county
Comm¡ss¡oner Terri Jeff reys
Mason County
Mayor Glenn Johnson
cW oÍ Pullmon
John Klekotka, P.E.
Po¡t oÍ Everett
Commiss¡oner Robert Koch
Franklin County
Barbara Chamberlain
WSDOT
Colleen Kuhn
Humqn Seruiæs Council
Dear Mr. LaPorte
Based on your Updated Cost Estimate for the S 224th Street project, TIB #
9-P-106(010)-1 , your authorized TIB funds are $5,750,000, which reflects an
increase of $750,000.
You may now award the construction contract.
We are happy to assist you with any questions. You can contact Greg
Armstrong, TIB Project Engineer, at (360) 586-1 142 or via e-mail at
GregA@TlB.wa.gov.
Sincerely,
Mayor Ron Lucas
Town of sþ¡locoom
Mick Matheson, P.E.
City oÍ Mukilteo
E. Susân Meyer
Spokq ne Tro ns ¡t Authot ity
Laura Philpot, P.E.
cW of Maple valley
Dav¡d Ramsay
Feet F¡tst
Mart¡n snell
cløtk county
. Jay Weber
County Road Administration Board
Ashley Probart
Executive Director
PO Box 40901
Olymp¡a, WA 98504-0901
Phone: 36G586-1140
Fax: 360-586-1!.65
ww.tlb.wa.gov
UuuL-
Chris Workman, P.E.
Engineering Manager
hn Nelson
Finance Manager
lnvesting in your local community
9
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PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: August 21, 2017
TO: Public Works Committee Members
FROM: Christina Schuck, Assistant City Attorney
THROUGH: Chad Bieren, P.E., Deputy Director / City Engineer
SUBJECT: Verizon Franchise Agreement - Recommend
SUMMARY: MCIMetro Access d/b/a Verizon Access Transmission Services
(“Verizon”) is a telecommunications company and has requested that the City grant
it a franchise to use the City’s right-of-ways to construct, operate and maintain the
necessary facilities for its telecommunications network. This franchise has a ten-year
term and covers the construction, operation and maintenance of Verizon’s fiber optic
network and related equipment. It does not allow the installation of small cells.
The City has the authority to grant non-exclusive franchises for the use of public
streets and other rights-of-way pursuant to RCW 35A.47.040. State law prohibits
the City from charging a franchise fee; however, the City can recover the actual
administrative costs incurred in drafting and processing the franchise. The City can
also request that Verizon provide the City with conduit in the locations where
Verizon is installing or relocating facilities underground. The City would be
responsible for the incremental costs of this installation.
This franchise also includes specific terms regarding relocation of facilities,
undergrounding, restoration of the right-of-way and requires Verizon to obtain the
appropriate permits before installing any facilities.
EXHIBIT: Franchise Agreement Ordinance.
BUDGET IMPACT: N/A
Motion: Recommend the City Council adopt an ordinance establishing a 10-
year franchise agreement with MCIMetro Access d/b/a Verizon Access
Transmission Services.
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12
1 Franchise – Verizon
Ordinance
ORDINANCE NO.
AN ORDINANCE of the city council of the
city of Kent, Washington, granting to MCIMETRO
Access Transmission Services Corp. d/b/a
Verizon Access Transmission Services, a
Delaware corporation, and its successors and
assigns, the right, privilege, authority and
nonexclusive franchise for ten years, to
construct, maintain, operate, replace, and repair
a telecommunications network, in, across, over,
along, under, through, and below certain
designated public rights-of-way of the City of
Kent, Washington.
RECITALS
A. MCIMETRO Access Transmission Services Corp. d/b/a Verizon
Access Transmission Services, a Delaware corporation (“Franchisee”) has
requested that the city council grant it a nonexclusive franchise to construct,
maintain and operate a telecommunications network in the city’s right-of-
way; and
B. The city council has the authority to grant franchises for the use
of its streets and other public properties pursuant to RCW 35A.47.040.
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2 Franchise – Verizon
Ordinance
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. – Definitions. In addition to terms otherwise defined
herein, the following definitions shall apply generally to the provisions of this
Franchise.
1.1 Director means the Public Works Director or his/her designee.
1.2 Emergency means a condition posing an imminent threat to property,
life, health, or safety of any person or entity.
1.3 Facilities mean one or more elements of Franchisee’s
telecommunications network, with all necessary cables, wires, conduits,
ducts, pedestals, antennas, electronics, and other necessary appurtenances;
except that new utility poles or towers for overhead wires, cabling or
antennas are specifically excluded. Facilities shall not include: microcells or
small cells. Equipment enclosures with air conditioners or other noise
generating equipment are also excluded from Facilities, to the extent any
such equipment is located in zoned residential areas of the City.
1.4 Rights-of-Way (singular “Right-of-Way”) as used in this Franchise,
means the surface of, and the space above and below, any public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, way,
lane, public way, drive, circle, pathways, spaces, or other public right-of-way,
and over which the City has authority to grant permits, licenses or franchises
for use thereof, or has regulatory authority thereover. Right-of-Way does not
include railroad right-of-way, airports, harbor areas, buildings, parks, poles,
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3 Franchise – Verizon
Ordinance
conduits, dedicated but un-opened right-of-way, and any land, facilities, or
property owned, maintained, or leased by the City in its governmental or
proprietary capacity or as an operator of a utility.
SECTION 2. – Franchise Granted.
2.1 Pursuant to RCW 35A.47.040, the City of Kent, a Washington
municipal corporation (“City”), hereby grants to Franchisee, its successors,
legal representatives and assigns, subject to the terms and conditions set
forth below, a non-exclusive Franchise for a period of ten (10) years,
beginning on the effective date of this ordinance, set forth in Section 41.
This Franchise supersedes and replaces in its entirety the Temporary License
entered into by the City and Franchisee on June 15, 2017, except that any
and all permits issued pursuant to the Temporary License shall remain valid
and be deemed issued pursuant to this Franchise.
2.2 This Franchise grants Franchisee the right, privilege, and authority to
construct, operate, maintain, replace, acquire, sell, lease, and use all
necessary Facilities for a telecommunications network in, under, on, across,
over, through, along or below the public Rights-of-Ways located in the City,
and any areas added to the corporate limits of the City during the term of
this Franchise (the “Franchise Area”). All Facilities require City permits
issued pursuant to Section 8.3.
2.3 This Franchise shall not prevent the City from granting other or further
franchises in, along, over, through, under, below, or across any Rights-of-
Way. This Franchise shall not prevent or prohibit the City from using any
Rights-of-Way or affect its jurisdiction over any Rights-of-Way or any part of
Right-of-Way. The City shall retain power to make all necessary changes,
relocations, repairs, maintenance, establishment, improvement, dedication of
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4 Franchise – Verizon
Ordinance
Right-of-Way as the City deems fit, including the dedication, establishment,
maintenance, and improvement of all new Rights-of-Way, thoroughfares, and
other public properties of every type and description.
SECTION 3. – Grant of Authority Limited.
3.1 The authority granted by this Franchise is a limited, non-exclusive
authorization to occupy and use the City’s Rights-of-Way. Franchisee
represents that it currently provides or intends to provide the following
services within the City: data transport, internet access, and local and long
distance voice services, including IP voice services, cell site fronthaul and
backhaul and Facilities leasing to third parties (the “Services”). If Franchisee
desires to expand the Services provided within the City, it shall provide
written notification of the addition of such services prior to the addition of the
service or within a reasonable time (not to exceed ninety (90) days) after
such services are offered; except that Franchisee may not offer Cable
Services as that term is defined in 47 U.S.C. § 522(6).
3.2 Nothing within this Franchise shall be construed to grant or convey any
right, title, or interest in the Rights-of-Way of the City to Franchisee other
than for the purpose of providing the Services.
3.3 This Franchise does not and shall not convey any right to Franchisee to
install its Facilities on, under, over, across, or to otherwise use City owned or
leased properties of any kind outside of the incorporated area of the City or
to install Facilities on, under, over, across, or otherwise use any City owned
or leased property other than the City’s Rights-of-Way. This Franchise does
not convey any right to Franchisee to install its Facilities on, under, over, or
across any facility or structure owned by a third-party without such written
approval of the third-party.
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5 Franchise – Verizon
Ordinance
3.4 Franchisee is authorized without prior City approval, to offer or provide
capacity or bandwidth to its customers consistent with this Franchise
provided:
a. Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and remains responsible
for constructing, installing, and maintaining its Facilities pursuant to the
terms and conditions of this Franchise;
b. Franchisee may not grant rights to any customer or lessee that
are greater than any rights Franchisee has pursuant to this Franchise;
c. Such customer or lessee shall not be construed to be a third-
party beneficiary under this Franchise; and
d. No such customer or lessee that accesses Franchisee’s
telecommunications Facilities within the City limits may use the
telecommunications system or Services for any purpose not authorized by
this Franchise, unless that customer has a franchise agreement with the City
and then the customer may use Franchisee’s Facilities or Services consistent
with the terms of its franchise.
SECTION 4. – Location of Facilities. Franchisee may locate its
Facilities anywhere within the Franchise Area consistent with the City’s
Design and Construction Standards and subject to the City’s applicable
permit requirements. Franchisee shall not be required to amend this
Franchise to construct or acquire Facilities within the Franchise Area.
SECTION 5. – Relocation of Facilities.
5.1 Franchisee agrees to protect, support, temporarily disconnect,
relocate, or remove from any Rights-of-Way any of its Facilities when
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6 Franchise – Verizon
Ordinance
reasonably required by the City, including but not limited to the following
reasons:
a. To improve traffic conditions or public safety;
b. Dedications of new Rights-of-Way and the establishment and
improvement thereof, widening and improvement of existing Rights-of-Way,
street vacations, freeway construction, change or establishment of street
grade;
c. The construction of any public improvement or structure by any
governmental agency or as otherwise necessary for the operations of the City
or other governmental entity; and
5.2 Except as otherwise provided by law, the costs and expenses
associated with relocations required pursuant to Section 5.1 shall be borne
by Franchisee. Nothing contained within this Franchise shall limit
Franchisee’s ability to seek reimbursement for relocation costs when
authorized by RCW 35.99.060.
5.3 Upon request of the City and in order to facilitate the design of City
street and Right-of-Way improvements, Franchisee agrees, at its sole cost
and expense, to locate, and if determined necessary by the City, to excavate
and expose its Facilities for inspection so that the Facilities’ location may be
taken into account in the improvement design. The decision as to whether
any Facilities need to be relocated in order to accommodate the City’s
improvements shall be made by the City upon review of the location and
construction of Franchisee’s Facilities. The City shall provide Franchisee at
least fourteen (14) days’ written notice prior to any excavation or exposure
of Facilities. Franchisee shall be responsible for any delays due to failure to
locate its facilities when requested, except that Franchisee shall not be
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7 Franchise – Verizon
Ordinance
responsible for delays or damages due to circumstances beyond the control
of the Franchisee.
5.4 If the City determines that the relocation of Franchisee’s existing
Facilities is necessary, the City shall:
a. At least forty-five (45) days prior to commencing the project,
provide Franchisee with written notice requiring such relocation; except that
in the event of an emergency, the City shall give Franchisee written notice as
soon as practicable; and
b. At least forty-five (45) days prior to commencing the project,
provide Franchisee with copies of pertinent portions of the plans and
specifications for the improvement project and at the City’s discretion, a
proposed location for Franchisee’s Facilities so that Franchisee may relocate
its Facilities in other City Rights-of-Way in order to accommodate such
improvement project; and
c. After receipt of such notice and such plans and specifications,
Franchisee shall complete relocation of its Facilities at least ten (10) days
prior to commencement of the City’s project at no charge or expense to the
City, except as otherwise provided by law. Relocation shall be accomplished
in such a manner as to accommodate the City’s project and is subject to
permit requirements in Section 8.3. In the event of an emergency,
Franchisee shall relocate its Facilities within the time period specified by the
City.
5.5 Franchisee may, after receipt of written notice requesting a relocation
of its Facilities, submit to the City written alternatives to such relocation.
Such alternatives must be submitted to the City at least twenty (20) days
prior to commencement of the project. The City shall evaluate the
alternatives and advise Franchisee in writing if one or more of the
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8 Franchise – Verizon
Ordinance
alternatives are suitable to accommodate the work that would otherwise
necessitate relocation of the Facilities. If so requested by the City,
Franchisee shall submit at its sole cost and expense additional information to
assist the City in making such evaluation. The City shall give each
alternative proposed by Franchisee full and fair consideration. If the City
ultimately determines that there is no other reasonable or feasible
alternative, Franchisee shall relocate its Facilities as otherwise provided in
this Section 5.
5.6 The Franchisee may make its own appropriate arrangements in
response to a request for relocation of its Facilities from a person or entity
other than the City, so long as any improvements being constructed are not
or will not become City-owned, operated or maintained; except that any such
arrangements shall not unduly delay a City construction project.
