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City Council Meeting - Council - Agenda - 11/04/2014
CITY OF KENT City Council MeetingAgenda November 4, 2014 Mayor Suzette Cooke Dana Ralph, Council President Councilmembers Jim Berrios Bill Boyce Brenda Fincher Dennis Higgins Deborah Ranniger Les Thomas adccW06823 This page intentionally left blank. KENT CITY COUNCIL AGENDAS November 4, 2014 Council Chambers Mayor Suzette Cooke Council President Dana Ralph Councilmember Jim Berrios Councilmember Bill Boyce Councilmember Brenda Fincher Councilmember Dennis Higgins Councilmember Deborah Ranniger Councilmember Les Thomas ********************************************************************* COUNCIL SPECIAL MEETING AGENDA 4 P.M. Subject Speaker Time Animal Services Update Jeff Watling 15 min 2015-2016 Biennial Budget Aaron BeMiller 30 min COUNCIL MEETING AGENDA 5 P.M. 1. CALL TO ORDER/FLAG SALUTE 2. ROLL CALL 3. CHANGES TO AGENDA FROM COUNCIL, ADMINISTRATION, OR STAFF 4. PUBLIC COMMUNICATIONS A. Public Recognition B. Community Events C. Proclamation of National American Indian Heritage Month D. Proclamation of Pancreatic Cancer Awareness Month E. Reappointment of Randall Smith to the Public Facilities District Board F. Intergovernmental Reports 5. PUBLIC HEARING 6. PUBLIC COMMENT - Please state your name and address for the record. You will have up to three (3) minutes to provide comment. Please address all comments to the Mayor or the Council as a whole. The Mayor and Council may not be in a position to answer questions during the meeting. For more details regarding the public comment process, please refer to the section titled, “Public Comments,” on the reverse side. 7. CONSENT CALENDAR A. Minutes of Previous Meetings and Workshop – Approve B. 2014 Crack Sealing – Accept as Complete C. Illicit Discharge Ordinance – Adopt D. Consultant Agreement with Geo Engineers for 240th Street Repairs – Authorize (Continued) COUNCIL MEETING AGENDA CONTINUED E. SR 516 Levee Franchise Agreement with Washington State Department of Transportation – Authorize F. Reimbursement Agreement with Union Pacific Railroad for Milwaukee II Levee & S. 259th Street – Authorize G. Lindental Pump Station Isolation Valve – Authorize H. 2015 - 2019 Consolidated Plan for Housing and Community Development - Approve I. Consultant Agreement for Park Plan Update - Authorization J. 2014 Third Quarter Fee-in-lieu Funds – Accept K. Appointment of Randall Smith to the Public Facilities District Board 8. OTHER BUSINESS A. Solid Waste Utility Tax Ordinance – Adopt B. ShoWare Center Sales, Marketing, and Operational Management Services Agreement - Authorize 9. BIDS 10. REPORTS FROM STANDING COMMITTEES, COUNCIL, AND STAFF 11. EXECUTIVE SESSION AND ACTION AFTER EXECUTIVE SESSION 12. ADJOURNMENT NOTE: A copy of the full agenda packet is available for perusal in the City Clerk's Office. The Agenda Summary page and complete packet are on the website at KentWA.gov An explanation of the agenda format is given on the back of this page. Any person requiring a disability accommodation should contact the City Clerk's Office in advance at 253.856.5725. For TDD relay service, call the Washington Telecommunications Relay Service at 1.800.833.6388. COUNCIL WORKSHOP 1) Animal Services Update, Jeff Watling 2) 2015 – 2015 Biennial Budget – Aaron BeMiller This page intentionally left blank. CHANGES TO THE AGENDA FROM COUNCIL, ADMINISTRATION, OR STAFF This page intentionally left blank. PUBLIC COMMUNICATIONS A) Public Recognition B) Community Events C) Proclamation for National American Indian Heritage Month D) Proclamation for Pancreatic Cancer Awareness Month E) Reappointment of Randall Smith to the Public Facilities District Board F) Intergovernmental Reports This page intentionally left blank. WHEREAS, the First Americans have woven rich and diverse threads into the tapestry of our Nation's heritage. Throughout their long history on this great land, they have faced moments of profound triumph and tragedy alike; and WHEREAS, this month, we celebrate the ancestry and time-honored traditions of American Indians and Alaska Natives in North America. They have guided our land stewardship policies, added immeasurably to our cultural heritage, and demonstrated courage in the face of adversity; and WHEREAS, the contributions of American Indians have enhanced the freedom, prosperity, and greatness of America today. Their customs and traditions are respected and celebrated as part of a rich legacy throughout the United States; and WHEREAS, Native American Awareness Week began in 1976 and recognition was expanded by Congress and approved by President George Bush in August 1990, designating the month of November as National American Indian Heritage Month; and NOW THEREFORE, I, Suzette Cooke, Mayor of the city of Kent, do hereby proclaim November 2014 as "NATIONAL AMERICAN IND/AN HERITAGE MONTH" in the city of Kent, and urge all citizens as well as our elected representatives to recognize and commemorate the important contributions that the American Indian and Alaskan Native peoples have made to our country and communities. Dated this day of October, 2014. W A S H I N G T G N This page intentionally left blank. WHEREAS, in 2014, an estimated 46,420 people will be diagnosed with pancreatic cancer in the United States and 39,590 will die from the disease; and WHEREAS, pancreatic cancer is one of the deadliest cancers, the fourth leading cause of cancer death in the United States and is projected to become the second by 2020; and WHEREAS, when symptoms of pancreatic cancer present themselves, it is late stage and 73 percent of pancreatic cancer patients die within the first year of their diagnosis, while 94 percent of pancreatic cancer patients die within the first five years; and WHEREAS, approximately 880 deaths will occur in Washington State in 2014, and WHEREAS, the U.S. Congress passed the Recalcitrant Cancer Research Act in 2013, which calls on the National Cancer Institute to develop a scientific framework, or strategic plan for pancreatic cancer and other deadly cancers, which will help provide the strategic direction and guidance needed to make true progress against these diseases, and WHEREAS, the Pancreatic Cancer Action Network is the national organization serving those battling pancreatic cancer in our community and nationwide through a comprehensive approach that includes public policy, research funding, patient services, and public awareness and education related to developing effective treatments and a cure for pancreatic cancer; and WHEREAS, the good health and well-being of the residents of the City of Kent are enhanced as a direct result of increased awareness about pancreatic cancer and research into early detection, causes, and effective treatments. NOW, THEREFORE, I, Suzette Cooke, Mayor of the City of Kent, do hereby proclaim November 2014 as In the City of Kent, Washington, and encourage that all residents recognize Pancreatic Cancer Awareness Month and join the movement to fight and eradicate this deadly disease. In witness whereof, I have hereunto set my hand and caused the seal of Kent to be affixed this 4th day of November 2014. WASH (N G T © N This page intentionally left blank. PUBLIC HEARING This page intentionally left blank. PUBLIC COMMENT This page intentionally left blank. Agenda Item: Consent Calendar 7A_ CONSENT CALENDAR 7. City Council Action: Councilmember moves, Councilmember seconds to approve Consent Calendar Items A through K. Discussion Action 7A. Approval of Minutes. Approval of the minutes of the special meeting of September 30, 2014 and the workshop and regular Council meeting of October 7, 2014. This page intentionally left blank. Kent City Council Special Meeting Minutes September 30, 2014 The workshop meeting was called to order at 5:08 p.m. by Council President Ralph. Councilmembers present: Ralph, Boyce, Berrios, Fincher, Higgins, Thomas, and Ranniger. Mayor's Presentation of the Preliminary 2015 - 2016 Biennial Budget. - Mayor Cooke gave an introduction of the budget. She noted that because of the City's capital constraints the City has to work hard to balance the budget. However, she noted that her preliminary budget incorporates efficiencies and is sustainable. Mayor Cooke discussed general revenue assumptions and said General Fund revenues are projected to increase 7.45 percent in 2015 compared to the adopted 2014 budget. She also projected another 2.8 percent increase from 2015 to 2016. She noted that the City’s largest revenue source, property tax, is capped at 1 percent aggregated growth plus new construction, which has become stagnant. However, she pointed out, the City maintains $7 million in “banked capacity” in its property tax levels. Banked capacity is the amount of revenue the City could levy on property owners, she explained. By policy, she communicated, the City has elected not to collect the full amount available, thus reducing the tax burden of Kent property owners. She continued and discussed the Real Estate Excise Tax (REET), sales tax, streamlined sales tax revenues, the B&O tax, utility tax revenues, and other budget revenues and expenditures. She communicated that the B&O tax which, even if increased, is still lower than most other jurisdictions in King County and will add $3.4 million annually to support debt reduction and general government services. Mayor Cooke recommended the formation of a transportation benefit district (TBD) to implement a $20 vehicle tab to raise funds for Kent roads. She discussed City salaries and benefits and that they total 64 percent of the General Fund or 48 percent of the total budget. She highlighted that there will be a cost of living increase of 2.2 percent in this budget which means an expenditure of just over $1 million per year. She communicated that the Public Employee Retirement Services (PERS) costs are estimated to increase by nearly 30 percent and have a $1.2 million impact to the City for the biennium and as far as healthcare there will be no increase in costs in 2015, but a $300,000 increase in 2016. She announced the following departmental budget proposals; the Finance Department is proposing four new positions for the B&O effort at a cost of $411,000 which will be offset by B&O collections, the Police Department requests a $300,000 increase for personnel, Parks requests an increase of $215,000 related to new public standards for indigent defense caseloads and $90,000 in 2016 for part-time temporary employees. She stated that the human services rate for 2015 is $7.19 per capita, which is sensitive to the CIP and will change accordingly. For 2015, the Human Services program will generate $873,000 for grants, but staff costs aren't offset. She added that cultural arts programs are funded at $2.00 per capita. Continuing, she announced that Information Technology has been granted a license for operating a radio station and $119,000 for a new multimedia position. She explained that all expenses to run the radio station are paid from sponsorships. Economic and Community Development proposes a $212,000 budget increase for personnel, she said, which is offset by permit revenues. Public Works’ budget includes a $200,000 increase for equipment and tools and the Human Resource Department budget includes an $80,000 increase for temporary staff through supported employment and Kent City Council Special Meeting Minutes September 30, 2014 high school summer interns. Mayor Cooke added that the Neighborhood Grant Program also includes a proposal to increase its budget by an additional $25,000 in 2016. Mayor Cooke continued and discussed the City’s debt and internal borrowing. She said internal borrowing is appropriate and is a common method governments use to fund relatively low cost projects. This type of borrowing is faster and much cheaper than either a traditional bank loan or selling bonds to raise capital, she explained. However, it is in the City’s best interest to repay these loans in order to apply funds to operating costs. She noted that her budget includes two General Fund transfers, one in 2015 of $1.6 million and a second in 2016 of $1 million to offset Capital Improvement Fund debt. She also stated that her preliminary budget includes $19 million in new projects in 2015 and $15 million in 2016 to replace and repair Parks lifecycle projects, Kent Commons roof repairs, IT lifecycle software and hardware replacement, street asphalt overlays, and water, sewer, and drainage utility projects. Mayor Cooke also noted that the preliminary budget includes $300,000 for the Valley Communications Center in 2015 and another $300,000 in 2016. In conclusion, she said the 2015-2016 budget honors the Council's adopted policies, establishes a $1.5 million Contingency/Emergency Fund, and a Capital Reserve Fund made up of $250,000 annually. Council President Ralph thanked the Mayor and the City staff for the presentation and all the hard work relating to the preliminary budget. Chief Administrative Officer Derek Matheson communicated that the next step is for the Council to deliberate on the preliminary budget at future budget workshops. Council President Ralph noted that the budget workshops will be held every Tuesday in October and possibly November at 5:30 p.m. Councilmember Ranniger stated that there is a goal called foster inclusiveness and the Police Department has done some of it through its community meetings. She asked what else has been budgeted to foster inclusiveness in the community in this preliminary budget. Mayor Cooke replied that there aren't any additional funds to do anything at this time. She said there will be discussions in the future. Councilmember Ranniger said there has been a small allocation to celebrate diversity, but nothing regarding inclusiveness with the community. Chief Administrative Officer Matheson replied that the City staff can report back to the Council concerning this item. Councilmember Berrios asked for more clarification on what Councilmember Ranniger was asking to see reflected in the budget and she replied that the community has asked for conversations concerning social justice and equity. She commented that she doesn't know exactly what it would look like, but there needs to be courageous 2 Kent City Council Special Meeting Minutes September 30, 2014 conversations about the topic. She added that when the strategic goal of fostering inclusiveness was generated it was during the recession and the “RESPECT” training was given internally, but it wasn't supposed to stop there. The community was to be incorporated and the conversations were to continue moving forward. Mayor Cooke suggested a meeting between her and Councilmember Ranniger to communicate about this. She added that she doesn't know what department would handle this or where would the funding come from. Councilmember Fincher communicated that she would also like to be invited to the meeting. Councilmember Higgins confirmed that the “RESPECT” training expenditure cost $40,000 per year for three years. Councilmember Boyce inquired how much would the typical Kent taxpayer would have to pay if this budget was approved. Council President Ralph continued and asked for a full breakdown on how the budget would affect the average Kent residential and commercial taxpayers. Councilmember Boyce confirmed with BeMiller that two B&O tax audit collectors were hired and there is a proposal to add four more with this budget. The four new collectors would become the City’s tax audit team in order to cover the full tax and licensing spectrum. BeMiller further explained that the two employees are currently verifying payments and ensuring they are correct. He added that there have been audit calls made to businesses which has resulted in $250,000. However, there are some businesses that still haven't paid their B&O taxes yet. BeMiller pointed out that a high level snapshot of the changes to the budget is on page 2. He summarized the major changes in this budget from the 2013 - 2014 budget. Councilmember Berrios verified that the four person team will bring in $400,000, but would cost $410,000. Council President Ralph also noted that there is already $300,000 that is in the B&O tax fund for this. BeMiller communicated that the revenue they bring in will cover their expenses and that there is a significant workload. Councilmember Higgins confirmed that there will be an issue with the workload if the four positions aren't approved. Councilmember Higgins communicated that there isn’t a line item in the proposed budget for a franchise fee or an increased utility tax. He inquired if the Mayor prefers a franchise fee, a utility tax, or a TBD. BeMiller communicated that whichever solution the Council comes to can be incorporated in this budget or done through a budget adjustment at the beginning of next year. 3 Kent City Council Special Meeting Minutes September 30, 2014 Councilmember Higgins confirmed that Mayor Cooke is recommending the TBD and the utility tax. She added that at the time of preparing this budget the utility tax and franchise fees were only being discussed. She noted that it was decided not to be included in the numbers, but she supported both. She noted that the list of projects can be better addressed with the funds from these two proposals if they are adopted in the budget. Council President Ralph asked for the B&O rate changes and the comparisons to be added in the budget document. Councilmember Berrios inquired what the B&O would pay for and BeMiller stated that $410,000 would be for staff and the remaining $3 million B&O funds would go to the General Fund for operating expenditures. He added that the $3 million hasn’t been broken down and applied to B&O projects yet. Councilmember Berrios communicated that this is paying down some of the debt and asked for a specific breakdown of what the B&O is paying for. BeMiller replied that it is to fill the $2 million debt and to pay for General Fund funded functions of the City. Councilmember Berrios noted that there were discussions about tapping into the reserves and it wasn't mentioned in the preliminary budget presentation. BeMiller communicated that it is estimated to use $250,000 in 2015 and $400,000 in 2016. It is estimated because if General Fund revenues come in at or below budget and expenditures are at or below budget you would have revenues available from the previous year to utilize. He stated he is hopeful that the General Fund won't be tapped into. Councilmember Berrios communicated that somewhere we need to specifically state what B&O is paying for. BeMiller confirmed that it is going to streets and that the team will be fully funded by B&O. He also verified that the enforcement of the B&O collections isn't currently being done. Mayor Cooke suggested the Council have a separate meeting to discuss B&O. She discussed several topics concerning B&O taxing and businesses operating without paying B&O taxes. She stated this needs our attention and the City is in jeopardy of being inappropriate in assessments because there isn't a team able to do the job right. Councilmember Higgins said that the current B&O projects are continuing and this represents funds that haven't been allocated. Councilmember Fincher said she wanted to know who the City is collecting from and how many have paid. Matheson replied that the City knows there are some that aren't in compliance because the State issues licenses and the B&O returns don't show they are all paying. Councilmember Boyce inquired how the City knows that six employees is enough and BeMiller communicated the current level of two employees definitely isn't enough and he isn't sure six will be. However, he communicated that the work that the six employees can do will incorporate business license auditing, too. 4 Kent City Council Special Meeting Minutes September 30, 2014 Matheson communicated B&O rates and averages statewide. He also noted that the Mayor's suggested rates are still less than the state averages. Councilmember Boyce verified that the cities of Auburn and Federal Way don’t have a B&O tax. He also confirmed that Renton is in the process of imposing one in their 2015 budget. Council President Ralph communicated that this will be the first item on the list of concerns for the Council and highlighted that it will be discussed at the October 14 meeting. She also expressed concerns with penalties. Councilmember Ranniger communicated she is concerned about having a police bond, a B&O increase, and a potential car tab all in one budget cycle. Councilmember Berrios communicated that the Council needs to know what local jurisdictions are currently doing, not what they are proposing. He also inquired about business licensing and what happens when a business doesn't have a license. He asked what the current protocol was for ensuring businesses have Kent business licenses. Mayor Cooke replied that the City doesn’t have staff for that and there is no protocol. She noted that this is why we are setting up for a tax office. This is for the City to have a person who goes around and visits businesses to determine if they are licensed, etc. She said the City needs to get their house in order when it comes to determining who has what. Councilmember Higgins communicated that the integrity of the B&O is important and it needs to get fixed. He added that the Department of Revenue doesn't share their lists with cities and that is an issue. He said he wants to start legislation to fix that. Councilmember Fincher asked if other neighboring cities have been checked to determine how they determine businesses without licenses. Matheson communicated that the enhanced collection system will look to determine best practices around the region and further develop a program that ensures all businesses are complying with City regulations. Councilmember Boyce asked Mayor Cooke if there was any thought to cutting costs and she replied that cutting costs has been the mode of the City for the past several years. The City has reached a state now that nothing can be reduced without eliminating programs. However, when programs are cut, there will be a cost to doing it. She noted that when it comes to healthcare, employees took some responsibility and cut costs themselves. She noted that the Finance Department is already thin and being thin equals mistakes and as far as IT, there are tons of IT items that have been put on hold relating to the Council goal of connected communities. The top priority is to reduce internal debt and this budget does that without effecting current service levels. BeMiller pointed out that the list of adds from departments were in the millions and they simply weren't approved. 