5.7 If any person has obtained permission from the City to use any Right-
of-Way for the purpose of moving any building, upon thirty (30) days’ written
notice from the City, Franchisee, shall raise, remove, or relocate to another
part of the Right-of-Way, any of Franchisee’s Facilities that may obstruct the
removal of such building, at the expense of the person desiring to move the
building.
5.8 If Franchisee, after making all commercially reasonable efforts, fails,
neglects, or refuses to remove or relocate its Facilities as directed by the
City,the City may perform such work or cause it to be done, and the City’s
costs shall be paid by Franchisee pursuant to Section 16.3 and Section 16.4.
5.9 Franchisee shall indemnify, hold harmless, and pay the costs of
defending the City, in accordance with the provisions of Section 18.3, against
any and all claims, suits, actions, damages, or liabilities for delays on City
construction projects caused by or arising out of the failure of Franchisee to
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Ordinance
locate, remove or relocate its Facilities in a timely manner; provided, that
Franchisee shall not be responsible for damages due to delays caused by
circumstances beyond the reasonable control of Franchisee or the negligence,
willful misconduct, or unreasonable delays by the City or delays by any
unrelated third party.
5.10 The provisions of this Section 5 shall survive the expiration or
termination of this Franchise during such time as Franchisee continues to
have Facilities in the Rights-of-Way. Additionally, the provisions of this
Section 5 are applicable only so long as the Right-of-Way is owned and/or
controlled by the City.
SECTION 6. – Undergrounding of Facilities.
6.1 Franchisee shall install all wires, cables or other facilities underground
(unless specifically authorized by permit of the City) in the manner required
by the City as described in Kent City Code Chapter 7.10. Unless otherwise
permitted by the City, Franchisee shall also underground its Facilities in all
new developments and subdivisions and in any development or subdivision
where utilities are currently underground. Except as specifically authorized
by the City, Franchisee shall not erect poles or run or suspend wires, cables,
or any other facilities on existing poles.
6.2 Franchisee acknowledges and agrees that if the City does not require
the undergrounding of its Facilities at the time of a permit application, the
City may, at any time in the future, require that the Franchisee to
underground its Facilities at Franchisee’s expense.
6.3 If the City requires the undergrounding of the aerial utilities in any
area of the City, Franchisee shall underground its aerial Facilities in the
manner specified by the City, concurrently with and in the area of the other
affected utilities. The location of any relocated and underground utilities
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shall be approved by the City. Where other utilities are present and involved
in the undergrounding project, Franchisee shall only be required to pay its
fair share of common costs borne by all utilities, in addition to the costs
specifically attributable to the undergrounding of Franchisee’s own Facilities.
“Common costs” shall include necessary costs not specifically attributable to
the undergrounding of any particular facility, such as costs for common
trenching and utility vaults. “Fair share” shall be determined for a project on
the basis of the number of conduits of Franchisee’s Facilities being
undergrounded in comparison to the total number of conduits of all other
utility facilities being undergrounded. This Section 6.3 shall only apply to the
extent Franchisee has existing aerial Facilities in the City or is specifically
authorized to build aerial Facilities by the City.
6.4 Within forty-eight (48) hours (excluding weekends and City-recognized
holidays) following a request from the City, Franchisee shall, at its sole cost
and expense, locate underground Facilities by marking the location on the
ground. The location of the underground Facilities shall be identified using
orange spray paint, unless otherwise specified by the City, and within two
feet of the actual location.
6.5 Franchisee shall be entitled to reasonable access to open utility
trenches, provided that such access does not interfere with the City’s
placement of utilities or increase the City’s costs. Franchisee shall pay the
City’s actual costs resulting from providing Franchisee access to an open
trench, including without limitation the pro rata share of the costs of access
to an open trench and any costs associated with the delay of the completion
of a public works project. Franchisee shall reimburse the City in accordance
with the provisions of Section 16.3 and Section 16.4.
6.6 Franchisee shall not remove any underground cable or conduit that
requires trenching or other opening of the Rights-of-Way along the extension
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of cable to be removed, except as provided in this Section 6.6. Franchisee
may remove any underground cable from the Right-of-Way that can be
removed without trenching or other opening of the Right-of-Way along the
extension of cable to be removed, or if otherwise permitted by the City.
Franchisee may remove any underground cable from the Rights-of-Way
where reasonably necessary to replace, upgrade, or enhance its Facilities, or
pursuant to Section 5. Franchisee must apply and receive a permit, pursuant
to Section 8.3, prior to any such removal of underground cable or conduit
from the Right-of-Way and must provide as-built plans and maps pursuant to
Section 7.1.
6.7 When the City determines, in the City’s sole discretion, that
Franchisee’s underground Facilities must be removed in order to eliminate or
prevent a hazardous condition, Franchisee shall remove the Facilities at
Franchisee’s sole cost and expense.
6.8 Underground cable and conduit in the Right-of-Way that is not
removed will be deemed abandoned and title thereto shall vest in the City at
no cost to the City. The City may also pursue any available remedy set forth
in Section 5 and Section 20.
6.9 The provisions of this Section 6 shall survive the expiration,
revocation, or termination of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way. Nothing in this Section 6
shall be construed as requiring the City to pay any costs of undergrounding
any of Franchisee’s Facilities.
SECTION 7. – Maps and Records.
7.1 No later than sixty (60) days after construction is complete, Franchisee
shall provide the City with accurate copies of as-built plans and maps
stamped and signed by a professional land surveyor having a form and
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content reasonably prescribed by the Director. These plans and maps shall
be provided at no cost to the City, and shall include hard copies and digital
files in AutoCAD or other industry standard readable formats that are
acceptable to the City. The Franchisee shall also provide any as-built plans,
maps and records (digital and/or hard copies) within ten (10) days following
a request from the City. Franchisee shall warrant the accuracy of all plans,
maps and as-builts provided to the City.
7.2 Within thirty (30) days of a written request from the City, Franchisee
shall furnish the City with information sufficient to demonstrate: 1) that
Franchisee has complied with all applicable requirements of this Franchise;
and 2) that all taxes, including but not limited to sales, utility and/or
telecommunications taxes due the City in connection with Franchisee’s
Services and Facilities have been properly collected and paid by Franchisee.
7.3 All books, records, maps, and other documents maintained by
Franchisee with respect to its Facilities within the Rights-of-Way shall be
made available for inspection by the City at reasonable times and intervals;
except that nothing in this Section 7.3 shall be construed to require
Franchisee to violate state or federal law regarding customer privacy. This
Section 7.3 shall not be construed to require Franchisee to disclose
proprietary or confidential information without adequate safeguards for its
confidential or proprietary nature. Unless otherwise prohibited by State or
federal law, nothing in this Section 7.3 shall be construed as permission to
withhold relevant customer data from the City that the City requests in
conjunction with a tax audit or review; except that Franchisee may redact
identifying information such as names, street addresses (excluding City and
zip code), Social Security Numbers, or Employer Identification Numbers
related to any confidentiality agreements Franchisee has with third parties.
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7.4 Franchisee acknowledges that information submitted to the City is
subject to the Washington Public Records Act, chapter 42.56 RCW, and is
open to public inspection, subject to any exceptions permitted by law (unless
an exemption applies).
7.5 Franchisee may identify documents submitted to the City that
Franchisee believes are non-disclosable, such as trade secrets. Franchisee
shall be responsible for clearly and conspicuously identifying the work as
confidential or proprietary, and shall provide a brief written explanation as to
why such information is confidential and how it may be treated as such under
State or federal law. The City agrees to keep confidential any proprietary or
confidential books or records to the extent permitted by law. If the City
receives a public records request under chapter 42.56 RCW or similar law for
the disclosure of the documents or any part of the documents Franchisee has
designated as confidential, trade secret, or proprietary, the City shall provide
Franchisee with written notice of the request, including a copy of the request
prior to disclosure so that Franchisee can take appropriate steps to protect its
interests. Nothing in this Section 7.5 prohibits the City from complying with
chapter 42.56 RCW or any other applicable law or court order requiring the
release of public records, and the City shall not be liable to Franchisee for
compliance with any law or court order requiring the release of public
records. The City will not assert an exemption from disclosure or production
on Franchisee’s behalf. The City shall comply with any injunction or court
order obtained by Franchisee that prohibits the disclosure of any such
confidential records. If a higher court overturns an injunction or court order
and such higher court action is or has become final and non-appealable,
Franchisee shall reimburse the City for any fines or penalties imposed for
failure to disclose such records within forty-five (45) days of a request from
the City, unless additional time is reasonably necessary under the
circumstances and is agreed to by the parties.
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SECTION 8. – Work in the Rights-of-Way.
8.1 During any period of relocation, construction or maintenance, all work
performed by Franchisee or its contractors shall be accomplished in a safe
and workmanlike manner and only after obtaining permits pursuant to
Section 8.3. Franchisee shall minimize interference with the free passage of
traffic and the free use of adjoining property, whether public or private.
Franchisee shall at all times post and maintain proper traffic control to warn
and direct the road users. Traffic control devices include but are not limited
to barricades, traffic cones, traffic drums, tubular markers, flags, certified
flaggers, lights, flares, and other measures as required for the safety of all
members of the general public. Franchisee shall also comply with all
applicable safety regulations during such period of construction as required
by the ordinances of the City or the laws of the State of Washington,
including RCW 39.04.180 for the requirement of trench safety systems for
trench excavations.
8.2 Franchisee shall, at its own expense, maintain its Facilities in a safe
condition, in good repair, and in a manner suitable to the City. Additionally,
Franchisee shall keep its Facilities free of debris and anything of a dangerous,
noxious, or offensive nature or which would create a hazard or undue
vibration, heat, noise, or any interference with City services. The provisions
of this Section 8 shall survive the expiration of this Franchise during such
time as Franchisee continues to have Facilities in the Rights-of-Way.
8.3 Whenever Franchisee shall commence work in any public Rights-of-
Way for the purpose of excavation, installation, construction, repair,
maintenance, or relocation of its cable or equipment, it shall apply to the City
for a permit to do so and, in addition, shall give the City at least ten (10)
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working days prior notice of its intent to commence work in the Rights-of-
Way. All work by Franchisee in the area shall be performed in accordance
with applicable City standards and specifications and warranted for a period
of two (2) years, normal wear and tear excepted. In no case shall any work
commence within any Rights-of-Way without a permit, except as otherwise
provided in this Franchise.
8.4 If either the City or Franchisee plans to make excavations in any area
covered by this Franchise and as described in this Section 8.4, the party
planning such excavation shall afford the other, an opportunity to share such
excavation, PROVIDED THAT:
a. The joint use shall not unreasonably delay the work of the party
causing the excavation to be made;
b. The joint use shall be arranged and accomplished on terms and
conditions satisfactory to both parties; and
c. The initiating party may deny such request for safety reasons.
8.5 Except for emergency situations, Franchisee shall give at least seven
(7) days’ prior written notice of intended construction to residents within 300
feet of the construction area. This notice shall contain the dates, contact
number, nature and location of the work to be performed; a door hanger is
permissible. At least twenty-four (24) hours prior to entering private
property or streets or public easements adjacent to or on such private
property, Franchisee shall physically post a notice on the property indicating
the nature and location of the work to be performed; a door hanger is
permissible. Nothing in this Franchise gives the Franchisee the right to enter
onto private property without the permission of the private property owner.
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8.6 Franchisee shall make a good faith effort to comply with the property
owner/resident’s preferences, if any, on location or placement of
underground installations (excluding aerial cable lines utilizing existing poles
and existing cable paths), consistent with sound engineering practices.
Following performance of the work, Franchisee shall restore the private
property as nearly as possible to its condition prior to construction, except for
any change in condition not caused by Franchisee. Any disturbance of
landscaping, fencing, or other improvements on private property caused by
Franchisee’s work shall, at the sole expense of Franchisee, be promptly
repaired and restored to the reasonable satisfaction of the property
owner/resident.
8.7 Franchisee shall at all times comply with the safety requirements
contained in Section 11 and all applicable federal, State and local safety
requirements.
8.8 Upon prior written notice from the City, Franchisee shall meet with the
City and other franchise holders to schedule and coordinate construction in
the Rights-of-Way. To minimize public inconvenience, disruption or damage,
the Franchisee shall coordinate all construction locations, activities, and
schedules as directed by the City.
8.9 Franchisee acknowledges that it shall be solely responsible for
compliance with all marking and lighting requirements of the FAA and the
FCC with respect to Franchisee’s Facilities. Franchisee shall indemnify and
hold the City harmless from any fines or other liabilities caused by
Franchisee’s failure to comply with these requirements. Should Franchisee or
the City be cited by either the FCC or the FAA because the Facilities or
Franchisee’s equipment is not in compliance and should Franchisee fail to
cure the conditions of noncompliance within the timeframe allowed by the
citing agency, the City may elect any or all of the following remedies: (1)
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cure the conditions of noncompliance at Franchisee’s expense, and collect all
reasonable costs from Franchisee in accordance with the provisions of
Section 16.3 and Section 16.4; (2) collect damages pursuant to Section
22.2; and (3) revoke this Franchise pursuant to Section 23. Franchisee shall
not be liable for any claims, damages or liability resulting from City’s acts in
effecting the cure on behalf of Franchisee.
SECTION 9. – Trees.
9.1 Franchisee may trim trees upon and overhanging on public ways,
streets, alleys, sidewalks, and other public places of the City so as to prevent
the branches of any such trees from coming in contact with Franchisee’s
Facilities. The right to trim trees in this Section 9.1 only applies to the extent
necessary to protect above ground Facilities. Franchisee shall ensure that its
tree trimming activities protect the appearance, integrity, and health of the
trees to the extent reasonably possible. Franchisee shall be responsible for
all debris removal from such activities.
9.2 Franchisee shall prepare and maintain a tree trimming schedule to
ensure compliance with this Section 9.2 and to avoid exigent circumstances
where tree cutting, trimming, or removal is necessary to protect the public
safety or continuity of service. Franchisee shall submit the tree trimming
schedule to the Director. Franchisee shall notify and obtain written approval
from the City before completing any trimming, except in an emergency.
9.3 All tree trimming shall be completed at the expense of Franchisee.
Franchisee may contract for such services, however, City approval is required
prior to commencing such trimming. Nothing in this Franchise grants
Franchisee any authority to act on behalf of the City, to enter upon any
private property, or to trim any tree or natural growth not owned by the City.
Franchisee shall be solely responsible and liable for any damage to any third
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parties’ trees or natural growth caused by Franchisee’s actions. Franchisee
shall indemnify, defend and hold harmless the City from claims of any nature
arising out of any act or negligence of Franchisee with regard to tree and/or
natural growth trimming, damage, and/or removal. Franchisee shall
reasonably compensate the City or the property owner for any damage
caused by trimming, damage, or removal by Franchisee. Except in an
emergency, all tree trimming must be performed under the direction of an
arborist certified by the International Society of Arboriculture, unless
otherwise approved by the Director.
SECTION 10. – One Call Locator Service. Prior to doing any work in
the Rights-of-Way, the Franchisee shall follow established procedures,
including contacting the Utility Notification Center in Washington and comply
with all applicable State statutes regarding the One Call Locator Service
pursuant to chapter 19.122 RCW. The City shall not be liable for any
damages to Franchisee’s Facilities or for interruptions in service to
Franchisee’s customers that are a direct result of Franchisee’s failure to
accurately locate its Facilities within the prescribed time limits and guidelines
established by the One Call Locator Service regardless of whether the City
issued a permit.
SECTION 11. – Safety Requirements.
11.1 Franchisee shall, at all times, employ professional care and shall install
and maintain and use industry-standard methods for preventing failures and
accidents that are likely to cause damage, injuries, or nuisances to the
public. All structures and all lines, equipment, and connections in, over,
under, and upon the Rights-of-Ways, wherever situated or located, shall at
all times be kept and maintained in a safe condition. Franchisee shall comply
with all federal, State, and City safety requirements, rules, regulations, laws,
and practices, and employ all necessary devices as required by applicable law
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during the construction, operation, maintenance, upgrade, repair, or removal
of its Facilities. By way of illustration and not limitation, Franchisee shall also
comply with the applicable provisions of the National Electric Code, National
Electrical Safety Code, FCC regulations, and Occupational Safety and Health
Administration (OSHA) Standards. Upon reasonable notice to Franchisee, the
City reserves the general right to inspect the Facilities to evaluate if they are
constructed and maintained in a safe condition.
11.2 If an unsafe condition or a violation of Section 11.1 is found to exist,
and becomes known to the City, the City agrees to give Franchisee written
notice of any such condition and afford Franchisee a reasonable opportunity
to repair the condition. If Franchisee fails to start to make the necessary
repairs and alterations within the time frame specified in such notice (and
pursue the cure to completion), then the City may make such repairs or
contract for them to be made. All costs, including administrative costs,
incurred by the City in repairing any unsafe conditions shall be borne by
Franchisee and reimbursed to the City pursuant to Section 16.3 and Section
16.4.
11.3 Additional safety standards include:
a. Franchisee shall endeavor to maintain all equipment lines and
facilities in an orderly manner, including, but not limited to, the removal of all
bundles of unused cable.
b. All installations of equipment, lines, and ancillary facilities shall
be installed in accordance with industry-standard engineering practices and
shall comply with all federal, State, and local regulations, ordinances, and
laws.
c. The Franchisee shall protect any opening or obstruction in the
Rights-of-Way or other public places made by Franchisee in the course of its
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operations with adequate barriers, fences, or boarding, the bounds of which,
during periods of dusk and darkness, shall be clearly marked and visible at
night.
SECTION 12. – Work of Contractors and Subcontractors.
Franchisee’s contractors and subcontractors shall be licensed and bonded in
accordance with State law and the City’s ordinances, regulations, and
requirements. Work by contractors and subcontractors is subject to the
same restrictions, limitations, and conditions as if the work were performed
by Franchisee. Franchisee shall be responsible for all work performed by its
contractors and subcontractors and others performing work on its behalf as if
the work were performed by Franchisee and shall ensure that all such work is
performed in compliance with this Franchise and applicable laws.
SECTION 13. – Provision of Conduit.
13.1 The City may request that Franchisee provide the City with a single
two (2) inch conduit, and related structures necessary to access the conduit
pursuant to RCW 35.99.070 in one or more of the locations where Franchisee
constructs, installs or relocates Facilities underground. Franchise shall install
a locator wire and cap off all conduit ends. Conduit ends shall be marked on
the as-built plans and maps required in Section 7.
13.2 Except in emergency situations, Franchisee shall provide the Director
with at least thirty (30) days’ advance written notice of any construction,
relocation, or placement of ducts or conduits in the Rights-of-Way and
provide the City an opportunity to request that Franchisee provide the City
with additional duct or conduit, and related structures necessary to access
the conduit pursuant to RCW 35.99.070. This notification shall be in addition
to the requirement to apply for and obtain permits pursuant to Section 8.3.
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SECTION 14. – Restoration after Construction.
14.1 Franchisee shall repair any damage to the Rights-of-Way, and the
property of any third party, after installation, construction, relocation,
maintenance, or repair of its Facilities or after abandonment approved
pursuant to Section 20, within ten (10) days following the date of any of
these activities at Franchisee’s sole cost and expense. Franchisee shall
restore the Rights-of-Way and the surface of the Rights-of-Way to the same
or better condition as it was immediately prior to any installation,
construction, relocation, maintenance or repair by Franchisee. Franchisee
shall not be responsible for any changes to the Rights-of-Way not caused by
Franchisee or anyone doing work for Franchisee. No survey monument may
be removed (or replaced) without a professional land surveyor obtaining a
permit in advance from the Washington State Department of Natural
Resources and submitting a copy of the approved permit to the City.
Franchisee shall restore all concrete encased monuments that will be
disturbed or displaced by such work to City standards and specifications. The
Director shall have final approval of the condition of the Rights-of-Way after
repair or restoration by the Franchisee.
14.2 Franchisee agrees to complete all restoration work to the Franchise
Area or other affected area at its sole costs and expense and according to the
time and terms specified in the construction permit issued by the City.
Franchisee also agrees to repair any damage caused by work to the
Franchise Area within fourteen (14) days unless otherwise approved by the
Director. All work by Franchisee pursuant to this Franchise shall be
performed in accordance with applicable City standards and warranted for a
period of two (2) years and for undiscovered defects as is standard and
customary for this type of work.
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14.3 If conditions (e.g., weather) make the complete restoration required
under Section 14 impracticable, Franchisee shall temporarily restore the
affected Right-of-Way or property at its sole cost and expense. Franchisee
shall promptly undertake and complete the required permanent restoration
as soon as conditions no longer make such permanent restoration
impracticable.
14.4 If Franchisee does not repair a Right-of-Way or an improvement in or
to a Right-of-Way within the time prescribed by this Section 14, the City may
repair the damage and shall be reimbursed its actual cost within sixty (60)
days of submitting an itemized invoice to Franchisee in accordance with the
provisions of Section 16.3 and Section 16.4. The City may also bill
Franchisee for any expenses associated with the inspection of such
restoration work.
14.5 The provisions of this Section 14 shall survive the expiration or
termination of this Franchise so long as Franchisee continues to have
Facilities in the Rights-of-Way and has not completed all restoration to the
City’s standards.
SECTION 15. – Emergencies.
15.1 In the event of any emergency in which any of Franchisee’s Facilities
located in or under any street endangers the property, life, health, or safety
of any person, entity or the City, or if Franchisee’s construction area is
otherwise in such a condition as to immediately endanger the property, life,
health, or safety of any person, entity or the City, Franchisee shall
immediately repair its Facilities and cure or remedy the dangerous conditions
for the protection of property, life, health, or safety of any person, entity or
the City, without first applying for and obtaining a permit as required by this
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Franchise. The Franchisee shall apply for any necessary permits on the next
day Kent City Hall is open for business.
15.2 Whenever the construction, installation, or excavation of Facilities
authorized by this Franchise has caused or contributed to a condition that
appears to substantially impair the lateral support of the adjoining street or
public place, an adjoining public place, street utilities, City property, Rights-
of-Way, or private property (collectively “Endangered Property”) or
endangers the public, the Director may direct Franchisee, at Franchisee’s
own expense, to take reasonable action to protect the Endangered Property
or the public within a prescribed time. If Franchisee fails or refuses to
promptly take the actions directed by the City, or fails to fully comply with
such directions, or if an emergency situation exists that requires immediate
action before the City can timely contact Franchisee to request Franchisee
effect the immediate repair, the City may enter upon the Endangered
Property and take such reasonable actions as are necessary to protect the
Endangered Property or the public. Franchisee shall be liable to the City for
the costs of any such repairs in accordance with the provisions of Sections
16.3 and 16.4.
15.3 The City retains the right and privilege to cut or move any Facilities
located within the Rights-of-Way of the City, as the City may determine to be
necessary, appropriate, or useful in response to any public health or safety
emergency. The City shall notify Franchisee by telephone promptly upon
learning of the emergency and shall exercise reasonable efforts to avoid an
interruption of Franchisee’s operations.
15.4 The City shall not be liable for any damage to or loss of Facilities within
the Rights-of-Way as a result of or in connection with any public works,
public improvements, construction, grading, excavation, filling, or work of
any kind in the Rights-of-Way by or on behalf of the City, unless directly and
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proximately caused by the gross negligence or willful acts of the City, its
employees, contractors, or agents. The City shall further not be liable to
Franchisee for any direct, indirect, or any other such damages suffered by
any person or entity of any type as a direct or indirect result of the City’s
actions under this Section 15 unless caused by the gross negligence or willful
acts of the City, its employees, contractors, or agents.
15.5 Franchisee shall promptly reimburse the City in accordance with the
provisions of Section 16.3 and Section 16.4 for any and all costs the City
reasonably incurs in response to any emergency situation involving
Franchisee’s Facilities, to the extent said emergency is not the fault of the
City. The City agrees to simultaneously seek reimbursement from any
franchisee or permit holder who caused or contributed to the emergency
situation.
SECTION 16. – Recovery of Costs.
16.1 Franchisee shall reimburse the City for its actual and documented
administrative, legal, and other costs incurred in drafting and processing this
Franchise and all work related thereto pursuant to RCW 35.21.860(1)(b), in
an amount not to exceed $6,000.00. No construction permits shall be issued
for the installation of Facilities authorized until the City has received this
reimbursement.
16.2 Franchisee shall further be subject to all permit fees associated with
activities undertaken through the authority granted in this Franchise or under
the laws of the City. Where the City incurs costs and expenses for review,
inspection, or supervision of activities, including but not limited to reasonable
fees associated with attorneys, consultants, City Staff and City Attorney time,
undertaken through the authority granted in this Franchise or any ordinances
relating to the subject for which a permit fee is not established, Franchisee
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shall pay such costs and expenses directly to the City in accordance with the
provisions of Section 16.3.
16.3 Franchisee shall reimburse the City within sixty (60) days of submittal
by the City of an itemized billing for reasonably incurred costs, itemized by
project, for Franchisee’s proportionate share of all actual, identified expenses
incurred by the City in planning, constructing, installing, repairing, altering,
or maintaining any City facility as the result of the presence of Franchisee’s
Facilities in the Rights-of-Way. Such costs and expenses shall include but
not be limited to Franchisee’s proportionate cost of City personnel assigned
to oversee or engage in any work in the Rights-of-Way as the result of the
presence of Franchisee’s Facilities in the Rights-of-Way. Such costs and
expenses shall also include Franchisee’s proportionate share of any time
spent reviewing construction plans in order to either accomplish the
relocation of Franchisee’s Facilities or the routing or rerouting of any utilities
so as not to interfere with Franchisee’s Facilities.