5 Kent City Council Special Meeting Minutes September 30, 2014 Councilmember Boyce asked why the Neighborhood Program wasn't allocated funds in 2015 and Mayor Cooke responded that it was put into the 2016 budget because they are having success with grants for 2015she couldn’t remove the program since the neighborhoods have done great work with the grant funding they have received in the past. Barbara Lopez, Financial Planning Manager replied to Councilmember Higgins that the requirement for 1 percent of the utility tax fund to get the General Fund balance to equal 10 percent of the budget is no longer needed. Councilmember Berrios discussed the reallocation of the $675,000 from the General Fund into the utilities fund and confirmed with Matheson that it would be $675,000 for three years. BeMiller discussed payments of $609,000 to reduce the liability insurance rate and $400,000 to reduce the worker’s compensation. This reduction of the rates charged to departments for those services reflects $1 million per year and the Mayor suggests that savings be applied to the CIP. He noted that the CIP is underfunded by $5 million and this works to replenish it. Councilmember Higgins verified that the two transfers and sale of the Grandview will fully replenish the CIP. Council President Ralph confirmed with BeMiller that the reductions are derived from revenues that have accumulated into these funds over time to meet projected expenses. The projected expenses came in lower than what the City projected and there is a cash balance available in both of those funds that can be used. Councilmember Berrios inquired about $250,000 for indigent defense and Matheson noted that it is included. He noted that $1 million is also being allocated to the parks lifecycle and asked if the funds from a property sale can be allocated to the CIP fund and confirmed that they could if it is a General Fund property. BeMiller clarified that the proposed $2.1 million property sale is, in fact, a General Fund property. Councilmeber Ranniger asked about the radio station and Matheson communicated that it would be a neutral program and sponsorship would pay for it. Ranniger rebutted that there would need to be a person collecting sponsorships so she is concerned about this. Council President Ralph discussed the positions added in the Economic and Community Development (ECD) Department and verified that there was one person added and the rest were temporary employees. Economic and Community Development Director Ben Wolters communicated his department is based on a 75% cost recovery policy and at the end of 2014 the cost recovery percentage will be around 90%. However, in 2015 it will revert back to 75%. BeMiller communicated that permit fees will be increased and those funds are included in the budget numbers. He noted that the additional permit revenues for 2014 are $1.2 million over projected revenues right now and estimated at $250,000 in 2015 and 2016. 6 Kent City Council Special Meeting Minutes September 30, 2014 Councilmember Higgins asked about property tax banked capacity and noted that every year the City gets its 1% from the Eyeman initiative and the amount that could be realized is $7 million. BeMiller clarified that the City is currently imposing less than the allowable rate to taxpayers. Matheson communicated that cities are watching the legislature and the streamlined sales tax (SST) could be revoked which would cause the cities to maximize the allowable property tax rate. Council consensus was to do departmental reports on October 14. Councilmember Berrios appreciated the effort and said he wants to feel confident and get information that will allow him to make informed decisions concerning the budget. The schedule was reviewed and specifics concerning the upcoming budget meetings were discussed. The meeting adjourned at 6:44 p.m. Ronald F. Moore, MMC City Clerk 7 Kent City Council Workshop Minutes October 7, 2014 The workshop meeting was called to order at 5:03 p.m. by Council President Ralph. Councilmembers present: Ralph, Berrios, Boyce, Fincher, Higgins, and Thomas. Councilmember Ranniger arrived at 5:24 p.m. ShoWare Operating Fund Financials – Aaron BeMiller, Finance Director opened the discussion concerning the ShoWare Operating Fund financials. BeMiller communicated that the City sold $63.3 million worth of bonds and borrowed $10 million from the Water Fund to cover construction costs changes to build the ShoWare Event Center. He added that the Public Facilities District (PFD) collects .2 percent sales tax to go towards debt service. He stated that the debt service on the construction bonds is $3.8 million and $700,000 pays the debt and that is derived from the .2 percent sales tax credit. He added that the Capital Improvement Plan (CIP) fund tranfers $2.8 million to the PFD for bonded debt support. It also contributes $300,000 annually for lifecycle improvements, but currently used for debt. Additionally, the CIP receives 2 percent of the internal utility tax which equals $1.2 million that is used to repay the $10 million that was borrowed from the Water Fund for construction cost changes. He noted that the current balance on the loan at the end of 2013 is $8.6 million and it is scheduled to be repaid in 2019 or 2020. Councilmember Berrios verified that the borrowing came out of the Water Fund, but the repayment is coming from all the utility funds. Councilmember Higgins noted that the intention to use the Water Fund was made public and it is an internal utility tax which reduces the revenue for use. He added that it was done in order to get the bond rating restored. BeMiller stated that the ShoWare Event Center is a standalone item that is run by SMG and financials aren’t reflected on the City's books. He stated that the current operating loss for 2014 is about $700,000. He communicated that tethered to the ShoWare is the ShoWare Operating Fund and that fund is made up of revenues from the admissions tax from the events and the payments from SMG for the contract that the City has with them to run the event center. The contract, he said, is there for SMG to draw money from the fund for events. He stated that the ending balance of the ShoWare Operating Fund is negative $2.5 million thusfar. He added that the City has been transferring $500,000 out of the General Fund into the ShoWare Operating Fund since 2013. Therefore, if there is an operating loss for 2014 the fund balance would be negative $2.7 million. He summarized that the annual support for the ShoWare Center in 2014 would be $4.8 million. Councilmember Boyce discussed the bond debt and BeMiller replied that the City is mostly paying interest right now. Councilmember Berrios noted that $3.3 million is interest and the principal is $1 million. Wolters communicated that if the SMG expenses exceed revenues the City has to pay the difference. He stated that any positive revenues from the ShoWare would go into the ShoWare Operating Fund. Kent City Council Workshop Minutes October 7, 2014 BeMiller clarified that the ShoWare Event Center finances are controlled by SMG and the ShoWare Center Operating Fund is run by the City. Councilmember Berrios communicated that so far this year the ShoWare Center has lost $377,000 and it is estimated that the loss will be $700,000 for all of 2014. He also confirmed that there weren't any cuts done to cover the ShoWare losses last year. He added that as the facility gets older the capital needs will need to be addressed. Brubaker said the intent of paying down the debt with lifecycle payments was to reduce interest costs. Wolters responded to Berrios concerning the lifecycle replacements that will need to be done on the facility, specifically addressing the ice machine and other repairs which are under the ShoWare Operating Fund. He said the total lifecycle expenses for the facility have been over $500,000 the past three years and Councilmeber Thomas stated that those fixes should have come out of the lifecycle improvements funds. Councilmember Boyce noted a $900,000 transfer from the General Fund into the ShoWare Operating Fund and BeMiller replied that the $900,000 is the $500,000 and the original 2014 estimate of $400,000 in admissions tax revenues. However, the estimated adjusted budget is $500,000 and $275,000 admissions tax revenues. BeMiller communicated that the ShoWare Center bonded debt was $53,150,000 in sales tax bonds and $10,130,000 in revenue bonds. He communicated that $3,110,000 has been paid towards the bonds and that the City owes $106 million on the $53 million that was borrowed. Councilmember Berrios verified that $7 million came from the General Fund towards ShoWare debt. Councilmember Higgins asked about the construction flaws in the facility and Wolters said that a demand letter has gone out to the construction company. Higgins verified that the letter demands that $500,000 in damages be awarded and if the demand is met the funds would go to SMG. BeMiller presented the ShoWare Operating Fund from 2008 to current. Councilmember Berrios communicated that for the next 30 years we will be paying the debt from the facility and wondered if the benefits derived from it outweigh the deficit. Wolters communicated that there was a report done by a consultant that shows how the ShoWare positively effects the economic and financial environment in the city of Kent. Mayor Cooke highlighted that the concert environment is volatile. She added that the ShoWare assisted in keeping some Kent downtown businesses open by bringing in customers. Additionally, she noted that there are hotels that are booked due to the ShoWare Operating Fund. She stated that there is also a value when it comes to the community events that take place there. She discussed gave examples of graduation ceremonies from local schools, “You-Me-We”, the Kent International Festival, etc as ways the ShoWare Center supports the community. She added that you could Kent City Council Workshop Minutes October 7, 2014 compare the cost of this to the Senior Center, which costs the City a million dollars a year. She added that the City was in debt with the Senior Center for a while too. Council President Ralph asked for clarification about the fluctuating operating expenses and Wolters communicated that it relates to increased revenues, increased B&O tax, increased utility taxes, and staffing expenses which reduced the revenues, etc. Councilmember Berrios said the bonds need to be paid back and the Council has to do something to improve its position. BeMiller noted that in 2018 the City has the opportunity to rework the bonds. Councilmember Boyce communicated that nothing is going to change unlsess the revenues are changed and more money is raised at the facility. City of Kent 2015-2016 Budget Interfund Loans - Aaron BeMiller, Finance Director communicated that the total interfund loan amount is $12.3 million. He noted that these loans consist of the Capital Improvement Fund (CIF), Golf Fund, Street Projects Fund, and Housing and Community Service Fund. The CIF is a one-year interest bearing loan of $8.8 million from the Water Fund. He noted that there are two one-year interest bearing loans of $1.5 million from equipment rantal fund and $1.1 million from the Water Fund. He noted that the street projects consist of a one day $700,000 loan from the Sewer Fund. Finally, he communicated that the Housing and Community Service Loan consists of two one-day loans of $100,000 form the General Fund and $75,000 from the Sewer Fund. He highlighted the loan payback strategies of the $8.8 million CIF loan are from the sale of land, 4% utility tax ($2.2 million), reduced capital spending, and the Mayor's proposed $2.6 million General Fund contribution. He also noted that the Golf Fund would be paid with the potential sale of the Riverbend Property. Councilmember Berrios confirmed that the $2.6 million General Fund contribution would come from the liability insurance and workers compensation excess, not B&O. BeMiller communicated the operating deficit for the ShoWare Operating Fund is $2.5 million as of the end of 2013 and estimated $2.6 million at the end of this year. He noted that there is a $500,000 General Fund contribution and there is no year end loan required due to an accounting standards change (GASB 54). He reviewed the fund balance history as of September 30, 2014 and discussed other interfund debt. He highlighted the $9.7 million loan was used to pay for ShoWare construction changes. As of December 31, 2013, he said $8.7 million is still owed and a 2 percent or $1.2 million payment comes from the utility tax. He concluded that the loan is estimated to be paid back in 2019 or 2020. Councilmember Fincher confirmed that the vacancies in the Criminal Justice Fund are based on vacancies in the Police Department and the full amount will be budgeted in 2015-2016. Police Chief Ken Thomas communicated that the City's standards for a Kent police officer are high and if someone doesn't qualify they aren't hired. However, there are some things that have been addressed and those will be highlighted at the next Public Safety Committee meeting. He communicated that he is hopeful to be able to fill Kent City Council Workshop Minutes October 7, 2014 those positions and get the proper staff in place. He explained that there are some positions that come out of the Criminal Justice Fund and some that come out of the General Fund and he has been very conservative with allocating positions out of the Criminal Justice Fund because of its volatility. Chief Administrative Officer Matheson noted that the fuel island was requested by the staff shouldn’t have been included in the Mayor's budget. He reviewed the budget schedule going forward and the 2015-2016 Preliminary Budget Questions/Requests document with the Council. He asked for clarification with two questions asked of the staff. Councilmember Boyce thanked Matheson and BeMiller. He said they are doing a great job. Councilmember Berrios also thanked them for taking the time to clarify things and have answers to their questions. The meeting adjourned at 5:54 p.m. Ronald F. Moore, MMC City Clerk Kent City Council Meeting Minutes October 7, 2014 The regular meeting of the Kent City Council was called to order at 7:01 p.m. by Mayor Cooke. Councilmembers present: Ralph, Berrios, Boyce, Fincher, Higgins, Ranniger, and Thomas. CHANGES TO THE AGENDA FROM COUNCIL, ADMINISTRATION, OR STAFF None. PUBLIC COMMUNICATIONS A. Public Recognition – Councilmember Fincher recognized the Kent Police Department. She communicated that there was a breakfast sponsored by Catherine’s House and thanked Police Chief Thomas and the Police Department for presenting the organization with a $10,000 grant. She noted that the grant came from the assessment of a fee on “johns” who are convicted of prostitution. She noted that these grant funds are given to organizations that help those who have been victims of human trafficking. Mayor Cooke discussed the kidnapping and murder of Mr. Gomez Michel, Mayor of El Grullo, Mexico, a former city of Kent Sister City. She highlighted his career and stated that approximately 90,000 people have been killed by cartels in Mexico, including 30 mayors. Representatives from the Kent Sister City Program spoke fondly on their relationship with Mayor Michel and Mayor Cooke led the attendees in a moment of silence for him. Mayor Cooke thanked two members of the Kent Sister City Program who manage the relationship with Sunnfjord, Norway. B. Community Events – None. C. Proclamation for Releaf 2014 at Clark Lake Park - Mayor Cooke presented the Releaf 2014 at Clark Lake Park Proclamation to Jeff Watling, Parks, Recreation and Cultural Services Director and proclaimed October 11 as “Releaf” 2014 at Clark Lake Park. Watling highlighted the proclamation and the event on October 11 and thanked the Mayor and the Council for it. D. Proclamation for Domestic Violence Awareness Month – Mayor Cooke presented the Domestic Violence Awareness Month Proclamation to Liz Mills, Advocacy and Policy Director and JoJo Gaon, Director of Domestic Violence from the South King County YWCA. Mayor Cooke proclaimed the month of October as Domestic Violence Awareness Month and the third week of October as “YWCA Week Without Violence.” Liz and JoJo thanked the Mayor and the Council for the proclamation. Mayor Cooke presented four pieces of glasswork from artist Vidar Koksvik from the City's Sister City in Sunnfjord, Norway which will be displayed in the City Hall lobby display case. Kent City Council Meeting Minutes October 7, 2014 E. Economic and Community Development Report - Economic and Community Development Director Ben Wolters introduced new City employee Bill Ellis who is a new resident at The Platform which Wolters stated is currently at 30 percent occupancy. He announced that Tarragon Investment Partners has begun work on The Kent Station Apartments and it will consist of 154 urban studio and one bedroom apartments. He continued and discussed downtown Kent parking improvements, including extending downtown parking from two hours to four hours and restriping parking areas. He stated that the Comprehensive Plan Update groundwork is continuing with the “Create Kent 2035: It’s your City” survey. He discussed having outlet sales in the industrial district and possibly having a "retail tour" is being pursued to bolster retail sales. He said that the opening of Trader Joe’s was a great success and the Lake Meridian Shopping Center has signed two letters of intent with two international retail firms. Wolters also announced that he has spoken to the owner of the two empty shopping centers at Panther Lake and on East Hill and is working on bringing in shopping opportunities. He discussed recreation/technical industry cluster growth in Kent and that REI has committed funds towards the bike connector project on the Interurban Trail. He communicated that Boeing Defense will be moving 900 employees out of the space center, with approximately 2,000 employees remaining. On a positive note, he stated that Blue Origin continues to succeed and won a contract with NASA for their rocket engine that was tested here in Kent. In Amazon news, he pointed out that their larger 800,000 square foot fulfillment center is being constructed and the smaller 300,000 square foot building is up and running. Wolters continued and announced that Centerpointe was recently purchased and it is currently, with its new facelift, being marketed to tech companies. The city of Kent is at the forefront of the robotics industry and is the home for the 2015 Robotics Championships which will occur in January 2015 at the ShoWare Center. He concluded there are two sites in the City that are still competing for the Federal Aviation Administration Regional Headquarters location. Councilmember Ranniger inquired about the retail space on the bottom floor of The Platform and Wolters responded that the space is about 2,000 square feet and there has been interest from quick serve, coffee type, and legal businesses. Councilmember Berrios stated he is interested in the outlet retail opportunities going on in the warehouse district. Wolters communicated that he is working with the Kent Chamber of Commerce to possibly put on an event to market the area for increased retail sales. F. Intergovernmental Reports - Council President Ralph stated that the Regional Law, Safety, and Justice Committee meeting was held in Kent and there was a presentation from Team Child, an organization which provides legal services for children entering into the legal system. The organization works to keep the children in school and provide housing for them. The hope is to reset the path and keep children out of the legal system, she said. There also was a presentation from a King County Demographer who discussed the changes in population and one by the City of Kirkland concerning their conversion of a building into a police station. The next meeting is in December, she announced. 2 Kent City Council Meeting Minutes October 7, 2014 Councilmember Higgins noted that the Regional Transit Committee meeting is October 15 and thanked King County Councilmembers Upthegrove and Dembowski for favoring changes in the budget to preserve transit services in Kent. He also noted that Monica Whitman from the City staff did a great job providing the King County Councilmembers the information they needed to see. He communicated that the Sound Cities Association (SCA) Board of Directors will be meeting on October 15 and discussing the King County Budget for transit, public health, and the Sherriff’s office. Councilmember Fincher noted that the King Conservation District (KCD) meeting was yesterday and she couldn’t attend due to a Public Works Committee meeting. She stated she was attending KCD next week and Healthy King County Coalition meeting tomorrow. Councilmember Boyce stated that Sound Cities Association (SCA) meeting is tomorrow night. Mayor Cooke highlighted that SCA will bring forth an item concerning the identification of manufacturing centers. PUBLIC HEARINGS None. PUBLIC COMMENT 1. Don Wood, Kent - Wood communicated that he has a neighbor who smokes marijuana in their back yard and it affects him and his family. He said that the cross breeze blows the smoke into his house and it affects his family. He concluded that he has random drug tests at work and is concerned. 2. Randall Smith, Kent - Smith discussed the first annual fundraising dinner for New Connections. He communicated that the organization started 13 years ago to assist people with connecting back into the community after being incarcerated. He noted that they are having a fundraiser on October 24, 2014 from 5 p.m. - 8 p.m. at the Golden Steer restaurant. 3. Leslie Kae Hamada, Kent - Hamada communicated that she is here on behalf of the KentHope Executive Board. She noted that on December 13, 2013 a day center was opened with 2,931 women have come to the facility. She communicated statistics of the center and shared a personal success story with the Council and that there will be a fundraiser on November 1 from 6 - 8 p.m. at New Beginnings Church. CONSENT CALENDAR Council President Ralph moved to approve Consent Calendar Items A through K, seconded by Councilmember Thomas. Motion carried 7-0. 3 Kent City Council Meeting Minutes October 7, 2014 A. Minutes of Previous Meetings and Workshops – Approve - The minutes of the workshop and regular City Council meetings of September 2, 2014 and September 16, 2014 were approved. B. Approval of Bills – Payment of the bills received through July 31 and paid on July 31 after auditing by the Operations Committee on September 16, 2014 were approved. C. Consultant Agreement with Environmental Science Associates for Wetland Mitigation Monitoring – Authorize - The Mayor was authorized to sign a consultant services agreement with Environmental Science Associates in an amount not to exceed $62,113.75 to complete wetland monitoring for the S. 228th St. Extension, Upper Johnson Creek and Meridian Valley Creek Enhancements Projects, subject to terms and conditions acceptable to the City Attorney and the Public Works Director. D. 2015-2016 Biennial Budget – Set Second Public Hearing Date - The Kent City Council set October 21, 2014 for the second public hearing of the 2015-2016 biennial budget at the regular City Council meeting. E. 2015-2020 Capital Improvement Plan – Set Second Public Hearing Date – The Kent City Council set October 21, 2014 for the second hearing of the 2015-2020 Capital Improvement Plan at the regular City Council meeting. F. Kent Comprehensive Plan and Amendments to Kent City Code Section 12.13, RE: School Impact Fees – Set Public Hearing Date – The Kent City Council set October 21, 2014 as the date for a public hearing to consider amendment of the Capital Facilities Element of the Kent Comprehensive Plan and amendment of Chapter 12.13 Kent City Code to incorporate the updated Capital Facilities Plans of the Auburn, Federal Way Highline and Kent School Districts, the City’s 2015-2020 Capital Improvement Plan, and changes to adopted school impact fees. G. 2014 Tax Levy for 2015 Budget – Set Public Hearing Date - The Kent City Council set October 21, 2014 for the public hearing of the 2014 tax levy for the 2015 budget at the regular City Council meeting. H. Well System Maintenance Easement – Authorize – The Mayor was authorized to sign the Well System Maintenance Easement between the city of Kent and Cris LeCompte and Maureen Korsmo-LeCompte, subject to terms and conditions acceptable to the City Attorney and Parks Director. I. Termination of Well Agreement – Authorize – The Mayor was authorized to sign the Termination of Well Agreement encumbering properties currently owned by the city of Kent and Cris LeCompte and Maureen Korsmo-LeCompte. J. 2015 Washington State Arts Commission Project Support Grant – Accept – The Mayor was authorized to accept the 2015 Washington State Arts Commission Projects Support grant in the amount of $3,000 and authorize the expenditure of the funds, in accordance with the grant terms and conditions acceptable to the Parks Director and City Attorney. 4 Kent City Council Meeting Minutes October 7, 2014 K. “I” CANN Fitness Equipment Donation – Accept – The Mayor was authorized to accept the South King County Community Activity Nutrition Network Initiative (“I” CANN) fitness equipment donation (valued at $14,000.00) for West Fenwick Park. OTHER BUSINESS A. Recreational Marijuana Zoning Regulations, Ordinance – Adopt - Fred Satterstrom, Planning Department Manager communicated that the proposed ordinance is straightforward and communicates the recommendation of the Land Use and Planning Board. He said it disallows the production, processing, and retail sales of recreational marijuana in Kent. Satterstrom communicated the background of the item and noted that Assistant City Attorney David Galazin was available for any questions. Councilmember Boyce moved to adopt Ordinance No. 4124 adopting the recommendation of the Economic & Community Development Committee to disallow the production, processing, and retail sale of recreational marijuana in all zoning districts in the City of Kent, seconded by Councilmember Berrios. Councilmember Boyce supported the proposed ordinance and stated that this has been a long journey and is the best thing for the City at this time. Councilmember Fincher communicated that she will not be supporting this because there were valid land use options proposed by the City staff. She noted that she took a tour of a processing location and it had a closed system which contained odors. She stated that this use is favored by most of the voters in the state. She added that there are similar uses currently operating in the City’s industrial area, she stated. Councilmember Higgins noted that he won't be supporting the motion. He communicated that if he was in Mr. Woods’ shoes he would be upset as well. He noted that he is in his legal rights to have code enforcement do something about a neighbor that refuses to smoke pot indoors. He said that the way this country has handled marijuana has worked and he said he can't condone a continued sticking of his head in the sand on this. He said he would like to see marijuana tightly regulated and pointed out that 56% of Kent voters voted for this. He expressed concerns that state legislators have already noted that the revenues derived from marijuana sales won't be shared with cities that don't allow marijuana in their jurisdictions. He said he doesn't want to throw the doors wide open, but he wants to try something different and regulating marijuana in Kent. Mayor Cooke asked City Attorney Brubaker to discuss code enforcement concerning neighbors smoking pot. Brubaker communicated that it is not legal to smoke marijuana in the view of the general public, but being in a private backyard isn't in the general public. Councilmember Fincher verified that Mr. Wood didn't have a homeowners association. A vote was taken on the motion on the table to adopt Ordinance No. 4124 adopting the recommendation of the Economic & Community Development 5 Kent City Council Meeting Minutes October 7, 2014 Committee to disallow the production, processing, and retail sale of recreational marijuana in all zoning districts in the City of Kent. Motion passed 5-2. Councilmember Fincher and Higgins dissented. B. New Alaska Mobile Home Park Rezone Ordinance (Quasi-Judicial) – Adopt - City Attorney Tom Brubaker communicated that this is a site specific rezone and a quasi-judicial decision. He stated that the Council makes its decision on the record. Public testimony has already occurred in the hearings of the Hearing Examiner process. He noted that it has undergone analysis of the record and testimony on the record an now there is a recommendation by the Hearing Examiner to the Council. As set by City ordinance the Council has to base their decision on five factors and those are: 1) that the rezone is consistent with the Comprehensive Plan, 2) that the rezone and subsequent development will be compatible with the development in the vicinity, 3) that the rezone will not unduly burden the transportation system, 4) that conditions have substantially changed since the current zoning district has been established, or 5) that the rezone will adversely affects public health safety and welfare. If the Council amends or rejects the Hearing Examiners recommendation, the Council must clearly state reasons for the record which form the basis of the amendment or rejection and explain why the five factors haven’t been met. Due to this being a quasi-judicial item, a councilmember must recuse themselves if they believe there are any conflicts or appearance of fairness issues concerning this item. He added that ex-parte contacts also need to be disclosed and inquired if any councilmembers have had any contacts with either party of the matter. Councilmember Ralph communicated that she received but did not read an email concerning the rezone. Brubaker asked whether any councilmember had any ex parte contacts with any proponents or opponents of the proposal. Brubaker then asked whether anyone attending this quasi-judicial proceeding objected to any councilmember’s participation. No one objected. Sharon Clamp, Planner communicated that the rezone is for three parcels totaling 2.82 acres being rezoned from MHP, Mobile Home Park, to MTC-1, Midway Transit Community-1. She displayed the location of the property. Councilmember Fincher confirmed that if the owner is interested in selling the property he/she must notify residents 12 months in advance and have the approved relocation plan on file with the City prior to giving such notification to the residents. Councilmember Boyce moved to adopt Ordinance No. 4125 accepting the findings of the Hearing Examiner and rezoning the property located at 2703 South 240th Street, seconded by Councilmember Fincher. Motion carried 7-0. C. Lower/Lowest Russell Road Condemnation Ordinance – Adopt - Public Works Director Tim LaPorte discussed the item and highlighted the background of the item. He stated that the project is necessary to provide flood protection to the Green River Valley which includes the cities of Kent, Tukwila, and Renton. Property and property 6 Kent City Council Meeting Minutes October 7, 2014 rights along the alignment of the project must be acquired in order to complete the project. He noted that the four properties on the map needed to be acquired and the City has been successful in acquiring three of the four. This is a fairly serious issue at this location along the river. He pointed out that the entire levee accreditation effort is a $70 million endeavor. He added that the work is being paid for by a $403,000 grant from Conservation Futures and the city of Kent Stormwater Utility Fund. The City has secured $50 million in grants and earmarks, to include funds from King County. The City staff has been very successful in obtaining funds for this endeavor. LaPorte explained that the property in question is the Torgenson/Kuno property and the owners reside out of the area. He noted that to complete a levee it needs to be continuous and these properties are located on Russell Road north of 228th Avenue. Mayor Cooke communicated that no matter what happens with the Systemwide Improvement Framework, this property has to be acquired for anything to get done on the levee. Councilmember Higgins moved to adopt Ordinance No. 4126, providing for the acquisition of certain property rights along the Green River to complete levee improvements for the Lower/Lowest Russell Road Levee, seconded by Council President Ralph. Councilmember Higgins thanked LaPorte for the presentation and noted that this can't be delayed any longer. He noted that this concerns protecting the fourth largest industrial district in the United States and in order to protect thousands of jobs and the infrastructure of the region this needs to move forward at this time. Council President Ralph agreed with Councilmember Higgins said time is of the essence. She said there have been photos of this section and it needs to be replaced because it continues to deteriorate at a rapid pace. A vote was taken on the motion to adopt Ordinance No. 4126, providing for the acquisition of certain property rights along the Green River to complete levee improvements for the Lower/Lowest Russell Road Levee. Motion carried 7-0. BIDS None. REPORTS FROM STANDING COMMITTEES, STAFF AND SPECIAL COMMITTEES A. Council President. Council President Ralph discussed the workshop and noted that there were two items on the agenda. She said that the Council had a lengthy discussion on ShoWare and internal debt. B. Mayor. Mayor Cooke noted she has been working on the budget and on the Boeing Levee. She communicated that the City has been asked to celebrate with the National Republic of China (Taiwan) on their establishment of their own country. She added 7 Kent City Council Meeting Minutes October 7, 2014 that there have been discussions with the Latino community concerning the establishment of a Lucy Lopez Community Center. She discussed the International Dance Party and that Councilmembers Berrios and Fincher attended. C. Administration. Chief Administrative Officer Matheson communicated that there is an executive session to discuss pending litigation and property negotiation for an estimated period of twenty minutes. D. Economic & Community Development Committee. In the minutes. E. Operations Committee. In the minutes. F. Parks and Human Services Committee. No report. G. Public Safety Committee. Councilmember Berrios noted that the next meeting is next Tuesday, October 14 at 4:30 p.m. and the topics include fireworks, school zone safety cameras, to include the possibility of expanding that program, and street racing enforcement and education. H. Public Works Committee. Councilmember Higgins noted that he wasn't at the last meeting and his report is in the minutes. I. Regional Fire Authority. Councilmember Thomas announced that there was a Regional Fire Authority meeting on October 15 at 5:30 p.m. at Station 78. Councilmember Fincher communicated about the International Dance Party. She also announced that the Police Department will have their Community Meeting on Thursday, October 9 at 6:00 p.m. at Meridian Elementary School. Councilmember Berrios discussed the International Dance Party. RECESS At 8:46 p.m., Mayor Cooke called for a three minute recess. EXECUTIVE SESSION At 8:49 p.m., Mayor Cooke reconvened the regular meeting and announced that the Council would recess into an Executive Session for twenty minutes to discuss pending litigation as per RCW 42.30.110(1) (i) and property negotiation as per RCW 42.30.110(1)(c). At 9:09 p.m., Mayor Cooke extended the Executive Session would be extended for another ten minutes. At 9:19 p.m., Mayor Cooke extended the Executive Session for another five minutes. 