16.4 The time of City employees shall be charged at their respective rate of
salary, including overtime if applicable, plus benefits and reasonable
overhead. Any other costs will be billed proportionately on an actual cost
basis. All billings will be itemized so as to specifically identify the costs and
expenses for each project for which the City claims reimbursement. A charge
for the actual costs incurred in preparing the billing may also be included in
said billing. At the City’s option, the billing may be on an annual basis, but
the City shall provide the Franchisee with the City’s itemization of costs, in
writing, at the conclusion of each project for information purposes.
SECTION 17. – City’s Reservation of Rights.
17.1 Franchisee represents that its Services, as authorized under this
Franchise, are a telephone business as defined in RCW 82.16.010, or that it
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is a service provider as used in RCW 35.21.860 and defined in RCW
35.99.010. As a result, the City will not impose franchise fees under the
terms of this Franchise. The City reserves its right to impose a franchise fee
on Franchisee if Franchisee’s Services as authorized by this Franchise change
such that the statutory prohibitions of RCW 35.21.860 no longer apply or if
statutory prohibitions on the imposition of such fees are otherwise removed.
The City also reserves its right to require that Franchisee obtain a separate
franchise for a change in use, which franchise may include provisions
intended to regulate Franchisee’s operations as allowed under applicable law.
Nothing contained within this Franchise shall preclude Franchisee from
challenging any such new fee or separate agreement under applicable
federal, State, or local laws.
17.2 Franchisee acknowledges that certain of its operations within the City
may constitute a telephone business subject to the utility tax imposed
pursuant to the Kent City Code Chapter 3.18. Franchisee understands that
RCW 35.21.870 currently limits the rate of city tax upon telephone business
activities to six percent (6%) of gross income (as that term is defined in Kent
City Code Chapter 3.18), unless a higher rate is otherwise approved.
Franchisee stipulates and agrees that certain of its business activities may be
subject to taxation as a telephone business and that Franchisee shall pay to
the City the rate applicable to such taxable services under Kent City Code
Chapter 3.18, and consistent with state and federal law. The parties agree
however, that nothing in this Franchise shall limit the City's power of taxation
as may exist now or as later imposed by the City. This provision does not
limit the City's power to amend Kent City Code Chapter 3.18 as may be
permitted by law. Nothing in this Section 17 is intended to alter, amend,
modify or expand the taxes and fees that may lawfully be assessed on
Verizon’s business activities under this franchise under applicable law.
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SECTION 18. – Indemnification.
18.1 General Indemnification. Franchisee shall indemnify, defend, and hold
the City, its officers, officials, boards, commissions, agents, and employees,
harmless from any action or claim for injury, damage, loss, liability, cost or
expense, including court and appeal costs and reasonable attorneys' fees or
reasonable expenses, arising from any casualty or accident to Person or
property, including, without limitation, damages in any way arising out of, or
by reason of, any construction, excavation, operation, maintenance,
reconstruction, or any other act done under this Franchise, by or for
Franchisee, its agents, or its employees, or by reason of any neglect or
omission of Franchisee. Franchisee shall consult and cooperate with the City
while conducting its defense of the City under this Franchise. Franchisee
shall not be obligated to indemnify the City to the extent of the City’s
negligence or willful misconduct.
18.2 Indemnification for Relocation. Franchisee shall defend, indemnify,
and hold the City harmless for any damages, claims, additional costs or
reasonable expenses and attorneys’ fees, including contractor construction
delay damages, assessed against or payable by the City and arising out of or
resulting from Franchisee's failure after making all commercially reasonable
efforts, to remove, adjust, or relocate any of its facilities in the Rights-of-
Way in a timely manner in accordance with any relocation required by the
City.
18.3 Procedures and Defense. If a claim or action arises, the City or any
other indemnified party shall promptly notify Franchisee of such claim or
action and tender the defense of the claim or action to Franchisee, which
defense shall be at Franchisee’s expense. The City’s failure to so notify and
request indemnification shall not relieve Franchisee of any liability that
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Franchisee might have, except to the extent that such failure prejudice
Franchisee’s ability to defend such claim or suit. The City may participate in
the defense of a claim, but if Franchisee provides a defense at Franchisee’s
expense then Franchisee shall not be liable for any attorneys’ fees, expenses,
or other costs the City may incur if it chooses to participate in the defense of
a claim, unless and until separate representation as described in Section 18.5
is required. In that event, the provisions of Section 18.5 shall govern
Franchisee’s responsibility for City’s attorney’s fees, expenses, or other costs.
In any event, Franchisee may not agree to any settlement of claims affecting
the City without the City's consent, such consent not to be unreasonable
withheld or delayed.
18.4 Non-waiver. The fact that Franchisee carries out any activities under
this Franchise through independent contractors shall not constitute an
avoidance of or defense to Franchisee's duty of defense and indemnification
under this subsection.
18.5 Expenses. If separate representation to fully protect the interests of
both parties is or becomes necessary, such as a conflict of interest between
the City and the counsel selected by Franchisee to represent the City,
Franchisee shall pay, from the date such separate representation is required
forward, all reasonable expenses incurred by the City in defending itself with
regard to any action, suit, or proceeding subject to indemnification by
Franchisee. Provided, however, that in the event that such separate
representation is or becomes necessary, and the City desires to hire counsel
or any other outside experts or consultants and desires Franchisee to pay
those expenses, then the City shall be required to obtain Franchisee’s
consent to the engagement of such counsel, experts, or consultants, such
consent not to be unreasonably withheld. The City's expenses shall include
all reasonable out-of-pocket costs and expenses, such as consultants' fees
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and court costs, but shall not include outside attorneys’ fees for services that
are unnecessarily duplicative of services provided the City by Franchisee,
except in the event of a conflict of interest where such duplication may be
required. Each party agrees to cooperate and to cause its employees and
agents to cooperate with the other party in the defense of any claim or
action.
18.6 The parties acknowledge that this Franchise is subject to RCW
4.24.115. Accordingly, in the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting from
the concurrent negligence of Franchisee and the City, its officers, officials,
employees, and volunteers, Franchisee’s liability shall be only to the extent of
Franchisee’s negligence. It is further specifically and expressly understood
that the indemnification provided constitutes Franchisee’s waiver of immunity
under Title 51 RCW, solely for the purposes of this indemnification. This
waiver has been mutually negotiated by the parties.
18.7 The provisions of this Section 18 shall survive the expiration,
revocation, or termination of this Franchise.
SECTION 19. – Insurance.
19.1 Franchisee shall maintain in full force and effect at its own cost and
expense each of the following policies of insurance:
a. Commercial General Liability insurance with limits of no less
than $5,000,000 per occurrence and $5,000,000 general aggregate.
Coverage shall be at least as broad as that provided by ISO CG 00 01 1/96
or its equivalent and include severability of interests. Such insurance shall
name the City, its officers, officials and employees as additional insureds per
ISO CG 2026 or its equivalent. There shall be a waiver of subrogation and
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rights of recovery against the City, its officers, officials and employees.
Coverage shall apply as to claims between insureds on the policy, if
applicable. Coverage may take the form of a primary layer and a secondary
or umbrella layer, but the combination of layers must equal $5,000,000 at a
minimum.
b. Commercial Automobile Liability insurance with minimum
combined single limits of $5,000,000.00 each occurrence with respect to
each of Franchisee’s owned, hired and non-owned vehicles assigned to or
used in the operation of the Facilities in the City. The policy shall contain a
severability of interests provision.
c. Workers’ Compensation coverage as required by the Industrial
Insurance laws of the State of Washington and employer’s liability with a
limit of $1,000,000 each accident/disease/policy limit; and
19.2 Deductibles/Certificate of Insurance. Any deductible of the policies
shall not in any way limit Franchisee’s liability to the City.
19.3 Endorsements. All policies shall contain, or shall be endorsed so that:
a. The City, its officers, officials, boards, commissions, employees,
and agents are to be covered as, and have the rights of, additional insureds
with respect to liability arising out of activities performed by, or on behalf of,
Franchisee under this Franchise or Applicable Law, or in the construction,
operation or repair, or ownership of the Cable System;
b. Franchisee's insurance coverage shall be primary insurance with
respect to the City, its officers, officials, boards, commissions, employees,
and agents. Any insurance or self-insurance maintained by the City, its
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officers, officials, boards, commissions, employees, and agents shall be in
excess of the Franchisee's insurance and shall not contribute to it; and
c. Franchisee's insurance shall apply separately to each insured
against whom a claim is made or lawsuit is brought, except with respect to
the limits of the insurer's liability.
19.4 Acceptability of Insurers. The insurance obtained by Franchisee shall
be placed with insurers with a Best's rating of no less than "A VII."
19.5 Verification of Coverage. The Franchisee shall furnish the City with
certificates of insurance and endorsements or a copy of the page of the
policy reflecting blanket additional insured status. The certificates and
endorsements for each insurance policy are to be signed by a Person
authorized by that insurer to bind coverage on its behalf. The certificates
and endorsements for each insurance policy are to be on standard forms or
such forms as are consistent with standard industry practices.
19.6 Franchisee’s maintenance of insurance as required by this Section 19
shall not be construed to limit the liability of Franchisee to the coverage
provided by such insurance, or otherwise limit the City’s recourse to any
remedy available at law or equity. Further, Franchisee’s maintenance of
insurance policies required by this Franchise shall not be construed to excuse
unfaithful performance by Franchisee.
SECTION 20. – Abandonment of Franchisee’s Telecommunications
Network. Upon the expiration, termination, or revocation of the rights
granted under this Franchise, Franchisee shall remove all of its Facilities from
the Rights-of-Way within thirty (30) days of receiving written notice from the
Director. The Facilities, in whole or in part, may not be abandoned by
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Franchisee without written approval by the City. Any plan for abandonment
or removal of Franchisee’s Facilities must be first approved by the Director,
and all necessary permits must be obtained prior to this work. The plan for
abandonment shall include a proposal and instruments for transferring
ownership to the City. Any Facilities that are not permitted to be abandoned
in place and that are not removed within thirty (30) days of receipt of City’s
notice shall automatically become the property of the City. Except that
nothing contained within this Section 20 shall prevent the City from
compelling Franchisee to remove any such Facilities through judicial action
when the City has not permitted the Franchisee to abandon the Facilities in
place. The provisions of this Section 20 shall survive the expiration,
revocation, or termination of this Franchise.
SECTION 21. – Bonds.
21.1 Construction Guarantee. As a condition of performing work in the
Right-of-Way, the timely, complete, and faithful performance of all
construction work in the Right-of-Way shall be guaranteed in an amount
equal to one hundred twenty five percent (125%) of the cost estimate
(prepared by a licensed contractor, professional engineer, or architect) of the
construction work. The guarantee may be by performance bond or
irrevocable letter of credit. If Franchisee, in the sole judgment of the City,
has a history of corrections or defaults, Franchisee must provide the full
guarantee by assignment of funds. These funds shall guarantee the
following: (1) timely completion of construction; (2) construction in
compliance with all applicable plans, permits, technical codes, and standards;
(3) proper location of the Facilities as specified by the City; (4) restoration of
the Rights-of-Way and other City properties affected by the construction; (5)
submission of as-built drawings after completion of construction; and (6)
timely payment and satisfaction of all claims, demands, or liens for labor,
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materials, or services provided in connection with the work that could be
asserted against the City or City property. The guarantee must remain in full
force until the completion of construction, including final inspection,
corrections, and final approval of the work, recording of all easements,
provision of as-built drawings, and the posting of a maintenance guarantee
as described in Section 21.2. Compliance with the performance guarantee
requirement of the City’s current Design and Construction Standards shall
satisfy the provisions of this Section 21.1.
21.2 Maintenance Guarantee. Maintenance and the successful operation of
the Right-of-Way improvements shall be bonded for a period of at least two
(2) years (or other period as required by Kent City Code) from the date of
final construction approval. The bond shall be in an amount to be
determined by the City. The minimum maintenance guarantee shall be Five
Thousand Dollars ($5,000.00) or twenty percent (20%) of the original
performance construction guarantee as described in Section 20.1, whichever
is greater. At six (6)-month intervals during this maintenance period, the
City will inspect the improvements and identify to Franchisee any noted
deficiencies. Franchisee will have thirty (30) days to correct any deficiencies.
The satisfactory correction of the work may commence a new two (2)-year
maintenance period for the improvements as corrected, as determined by the
City. The City will initiate collection against the financial guarantee if
deficiencies are not satisfactorily addressed by the end of the thirty (30)-day
response period. Compliance with the maintenance guarantee requirement
of the City’s current Design and Construction Standards shall satisfy the
provisions of this Section 21.2.
21.3 Original financial guarantee amounts described in Section 21.1 and
Section 21.2 above may be reduced one time only prior to the maintenance
period, at the discretion of the City. If an extension to any associated
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permits are granted, the financial guarantees may be increased based on an
updated engineer’s cost estimate or as determined by the City. Financial
guarantees will be fully released only after all f inal punchlist items are
accomplished, final construction approval, and the elapse of the two (2)-year
maintenance guarantee period with all corrective actions complete and
accepted by the City.