8 Kent City Council Meeting Minutes October 7, 2014 At 9:21 p.m., the Executive Session concluded and Mayor Cooke reconvened the regular meeting. ACTION AFTER EXECUTIVE SESSION A. Pending Litigation, as per RCW 42.30.110(1) (i). No action occurred. B. Property Negotiation, as per RCW 42.30.110(1) (c) – Tim LaPorte communicated that the City has negotiated a purchase and sale agreement with Kimberly Voss for the property at 22274 Russell Road South. This property is necessary for the reconstruction of the Russell Road Levee which is a part of the City’s accreditation effort for the entire right bank Green River through the City of Kent. The acquisition of this property is necessary for that purpose and the City staff recommends this agreement. Councilmember Higgins moved to authorize the Mayor to sign all necessary documents to complete the purchase and sale of the Voss property located at 22274 Russell Road South with the purchase price of $281,000 not to exceed established budgets and subject to final terms and conditions acceptable to the Public Works Director and City Attorney, seconded by Councilmember Fincher. Motion carried 7-0. ADJOURNMENT The meeting adjourned at 9:24 p.m. Ronald F. Moore, MMC City Clerk 9 Agenda Item: Consent Calendar – 7B TO: City Council DATE: November 4, 2014 SUBJECT: 2014 Crack Sealing - Accept as Complete SUMMARY: The 2014 Crack Sealing Project consisted of the installation of approximately 24 tons of rubberized asphalt for crack sealing asphalt roadway sections. This project is now complete and ready for acceptance by the City Council. EXHIBITS: None RECOMMENDED BY: Public Works Director YEA: N/A NAY: BUDGET IMPACTS: This project was funded from B&O revenue. MOTION: Authorize the Mayor to accept the 2014 Crack Sealing Project as complete and release retainage to Evergreen Asphalt & Concrete, upon receipt of standard releases from the state and the release of any liens. The original contract amount was $231,297.50. The final contract amount was $233,069.90. This page intentionally left blank. Agenda Item: Consent Calendar – 7C TO: City Council DATE: November 4, 2014 SUBJECT: Illicit Discharge Ordinance - Adopt SUMMARY: In 2009, the City of Kent adopted Kent City Code section 7.14 (Illicit Discharges) in order to meet the requirements of the Western Washington Phase II Municipal Stormwater Permit (Phase II Permit). KCC 7.14 prohibits illicit discharges and other pollutant dumping into the City’s Municipal Separate Storm Sewer System (Stormwater System). The proposed code amendments establish additional penalty provisions that apply should an individual violate the illicit discharge code provisions. The amendments also clarify existing code provisions, and make other changes consistent with federal law. The code meets the requirements of the Phase II Permit, helps preserve water quality, and protects fish and wildlife in surface waters within and downstream of the City limits. This ordinance was presented to the Kent Land Use and Planning Board on October 13, 2014. The Land Use and Planning Board moved to recommend adoption of this ordinance by the City Council. EXHIBITS: Illicit Discharge Ordinance RECOMMENDED BY: Public Works Committee YEA: Fincher – Ralph - Higgins NAY: BUDGET IMPACTS: There will be no unbudgeted fiscal impacts as a result of this ordinance. MOTION: Adopt Ordinance No. ______, amending Kent City Code Chapter 7.14 entitled “Illicit Discharges” to establish additional penalty provisions for violations under that code, to clarify existing code provisions, to make other changes consistent with federal law, and to ratify all acts consistent with the ordinance. This page intentionally left blank. ORDINANCE NO. ______ AN ORDINANCE of the City Council of the City of Kent, Washington, amending Chapter 7.14 of the Kent City Code, entitled “Illicit Discharges,” to establish penalty provisions that apply should an individual violate the illicit stormwater discharge code provisions, to clarify existing code provisions, and to make other changes consistent with federal law. RECITALS A. Through its adoption of Ordinance No. 3916 on June 2, 2009, the Kent City Council established an illicit discharge detection and elimination program related to the City’s stormwater system. This program is required as part of the City’s coverage under the National Pollutant Discharge Elimination System (NPDES) Western Washington Phase II Municipal Stormwater Permit administered by the Washington State Department of Ecology. The purpose of the program is to establish a regulatory mechanism that allows the City to effectively prohibit non- stormwater, illegal discharges, and dumping into the municipal separate storm sewer system. B. When Ordinance No. 3916 was adopted, it enacted a violation and enforcement provision that was codified at Kent City Code (KCC) 1 Illicit Stormwater Discharges- Ch. 7.14 KCC section 7.14.150. As currently enacted, KCC 7.14.150 provides that in the event a violation occurs, the City may pursue code enforcement proceedings through Ch. 1.04 KCC. This enforcement provision is different in form from other violation provisions within the Kent City Code that provide for either a civil code enforcement proceeding, or in the alternative, the filing of criminal charges. This departure appears to have been a drafting oversight and not a deliberate decision by staff or the City Council. C. Relying on the enforcement provisions contained in Ch. 1.04 KCC, however, is not effective in every situation. That code chapter relates to ongoing violations and establishes procedures through which the City may seek to stop a violation and obtain an order requiring the property owner or occupant to clean up the property. However, Ch. 1.04 KCC does not grant the City the authority to file criminal charges unless a repeat violation occurs or the person responsible for the violation fails to clean up the property after being ordered by the Hearing Examiner to do so. In some situations, a violator’s conduct is so egregious that criminal charges are warranted, even if the violator has remedied the violation or cleaned up the property. D. Amending KCC 7.14.150 to allow the City to file either civil code enforcement proceedings or criminal charges will also make this code section consistent with similar Kent City Code provisions, for example: KCC 6.07.210 regarding violations of the City’s Street Use Permit provisions, KCC 7.03.110 regarding violations of the City’s Solid Waste Collection provisions, KCC 7.05.210 regarding violations of the City’s Storm and Surface Water Utility provisions, KCC 8.01.050 regarding violations of the City’s Public Nuisance provisions, and KCC 8.04.190 regarding violations to the City’s Litter Control provisions. 2 Illicit Stormwater Discharges- Ch. 7.14 KCC E. Because the enforcement provisions are currently being revised, it is also appropriate to make further housekeeping changes to clarify the intent or purpose of some code provisions, while revising others to make them consistent with recent changes to federal law. F. The State Environmental Policy Act (SEPA) responsible official has determined that the proposed Kent City Code amendments are procedural in nature, and further SEPA analysis is not required for these local code amendments. A draft version of this ordinance was submitted to the Washington State Department of Commerce for expedited review on August 20, 2014. The ordinance was considered by the City Land Use and Planning Board after a duly noticed public hearing on October 13, 2014. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. – Amendment. Chapter 7.14 of the Kent City Code, entitled “Illicit Discharges,” is amended as follows: Sec. 7.14.010. Purpose. The purpose of this chapter is to prevent pollutants and nonstormwater from entering the city of Kent municipal separate storm sewer system (the “MS4”) and waters of the state to the maximum extent practicable as required by federal and state law. This chapter establishes the minimum methods required for controlling the introduction of pollutants and preventing their entry into the MS4 and waters of the state in order to comply with requirements of the National Pollutant Discharge Elimination System (NPDES) permit process. The objectives of this chapter are: 3 Illicit Stormwater Discharges- Ch. 7.14 KCC A. To regulate the contribution of pollutants to the MS4 and waters of the state; B. To prohibit illicit connections and discharges to the MS4 and waters of the state; C. To establish legal authority to carry out all inspection, surveillance, and monitoring procedures necessary to ensure compliance with this chapter; and D. To mitigate impacts to water quality as a result of increased runoff due to urbanization, correct or mitigate existing water quality problems related to stormwater, and to help restore and maintain the chemical, physical, and biological integrity of the city’s waters for the protection of beneficial uses, including salmonid habitat and aquifer recharge; and. E. To establish the reasonable use of best management practices (BMPs) to prevent pollutants and nonstormwater from entering the MS4 and waters of the state. Sec. 7.14.020. Definitions. As used in this chapter, the following words, terms, and phrases shall have the meanings ascribed to them in this section, unless a different meaning is plainly required. A. Best management practices (BMPs) means schedules of activities, prohibitions of practices, general good housekeeping practices, pollution prevention and educational practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to the MS4 or waters of the state.to stormwater, receiving waters, or the MS4. BMPs also include treatment practices, structural methods, and operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw 4 Illicit Stormwater Discharges- Ch. 7.14 KCC materials storage. BMPs are determined by reference to standard industry practice or applicable state, county, and local government design and pollution prevention manuals. B. Clean Water Act (CWA) means the federal Water Pollution Control Act (33 U.S.C. 1251, et seq.), and any subsequent amendments thereto. C. Construction activity means land-disturbing operations including clearing, grading, or excavation which disturbs the surface of the land. Such activities may include road construction, construction of residential houses, office buildings, or industrial buildings, and demolition activity. D. Director means the city of Kent public works director, or his or her designee. E. Groundwater means water in a saturated zone or stratum beneath the surface of the land or below a surface water body. F. Hazardous material means any material; including any substance, waste, or combination thereof; which because of its quantity, concentration, or physical, chemical, or infectious characteristics; may cause or significantly contribute to a substantial present or potential hazard to human, health, safety, property, or the environment; when improperly treated, stored, transported, disposed of, or otherwise managed. G. Hyperchlorinated means water that contains more than ten (10) mg/liter chlorine. Disinfection of water mains and appurtenances requires a chlorine residual of ten (10) mg/liter at the end of the disinfection period. 5 Illicit Stormwater Discharges- Ch. 7.14 KCC HI. Illicit connections means any conveyance that is connected to the MS4 or waters of the state without a permit, excluding roof drains and foundation drains. Examples include sanitary sewer connections, floor drains, channels, pipelines, conduits, inlets, or outlets that are connected directly to the MS4. Illicit connections allow an illicit discharge to enter the MS4 and include, but are not limited to, any conveyances that which allow any nonstormwater discharge, including sewage, process wastewater, and wash water, to enter the MS4 or waters of the state; any connections to the MS4 from indoor drains and sinks, regardless of whether such drain or connection was previously allowed, permitted, or approved by an authorized enforcement agency; or any drain or conveyance connected from a commercial or industrial land use to the storm drain system MS4 or waters of the state that which has not been documented in plans, maps, or equivalent records and approved by the city or another agency of government duly authorized to give such approvals. IH. Illicit discharge means any direct or indirect nonstormwater discharge, not expressly allowed by this code, to the MS4, waters of the state, or any other location within the city where the discharge has a reasonable likelihood of being washed into the MS4 or waters of the state, except as expressly exempted by this chapter. J. Industrial activity means activities subject to NPDES industrial permits as defined in 40 CFR 122.26(b)(14). K. Municipal separate storm sewer system (MS4) means a conveyance, or system of conveyances; including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels, flow controls, treatment facilities, or storm drains: 6 Illicit Stormwater Discharges- Ch. 7.14 KCC 1. Owned or operated by a state, city, town, county, district, port, or other public body created by or pursuant to state law having jurisdiction over disposal of wastes, stormwater, or other wastes, including special districts under state law such as a sewer district, flood control district, or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under Section 208 of the CWA that discharges to waters of the state; 2. Designed or used for collecting or conveying stormwater; 3. That Which is not a combined sewer; and 4. That Which is not part of a publicly-owned treatment works (“POTW”) as defined at 40 CFR 122.2. L. National Pollutant Discharge Elimination System (NPDES) means the national program for issuing, modifying, revoking, reissuing, terminating, monitoring, and enforcing permits;, and imposing and enforcing pretreatment requirements;, under sections 307, 402, 318, and 405 of the federal CWA for the discharge of pollutants to surface waters of the state. These permits are referred to as NPDES permits, and, in the State of Washington, are administered by the Washington State Department of Ecology. stormwater discharge permit means a permit issued by the Environmental Protection Agency (EPA), or by the Washington Department of Ecology under authority delegated pursuant to 33 U.S.C. 1342(b), that authorizes the discharge of pollutants to waters of the state, whether the permit is applicable to an individual, group, or general area-wide basis. M. Nonstormwater discharge means any discharge to the MS4 or waters of the state that is not composed entirely of stormwater. 7 Illicit Stormwater Discharges- Ch. 7.14 KCC N. Owner/operator means any of the following: a person or entity with an ownership interest in the premises; a person or entity who occupies or has or control over the premises; or real property on which a violation of this chapter occurs, any person or entity who participatesing in any activity on the premises that is regulated by this chapter. , and any person or entity participating in any violation of this chapter. O. Person means any individual, firm, business, association, partnership, corporation, or other legal entity, public or private, however organized. Because “person” shall include both human and non-human entities, any of the following pronouns may be used to describe a person: he, she, or it. P. Person responsible for the violation means any of the following: a person who has titled ownership or legal control of the premises that is subject to the regulation; an occupant or other person in control of the premises that is subject to the regulation; a developer, builder, business operator, or owner who is developing, building, or operating a business on the premises that is subject to the regulation; or any person who created, caused, or has allowed the violation to occur on the premises. QO. Pollutant means anything that which causes or contributes to pollution. Pollutants may include, but are not limited to: paints, varnishes, and solvents; oil and other automotive fluids; nonhazardous liquid and solid wastes and yard wastes; refuse, rubbish, garbage, litter, or other discarded or abandoned objects, and accumulations, so that the same may cause or contribute to pollution; floatables; pesticides, herbicides, and fertilizers; hazardous materials and wastes; sewage, fecal coliform and pathogens; dissolved and particulate metals; animal wastes; wastes and residues that result from constructing a building or structure; and noxious or offensive matter of any kind. 8 Illicit Stormwater Discharges- Ch. 7.14 KCC RP. Premises means any real property or interest in real property and any improvement upon real property. SQ. RCW means the state Revised Code of Washington. It is the compilation of all permanent state laws, now in forceas currently enacted or as subsequently amended or recodified. TR. Sanitary sewage means domestic and commercial wastewater including flushed toilet water, water from dishwashers, clothes washing machines, and any other used water that generally is disposed of down interior household drains. US. Sanitary sewer system means a conveyance, or system of conveyances, that which is designed to convey domestic and commercial wastewater. V. Stormwater system means facilities through which stormwater is collected, conveyed, or treated, including but not limited to inlets, conveyance pipes, pumping facilities, retention and detention basins, bioinfiltration facilities, drainage channels, and other drainage structures. WT. Stormwater means any surface flow, runoff, and drainage consisting entirely of water from any form of natural precipitation, and resulting from such precipitation. XU. Stormwater pollution prevention plan means a document that which describes the BMPs and activities to be implemented by an owner/operator or business to identify sources of pollution or contamination at a site, and the actions to eliminate or reduce pollutant discharges to stormwater, the MS4, and/or waters of the statereceiving waters. 9 Illicit Stormwater Discharges- Ch. 7.14 KCC YV. Waters of the state means those waters as defined as “waters of the United States” in 40 CFR 122.2, within the geographic boundaries of the State of Washington, and those “waters of the state” as defined in Chapter 90.48 RCW, which includes lakes, rivers, ponds, streams, inland waters, underground watersgroundwater, salt waters, and all other surface waters and water courses within the jurisdiction of the State of Washington. ZW. Water quality standards means the Water Pollution Control Act, as defined herein; Surface Water Quality Standards – Chapter 173-201A of the Washington Administrative Code (“WAC”),; Ground Water Quality Standards – Chapter 173-200 WAC,; and Sediment Management Standards – Chapter 173-204 WAC. The water quality standards are established to sustain public health and public enjoyment of the waters and the propagation and protection of fish, shellfish, and wildlife. AAX. Wastewater means any water or other liquid, other than uncontaminated stormwater, discharged from any premises. Sec. 7.14.030. Applicability. This chapter shall apply to all owners/operators as defined herein. Sec. 7.14.040. Entry onto premises. With the consent of the owner/operator of any premises, through permissions granted in a stormwater facility maintenance covenant, or pursuant to a lawfully issued warrant, the director may enter any premises at any reasonable time to perform the duties imposed by this chapter. No consent, warrant, or permission is required to enter those areas open to the public generally or to which no reasonable expectation of privacy exists. 10 Illicit Stormwater Discharges- Ch. 7.14 KCC Sec. 7.14.050. Prohibited discharges. A. No person owner/operator shall discharge, or cause an illicit discharge, or fail to utilize reasonable BMPs to protect against a potential or accidental discharge, of nonstormwater or any other material not expressly allowed by this codes, including but not limited to pollutants or waters containing any pollutants, to enter into the MS4 or waters of the state that may reasonably cause or contribute to a violation of applicable water quality standards as herein defined, to enter into the MS4 or watercourses waters of the state. B. Prohibited discharges include but are not limited to the following list, provided for informational purposes only, of common substances that which are illicit discharges when discharged to the MS4 or waters of the state: 1. Solid waste, trash or debris; 2. Human and animal waste; 3. Petroleum products in quantities that produce a visible sheen, including but not limited to oil, gasoline, grease, fuel, oil, and heating oil; 4. Antifreeze and other automotive products; 5. Flammable or explosive materials; 6. Radioactive material; 7. Construction materials; 8. Batteries; 9. Acids, alkalis, or bases; 10. Paints, stains, resins, lacquers, or varnishes; 11 Illicit Stormwater Discharges- Ch. 7.14 KCC 11. Metals in excess of naturally occurring amounts, whether in liquid or solid form; 12. Solvents and degreasers; 13. Drain cleaners: commercial and household cleaning materials; 14. Pesticides, herbicides, or fertilizers; 15. Ink; 16. Steam-cleaning waste; 17. Laundry waste, soap, detergent, and ammonia; 18. Domestic or sanitary sewage; 19. Animal carcasses; 20. Food and food waste including fats, oils, and grease (FOG); 21. Recreational vehicle waste; 22. Swimming pool or spa filter backwash; 23. Chlorine, bromine, or other disinfectants; 24. Heated water; 25. Yard waste, dirt, sand, and gravel; 26. Bark and other fibrous materials; 27. Collected lawn clippings, leaves, or branches; 28. Silt, sediment, concrete, cement, or gravel; 29. Dyes, except as permitted by KCC 7.14.060; 30. Chemicals not normally found in uncontaminated water; 31. Chlorinated swimming pool or hot tub water except as permitted by KCC 7.14.070; 12 Illicit Stormwater Discharges- Ch. 7.14 KCC 32. Discharges from potable water sources which may include but are not limited to: water line flushing, hyperchlorinated water line flushing, fire hydrant flushing, and pipeline hydrostatic test water, except as permitted by KCC 7.14.070; 33. Any other process-associated discharge except as otherwise allowed in this chapter; or 34. Any hazardous material or waste not listed above. C. Any person who violates KCC 7.14.050 may be liable, jointly or severally, in accordance with KCC 7.14.150 and KCC 7.14.160. The City may pursue enforcement action against any person responsible for the violation. Sec. 7.14.060. Allowable discharges. The following types of discharges shall not be considered illicit discharges for the purposes of this chapter unless the director determines that the type of discharge, whether singly or in combination with others, is causing or is likely to cause pollution a violation of water quality standards inof the MS4 or waters of the statesurface water or groundwater: A. Diverted stream flows; B. Rising groundwaters; C. Uncontaminated groundwater infiltration, as defined in 40 CFR 35.2005(20); D. Uncontaminated pumped groundwater water; E. Foundation drains discharging clean stormwater onlyuncontaminated groundwater or stormwater; F. Air conditioning condensation; G. Irrigation water from agricultural sources that is commingled with urban stormwater; 13 Illicit Stormwater Discharges- Ch. 7.14 KCC H. Springs; I. Water from crawl space pumps discharging clean stormwater only; J. Footing drains discharging clean stormwater onlyuncontaminated groundwater or stormwater; K. Flows from riparian habitats and wetlands; L. Nonstormwater discharges covered by an another NPDES permit; or M. Discharges from emergency fire fightingfirefighting activities.; or N. Dye testing using environmental friendly products for the purpose of testing or tracing source pollution is allowable but requires verbal notification to the city prior to the time of testing. Sec. 7.14.070. Conditional discharges. The following types of discharges shall not be considered illicit discharges for the purposes of this chapter if they meet the following stated conditions, unless the director determines that the type of discharge, whether singly or in combination with others, is causing or is likely to cause pollution of surface water or groundwater: A. Potable water, including water from water line flushing, hyperchlorinated water line flushing, fire hydrant system flushing, and pipeline hydrostatic test water. Planned discharges shall be de-chlorinated to a concentration of 0.1 ppm or less, pH-adjusted, if necessary, and in volumes and velocities controlled to prevent resuspension of sediments in the MS4; B. Lawn watering and other irrigation runoff are permitted but shall be minimized; C. Dechlorinated swimming pool discharges. These discharges shall be dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted, if 14 Illicit Stormwater Discharges- Ch. 7.14 KCC necessary, and in volumes and velocities controlled to prevent resuspension of sediments in the MS4; or D. Street and sidewalk wash water, water used to control dust, and routine external building wash down that is unheated and does not use detergents any additives are permitted, if the amount of street wash and dust control water used is minimized.; or E. Other nonstormwater discharges. The discharges shall be in compliance with the requirements of a stormwater pollution prevention plan reviewed by the city which addresses such discharges. Sec. 7.14.080. Illicit connections prohibited. A. No person owner/operator shall connect a conveyance system that which was not constructed or intended to convey precipitation runoff, or that which has been converted from such usage to another use, to the MS4 or groundwater infiltration system waters of the state. The construction, use, maintenance, or continued existence of illicit connections to the storm drain systemMS4 is prohibited. This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection. An owner/operator is considered to be in violation of this chapter if the owner/operator connects a line conveying sanitary sewage to the MS4 or allows such a connection to continue. B. Any person who violates KCC 7.14.080 may be liable, jointly or severally, in accordance with KCC 7.14.150 and KCC 7.14.160. The City may pursue enforcement action against any person responsible for the violation. 15 Illicit Stormwater Discharges- Ch. 7.14 KCC Sec. 7.14.090. Suspension of discharge access to MS4. As permitted by applicable law, the city may suspend MS4 access to an owner/operator when such suspension is necessary to stop an actual or threatened discharge that which is or would be prohibited under this chapter. Sec. 7.14.100. Inspections. A. The director may establish inspection programs to ensure compliance with the requirements of this chapter and to accomplish its purposes. Inspection programs may be established on any reasonable basis including, but not limited to, routine inspections, random inspections, or inspections based upon complaints received or concerns of other notice of possible code violations,. Additionally, inspection of drainage basins or areas identified as higher than typical sources of sediment or other contaminants or pollutants, inspections may be conducted of businesses or industries with suspicious discharges, a high volume of discharge, or pollutants that appear to be present in the discharge. of a type associated with higher than usual discharges of contaminants or pollutants or with discharges of a type which are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the city’s NPDES stormwater permit, and joint inspections with other agencies inspecting under environmental or safety laws. B. Inspections may include, but are not limited to, reviewing maintenance and repair records,; sampling discharges, surface water, and material or water in the MS4; and evaluating the condition of the MS4 and other BMPs premise’s stormwater system and BMPs. Sec. 7.14.110. Reinspections. Should a city inspection discover a violation of this chapter or other applicable federal, state, or local code provision, Iit shall be the duty of the owner/operator to notify the director 16 Illicit Stormwater Discharges- Ch. 7.14 KCC that any noted violations have been corrected, and to request a reinspection. The director may require that such request for reinspection be filed one (1) working day before such inspection. It shall be the duty of the owner/operator to provide safe access to and a means for inspection of any corrective work. Sec. 7.14.120. Monitoring of discharges. As permitted by applicable law, tThe city may shall conduct or cause to be conducted monitoring and/or sampling of the stormwater discharge from any premises, and may recover the costs of so doing from the owner/operator of the premises. Sec. 7.14.130. Requirements to prevent, control, and reduce stormwater pollutants by the use of BMPs. TheAll owners/operators engaging in industrial activity shall provide, at owner/operator’s expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the MS4 or watercourseswaters of the state through the use of these structural, and nonstructural, and operational BMPs. Further, any owner/operator responsible for premises, that which are, or may be, the source of an illicit discharge, may be required to implement, at owner/operator’s expense, additional structural, and nonstructural, and operational BMPs to prevent the further discharge of pollutants illicit discharges to the MS4 or waters of the state. Compliance with all terms and conditions of a valid NPDES permit authorizing the discharge of stormwater associated with industrial activity, to the extent practicable, shall be deemed compliance with the provisions of this section. These BMPs shall be part of a stormwater pollution prevention plan (SWPPP) as necessary for compliance with requirements of the NPDES permit. Sec. 7.14.140. Industrial or construction activity discharges. Any owner/operator subject to an industrial or construction activity NPDES 17 Illicit Stormwater Discharges- Ch. 7.14 KCC stormwater discharge permit shall comply with all provisions of thatsuch permit. Proof of compliance with such permit may be required in a form acceptable to the city prior to allowing discharge to the MS4 and failure to comply with the provisions of such permit will constitute a violation of this chapter. Sec. 7.14.150. Violations and enforcement. A. Any violation of Whenever the city finds that an owner/operator has violated or failed to meet a requirement in any provision of this chapter constitutes a civil violation under, the city may pursue the code enforcement procedures set forth in Ch. 1.04 KCC for which a monetary penalty may be assessed and abatement may be required as provided therein. Any violation of this chapter that is deemed by the director to be a threat or potential threat to the public health, safety and welfare may be abated as a nuisance or pursuant to any other applicable local, state or federal law or regulation. Regulation under this chapter shall not serve as a shie ld to any action under other applicable laws or regulations of the city, state, or United States. B. In addition to or as an alternative to any other penalty provided in this chapter or by law, any person who violates any provision of this chapter shall be guilty of a misdemeanor pursuant to KCC 1.01.140. Sec. 7.14.160. Joint and several responsibility and liability. Responsibility for violations of this chapter is joint and several, and the city is not prohibited from taking action against a party where other persons may also be potentially responsible for a violation, nor is the city required to take action against all persons potentially responsible for a violation. SECTION 2. – Severability. If any one or more section, subsection, or sentence of this ordinance is held to be unconstitutional or invalid, such 18 Illicit Stormwater Discharges- Ch. 7.14 KCC decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 3. – Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section/subsection numbering. SECTION 4. – Effective Date. This ordinance shall take effect and be in force thirty (30) days from and after its passage and publication as provided by law. SUZETTE COOKE, MAYOR ATTEST: RONALD F. MOORE, CITY CLERK APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY 19 Illicit Stormwater Discharges- Ch. 7.14 KCC PASSED: day of , 2014. APPROVED: day of , 2014. PUBLISHED: day of , 2014. I hereby certify that this is a true copy of Ordinance No. passed by the City Council of the City of Kent, Washington, and approved by the Mayor of the City of Kent as hereon indicated. (SEAL) RONALD F. MOORE, CITY CLERK P:\Civil\Ordinance\7.14 Illicit Discharges.doc 20 Illicit Stormwater Discharges- Ch. 7.14 KCC Agenda Item: Consent Calendar – 7D TO: City Council DATE: November 4, 2014 SUBJECT: Consultant Agreement with GeoEngineers for SE 240th Street Repairs - Authorize SUMMARY: The northerly portion of SE 240th Street overlooking the Soos Creek trail has begun to suffer slope failure, resulting in progressive damage to the road. The affected portion of SE 240th Street lies between 144th Avenue and 146th Place. GeoEngineers has developed plans and specifications for a soldier pile wall and pavement restoration along SE 240th Street. NW Cascade has been awarded the construction contract and will begin work next month. Consultant services will include geotechnical inspection of the construction, compaction testing, addressing contractor questions, and attending construction meetings. EXHIBITS: Consultant Services Agreement with GeoEngineers RECOMMENDED BY: Public Works Committee YEA: Fincher - Ralph - Higgins NAY: BUDGET IMPACTS: Funding for this contract will come from SE 240th Street slide project fund. MOTION: Authorize the Mayor to sign a Consultant Services Agreement with GeoEngineers in an amount not to exceed $34,000 for consultant services to complete slope stabilization and pavement restoration along SE 240th Street, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. This page intentionally left blank. CONSULTANT SERVICES AGREEMENT - 1 (Over $10,000) CONSULTANT SERVICES AGREEMENT between the City of Kent and GeoEngineers, Inc. THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation (hereinafter the "City"), and GeoEngineers, Inc. organized under the laws of the State of Washington, located and doing business at 1101 S. Fawcett Ave., Suite 200, Tacoma, WA 98402, Phone: (253) 383-4940/Fax: (253) 383-4923, Contact: Lyle Stone (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 geotechnical engineering construction support services for the SE 240th Street Slope Stabilization and Pavement Restoration 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 December 31, 2016. III. COMPENSATION. A. The City shall pay the Consultant, based on time and materials, an amount not to exceed Thirty Four Thousand Dollars ($34,000.00), 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 A. 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 CONSULTANT SERVICES AGREEMENT - 2 (Over $10,000) 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: 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. CONSULTANT SERVICES AGREEMENT - 3 (Over $10,000) 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. For claims arising or alleged to arise from Consultant’s professional services only, Consultant’s duty to defend and indemnify under this paragraph shall be limited to claims, injuries, damages, losses or suits asserted on the basis of negligence or willful misconduct. The City's inspection or acceptance of any of Consultant's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. 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 B attached and incorporated by this reference. IX. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide reasonable accuracy of any information supplied by it to Consultant for the purpose of completion of the work under this Agreement. X. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents, drawings, designs, reports, or any other records developed or created under this Agreement shall belong to and become the property of the City. All records submitted by the City to the Consultant will be safeguarded by the Consultant. Consultant shall make such data, documents, and files available to the City upon the City’s request. The City’s use or reuse of any of the documents, data and files created by Consultant for this project by anyone other than Consultant on any other project shall be without liability or legal exposure to Consultant. XI. CITY'S RIGHT OF INSPECTION. Even though Consultant is an independent contractor with the authority to control and direct the performance and details of the work CONSULTANT SERVICES AGREEMENT - 4 (Over $10,000) 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 in the performance of the contract work and shall utilize all protection necessary for that purpose and shall cause any subcontractors hired by Consultant to be responsible for the safety of its employees and agents. All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. XIII. MISCELLANEOUS PROVISIONS. A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties’ performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section VII of this Agreement. D. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. 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. CONSULTANT SERVICES AGREEMENT - 5 (Over $10,000) 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. City Business License Required. Prior to commencing the tasks described in Section I, Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. J. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. 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: Lyle Stone GeoEngineers, Inc. 1101 S. Fawcett Ave., Suite 200 Tacoma, WA 98402 (253) 383-4940 (telephone) (253) 383-4923 (facsimile) 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) CONSULTANT SERVICES AGREEMENT - 1 (Over $10,000) APPROVED AS TO FORM: Kent Law Department GeoEngineers - 240th Slope 2/Lincoln 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: _________________________________________ 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. 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: _________________________________________ 1101 South Fawcett Avenue, Suite 200 Tacoma, Washington 98402 253.383.4940 September 19, 2014 City of Kent 220 Fourth Avenue South Kent, Washington 98032-5895 Attention: Stephen Lincoln, PE Proposed Scope and Budget File No. 0410-188-02 INTRODUCTION AND PROJECT UNDERSTANDING The purpose of our services is to provide construction support services for a tied-back soldier pile wall designed by GeoEngineers and KPFF Consulting Engineers (KPFF). The wall will be located on the north shoulder of SE 240th Street between 144th Avenue SE and 146th Place SE in Kent, Washington. Final plans were provided on August 8, 2014. We understand that construction is anticipated for December 2014. Our scope of services is based on a construction schedule provided by the contractor, Northwest Cascade, on September 16, 2014. SCOPE OF SERVICES GeoEngineers will provide geotechnical engineering construction support services for the repair of the slope north of SE 240th Street. KPFF will provide structural and civil engineering construction support services under a separate contract with the City. Our proposed geotechnical scope of services is below: Geotechnical Scope of Services 1. Attend construction coordination meetings as required and requested. We budget for Lyle Stone (Senior Engineer) to attend one pre-construction meeting and two on-site construction meetings during the project. 