21.4 Franchisee shall provide City with a bond in the amount of Twenty-Five
Thousand Dollars ($25,000.00) (“Franchise Bond”) running or renewable for
the term of this Franchise, in a form and substance reasonably acceptable to
City. In the event Franchisee shall fail to substantially comply with any one
or more of the provisions of this Franchise, following written notice and a
reasonable opportunity to cure, then there shall be recovered jointly and
severally from Franchisee and the bond any actual damages suffered by City
as a result thereof, including but not limited to staff time, material and
equipment costs, compensation or indemnification of third parties, and the
cost of removal or abandonment of Facilities. Franchisee specifically agrees
that its failure to comply with the terms of this Section 21.4 shall constitute a
material breach of this Franchise, subject to the notice and cure provisions of
Section 22.2. Franchisee further agrees to replenish the Franchise Bond
within fourteen (14) days after written notice from the City that there is a
deficiency in the amount of the Franchise Bond. The amount of the Franchise
Bond shall not be construed to limit Franchisee's liability or to limit the City's
recourse to any remedy to which the City is otherwise entitled at law or in
equity.
21.5 All bonds provided to the City under this Section 21 shall be on forms
provided by the City and with sureties registered with the Washington State
Insurance Commissioner or other financial institutions acceptable to the City.
SECTION 22. – Remedies to Enforce Compliance.
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22.1 In addition to any other remedy provided in this Franchise, the City
reserves the right to pursue any remedy available at law or in equity to
compel or require Franchisee and/or its successors and assigns to comply
with the terms of this Franchise. The pursuit of any right or remedy by the
City shall not prevent the City from thereafter declaring a revocation for
breach of the conditions. In addition to any other remedy provided in this
Franchise, Franchisee reserves the right to pursue any remedy available at
law or in equity to compel or require the City, its officers, employees,
volunteers, contractors and other agents and representatives, to comply with
the terms of this Franchise. Further, all rights and remedies provided in this
Franchise shall be in addition to and cumulative with any and all other rights
and remedies available to either the City or Franchisee. Such rights and
remedies shall not be exclusive, and the exercise of one or more rights or
remedies shall not be deemed a waiver of the right to exercise at the same
time or thereafter any other right or remedy. Provided, further, that by
entering into this Franchise, it is not the intention of the City or Franchisee to
waive any other rights, remedies, or obligations as provided by law, equity or
otherwise, and nothing contained in this Franchise shall be deemed or
construed to effect any such waiver. The parties reserve the right to seek
and obtain injunctive relief with respect to this Franchise to the extent
authorized by applicable law. The execution of this Franchise shall not
constitute a waiver or relinquishment of this right. The parties agree that if a
party obtains injunctive relief, neither party shall be required to post a bond
or other security and the parties agree not to seek the imposition of such a
requirement.
22.2 If either party violates or fails to comply with any of the provisions of
this Franchise or a permit issued as required by Section 8.3, or should it fail
to heed or comply with any notice given to such party under the provisions of
this Franchise (the “Defaulting Party”), the other Party (the “Non-defaulting
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Party”) shall provide the Defaulting Party with written notice specifying with
reasonable particularity the nature of any such breach and the Defaulting
Party shall undertake all commercially reasonable efforts to cure such breach
within thirty (30) days of receipt of notification. If the Non-defaulting Party
reasonably determines the breach cannot be cured within thirty (30) days,
the Non-defaulting Party may specify a longer cure period, and condition the
extension of time on the Defaulting Party’s submittal of a plan to cure the
breach within the specified period, commencement of work within the original
thirty (30)-day cure period, and diligent prosecution of the work to
completion. If the breach is not cured within the specified time, or the
Defaulting Party does not comply with the specified conditions, the Non-
defaulting Party may pursue any available remedy at law or in equity as
provided in Section 22.1, or in the event Franchisee has failed to timely cure
the breach, the City, at its sole discretion, may elect to: (1) revoke this
Franchise pursuant to Section 23; (2) claim damages of Two Hundred Fifty
Dollars ($250.00) per day against Franchisee (and collect from the Franchise
Bond if necessary); or (3) extend the time to cure the breach if under the
circumstances additional time is reasonably required.
SECTION 23. – Revocation. If Franchisee willfully violates or fails to
comply with any material provisions of this Franchise, the City may revoke
this Franchise after (1) providing at least thirty (30) days’ written notice to
Franchisee specifying the alleged violation or failure; and (2) holding a
hearing before City Council. This hearing shall be open to the public and
Franchisee and other interested parties may offer written and/or oral
evidence explaining or mitigating such alleged noncompliance. Within thirty
(30) days after the hearing, the Kent City Council, on the basis of the record,
shall make the determination as to whether there is cause for revocation,
whether the Franchise will be terminated, or whether lesser sanctions should
otherwise be imposed. The Kent City Council may in its sole discretion fix an
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additional time period to cure violations. If the deficiency has not been cured
at the expiration of any additional time period or if the Kent City Council does
not grant any additional period, the Kent City Council may by resolution
declare the Franchise to be revoked and forfeited or impose lesser sanctions.
If Franchisee appeals revocation and termination, such revocation may be
held in abeyance pending judicial review by a court of competent jurisdiction,
provided Franchisee is otherwise in compliance with the Franchise.
SECTION 24. – Non-Waiver. The failure of either party to insist upon
strict performance of any of the covenants and agreements of this Franchise
or to exercise any option conferred in any one or more instances shall not be
construed to be a waiver or relinquishment of any such covenants,
agreements, or option or any other covenants, agreements or option.
SECTION 25. – Police Powers and City Regulations. Nothing within
this Franchise shall be deemed to restrict the City’s ability to adopt and
enforce all necessary and appropriate ordinances regulating the performance
of the conditions of this Franchise, including any valid ordinance made in the
exercise of its police powers in the interest of public safety and for the
welfare of the public. The City shall have the authority at all times to
reasonably control by appropriate regulations, consistent with 47 U.S.C. §
253, the location, elevation, manner of construction, and maintenance of any
Facilities by Franchisee, and Franchisee shall promptly conform with all such
regulations, unless compliance would cause Franchisee to violate other
requirements of law. The City reserves the right to promulgate any
additional regulations of general applicability as it may find necessary in the
exercise of its lawful police powers consistent with 47 U.S.C. § 253. In the
event of a conflict between the provisions of this Franchise and any other
ordinance(s) enacted under the City’s police power authority, such other
ordinances(s) shall take precedence over this Franchise.
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SECTION 26. – Cost of Publication. The cost of publication of this
Franchise shall be borne by Franchisee.
SECTION 27. – Acceptance. This Franchise may be accepted by
Franchisee by its filing with the City Clerk of an unconditional written
acceptance, within sixty (60) days from the City’s execution of this Franchise,
in the form attached as Exhibit A. Failure of Franchisee to so accept this
Franchise shall be deemed a rejection by Franchisee and the rights and
privileges granted shall cease. In addition, Franchisee shall file the certificate
of insurance and the additional insured endorsements obtained pursuant to
Section 19, any construction guarantees, if applicable, pursuant to Section
21.1, the Franchise Bond required pursuant to Section 21.4, and the costs
described in Section 16.1.
SECTION 28. – Survival. All of the provisions, conditions, and
requirements of Section 5, Section 6, Section 8, Section 14, Section 18,
Section 20, and this Section 28 of this Franchise shall be in addition to any
and all other obligations and liabilities Franchisee may have to the City at
common law, by statute, or by contract, and shall survive this Franchise, and
any renewals or extensions, to the extent provided for in those sections. All
of the provisions, conditions, regulations, and requirements contained in this
Franchise shall further be binding upon the successors, executors,
administrators, legal representatives, and assigns of Franchisee and all
privileges, as well as all obligations and liabilities of Franchisee shall inure to
its successors and assigns equally as if they were specifically mentioned
where Franchisee is named.
SECTION 29. – Changes of Ownership or Control.
29.1 This Franchise may not be directly or indirectly assigned, transferred,
or disposed of by sale, lease, merger, consolidation or other act of
Franchisee, by operation of law or otherwise, unless approved in writing by
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the City, which approval shall not be unreasonably withheld, conditioned or
delayed. The above notwithstanding, Franchisee may freely assign this
Franchise in whole or in part to a parent, subsidiary, or affiliated entity,
unless there is a change of control as described in Section 29.2. Franchisee
shall provide prompt, written notice to the City of any such assignment. In
the case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, such consent shall not
be required unless and until the secured party elects to realize upon the
collateral. For purposes of this Section 29, no assignment or transfer of this
Franchise shall be deemed to occur based on the public trading of
Franchisee’s stock; provided, however, any tender offer, merger, or similar
transaction resulting in a change of control shall be subject the provisions of
this Franchise.
29.2 Any transactions that singularly or collectively result in a change of
more than fifty percent (50%) of the: ultimate ownership or working control
of Franchisee, ownership or working control of the Facilities, ownership or
working control of affiliated entities having ownership or working control of
Franchisee or of the Facilities, or of control of the capacity or bandwidth of
Franchisee’s Facilities, shall be considered an assignment or transfer
requiring City approval. Transactions between affiliated entities are not
exempt from City approval if there is a change in control as described in the
preceding sentence. Franchisee shall promptly notify the City prior to any
proposed change in, or transfer of, or acquisition by any other party of
control of Franchisee. Every change, transfer, or acquisition of control of
Franchisee shall cause a review of the proposed transfer. The City shall
approve or deny such request for an assignment or transfer requiring City’s
consent within one hundred twenty (120) days of a completed application
from Franchisee, unless a longer period of time is mutually agreed to by the
parties or when a delay in the action taken by the City is due to the schedule
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of the City Council and action cannot reasonably be obtained within the one
hundred twenty (120) day period. If the City adopts a resolution denying its
consent and such change, transfer, or acquisition of control has been
effected, the City may revoke this Franchise, following the revocation
procedure described in Section 23. The assignee or transferee must have the
legal, technical, financial, and other requisite qualifications to own, hold, and
operate Franchisee’s Services. Franchisee shall reimburse the City for all
direct and indirect costs and expenses reasonably incurred by the City in
considering a request to transfer or assign this Franchise, in accordance with
the provisions of Section 16.3 and Section 16.4, and shall pay the applicable
application fee.
29.3 Franchisee may, without prior consent from the City: (1) lease the
Facilities, or any portion, to another person; (2) grant an indefeasible right of
user interest in the Facilities, or any portion, to another person; or (3) offer
to provide capacity or bandwidth in its Facilities to another person, provided
further, that Franchisee shall at all times retain exclusive control over its
Facilities and remain fully responsible for compliance with the terms of this
Franchise, and Franchisee shall furnish, upon request from the City, a copy of
any such lease or agreement, provided that Franchisee may redact the
name, street address (except for City and zip code), Social Security
Numbers, Employer Identification Numbers or similar identifying information,
and other information considered confidential under applicable laws provided
in such lease or agreement, and the lessee complies, to the extent
applicable, with the requirements of this Franchise and applicable City codes.
Franchisee’s obligation to remain fully responsible for compliance with the
terms under this Section 29.3 shall survive the expiration of this Franchise
but only if and to the extent and for so long as Franchisee is still the owner
or has exclusive control over the Facilities used by a third party.
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SECTION 30. – Entire Agreement. This Franchise constitutes the
entire understanding and agreement between the parties as to the subject
matter within this Franchise and no other agreements or understandings,
written or otherwise, shall be binding upon the parties upon execution of this
Franchise.
SECTION 31. – Eminent Domain. The existence of this Franchise
shall not preclude the City from acquiring by condemnation in accordance
with applicable law, all or a portion of Franchisee’s Facilities for the fair
market value. In determining the value of such Facilities, no value shall be
attributed to the right to occupy the area conferred by this Franchise.
SECTION 32. – Vacation. If at any time the City, by ordinance and in
accordance with applicable laws, vacates all or any portion of the area
affected by this Franchise, the City shall not be liable for any damages or loss
to the Franchisee by reason of such vacation. The City shall notify
Franchisee in writing not less than sixty (60) days before vacating all or any
portion of any such area. The City will, if practicable, reserve an easement
for Franchisee’s telecommunications network under the same terms and
conditions as this Franchise at the location vacated by City, and if not
practicable, the City may, after sixty (60) days’ written notice to Franchisee,
terminate this Franchise with respect to such vacated area.
SECTION 33. – Notice. Any notice or information required or
permitted to be given to the parties under this Franchise shall be sent to the
following addresses unless otherwise specified by personal delivery,
overnight mail by a nationally recognized courier, or by U.S. certified mail,
return receipt requested and shall be effective upon receipt or refusal of
delivery:
CITY OF KENT
Attn: City Clerk
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220 Fourth Avenue South
Kent, WA 98032
Company Address:
MCImetro Access Transmission Services Corp.