2. Provide full- and part-time construction observation services to support the City of Kent’s construction inspector. It is anticipated that we will be required to be on site full time during installation of soldier piles and tie-backs. We will also observe and document tie-back testing and stressing. Our observations will be documented in daily field reports. We have based our construction observation budget on 21 full-time days (8.5 hours) on site and 2 part-time days (4 hours) on site. 3. Provide construction consultation as requested. TERMS AND BUDGET We understand the professional services listed above be provided in accordance with the terms and conditions most recently negotiated between the City of Kent and GeoEngineers. The fee for the services described above will be EXHIBIT A City of Kent | September 19, 2014 Page 2 File No. 0410-188-02 determined on a time-and-expense basis using the rates indicated on the attached Schedule of Charges. We estimate that our fee for the services outlined above will be generally as shown in the following table. SERVICES ESTIMATED FEE Field Engineering and Construction Observation (GeoEngineers) $28,500 Meetings and Additional Consultation (GeoEngineers) $5,500 Total: $34,000 We will endeavor to keep you apprised of project status and conditions that may significantly affect our scope and estimate. We will contact you if it appears we will exceed this estimate. Attachment: Schedule of Charges – Redmond/Tacoma 2014 Schedule of Charges – 2014 COMPENSATION Our compensation will be determined on the basis of time and expenses in accordance with the following schedule unless a lump sum amount is so indicated in the proposal or services agreement. Current rates are: Professional Staff Staff 1 Scientist/Analyst $ 99/hour Staff 1 Engineer $ 104/hour Staff 2 Scientist/Analyst $ 114/hour Staff 2 Engineer $ 120/hour Staff 3 Scientist/Analyst $ 130/hour Staff 3 Engineer $ 135/hour Scientist/Analyst 1 $ 151/hour Engineer 1 $ 156/hour Scientist/Analyst 2 $ 156/hour Engineer 2 $ 161/hour Senior Engineer/Scientist/Analyst 1 $ 171/hour Senior Engineer/Scientist/Analyst 2 $ 187/hour Associate $ 202/hour Principal $ 223/hour Senior Principal $ 249/hour Technical Support Staff Administrator 1 $ 68/hour Administrator 2 $ 78/hour Administrator 3 $ 88/hour CAD Technician $ 83/hour CAD Designer $ 94/hour CAD Design Coordinator $ 99/hour Technician $ 78/hour Senior Technician $ 88/hour Lead Technician $ 99/hour Software Development Staff Database Architect/Analyst $ 166/hour Senior Database Architect/Analyst $ 187/hour Business Analyst $ 166/hour Senior Business Analyst $ 187/hour Software Architect/Developer $ 187/hour Senior Software Architect Developer $ 207/hour IT Project Manager $ 207/hour Senior IT Project Manager $ 233/hour Contracted professional and technical services will be charged at the applicable hourly rates listed above. Staff time spent in depositions, trial preparation and court or hearing testimony will be billed at one and one-half times the above rates. Time spent in either local or inter-city travel, when travel is in the interest of this contract, will be charged in accordance with the foregoing schedule. Rates for data storage and web-based access will be provided on a project-specific basis. Schedule_Redmond-Tacoma-Portland - 2014 Redmond-Tacoma-Portland Schedule of Charges | 2014 Page 2 of 2 Equipment Air Quality Equipment, per day $ 150.00 Air Sparging Field Test, per day $ 500.00 Asbestos Sample Kit, per day $ 25.00 Blastmate, per day $ 100.00 22-foot Sampling and Dive Boat (plus fuel), per day $ 750.00 Camcorder, per day $ 50.00 Concrete/Masonry Field Gear, per day $ 15.00 Crack Gauges, per gauge $ 25.00 D&M Sampler, per day (1 day min.) $ 80.00 Data Logger - 8-channel, per day $ 300.00 Electrical Tape, per day $ 25.00 Environmental Exploration Equipment, per day $ 150.00 Flow Meter, per day $ 40.00 Gas Detection and Oxygen Meters, per day (1 day min.) $ 100.00 Generator, per day (1 day min.) $ 100.00 Geotechnical Exploration Equipment, per day` $ 125.00 GPS Unit - Professional Grade, per day $ 100.00 Groundwater Development and Sampling Pump, per day (1 day min.) $ 100.00 Groundwater Monitoring Equipment, per day $ 220.00 Hydrolab Multi Probe, per day $ 100.00 Interface Probe, per day $ 50.00 Nuclear Density Gauge, per hour (4 hour daily min.) $ 10.00 Operations and Maintenance Equipment, per day $ 250.00 Peristaltic Pump, per day $ 50.00 pH Meter (per day) $ 15.00 PID, FID or OVA, per day $ 100.00 Sampling Van/Trailer, per day $ 60.00 Saximeter, per day $ 25.00 Scuba Diving, per day/per diver $ 250.00 Single Channel Data Logger w/Transducer, per day $ 100.00 Slope Indicator, per day (1 day min.) $ 200.00 Soil Samples (in Rings), per sample $ 5.00 Soil Samples (in Sleeves), per sample $ 8.00 Spectro Photo Meter, per day $ 45.00 Stereoscope, per day $ 20.00 Strain Gauge Readout, per day $ 40.00 Tedlar Bags & Air Sampling Equipment, per sample $ 15.00 Turbidity Testing Equipment, per day $ 30.00 Underwater Camera - Still, per day $ 50.00 Underwater Camera - Video, per day $ 150.00 Vapor Extraction Field Test, per day $ 500.00 Vehicle usage, per mile, or $50/day, whichever is greater $ 0.65 Vehicle - 4-wheel drive truck, per day $ 80.00 Water Quality Equipment, per day $ 125.00 Specialized and miscellaneous field equipment, at current rates, list available upon request. OTHER SERVICES, SUPPLIES AND SPECIAL TAXES Charges for services, equipment, supplies and facilities not furnished in accordance with the above schedule, and any unusual items of expense not customarily incurred in our normal operations, are charged at cost plus 15 percent. This includes shipping charges, subsistence, transportation, printing and reproduction, miscellaneous supplies and rentals, surveying services, drilling equipment, construction equipment, watercraft, aircraft, and special insurance which may be required. Taxes required by local jurisdictions for projects in specific geographic areas will be charged to projects at direct cost. Per diem may be charged in lieu of subsistence and lodging. Routinely used field supplies stocked in-house by GeoEngineers, at current rates, list available upon request. In-house testing for geotechnical soil characteristics at current rates, list available upon request. Associated Project Costs (APC) Computer hardware and software, telephone and fax communications, printing and photocopying and routine postage via USPS will be charged at a flat rate of 6 percent of labor charges. These charges are labeled as Associated Project Costs (APC). All rates are subject to change upon notification. Schedule_Lab_Inside_Charges_Redmond - 2014 File No. 0000-001-00 Laboratory Schedule of Charges – 2014 Type of Test Unit Price Soil Index and Classification Tests Soil Description (ASTM D 2488) $ 15 Moisture Content Oven (ASTM D 2216) $ 18 Moisture/Density Rings $ 30 Shelby Tubes, waxed chunk $ 40 Tubes (liners), chunk $ 40 Particle Size Analysis Percent Passing No. 200 (D 1140) $ 55 Sieve (ASTM D 422, D 6913, C 136 includes minus 200 Wash, Dry Sieve) $ 90 Hydrometer Only (ASTM D 422, minus #10 fraction) $ 130 Combined Sieve and Hydrometer (ASTM D 422-63) $ 200 Organic Content (ASTM D 2974) $ 65 Specific Gravity (ASTM D 854) $ 60 Soil Resistivity (ASTM G 187) $ 40 pH of Soil (ASTM D 4972 / G 51) $ 40 Soluble Sulfates (US EPA 375.4) $ 40 Sulfides $ 40 Ductile Iron Pipe Research Association 10 Point Soil Evaluation Procedure (ANSI/ANSW C105/A21.5). Includes evaluation of resistivity, pH, Redox potential, sulfides and moisture) $ 130 Atterberg Limits (ASTM D 4318) $ 110 Nonplastic $ 65 Compaction (ASTM D 698/D 1557, AASHTO T 99/T 180, Methods A, B and C) 1 point $ 100 3 point $ 200 Shrinkage Factors of Soils by Wax Method (ASTM D 4943) $ 60 Strength and Consolidation Tests Triaxial Compression Unconfined Comp. Strength – UCS (ASTM D 2166) $ 100 Unconsolidated Undrained – UU (ASTM D 2850) $ 210 Unconsolidated Undrained (back pressure saturation) $ 400 Consolidated Undrained – CU (ASTM D 4767) with pore pressure measurement $ 550 Consolidated Drained – CD (Army Corps of Engineers EM 1110-2-1906 Appendix X) $ 550 Consolidated Undrained or Consolidated Drained (3 points, staged) $ 1,400 Consolidation (ASTM D 2435) With 2 timed load increments $ 500 Additional timed load increments, each $ 50 One-Dimensional Swell (ASTM D 4546) Methods A and B $ 350 Method C $ 600 CBR, 1 point with Proctor (ASTM D 1883) $ 350 Additional points, each $ 90 Redmond_Inside Laboratory_Schedule of Charges | 2014 Page 2 of 2 File No. 0000-001-00 Type of Test Unit Price Permeability Tests Constant or falling head in rigid wall permeameter (ASTM D 2434, D 5856) $ 250 In triaxial cell with back pressure saturation (ASTM D 5084) $ 650 Soil Sample Preparation Extrusion – Extrude and log (visual classification) Shelby tube sample $ 60 Remolding – Remolding a soil sample to desired moisture and density $ 40 - $100 Soil – Cement/Lime Treatment $ Hourly - negotiated Aggregate and Rock Tests Unconfined Compression Test (ASTM D 7012) One test only $ 65 More than one test $ 55 Percent of Fracture (WSDOT 103) $ 55 Sand Equivalent (AASHTO T 176) $ 70 Specific Gravity, Fine/Coarse Aggregate (ASTM C 127, C 128) $ 70/100 Concrete, Mortar and Grout Tests Concrete Cyl (strip, log, cure, break, report) $ 30 Cast and cured, not broken $ 25 Cast by others (strip, log, cure, break, report) $ 30 Mortar Cyl (strip, log, cure, break, report) $ 30 Grout Cyl (strip, log, cure, break, report) $ 30 Grout Cubes (strip, log, cure, break, report) $ 25 *Please contact us regarding test procedures which are not listed or for tests on contaminated soils. Negotiated unit rates or hourly rates will be charged for these procedures. **Not WABO-certified. EXHIBIT B 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 Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. 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. EXHIBIT B (Continued) 2. Commercial General Liability insurance shall be written with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate. 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 Consultant before commencement of the work. EXHIBIT B (Continued) 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. Agenda Item: Consent Calendar – 7E TO: City Council DATE: November 4, 2014 SUBJECT: SR 516 Levee Franchise Agreement with Washington State Department of Transportation - Authorize SUMMARY: The City is working to establish a FEMA Accredited Levee system in Kent. Construction of facilities within SR 516, a state-owned limited access highway, is required to establish this levee system in Kent. This agreement allows the City to connect the County Road No. 8 Levee through SR 516 to the Okimoto Levee. EXHIBITS: Washington State Department of Transportation Franchise Agreement RECOMMENDED BY: Public Works Committee YEA: Fincher - Ralph - Higgins NAY: BUDGET IMPACTS: Stormwater utility funds will be used to pay for this work. Existing storm drainage rates assumed the City would cover a portion of the costs to fund levee reconstruction. Public Works staff continues to look for outside funding and lowest cost alternatives for levee accreditation. MOTION: Authorize the Mayor to execute an agreement with the Washington State Department of Transportation to construct a levee within State Right-of-Way for levee certification purposes, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. This page intentionally left blank. Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 1 of 9 Washington State Department of Transportation Franchise pursuant to Chapter 47.44 RCW THIS FRANCHISE (Franchise) is issued this _____ day of ______________, 2014, (Effective Date) by the Washington State Department of Transportation, hereafter State, to the City of Kent, a Washington municipal corporation, hereinafter City. State and City are collectively called Parties. WHEREAS, as authorized by RCW 35.21.090, the City seeks to establish a levee system in Kent, Washington that requires construction of facilities within SR 516, state-owned limited access highway right of way as detailed in Exhibit A, (Levee); and WHEREAS, the Levee will serve to protect the Kent Valley from flooding from the Green River in accordance with the City’s levee certification requirements; and WHEREAS, in consideration of the purpose and function of the Levee, the State has determined that the Levee may be accommodated within SR 516, state- owned limited access highway right of way under a franchise pursuant to chapter 47.44 RCW; and WHEREAS, the State, by separate instrument, will issue a limited access break to the City, authorizing the City to cross SR 516 boundaries at specified points for the construction and maintenance of the Levee; and WHEREAS, the Parties acknowledge and agree that, although the Levee will be constructed, in part, on state-owned limited access highway right of way, the Levee constitutes a separate City-owned facility constructed solely for City purposes, and that the State will receive no benefits from construction of the Levee as authorized under this Franchise, NOW, THEREFORE, pursuant to chapter 47.44 RCW, RCW 35.21.090, the above recitals that are incorporated herein as if set forth below, Exhibits A and B, attached hereto and by this reference made a part of this Franchise, and subject to the terms and conditions set forth below, a nonexclusive Franchise is hereby granted to the City to construct, operate, and maintain the Levee upon and along certain portions of SR- 516, a state-owned limited access highway right of way in Kent, Washington, as detailed in Exhibit A, FRANCHISE TERMS AND CONDITIONS 1. Fees, Costs, and Payments: Pursuant to WAC 468-34-020, the State has determined that the Levee constitutes a Category 1 installation. Therefore, Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 2 of 9 the City shall pay the State a Franchise fee of $500, due within thirty (30) calendar days of execution of this Franchise by the Parties. In addition to the Franchise fee, the City shall reimburse the State for all actual direct and related indirect costs incurred by the State under this Franchise. Such costs include, but are not limited to plan review, including review of proposed revisions to plans, specifications, and calculations contained in Exhibit A, construction coordination and inspection, and administrative overhead. The State shall provide detailed invoices to the City for State -performed work as required under this Franchise. The City shall make payment within thirty (30) calendar days from receipt of a State invoice. 2. Plan Review: The City has provided the State with its plans, specifications, and calculations for the proposed Levee, Exhibit A, and the State has reviewed the plans, specifications, and calculations. The Parties agree that State review of the City’s Levee plans, specifications, and calculations shall be solely for State purposes and not for the benefit of the City or any third party and shall not be deemed to mean that the Levee design and construction is structurally sound and appropriate or meets applicable federal and state regulations, laws, or local ordinances, codes, or standards (Laws). The City affirms that it has taken all of the actions necessary and required for the construction, operation and maintenance of the Levee, including compliance with all Laws. 3. Plan Implementation and Modifications: The City shall construct the Levee as shown on Exhibit A at the City’s sole expense. The State must concur, in writing, with any changes to the plans or specifications contained in Exhibit A prior to implementing the changes to the Levee. 4. Standard Specifications: The City agrees that all material and workmanship shall conform to the Washington State Department of Transportation’s Standard Specifications for Road, Bridge, and Municipal Construction, current edition, and amendments thereto,(Standard Specifications) and shall be subject to State inspection. 5. Right of Entry and Access: Subject to the terms of this Franchise, the State hereby grants to the City, its authorized agents, contractors, subcontractors, and employees, a right of entry upon state-owned limited access highway right of way to construct, operate and maintain the Levee. Additionally, the City shall comply with all terms and conditions of the limited access break, Exhibit B, required by the State for construction, operation, and maintenance of the Levee. 6. Independent Contractor: The City shall be deemed an independent contractor for all purposes under this Franchise, and the employees of the City or any of its contractors, subcontractors, consultants, and the Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 3 of 9 employees thereof, shall not in any manner be deemed to be employees or agents of the State. 7. Preconstruction Meeting: The Parties shall hold a preconstruction conference before the City begins Levee work. The State, the City, and the City’s contractor (if applicable) shall be present. 8. Construction Notice: The City shall notify the following State representative, in writing, at least fourteen (14) calendar days in advance of commencing construction work within state-owned limited access highway right of way. Additionally, for future maintenance of the Levee, the City shall obtain a General Permit from the State prior to performing any work within State highway right of way. Emergency maintenance work may be performed without first obtaining a General Permit, provided that notification of such work is provided by the City at the earliest possible opportunity. State Representative: Jerry Althauser Area 4 Maintenance Superintendent 26620 68th Ave. South Kent, WA 98032 Phone (253) 372-3900 9. Construction Schedule: The State may, at any time, request a construction schedule or updates, if any, thereto from the City, showing critical dates and activities that will lead to the timely completion of the Levee. In any event, the City shall notify the State’s Representative, identified above, of any changes to the construction schedule at least fourteen (14) calendar days in advance of implementing the change. 10. Work Restrictions: Work within the state-owned limited access highway right of way shall be restricted between the hours of 10:00 PM and 5:00 AM, and no work shall be allowed on the right of way on Saturday, Sunday, or holidays as defined by RCW 1.16.050, or the day before a ho liday or a holiday weekend, unless authorized in writing by the State. 11. Traffic Control: If determined necessary by the State, the City shall submit a signing and traffic control plan to the State’s Representative for approval prior to construction or maintenance operations. No lane closures shall be allowed except as approved in writing by the State’s Representative. 12. Non Interference with Highway: No excavation shall be made or obstacle placed within the limits of the state-owned, or under State jurisdiction, limited access highway right of way in such a manner as to interfere with the Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 4 of 9 construction of, operation of, maintenance of and/or travel over the State highway, unless the City obtains the State’s prior written authorization. 13. City Representative: Should the City choose to perform the Levee work with other than its own forces, a City representative shall be present on-site at all times for work within state-owned limited access highway right of way unless otherwise agreed in writing by the State. Where the City chooses to perform the work with its own forces, it may elect to appoint one of its own employees engaged in the construction as its representative. Should the City fail to comply with this section, the State, in its sole discretion, may restrict any further City work within state-owned limited access highway right of way until the requirements of this section are met. All contact between the State and the City’s contractor shall be through an authorized City representative. 14. Surety Bond: Should the City choose to perform the Levee work with other than its own forces, a surety bond in the amount of $ [To Be Based on Project Estimate] written by a surety company authorized to do business in the State of Washington, shall be furnished to the State before performing any work to ensure compliance with all of the terms and conditions of this Franchise. The surety bond shall remain in force for at least two (2) years after issuance of the City’s notice of completion described in Sectio n 20, below. 15. Work Supervision: The City, at its own expense, shall adequately police and supervise construction of the Levee work by itself, its contractor, subcontractor, or agent, and others, so as not to endanger or injure any person or property. The City’s responsibility for the proper performance, safe conduct, and adequate policing and supervision of the work shall not be lessened or otherwise affected by the State’s review and concurrence with the City’s plans, specifications, or work, or by the State’s Representative’s presence at the work site to assist in determining that the work and materials meet this Franchise’s requirements. 16. Permits: The City shall obtain all necessary Federal, State, and Local Permits including, but not limited to, permits required by the State, the Washington State Department of Ecology, the Washington State Department of Fish and Wildlife, and the U.S. Army Corps of Engineers prior to beginning construction. 