ATTN: Franchise manager
600 Hidden Ridge
Mailcode: HQE02G295
Irving, TX 75038
With Copies (except for invoices) to:
Verizon Business Network Services
1320 North Courthouse Road, Suite 900
Arlington, VA, USA 22201
Attn: Deputy General Counsel, Network and Technology
SECTION 34. – Severability. If any section, sentence, clause, or
phrase of this Franchise should be held to be invalid or unconstitutional by a
court of competent jurisdiction, such invalidity or unconstitutionality shall not
affect the validity or constitutionality of any other section, sentence, clause,
or phrase of this Franchise unless such invalidity or unconstitutionality
materially alters the rights, privileges, duties, or obligations, in which event
either party may request renegotiation of those remaining terms of this
Franchise materially affected by such court’s ruling.
SECTION 35. – Compliance with all Applicable Laws. Each party
agrees to comply with all present and future federal, state, and local laws,
ordinances, rules, and regulations. This Franchise is subject to ordinances of
general applicability enacted pursuant to the City’s police powers. The City
reserves the right at any time to amend this Franchise to conform to any
enacted, amended, or adopted federal or state statute or regulation relating
to the public health, safety, and welfare, or relating to roadway regulation, or
a City ordinance enacted pursuant to such federal or state statute or
regulation, when such statute, regulation, or ordinance necessitates this
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43 Franchise – Verizon
Ordinance
Franchise be amended in order to remain in compliance with applicable laws,
but only upon providing Franchisee with thirty (30) days’ written notice of its
action setting forth the full text of the amendment and identifying the
statute, regulation, or ordinance requiring the amendment. This amendment
shall become automatically effective upon expiration of the notice period
unless, before expiration of that period, Franchisee makes a written request
for negotiations regarding the terms of the amendment. If the parties do not
reach agreement as to the terms of the amendment within thirty (30) days of
the call for negotiations, either party may pursue any available remedies at
law or in equity.
SECTION 36. – Attorney Fees. If a suit or other action is instituted in
connection with any controversy arising out of this Franchise, each party
shall pay all its legal costs and attorney fees incurred in defending or bringing
such claim or lawsuit, including all appeals, in addition to any other recovery
or award provided by law; except that nothing in this section shall be
construed to limit the City’s right to indemnification under Section 18 of this
Franchise.
SECTION 37. – Hazardous Substances. Franchisee shall not
introduce or use any hazardous substances (chemical or waste), in violation
of any applicable law or regulation, nor shall Franchisee allow any of its
agents, contractors, or any person under its control to do the same.
Franchisee will be solely responsible for and will defend, indemnify, and hold
the City, its officers, officials, employees, agents, and volunteers harmless
from and against any and all claims, costs, and liabilities including reasonable
attorney fees and costs, arising out of or in connection with the cleanup or
restoration of the property to the extent caused by Franchisee’s use, storage,
or disposal of hazardous substances, whether or not intentional, and the use,
storage, or disposal of such substances by Franchisee’s agents, contractors,
or other persons acting under Franchisee’s control, whether or not
55
44 Franchise – Verizon
Ordinance
intentional. Franchisee shall have only that responsibility or liability for
managing, monitoring, or abating a hazardous condition that it may have
under state or federal law and this Franchise shall not be interpreted to
expand Franchisee’s legal obligations relating to any pre-existing hazardous
substances undisturbed by Franchisee.
SECTION 38. – Licenses, Fees and Taxes. Prior to constructing any
Facilities or providing Services within the City, Franchisee shall obtain a
business or utility license from the City, if so required. Franchisee shall pay
all applicable taxes on personal property and Facilities owned or placed by
Franchisee in the Rights-of-Way and shall pay all applicable license fees,
permit fees, and any applicable tax unless documentation of exemption is
provided to the City and shall pay utility taxes and license fees properly
imposed by the City under this Franchise. However, nothing in this Franchise
is intended to alter, amend, modify or expand the taxes and fees that may
lawfully be assessed on Franchisee’s business activities under applicable law.
SECTION 39. – Miscellaneous.
39.1 The City and Franchisee respectively represent that their respective
signatories are duly authorized and have full right, power, and authority to
execute this Franchise on such party’s behalf.
39.2 This Franchise shall be construed in accordance with the laws of the
State of Washington. The United States District Court for the Western
District of Washington, and King County Superior Court have proper venue
for any dispute related to this Franchise.
39.3 Section captions and headings are intended solely to facilitate the
reading of this Franchise. These captions and headings shall not affect the
meaning or interpretation of the text within this Franchise.
56
45 Franchise – Verizon
Ordinance
39.4 Where the context so requires, the singular shall include the plural and
the plural includes the singular.
39.5 Franchisee shall be responsible for obtaining all other required
approvals, authorizations, and agreements from any party or entity and it is
acknowledged and agreed that the City is making no representation,
warranty, or covenant whether any of the foregoing approvals,
authorizations, or agreements are required or have been obtained by
Franchisee.
39.6 This Franchise is subject to all applicable federal, State and local laws,
regulations and orders of governmental agencies as amended, including but
not limited to the Communications Act of 1934, as amended, the
Telecommunications Act of 1996, as amended, and the Rules and Regulations
of the FCC. Neither the City nor Franchisee waive any rights they may have
under any such laws, rules or regulations.
39.7 There are no third party beneficiaries to this Franchise.
39.8 This Franchise may be enforced at both law and in equity.
SECTION 40. – 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 41. – Effective Date. This ordinance shall take effect and be
in force five (5) days from and after its passage and publication as provided
by law.
57
46 Franchise – Verizon
Ordinance
SUZETTE COOKE, MAYOR
ATTEST:
KIMBERLEY A. KOMOTO, CITY CLERK
APPROVED AS TO FORM:
TOM BRUBAKER, CITY ATTORNEY
PASSED: day of , 2017.
APPROVED: day of , 2017.
PUBLISHED: day of , 2017.
I hereby certify that this is a true copy of Ordinance No.
passed by the City Council of the City of Kent, Washington, and approved by
the Mayor of the City of Kent as hereon indicated.
(SEAL)
KIMBERLEY A. KOMOTO, CITY CLERK
58
47 Franchise – Verizon
Ordinance
EXHIBIT A
STATEMENT OF ACCEPTANCE
MCImetro Access Transmission Services Corp. d/b/a Verizon Access
Transmission, a Delaware Corporation (“Verizon”) for itself, its successors
and assigns, accepts and agrees to be bound by all lawful terms, conditions
and provisions of the Franchise attached and incorporated by this reference.
Verizon declares that it has carefully read the terms and conditions of this
Franchise and unconditionally accepts all of the terms and conditions of the
Franchise and agrees to abide by such terms and conditions. Verizon has
relied upon its own investigation of all relevant facts and it has not been
induced to accept this Franchise and it accepts all reasonable risks related to
the interpretation of this Franchise.
MCImetro Access Transmission Services Corp. d/b/a Verizon Access
Transmission, a Delaware Corporation
By: _____________________ Date: _______________________
Name: ____________________
Title: ____________________
59
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60
PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: August 21, 2017
TO: Public Works Committee Members
FROM: Paul Kuehne, Construction Engineering Supervisor
THROUGH: Eric Connor, Construction Engineering Manager
Chad Bieren, P.E., Deputy Director / City Engineer
SUBJECT: Contract with JECB for South 212th Way Overlay - Recommend
SUMMARY: This contract is for the South 212th Way Overlay Project. This project
consists of paving HMA, sidewalk repairs, installation of traffic loops, installation of
survey monuments, and roadway subgrade repairs on South 212th Way from SR 167 to
96th Avenue South.
JECB will provide construction project management, administrative services, quality
control (special inspection) and testing for compaction of subgrade, concrete strength,
and compaction of asphalt.
Public Works Construction Engineering staff are each assigned to multiple capital
improvement projects throughout the year. Based on current workload, we
augment city staff with a consultant in order to complete this work in the late
summer/early fall. JECB has worked with the Construction Engineering section in
the past and has experience completing project of this size and scope.
EXHIBIT: Contract
BUDGET IMPACT: This work is funded out of B&O funds
Motion: Move to recommend Council authorize the Mayor to sign a
Consultant Services Agreement with JECB to provide services for the South
212th Way Overlay Project in an amount not to exceed $ 84,780.00, subject
to final terms and conditions acceptable to the City Attorney and Public
Works Director.
61
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62
CONSULTANT SERVICES AGREEMENT - 1
(Over $20,000)
CONSULTANT SERVICES AGREEMENT
between the City of Kent and
JECB LLC
THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation
(hereinafter the "City"), and JECB LLC organized under the laws of the State of Washington, located and
doing business at PO Box 832, Auburn, WA 98071, Phone: (253) 405-4654, Contact: Jamie Hicks
(hereinafter the "Consultant").
I. DESCRIPTION OF WORK.
Consultant shall perform the following services for the City in accordance with the following
described plans and/or specifications:
The Consultant shall provide construction management services for the S. 212th Way
Overlay Project. For a description, see the Consultant's Scope of Work which is attached as
Exhibit A and incorporated by this reference.
Consultant further represents that the services furnished under this Agreement will be performed in
accordance with generally accepted professional practices within the Puget Sound region in effect at the
time those services are performed.
II. TIME OF COMPLETION. The parties agree that work will begin on the tasks described in
Section I above immediately upon the effective date of this Agreement. Consultant shall complete the
work described in Section I by March 31, 2018.
III. COMPENSATION.
A. The City shall pay the Consultant, based on time and materials, an amount not to exceed
Eighty Four Thousand, Seven Hundred Eighty Dollars ($84,780.00), for the services
described in this Agreement. This is the maximum amount to be paid under this Agreement
for the work described in Section I above, and shall not be exceeded without the prior
written authorization of the City in the form of a negotiated and executed amendment to
this agreement. The Consultant agrees that the hourly or flat rate charged by it for its
services contracted for herein shall remain locked at the negotiated rate(s) for a period of
one (1) year from the effective date of this Agreement. The Consultant's billing rates shall
be as delineated in Exhibit B.
B. The Consultant shall submit monthly payment invoices to the City for work performed, and
a final bill upon completion of all services described in this Agreement. The City shall
provide payment within forty-five (45) days of receipt of an invoice. If the City objects to
all or any portion of an invoice, it shall notify the Consultant and reserves the option to only
pay that portion of the invoice not in dispute. In that event, the parties will immediately
make every effort to settle the disputed portion.
IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor-
Employer Relationship will be created by this Agreement. By their execution of this Agreement, and in
accordance with Ch. 51.08 RCW, the parties make the following representations:
63
CONSULTANT SERVICES AGREEMENT - 2
(Over $20,000)
A. The Consultant has the ability to control and direct the performance and details of its
work, the City being interested only in the results obtained under this Agreement.
B. The Consultant maintains and pays for its own place of business from which
Consultant’s services under this Agreement will be performed.
C. The Consultant has an established and independent business that is eligible for a
business deduction for federal income tax purposes that existed before the City
retained Consultant’s services, or the Consultant is engaged in an independently
established trade, occupation, profession, or business of the same nature as that
involved under this Agreement.
D. The Consultant is responsible for filing as they become due all necessary tax
documents with appropriate federal and state agencies, including the Internal
Revenue Service and the state Department of Revenue.
E. The Consultant has registered its business and established an account with the state
Department of Revenue and other state agencies as may be required by Consultant’s
business, and has obtained a Unified Business Identifier (UBI) number from the
State of Washington.
F. The Consultant maintains a set of books dedicated to the expenses and earnings of
its business.
V. TERMINATION. Either party may terminate this Agreement, with or without cause, upon
providing the other party thirty (30) days written notice at its address set forth on the signature block of
this Agreement. After termination, the City may take possession of all records and data within the
Consultant’s possession pertaining to this project, which may be used by the City without restriction. If
the City’s use of Consultant’s records or data is not related to this project, it shall be without liability or
legal exposure to the Consultant.
VI. DISCRIMINATION. In the hiring of employees for the performance of work under this
Agreement or any subcontract, the Consultant, its subcontractors, or any person acting on behalf of the
Consultant or subcontractor shall not, by reason of race, religion, color, sex, age, sexual orientation,
national origin, or the presence of any sensory, mental, or physical disability, discriminate against any
person who is qualified and available to perform the work to which the employment relates. Consultant
shall execute the attached City of Kent Equal Employment Opportunity Policy Declaration, Comply with
City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance
Statement.
VII. INDEMNIFICATION. Consultant shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or
suits, including all legal costs and attorney fees, arising out of or in connection with the Consultant's
performance of this Agreement, except for that portion of the injuries and damages caused by the City's
negligence.
The City's inspection or acceptance of any of Consultant's work when completed shall not be
grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to
property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers,
officials, employees, agents and volunteers, the Consultant's duty to defend, indemnify, and hold the City
harmless, and Consultant’s liability accruing from that obligation shall be only to the extent of the
Consultant's negligence.