17. Archeological Resources: If any archaeological or historical resources are revealed in the work vicinity, the City shall immediately STOP work, notify the State’s Representative and retain a US Secretary of the Interior’s qualified archaeologist. Said archaeologist shall evaluate the site and make recommendations to the State regarding the continuance of the work. Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 5 of 9 18. Clean Up: Upon completion of the work, the City shall immediately remove all rubbish and debris and shall leave the state-owned limited access highway right of way neat and presentable to the State’s sole satisfaction. City agrees to take corrective action if directed by the State. 19. Failure to Complete Work: Should the City decide not to complete the Levee work after construction has begun, the State shall determine what work must be completed to restore State facilities and right-of-way to a condition and configuration that is safe for public use. The State shall provide the City with written notification of such work. The City agrees that all costs associated with construction termination, including engineering, completing State facility and right-of way restoration, and contractor claims will be the sole responsibility of the City. If the contractor is not available to restore the State facilities and right-of way, the Parties agree that the State may perform or contract to perform, the restoration work at the City’s sole expense. The City agrees to reimburse the State within thirty (30) calendar days after receipt of a documented State invoice. This section shall survive construction and Franchise termination. 20. Work Completion: The City shall notify the State, in writing, of its completion of the Levee within fourteen (14) calendar days of such completion. The City shall include in the written notice a proposed date on which to m eet with the State for the purpose of conducting a final inspection of the Levee and highway right of way to verify that the construction authorized hereunder complies with the terms of conditions of this Franchise. 21. As-Built Plans: Within ninety (90) calendar days after completion of the Levee, the City shall submit as-built plans of the Levee to the State. 22. Levee City Property/Removal: All facilities placed within state-owned limited access highway right of way by the City under this Franchise shall remain the property of the City. The City shall have the sole liability and responsibility for ensuring the adequacy of and maintaining the usefulness of any City facilities authorized hereunder for Levee purposes. The State shall have no responsibility to review or confirm facility or Levee adequacy and/or usefulness, nor shall the State be liable in the event that the facility or Levee is defective, fails in its performance, or is not adequate for its intended purpose. The City’s facilities authorized hereunder may be removed at any time by the City; provided that, prior to removal, the City shall notify the State and submit a plan for removal of the Levee. Additionally, in the event that all or any portion of the Levee is no longer used, the City shall submit a plan and schedule removal of the unused portion(s). Upon removal of any portion(s) of the Levee under this section, the City shall restore any affected State property to a condition satisfactory to the State. The Parties agree that after Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 6 of 9 thirty calendar (30) days’ written notice in writing to the City, the State may perform or contract to perform, the removal of the unused portions of the Levee or perform or contract to perform the restoration work at the City’s sole expense should the City fail to perform this work. The City agrees to reimburse the State within thirty (30) calendar days after receipt of a documented State invoice. This section shall survive construction and Franchise termination. 23. State Ordered Levee Modifications/Removal: If the State, in its sole discretion, shall determine that any or all of the Levee must be modified, removed or relocated from the state-owned limited access highway right of way as being necessary, incidental, or convenient for the construction, repair, improvement, alteration, relocation, or maintenance of the state highway, or for the safety of the traveling public, the City agrees and shall at its sole cost and expense, upon written notice by the State, modify, relocate or remove any or all of the Levee from the state-owned limited access highway right of way as may be required by the State. After notification by the State, the City shall submit a plan for proposed modification, relocation, or removal within 30 calendar days. After approval by the State of said plan, the City shall perform all Levee modifications, relocations and/or removals as the State directs to avoid highway project delays and in such manner as will cause the least interference with the continued operation and/or maintenance of the highway or disruption of traffic. 24. Failure to Modify/Remove Levee: Should the City fail or refuse to comply with the State’s direction to modify, remove, or relocate any City Levee facilities in accordance with Section 23, the Parties agree that after thirty calendar (30) days’ written notice in writing to the City, the State may perform or contract to perform the required work at the City’s sole expense. The City agrees to reimburse the State within thirty (30) calendar days after receipt of a documented State invoice. This section shall survive construction and Franchise termination. 25. Maintenance of Levee: The City, at its sole cost and expense, shall be solely responsible for maintaining the Levee according to all applicable local, state, or federal requirements related to Levee maintenance, including, but not limited to vegetation management. If necessary to properly maintain the Levee, the City shall also maintain state-owned limited access highway right of way (not to include constructed highway facilities) at its sole cost and expense. The City agrees that the State shall perform no maintenance work on the Levee or related to the Levee and that the State shall have no cost or expense liability for Levee maintenance or for maintaining state-owned limited access highway right of way if such is required to maintain the Levee. 26. Insurance: The City must provide proof of the following insurance coverage prior to performing any work within state-owned limited access highway right Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 7 of 9 of way and maintain said insurance coverage for the entire term of this Franchise, or any extension thereof: a) Commercial General Liability covering the risks of bodily injury (including death), property damage and personal injury, including coverage for contractual liability, with a limit of not less than 5 million per occurrence/$5 million general aggregate; b) Business Automobile Liability (owned, hired, or non-owned) covering the risks of bodily injury (including death) and property damage, including coverage for contractual liability, with a limit of not less than $2 million per accident; c) Employers Liability insurance covering the risks of City’s employees’ bodily injury by accident or disease with limits of not less than $1 million per accident for bodily injury by accident and $1 million per employee for bodily injury by disease; Such insurance policies or related certificates of insurance shall name the Washington State Department of Transportation as an additional insured on all general liability, automobile liability, employers’ liability, and excess policies. A forty-five (45) Calendar Day written notice shall be given to the State prior to termination of or any material change to the policy(ies) as it relates to this Franchise. 27. Indemnification: To the extent authorized by law, the City, its successors and assigns, agree to indemnify, defend, and hold harmless the State of Washington and its officers and employees, from all claims, demands, damages (both to persons and/or property), expenses, regulatory fines, and/or suits that: (1) arise out of or are incident to any acts or omissions by the City, its agents, contractors, and/or employees, in the use of the state - owned limited access highway right of way as authorized by the terms of this Franchise, or (2) are caused by the breach of any of the conditions of this Franchise by the City, its contractors, agents, and/or employees. The City, its successors and assigns, shall not be required to indemnify, defend, or hold harmless the State of Washington and its officers and employees, if the claim, suit, or action for damages (both to persons and/or property) is caused by the sole acts or omissions of the State of Washington, its officers and employees ; provided that, if such claims, suits, or actions result from the concurrent negligence of (a) the State of Washington, its officers and employees and (b) the City, its agents, contractors, and/or employees, or involves those actions covered by RCW 4.24.115, the indemnity provisions provided herein shall be valid and enforceable only to the extent of the concurrent acts or omissions of the State of Washington, its officers and employees and the City, its agents, contractors, and/or employees. Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 8 of 9 The City agrees that its obligations under this section extend to any claim, demand and/or cause of action brought by, or on behalf of, any of its employees or agents while performing construction and/or maintenance under this Franchise while located on state-owned limited access highway right of way. For this purpose, the City, by mutual negotiation, hereby waives with respect to the State only, any immunity that would otherwise be available to it against such claims under the Industrial Insurance provisions chapter 51.12 RCW. This indemnification and/or waiver shall survive the termination of this Franchise. 28. Emergency Work: The Parties agree that should the State determine in good faith that emergency work to the Levee is immediately needed to protect (a) any aspect of the State highway, or (b) to secure the safety of the traveling public, as a result of the existence of or a failure of the Levee, such work may be performed by the State without prior approval of the City and at the City’s sole cost. The City will be notified of the emergency work and the necessity for it at the State’s earliest opportunity. The State shall provide to the City a detailed invoice for such emergency work, and the City agrees to make payment within thirty (30) calendar days of the date of the invoice. If the billing is disputed by the City, the City shall pay the State any undisputed amount and notify the State of the disputed amount, requesting supporting documentation reasonably necessary to verify the accuracy of the invoice. The City shall thereafter pay the State any remaining portions of the invoice within 30 calendar days of receipt of documentation adequate to justify the disputed expenditures. This section shall survive construction and Franchise termination. 29. Breach of Franchise Terms: The Parties agree that should the City breach any of the terms and conditions of this Franchise, or fail to proceed with due diligence and in good faith in the construction, operation and maintenance of the Levee as provided for herein, the State may terminate this Franchise. The State, in its sole discretion, may require the City to remove all or part of the Levee constructed at the City’s sole expense. If the City fails to remove its Levee, the State may perform or contract to perform the Levee removal without prior approval of the City, and at the City’s sole expense. The State shall provide to the City a detailed invoice for such work, and the City agrees to make payment within thirty (30) calendar days of the date of the invoice. This section shall survive construction and Franchise termination. 30. Notice Prior to Incorporation into a Diking District: The City agrees not to incorporate any portions of its Levee located on or within state-owned limited access highway right of way as part of a diking district without the express written consent of the State. For this purpose, the City shall provide the Washington State Department of Transportation Franchise City of Kent Levee at SR- 516 Page 9 of 9 State with at least 120 calendar days written notice prior to entering into any proceedings to incorporate the Levee as part of a diking district under Title 85 RCW and 86 RCW . Failure to notify the State as specified herein shall constitute a Breach of Franchise Terms under Section 29, above. Upon receipt of such written notice, the State will review the matter and may require amendments to this Franchise or the termination of this Franchise, requiring the removal of the Levee from state-owned limited access highway right of way, at the sole discretion of the State. 31. Construction Start: Construction of the Levee must begin within one year and must be completed within three years from date of execution of this Franchise. 32. Term: Subject to the terms and conditions herein, the term of this Franchise shall commence as of the date this Franchise is fully executed by the Parties and shall continue for a period of twenty five (25) years thereafter, subject to renewal as the Parties may hereafter agree. 33. No Assignment: The City shall not assign or transfer this Franchise or the ownership of the Levee in any manner whatsoever, unless the State consents thereto in writing and the assignee accepts all terms of this Franchise. 34. Non-Exclusive: This Franchise shall not be deemed or held to be an exclusive one and shall not prohibit the State from granting permits or franchise rights; or entering into other Franchises of like or other nature with other public or private companies or individuals for the use of the state- owned limited access highway right of way, nor shall it prevent the State from using any of its property, rights of ways, highways, streets, or public places, or affect its right to full supervision and control over all or any part of them, none of which is hereby surrendered. Approved as to Form by AGO: April 25, 2014 This page intentionally left blank. Agenda Item: Consent Calendar – 7F TO: City Council DATE: November 4, 2014 SUBJECT: Reimbursement Agreement with Union Pacific Railroad (UPRR) for Milwaukee II Levee and South 259th Street Underpass - Authorize SUMMARY: The City is requesting an agreement with the Union Pacific Railroad for the placement and operation and maintenance of a proposed levee floodwall within the UP Right of Way for the Milwaukee II levee. This reimbursement agreement requested by UPRR will allow them to bill the City for their time to review plans and process the agreement. The City is also pursuing a project to increase the clearance under the existing UPRR bridge at South 259th Street, this will require significant coordination with the railroad. This same agreement will allow the railroad to get reimbursed for their review of the proposed plans from the City for this project. EXHIBITS: Agreement for Preliminary Engineering Services & Submittal of Exhibit A for Railroad Approval RECOMMENDED BY: Public Works Committee YEA: Fincher - Ralph - Higgins NAY: BUDGET IMPACTS: Funding for the levee floodwall portion of this agreement will come from storm drainage funds. The proposed underpass is currently unfunded. Public Works Staff continues to look for outside funding and lowest cost alternatives for levee accreditation. MOTION: Authorize the Mayor to sign a Reimbursement Agreement with the Union Pacific Railroad for design review of the Milwaukee II Levee and South 259th Street Underpass in an amount not to exceed $25,000, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. This page intentionally left blank. Date:': AGREEMENT FOR PRELIMINARY ENGINEERING SERVICES AND SUBMITTAL OF EXHIBIT "A" FOR RAILROAD APPROVAL Crossing : Public: Washington Kent M.P.0166.09 Oregon Subdivision DOT No. 396583H King County Terrel A. Anderson Manager, Industry & Public Projects Union Pacific Railroad Company 9451 Roseville, CA 95747 Dear Mr. Anderson, Plans are being prepared to install a levee wall within Union Pacific Right of Way beginning at approximately M.P. 0166.09 for approximately 300 feet to the south and installing a jet grout curtain across the embankment to tie into the earthen levee on the west side. Plans are also being prepared to provide additional clearance under the existing underpass at S. 259th Street. The Agency considers it necessary for the successful advancement of the project for your company to collaborate in the development of the project by performing the following: ® Preliminary engineering and other related services ® Development of cost estimates ® Review of the projects preliminary layouts ® Submit current train and switching moves The Agency authorizes and agrees to reimburse the Railroad for its expenses and actual costs that are incurred for collaborating in the development of the project's preliminary engineering and other preliminary activities. The Railroad has estimated that these preliminary engineering and other preliminary costs will be $25,000.00. Payment will be made within thirty (30) days from the Agency's receipt and approval of the Railroad's request for reimbursement. Forward invoices to Attn: Kristen Lykl<en 220 Fourth Ave S. Kent, WA 98032. Additionally, attached for your company's review and approval is one (1) set of half -scale prints of the concept plans marked Exhibit A, which are 5% complete and show the basic features of the proposed highway project at the location reference above. Please Review and provide comment on the basic features of Exhibit A as soon as possible. Also enclosed is one (1) set of photos of the project area. The project may require the Railroad to incur costs for force account activities. Please prepare the Railroad force account cost estimate for work activities to be provided by your company, as identified in Exhibit A and submit them at your earliest convenience so that they may be attached to the railroad generated Construction & Maintenance (C&M) agreement. Please verify the number of current regular train, 16, and switching movements, 0, with the maximum speed of 40 MPH at this location as currently shown in our inventory records. This information will be used by the Agency's Contractor to obtain Railroad Protective Liability Insurance. This agreement is intended to address Preliminary Engineering. It is understood by both parties that railroad may withhold its approval for any reason directly or indirectly related to safety or its operations, property issues or effect to its facilities. If the project is approved, Union Pacific will continue to work with the Agency to develop Final Plans, Specifications and prepare Material and Cost Estimates for Railroad Construction Work associated with the project. It is also understood that if the project is constructed, if at all, at no cost to the railroad. The Agency and the Railroad will enter into separate License, Right of Entry, Construction and Maintenance Agreements associated with the actual construction of the project if the project is accepted and approved by the railroad. The agreements will be drafted by Union Pacific and forwarded to the Agency after Exhibit A and cost estimates have been approved. Please contact Mark Madfai at telephone number 253-856-5521 or via email at mmadfai@kentwa.gov if you have any questions. Your assistance in this matter is appreciated. Sincerely, Timothy J. LaPorte, P.E. Public Works Director UNION PACIFIC RAILROAD COMPANY Date Name and Title Attachments C,Q 1 ILI _,._. -`� � � �,�!},151`. t ( 1 ;� `,,�\t•� , FLOOOWALLIt — Ilill �'S t ; N i t .. TOP OF WALL EL=50.25^ V, !