64
CONSULTANT SERVICES AGREEMENT - 3
(Over $20,000)
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION
PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL
INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES
FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
In the event Consultant refuses tender of defense in any suit or any claim, if that tender was made
pursuant to this indemnification clause, and if that refusal is subsequently determined by a court having
jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the Consultant’s part, then
Consultant shall pay all the City’s costs for defense, including all reasonable expert witness fees and
reasonable attorneys’ fees, plus the City’s legal costs and fees incurred because there was a wrongful
refusal on the Consultant’s part.
The provisions of this section shall survive the expiration or termination of this Agreement.
VIII. INSURANCE. The Consultant shall procure and maintain for the duration of the
Agreement, insurance of the types and in the amounts described in Exhibit C attached and incorporated by
this reference.
IX. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide
reasonable accuracy of any information supplied by it to Consultant for the purpose of completion of the
work under this Agreement.
X. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents, drawings,
designs, reports, or any other records developed or created under this Agreement shall belong to and
become the property of the City. All records submitted by the City to the Consultant will be safeguarded
by the Consultant. Consultant shall make such data, documents, and files available to the City upon the
City’s request. The Consultant acknowledges that the City is a public agency subject to the Public Records
Act codified in Chapter 42.56 of the Revised Code of Washington. As such, the Consultant agrees to
cooperate fully with the City in satisfying the City’s duties and obligations under the Public Records Act.
The City’s use or reuse of any of the documents, data, and files created by Consultant for this project by
anyone other than Consultant on any other project shall be without liability or legal exposure to
Consultant.
XI. CITY'S RIGHT OF INSPECTION. Even though Consultant is an independent contractor
with the authority to control and direct the performance and details of the work authorized under this
Agreement, the work must meet the approval of the City and shall be subject to the City's general right of
inspection to secure satisfactory completion.
XII. WORK PERFORMED AT CONSULTANT'S RISK. Consultant shall take all necessary
precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the
performance of the contract work and shall utilize all protection necessary for that purpose. All work shall
be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to
materials, tools, or other articles used or held for use in connection with the work.
XIII. MISCELLANEOUS PROVISIONS.
A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its
contractors and consultants to use recycled and recyclable products whenever practicable. A price
preference may be available for any designated recycled product.
B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the
covenants and agreements contained in this Agreement, or to exercise any option conferred by this
Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those
covenants, agreements or options, and the same shall be and remain in full force and effect.
C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington. If the parties are unable to settle any
dispute, difference or claim arising from the parties’ performance of this Agreement, the exclusive means
65
CONSULTANT SERVICES AGREEMENT - 4
(Over $20,000)
of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules
and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in
writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the
parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred
in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or
award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's
right to indemnification under Section VII of this Agreement.
D. Written Notice. All communications regarding this Agreement shall be sent to the parties at
the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written
notice hereunder shall become effective three (3) business days after the date of mailing by registered or
certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this
Agreement or such other address as may be hereafter specified in writing.
E. Assignment. Any assignment of this Agreement by either party without the written consent
of the non-assigning party shall be void. If the non-assigning party gives its consent to any assignment,
the terms of this Agreement shall continue in full force and effect and no further assignment shall be
made without additional written consent.
F. Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of the City
and Consultant.
G. Entire Agreement. The written provisions and terms of this Agreement, together with any
Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative
of the City, and such statements shall not be effective or be construed as entering into or forming a part
of or altering in any manner this Agreement. All of the above documents are hereby made a part of this
Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any
language contained in this Agreement, the terms of this Agreement shall prevail.
H. Compliance with Laws. The Consultant agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become applicable to
Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or
accruing out of the performance of those operations.
I. Public Records Act. The Consultant acknowledges that the City is a public agency subject to
the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents,
notes, emails, and other records prepared or gathered by the Consultant in its performance of this
Agreement may be subject to public review and disclosure, even if those records are not produced to or
possessed by the City of Kent. As such, the Consultant agrees to cooperate fully with the City in satisfying
the City’s duties and obligations under the Public Records Act.
J. City Business License Required. Prior to commencing the tasks described in Section I,
Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of
the Kent City Code.
/ /
/ /
/ /
/ /
/ /
/ /
66
CONSULTANT SERVICES AGREEMENT - 5
(Over $20,000)
K. Counterparts and Signatures by Fax or Email. This Agreement may be executed in any
number of counterparts, each of which shall constitute an original, and all of which will together constitute
this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page
to the other by fax or email and that signature shall have the same force and effect as if the Agreement
bearing the original signature was received in person.
IN WITNESS, the parties below execute this Agreement, which shall become effective on
the last date entered below. All acts consistent with the authority of this Agreement and prior
to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed
to have applied.
CONSULTANT:
By:
(signature)
Print Name:
Its
(title)
DATE:
CITY OF KENT:
By:
(signature)
Print Name: Suzette Cooke
Its Mayor
DATE:
NOTICES TO BE SENT TO:
CONSULTANT:
Jamie Hicks
JECB LLC
PO Box 832
Auburn, WA 98071
(253) 405-4654 (telephone)
NOTICES TO BE SENT TO:
CITY OF KENT:
Timothy J. LaPorte, P.E.
City of Kent
220 Fourth Avenue South
Kent, WA 98032
(253) 856-5500 (telephone)
(253) 856-6500 (facsimile)
APPROVED AS TO FORM:
Kent Law Department
JECB - 212th Overlay/Kuehne
67
EEO COMPLIANCE DOCUMENTS - 1
DECLARATION
CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY
The City of Kent is committed to conform to Federal and State laws regarding equal opportunity.
As such all contractors, subcontractors and suppliers who perform work with relation to this
Agreement shall comply with the regulations of the City’s equal employment opportunity
policies.
The following questions specifically identify the requirements the City deems necessary for any
contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative
response is required on all of the following questions for this Agreement to be valid and binding.
If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the
directives outlines, it will be considered a breach of contract and it will be at the City’s sole
determination regarding suspension or termination for all or part of the Agreement;
The questions are as follows:
1. I have read the attached City of Kent administrative policy number 1.2.
2. During the time of this Agreement I will not discriminate in employment on the basis of
sex, race, color, national origin, age, or the presence of all sensory, mental or physical
disability.
3. During the time of this Agreement the prime contractor will provide a written statement to
all new employees and subcontractors indicating commitment as an equal opportunity
employer.
4. During the time of the Agreement I, the prime contractor, will actively consider hiring and
promotion of women and minorities.
5. Before acceptance of this Agreement, an adherence statement will be signed by me, the
Prime Contractor, that the Prime Contractor complied with the requirements as set forth
above.
By signing below, I agree to fulfill the five requirements referenced above.
By: ___________________________________________
For: __________________________________________
Title: _________________________________________
Date: _________________________________________
68
EEO COMPLIANCE DOCUMENTS - 2
CITY OF KENT
ADMINISTRATIVE POLICY
NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998
SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996
CONTRACTORS APPROVED BY Jim White, Mayor
POLICY:
Equal employment opportunity requirements for the City of Kent will conform to federal and
state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee
equal employment opportunity within their organization and, if holding Agreements with the City
amounting to $10,000 or more within any given year, must take the following affirmative steps:
1. Provide a written statement to all new employees and subcontractors indicating
commitment as an equal opportunity employer.
2. Actively consider for promotion and advancement available minorities and women.
Any contractor, subcontractor, consultant or supplier who willfully disregards the City’s
nondiscrimination and equal opportunity requirements shall be considered in breach of contract
and subject to suspension or termination for all or part of the Agreement.
Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public
Works Departments to assume the following duties for their respective departments.
1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these
regulations are familiar with the regulations and the City’s equal employment opportunity
policy.
2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines.
69
EEO COMPLIANCE DOCUMENTS - 3
CITY OF KENT
EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT
This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the
Agreement.
I, the undersigned, a duly represented agent of
Company, hereby acknowledge and declare that the before-mentioned company was the prime
contractor for the Agreement known as that was entered
into on the (date), between the firm I represent and the City of
Kent.
I declare that I complied fully with all of the requirements and obligations as outlined in the City
of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity
Policy that was part of the before-mentioned Agreement.
By: ___________________________________________
For: __________________________________________
Title: _________________________________________
Date: _________________________________________
70
Geotechnical Engineering Date: 7-27-17
IECB Special Inspections Project: City of Kent -212ih
Materials Testing Overlay
Construction
C o n s tru cti o dP r o j e c t M øn øg em ent T ø sk s øn d D elia er øb I e s
Our personnel have participated in many state and federal public works projects. JECB personnel
coordinate with all utility companies (water, power, sewer, phone, etc), property owners, and contractors to
facilitate and implement contractual agreements for the project. We provide on-site support, schedule
review, technical and procedural advice; efficiently handle RFI's, RAM's, submittals, change orders, force
account and wage reviews per WSDOT, LAG criteria. Experienced personnel oversee survey and planning,
tracking and inspecting underground utilities/structures as they are placed, machinery, personnel,
materials and resources used. Our personnel perform Construction/Project Management as well as quality
assurance testing and inspection. This allows maximum flexibility for a successful projecf provides better
communication between responsible parties, and significantly reduces cost associated with additional
contracts, markups, and lost time due to communication errors or scheduling issues.
We provide organized and accurate documentation and back up information to simplify state and federal
audits.
Typical Construction Management Responsibilities
9 Serve as a construction period representative for the clien! attend andf or conduct all on site weekly
project meetings, perform project owner/Engineer/Contractor coordination, respond to property
owner and contractor conflicts in public construction sites.
r* Communicate with the public, as necessary; investigate and resolve construction complaints; provide
information needed for the resolution of claims for damages against the clienq communicate with
departrnents, personnel, and outside agencies to coordinate efforts and exchange information.
t* Maintain a construction file, keeping files in order, logs and construction records, employee's work
assignments and inspection actives, including daily reports, field measurement sheets, etc.
s Inspect public and private construction and improvement work to verify appropriate construction
permits; and ensure appropriate quality control, sampling, and inspection in compliance with plans,
codes, and regulations, utilization of WSDOT construction standards
c> Furnish weekly reports of the contractor's progress of work completed and of compliance with the
progress schedule, quantity tracking and measurement of bid items, prepare progress pay estimates,
review and negotiation of force account work.
r> Review of Plans and Specifications, engineering design conflict resolution, propose resolution of in-
field constructability problems, materials testing and inspection, quality control and assurance.
s Prepare for and aid State and Federal auditors in their review of conshuction documentation.
Respond to deficiencies in a timely manner to maintain good standing with federal agencies following
LAG, TIB and WSDOT criteria.
r* Review preliminary and final contract plans, specifications and submittals with appropriate staff for
correctness, completeness and constructability.
Phone: (253) 405-4654 Email: jecboffice@gmail.com
PO Box 832 Auburn W A 9807'L
71
Date: 7-27-17
IECB Project: City of Kent -212th
Overlay
lob Descriptions
Asphalt / Concrete Inspector
Continuously or periodically monitor and inspect elements for conformance to approved plans
and construction documents. Sample materials for specification conformance and maximum
density analysis. Check compaction and optimum moisture content using a nuclear densometer.
Additional compliance testing may include; sand equivalen! organic conten! atterburg limits,
hydrometer.
Concrete /Masonrv Inspector
Continuously or periodically monitor and inspect elements for conformance to approved plans
and construction documents. Monitor/inspect reinforcement for size, type, grade, location,
embedment, cleanliness, and clearance. Sample material for verification of air contenf slump, and
compressive strength per ASTM and IBC codes. Specimens will be cast, transported and cured per
ASTM.
Construction Manager / Inspection
Review reports by field inspectors and laboratory analysis prior to distribution to the project team
members. Manage phases of project delivery including initiating, planning, executing, monitoring,
controlling and closing. Coordinate with property owners, utility contractors and city personnel. .
Track quantities, machinery, manhours etc. used for verification of pay estimate preparation and
contractor invoices. Review plans for constructability,
Admin
Process reports from field inspectors. Process reports from lab test data (i.e. soils, asphalt and
concrete). File, organize and distribute reports to the client, architecÇ engineer, building official
and those directed by the client for the distribution list. Answer phones and direct clients to
appropriate JECB personnel.
Professional Engineer
Provide engineering analysis, design, recommendations, documentatiory drawings and
specifications for structural items requiring a stamp by a licensed engineer.
Phone: (253) 405-4654 Email: jecboffice@gmail.com
PO Box 832 Auburn WA98071,
Geotechnical Engineering
Special Inspections
Materials Testing
Construction Inspections
72
IECB
Geotechnical Engineering Date: 7-27-17
Special Inspections Project: City of Kent -212th
Materials Testing Overlay
Construction
Schedule of Fees ü Seruices, Exhibit B
Estimated Services - Materials Testing/Special Inspection
Price Hours**
PROFESSIONAL SERVICES
Asphalt/Soils ilDensometer* t t
Reinforced Concrete * * *
Administrative Services
Constructior,,/Proj ect Mgr
Staff Engineer/Geologist
LAB TESTING SERVICES
Asphalt, Ignition & Gradation (ASTM D2172)
Asphalt, Rice Specific Gravity (ASTM D2041)
Concrete, Cylinders Compression (ASTM C39)
Soil, Moisture-Density Relation (ASTM D1557)
Soil, Sand Equivalent Test (ASTM D2419)
Soil, Sieve Analysis includes 200 Wash (C136)
Soil, Fracture Count (ASTM D5821)
Mileage
Sample Pick Up
ESTIMATED PROJECT TOTAL
$es.00
$9s.00
$s0.00
$115.00
$ 140.00
$ I 75.00
$ l 05.00
$2s.00
$ 180.00
$7s.00
$ 12s.00
$75.00
per hour
per hour
per hour
per hour
per hour
each
each
each
each
each
each
each
NO
CHARGE
NO
CHARGE
16
28
40
0
520
5
7
7
32
2
5
5
4
TOTAL*
$ I 5,200.00
$2,660.00
$2,000.00
$s9,800.00
$700.00
sl,225.00
$735.00
$800.00
$360.00
$375.00
$625.00
$300.00
$0.00
$0.00
$84,780.00
* Total is an estimate only forthe project since contractor's work dictates schedule
**Hours quoted are for reference only
*** Overtime rates (1.5) apply for all work- over 8 hrs per shift, before 7am, after 5 pm, holidays, or weekends
Phone: (253) 405-4654 Email: jecboffice@gmail.com
PO Box 832 Auburn WA98071
73
Geotechnical Engineering Date: 7-27-17
Special Inspections Projecl City of Kent -212thIECBMaterials Testing
Construction Inspections
Overlay
File #:
Key Støff & Associøtes
Jason E.C. Bell, PE (Geo-Engineer, Construction Manager, TESC Lead, Field Inspector)
Education/ Years' Experience - 20+
BS Civil Engineering,1995 University of Washington
Pavement Surface Condition Analysis WSDOT
Erosion and Sediment Control Lead ECO 3, BMP 160 WSDOE
Registrations and Affiliations
Registered Professional Engineer, 2001 State of Washington wA #37343
Nuclear Densometer Campbell Pacific Nuclear
Special Inspector, Reinforced Concrete, Structural ICC, WABO
Masonry, Spray Applied Fireproofing, Post Tension
Concrete
Certified Laboratory Technician, CTL #0403 The National Concrete Masonry Assoc.
Concrete Field Technician, Level I American Concrete Institute
Member American Concrete Institute
Jason has focused on geo-technical engineering/soils, slope stability-failure analysis, foundation design and
research since 2001. Design work includes; residential and commercial buildings, pile design and refusal
verificatiory mat and column foundations, pre-load techniques, various types of retaining walls, paving and
road profiles, subgrade and bearing capacity determinations, settlement and consolidation calculations,
SWPPP, TESC, surface and groundwater analysis, culverts and stream crossing design.
Jason has extensive experience in plan reading, WSDOT and IBC regulations, testing and inspection of soils,
concrete, masonry, asphalg post tension concrete, fireproofing, shotcrete and steel in Washington. Jason
has managed branch offices as well as provided these same services and Project Management in several
field laboratories throughout the Pacific Northwest. Project management has involved; federally funded
projects, ARRA paperwork, communication for RFI, correction and stop work notices, admin per LAG
manual and typical state forms, coordination with public utilities and property owners.
George Hicks (Geologist, Field Inspector)
Education/ Years' Experience - 30+
Bachelors Degree in Geology
Erosion and Sediment Control Lead ECO 3, BMP 160 WSDOE
Registrations and Affiliations
Nuclear Densometer Campbell Pacific Nuclear
Concrete Field Technician, Level I American Concrete Institute
George has worked on numerous state and county projects throughout Southwest Washington as a WSDOT
employed construction materials inspector. George has managed both in the field and in the lab, numerous
construction projects such as the highway 509 cable stay bridge, I-5 repaving from Tacoma to King County
line, and highway 101 paving projects. George has also served as an inspector in batch plants, both concrete
and asphalt concrete, throughout Western Washington. He has also served as an independent assurance
tester for WSDOT to ensure that contractors and inspectors were working within the specifications
provided by WSDOT. His most recent work includes a number of different paving projects, concrete
placements, and laboratory materials testing.
Phone: (253) 405-4654 Email: jecboffice@gmail.com
PO Box 832 Auburn WA98071
74
Date: 7-27-17
IECB Project: City of Kent -212th
Overlay
Jamie Hicks (Geologist, TESC lead, Field Inspector)
Education/ Years' Experience - 20+
Bachelors Degree in Geology,1997 University of Puget Sound
Erosion and Sediment Control Lead ECO 3, BMP 160 WSDOE
Registrations and Affiliations
Nuclear Densometer Campbell Pacific Nuclear
Concrete Field Technician, Level I American Concrete Institute
Special lnspector, Reinforced Concrete, Structural ICC, WABO
Masonry
Previously Certified Special Inspector, StructuralICC,WABO
Steel
Jamie is a Geologist and an ICC certified Special Inspector. Jamie has performed numerous Geotechnical
and Environmental investigations throughout Western Washington. He has landslide evaluation and field
investigation experience. His Special Inspection experience includes reinforced concrete, structural masonry,
structural steel and bolting, concrete post-tensioning, and fire proofing. He also has performed numerous
construction quality control / quality assurance inspections on various projects. In recent years he has
served as project manager/construction quality control for Cooks Hill/Ham Hill Reservoirs, McChord AFB
C and H-Ramp Taxi lane, and Ft. Lewis Cell 6 landfill cover. His most recent Special Inspections include
senior inspector for the 4th Avenue Bridge, tank and shotcrete for the Olympia Meridian Reservoir,
Winlock High and Middle Schools, and Thurston County Evaluation and Treatment Center.
Shannon Alexander (Special Inspectoy'Quality Control)
Education/ Years' Experience - 10
Erosion and Sediment Control Lead ECO 3, BMP 160 WSDOE
Registrations and Affiliations
Nuclear Densometer Campbell Pacific Nuclear
Specialty Measurement Certification Boeing Aerospace Engineering Union
Precision Calibration Training Boeing Aerospace Engineering Union
Construction Tolerance Verification Certification Boeing Aerospace Engineering Union
Sharuron spent 8 years with the Boeing Airplane Company as a member of their Quality Control team on
the 737 line. She is proficient in structural plan reading, using calibrated equipment to make precision
measurements, and utilizing a quality management system for quality control inspection purposes.
Shannon has experience in coatings applications, structural bolting and riveting inspections, and light
gauge metal welding. Shannon has made the transition from quality control along the airplane assembly
line to quality control for the building industry effortlessly. Shannon has worked on current construction
projects such as USDOT Federal Highways Middle Fork Snoqualmie projec! O'Reilly Automotive Auburn
Store #2, and Cascade Water Alliance - Flume Replacement project and Fish Barrier Spill Gate Project.
Phone: (253) 405-4654 Email: jecboffice@gmail.com
PO Box 832 Auburn WA98071
Geotechnical Engineering
Special Inspections
Materials Testing
Construction Inspections
75
EXHIBIT C INSURANCE REQUIREMENTS FOR CONSULTANT SERVICES AGREEMENTS
Insurance
The Consultant shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which
may arise from or in connection with the performance of the work hereunder
by the Consultant, their agents, representatives, employees or
subcontractors.
A. Minimum Scope of Insurance
Consultant shall obtain insurance of the types described below:
1. Automobile Liability insurance covering all owned, non-owned,
hired and leased vehicles. Coverage shall be written on Insurance
Services Office (ISO) form CA 00 01 or a substitute form providing
equivalent liability coverage. If necessary, the policy shall be
endorsed to provide contractual liability coverage.
2. Commercial General Liability insurance shall be written on ISO
occurrence form CG 00 01 and shall cover liability arising from
premises, operations, independent contractors, products-completed
operations, personal injury and advertising injury, and liability
assumed under an insured contract. The City shall be named as an
insured under the Consultant’s Commercial General Liability
insurance policy with respect to the work performed for the City
using ISO additional insured endorsement CG 20 10 11 85 or a
substitute endorsement providing equivalent coverage.
3. Workers’ Compensation coverage as required by the Industrial
Insurance laws of the State of Washington.
4. Professional Liability insurance appropriate to the Consultant’s
profession.
B. Minimum Amounts of Insurance
Consultant shall maintain the following insurance limits:
1. Automobile Liability insurance with a minimum combined single
limit for bodily injury and property damage of $1,000,000 per
accident.
2. Commercial General Liability insurance shall be written with limits
no less than $2,000,000 each occurrence, $2,000,000 general
aggregate and a $1,000,000 products-completed operations
aggregate limit.
76
EXHIBIT C (Continued)
3. Professional Liability insurance shall be written with limits no less
than $2,000,000 per claim and $2,000,000 policy aggregate limit.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following
provisions for Automobile Liability and Commercial General Liability
insurance:
1. The Consultant’s insurance coverage shall be primary insurance as
respect the City. Any Insurance, self-insurance, or insurance pool
coverage maintained by the City shall be excess of the Consultant’s
insurance and shall not contribute with it.
2. The Consultant’s insurance shall be endorsed to state that coverage
shall not be cancelled by either party, except after thirty (30) days
prior written notice by certified mail, return receipt requested, has
been given to the City.
3. The City of Kent shall be named as an additional insured on all
policies (except Professional Liability) as respects work performed
by or on behalf of the Consultant and a copy of the endorsement
naming the City as additional insured shall be attached to the
Certificate of Insurance. The City reserves the right to receive a
certified copy of all required insurance policies. The Consultant’s
Commercial General Liability insurance shall also contain a clause
stating that coverage shall apply separately to each insured against
whom claim is made or suit is brought, except with respects to the
limits of the insurer’s liability.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not
less than A:VII.
E. Verification of Coverage
Consultant shall furnish the City with original certificates and a copy of the
amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of
the Contractor before commencement of the work.
F. Subcontractors
Consultant shall include all subcontractors as insureds under its policies or
shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the same insurance
requirements as stated herein for the Consultant.
77
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78
PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: August 7, 2017
TO: Public Works Committee Members
FROM: Gina Hungerford, Conservation Coordinator
THROUGH: Matt Knox, Mike Mactutis
SUBJECT: Information Only/Next Steps Litter Update
SUMMARY: Staff presented to the Public Works Committee on May 15, 2017 and to
the City Council at the Council Workshop on July 18, related to litter. Since the July
18th workshop discussion, staff researched a number of options, including the
following, that we believe will help reduce littering:
Promote litter fine as “$1,000 or 90 Days in Jail” with larger signs and in more
locations to help deter littering
Work with Metro to increase litter pickup at highly littered bus stops by placing
cans or receptacles at stops where they do not exist
Continue to promote the Adopt-a-Street program and add an Adopt-a-Spot
program for those litter “hot spots”
Promote: “Keep Kent Beautiful! Put Garbage in the Can, Not on the Ground!” –
on City website, Facebook/Twitter, KentScene Newsletter, K-Hold, and on
billboards & at Showare, as well as on local theater pre-movie slides
Promote additional clean-up events to provide residents the opportunity to “give
back” to their community; the next TeamUp2CleanUp Event – Oct. 14, 2017 –
involve more businesses and faith-based groups
Work with Kent schools to provide classroom presentations on reducing waste,
recycling more, and reducing litter; invite schools to do “School Yard Cleanups”
INFORMATION ONLY/NO MOTION REQUIRED
79
Plan “Love Your Community” campaign – people sharing online what they love
about Kent, how they’re making a difference to make Kent great, etc. – posted
w. photos on FB/Twitter, On-Hold, KentTV21, etc.
Partner with fast-food entities to promote “Keep Kent Beautiful! Put Garbage in
the Can, Not on the Ground!” with on-site posters & on their food packaging –
food wrappers being one of the most-littered items
EXHIBIT: None
BUDGET IMPACT: Besides general degradation, litter negatively impacts City
funds in that it has to be picked up and removed before roadside mowing can be
accomplished.
80
PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: August 21, 2017
TO: Public Works Committee Members
FROM: Sean Bauer, Water System Manager
THROUGH: Dave Brock, P.E. Deputy Director / Operations Manager
SUBJECT: Information Only/Water System Update
Summary: Water System Manager Sean Bauer will provide Committee Members
with an update on our water sources, water system projects, and key
accomplishments.
Exhibit: N/A
Budget Impact: Information only, no budget impact to the water utility.
INFORMATION ONLY/NO MOTION REQUIRED
81
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82
PUBLIC WORKS DEPARTMENT
Timothy J LaPorte P.E., Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: August 21, 2017
TO: Public Works Committee Members
FROM: Chad Bieren P.E., Deputy Director / City Engineer
SUBJECT: Information Only/Quiet Zone Update
SUMMARY: Staff will provide an update on progress to date.
EXHIBIT: None
BUDGET IMPACT: None
INFORMATION ONLY/NO MOTION REQUIRED
83