� 4 l i % i ` BOTTOM OF WALL EL=25.0± / ;;ill; , j i t! \ Il,li;i��i` } � 'tit >>'E�', 1// �,• j 1 / ti{ itit, III i 1< t 1{ 111 ' I; r'f •'t /Ir f r i 1 S j t i T01' OF WALL EL=50.25 Q I (4 ` -BOTTOM OF WALL EL=25,0± t I j�'i i, , i} ,i / I 'lii( m '`, t t j �`,j Cif `�� , ( itto 1 It{ I I�'i j !'�•} Ll ; ! it q , It 3 'r �,i�l•! :f f `i(, I!•! f( I( i r ? ` },: • 1' , I 'i i TOP OF WALL EL=50.25 } t � (!11; j i j •, �t'`l � BOTTOM OF WALL EL= �� i ;N �. iG;CO � it it TOP OF WALL EL=50.25 BOTTOM OF WALL EL=25.0± tit I4147 i•l� � }' j},1 } I N Ip�CIFI R6kl ' A j IIt i , ,, \\ �, � `�i((��ij(�t;�}c� it 41.8' ,•, \ \ EXISTINGf (I l l f oil \ EARTHEN ET GROUT 1i i}; I \ \ 13.2 LEVEE / AREA E EMBANKMENT STRP LOG GATE �. TOP OF WALL EL=5Q.25 � BOTTOM OF WALL EL=25.O1 I �- - TOP OF WALL EL=50.25 BOTTOM OF WALL EL=25.0t 0 TOP OF WALL EL=50.25 80TTOM OF WALL EL=25.Ot TOP OF RAIL EL=59.74 l ._:,� f / • c"'r , / ` ; 1 t .� TOP OF WALL EL=50.25 - / ,, � r � � V i ;BOTTOM OF WALL EL=25,Dt �% ., ••✓' . % iTOP OF RAIL EL=59.76 Foe MP. 166.10 SEATTLE SUBDIVISION SCALE: 1"=0' j DATE: JULY, 2014 I EXHIBIT A EXISTING GROUN PROPOSED JET GROUT AREA - TOP OF - EXISTING LEVEE EARTHEN LEVEE EMBANKMENT FILL MATERIAL EXISTING PROPOSED JET GROUT AREA - 05 STEEL SHEET PILE WALL 1 NOT TO SCALE GROUND RAILROAD TRACKS 2' WIDE x 3' DEE N6, SECTIONS SCALE: NTS I DATE: JULY, 2Q14 I EXHIBIT B Agenda Item: Consent Calendar- 7G TO: City Council DATE: November 4, 2014 SUBJECT: Lindental Pump Station Isolation Valve & Hardware Purchase Ferguson N.W. - Authorize SUMMARY: The Lindental sanitary sewer pump station is the largest pump station within the Kent sewer system. The pump station, located on the east hill, pumps approximately 10,000 gallons of sewage per day. The wet-well collects materials (including fats, oils, and greases) that do not pass through the pumps. The build-up of this material requires entry by personnel for cleaning and removal, numerous times throughout the year. The installation of an isolation valve upstream of the wet-well will provide a mechanical method to isolate incoming sewage flow. This improvement will reduce potential engulfment of employees working within the wet-well. EXHIBITS: Goods & Services Agreement with Ferguson N.W. RECOMMENDED BY: Public Works Committee YEA: Fincher - Ralph - Higgins NAY: BUDGET IMPACTS: Currently accounted for in the 2014 sewer budget. MOTION: Authorize the Mayor to sign an agreement with Ferguson N.W. to purchase an isolation valve for the Lindental Pump Station in an amount not to exceed $23,169.04, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. This page intentionally left blank. GOODS & SERVICES AGREEMENT - 1 (Over $10,000.00, including WSST) GOODS & SERVICES AGREEMENT between the City of Kent and Ferguson THIS AGREEMENT is made by and between the City of Kent, a Washington municipal corporation (hereinafter the "City"), and Ferguson organized under the laws of the State of Washington, located and doing business at 3517 Pacific Highway E., Tacoma, WA 98424, Phone: (253) 922-9060/Fax: (253) 922-2813, Contact: Marshall Moffat (hereinafter the "Vendor"). AGREEMENT I. DESCRIPTION OF WORK. Vendor shall provide the following goods and materials and/or perform the following services for the City: The Vendor shall provide a 24-inch stainless steel knife valve, extension stem/supports, and a 24" x 10" SDR 35 spool for the Lindental Pump Station Isolation Valve Installation Project. For a description and Vendor's quote, see the Scope of Work which is attached as Exhibit A and incorporated by this reference. Vendor acknowledges and understands that it is not the City’s exclusive provider of these goods, materials, or services and that the City maintains its unqualified right to obtain these goods, materials, and services through other sources. II. TIME OF COMPLETION. Upon the effective date of this Agreement, Vendor shall complete the work and provide all goods, materials, and services by December 31, 2014. III. COMPENSATION. The City shall pay the Vendor an amount not to exceed Twenty Three Thousand, One Hundred Sixty Nine Dollars and four cents ($23,169.04), including applicable Washington State Sales Tax, for the goods, materials, and services contemplated in this Agreement. The City shall pay the Vendor the following amounts according to the following schedule: GOODS & SERVICES AGREEMENT - 2 (Over $10,000.00, including WSST) The Vendor shall be paid after delivery of supplies that are listed in the Vendor's quote and attached as Exhibit A. If the City objects to all or any portion of an invoice, it shall notify Vendor 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. A. Defective or Unauthorized Work. The City reserves its right to withhold payment from Vendor for any defective or unauthorized goods, materials or services. If Vendor is unable, for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services from other sources, and Vendor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Agreement price specified above. The City further reserves its right to deduct these additional costs incurred to complete this Agreement with other sources, from any and all amounts due or to become due the Vendor. B. Final Payment: Waiver of Claims. VENDOR’S ACCEPTANCE OF FINAL PAYMENT SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY VENDOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor-Employer Relationship will be created by this Agreement. By their execution of this Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following representations: A. The Vendor 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 Vendor maintains and pays for its own place of business from which Vendor’s services under this Agreement will be performed. C. The Vendor has an established and independent business that is eligible for a business deduction for federal income tax purposes that existed before the City retained Vendor’s services, or the Vendor is engaged in an independently established trade, occupation, profession, or business of the same nature as that involved under this Agreement. D. The Vendor 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. GOODS & SERVICES AGREEMENT - 3 (Over $10,000.00, including WSST) E. The Vendor has registered its business and established an account with the state Department of Revenue and other state agencies as may be required by Vendor’s business, and has obtained a Unified Business Identifier (UBI) number from the State of Washington. F. The Vendor 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. VI. CHANGES. The City may issue a written amendment for any change in the goods, materials or services to be provided during the performance of this Agreement. If the Vendor determines, for any reason, that an amendment is necessary, Vendor must submit a written amendment request to the person listed in the notice provision section of this Agreement, section XIV(D), within fourteen (14) calendar days of the date Vendor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Vendor's costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Vendor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Vendor shall proceed with the amended work upon receiving either a written amendment from the City or an oral order from the City before actually receiving the written amendment. If the Vendor fails to require an amendment within the time allowed, the Vendor waives its right to make any claim or submit subsequent amendment requests for that portion of the contract work. If the Vendor disagrees with the equitable adjustment, the Vendor must complete the amended work; however, the Vendor may elect to protest the adjustment as provided in subsections A through E of Section VII, Claims, below. The Vendor accepts all requirements of an amendment by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. An amendment that is accepted by Vendor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. VII. CLAIMS. If the Vendor disagrees with anything required by an amendment, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Vendor may file a claim as provided in this section. The Vendor shall give written notice to the City of all claims within fourteen (14) calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14) calendar days of the date the Vendor knew or should have known of the facts or events giving rise to the claim, whichever occurs first . Any claim for damages, additional payment for any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Vendor unless a timely written claim is made in strict accordance with the applicable provisions of this Agreement. At a minimum, a Vendor's written claim shall include the information set forth in subsections A, items 1 through 5 below. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY GOODS & SERVICES AGREEMENT - 4 (Over $10,000.00, including WSST) CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. A. Notice of Claim. Provide a signed written notice of claim that provides the following information: 1. The date of the Vendor's claim; 2. The nature and circumstances that caused the claim; 3. The provisions in this Agreement that support the claim; 4. The estimated dollar cost, if any, of the claimed work and how that estimate was determined; and 5. An analysis of the progress schedule showing the schedule change or disruption if the Vendor is asserting a schedule change or disruption. B. Records. The Vendor shall keep complete records of extra costs and time incurred as a result of the asserted events giving rise to the claim. The City shall have access to any of the Vendor's records needed for evaluating the protest. The City will evaluate all claims, provided the procedures in this section are followed. If the City determines that a claim is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. C. Vendor's Duty to Complete Protested Work. In spite of any claim, the Vendor shall proceed promptly to provide the goods, materials and services required by the City under this Agreement. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Vendor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Vendor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). VIII. LIMITATION OF ACTIONS. VENDOR MUST, IN ANY EVENT, FILE ANY LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM THE DATE THE CONTRACT WORK IS COMPLETE OR VENDOR’S ABILITY TO FILE THAT SUIT SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY LIMITATIONS PERIOD. IX. WARRANTY. This Agreement is subject to all warranty provisions established under the Uniform Commercial Code, Title 62A, Revised Code of Washington. Vendor warrants goods are merchantable, are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and Vendor’s representations to City. The Vendor shall correct all defects in workmanship and materials within one (1) year from the date of the City's acceptance of the Contract work. In the event any part of the goods are repaired, only original replacement parts shall be used—rebuilt or used parts will not be acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) year from the date such correction is completed and accepted by the City. The Vendor shall begin to GOODS & SERVICES AGREEMENT - 5 (Over $10,000.00, including WSST) correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Vendor does not accomplish the corrections within a reasonable time as determined by the City, the City may complete the corrections and the Vendor shall pay all costs incurred by the City in order to accomplish the correction. X. DISCRIMINATION. In the hiring of employees for the performance of work under this Agreement or any sub-contract, the Vendor, its sub-contractors, or any person acting on behalf of the Vendor or sub-contractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. Vendor 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. XI. INDEMNIFICATION. Vendor 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 Vendor'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 Vendor's work when completed shall not be grounds to avoid any of these covenants of indemnification. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE VENDOR'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 Vendor 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 Vendor’s part, then Vendor 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 Vendor’s part. The provisions of this section shall survive the expiration or termination of this Agreement. XII. INSURANCE. The Vendor shall procure and maintain for the duration of the Agreement, insurance of the types and in the amounts described in Exhibit B attached and incorporated by this reference. XIII. WORK PERFORMED AT VENDOR'S RISK. Vendor 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 Vendor's own risk, and Vendor 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. GOODS & SERVICES AGREEMENT - 6 (Over $10,000.00, including WSST) XIV. MISCELLANEOUS PROVISIONS. A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties’ performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section XI 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 Vendor. 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 Vendor agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Vendor's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. GOODS & SERVICES AGREEMENT - 7 (Over $10,000.00, including WSST) I. City Business License Required. Prior to commencing the tasks described in Section I, Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. J. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. VENDOR: By: (signature) Print Name: Its (title) DATE: CITY OF KENT: By: (signature) Print Name: Suzette Cooke Its Mayor DATE: NOTICES TO BE SENT TO: VENDOR: Marshall Moffat Ferguson 3517 Pacific Highway E. Tacoma, WA 98424 (253) 922-9060 (telephone) (253) 922-2813 (facsimile) 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 Ferguson - Lidental PS/Lovell EEO COMPLIANCE DOCUMENTS - 1 of 3 DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City’s equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City’s sole determination regarding suspension or termination for all or part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed by me, the Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. By signing below, I agree to fulfill the five requirements referenced above. By: ___________________________________________ For: __________________________________________ Title: _________________________________________ Date: _________________________________________ EEO COMPLIANCE DOCUMENTS - 2 of 3 CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City’s nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City’s equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. EEO COMPLIANCE DOCUMENTS - 3 of 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: _________________________________________ EXHIBIT A Lovell, Rob From: Marshall Moffat - 3006 SEATTLE <marshall.moffat@ferguson.com> Sent: Friday, September 26, 2014 1:19 PM To: Lovell, Rob Subject: Email Bid# B105706 THANK YOU MARSHALL Price Quotation # B105706 FEI - TACOMA #3006 3517 PACIFIC HIGHWAY, EAST TACOMA, WA 98424 Phone : 253-922-9060 Fax : 253-922-2813 Bid No.......: B105706 Bid Date...: 09/26/14 Quoted By: MDM Customer.: CITY OF KENT 220 4TH AVE S KENT, WA 98032-5895 Cust PO#..: Cust Phone: 253-856-5230 Terms.........: NET LOTH PROX Ship To.......: CITY OF KENT 220 4TH AVE S KENT, WA 98032-5895 Job Name.: Item Description Quantity I Net Price i UM Total ----------- --- FNW68BB24 - *0214 24 SS 316 BUNA LUG BD KGV -- 1 -- 13636.360 EA 13636.361 SP-FNW360SSSEXT 360" SS STEM EXTENTION 1 4206.000 EA 4206.00 FP-2"SQUAREOPNUT - 2" SQUARE OP. NUT-0.000 EA 2 SUPPORTS REQUIRED--- 1 TOP & 1 HALF WAY DOWN DELIVERY 12 WORKING DAYS_ WIDEST PART OF VALVE 8" SP-24XSDR35FASSBR 24" FLG X 24SDR35 ADAPT W/SS RING 1 3316.5800 EA� 3316.58 W/24" PUP j Subtotal: $21158.94 Inbound Freight: $0.00 Tax: $2010.10 Order Total: $23169.04 Quoted prices are based upon receipt of the total quantity for immediate shipment (48 hours). SHIPMENTS BEYOND 48 1 EXHIBIT B INSURANCE REQUIREMENTS FOR SERVICE CONTRACTS Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The City shall be named as an insured under the Contractor’s Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 2. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 1. Commercial General Liability insurance shall be written with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products-completed operations aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: 1. The Contractor’s insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor’s insurance and shall not contribute with it. EXHIBIT B (Continued) 2. The Contractor’s insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Contractor’s Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer’s liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. F. Subcontractors Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Contractor. Agenda Item: Consent Calendar – 7H TO: City Council DATE: November 4, 2014 SUBJECT: 2015-2019 Consolidated Plan for Housing and Community Development - Approve SUMMARY: The City of Kent receives Community Development Block Grant (CDBG) funds from the U.S. Department of Housing and Urban Development (HUD) as an Entitlement City. To receive this funding, the City is required to submit a Five-Year Consolidated Plan for Housing & Community Development. Although the City submitted a five-year plan for 2013-2017, the City is required to resubmit its Consolidated Plan as part of the King County Home Consortia. Once the 2015-2019 Consolidated Plan is authorized, the 2013-2017 Consolidated Plan will be rendered invalid. Prior to the beginning of each year of the Consolidated Plan, the City must inform HUD and the community of the specific actions that the City will execute to implement the objectives and strategies of the Consolidated Plan; this is outlined in the 2015 Action Plan, which is included in the Consolidated Plan (AP-15 to AP-90). The Action Plan also includes the allocation of estimated resources that will be used to carry out the objectives and strategies, and a description of each program that will receive funds. The Human Services Commission recommends that a major portion of CDBG funds be used to support the City's Home Repair Program. This program serves many low- income, disabled and senior homeowners in Kent by providing needed repairs. The program also ensures that a portion of Kent's low/moderate-income housing stock is maintained and preserved. Citizen Participation: On September 30, 2014, the City of Kent published a public notice on its website and informed the community, organizations, and stakeholders that the Draft 2015-2019 Consolidated Plan was available for review and comment for a period of thirty (30) days. On October 16, 2014, the Human Services Commission held a public hearing for the purpose of taking comments on the 2015-2019 Consolidated Plan. Human Services Commission Recommendations: The Human Services Commission reviewed and approved the 2015-2019 Consolidated Plan and recommendations for CDBG funding for 2015. EXHIBITS: MOTION: Approve the Proposed 2015 – 2019 Community Development Block Grant Consolidated Plan for Housing and Community Development, authorize the Mayor to execute the appropriate certifications and agreements, and upon final federal appropriation, authorize the Mayor to finalize the Consolidated Plan, amend the budget, and authorize expenditures in accordance with the Consolidated Plan and its funding contingencies. 1) 2015-2019 Consolidated Plan for Housing and Community Development - Executive Summary 2) Application for Federal Assistance 3) CDBG Certifications 4) CDBG Budget and Contingency Plan RECOMMENDED BY: Parks and Human Services Committee YEA: Ranniger - Higgins - Fincher NAY: BUDGET IMPACT: The estimate of $914,731.00 may increase or decrease depending upon the final federal appropriations bill Congress passes. Therefore, the recommended funding includes a contingency plan to address any potential fund changes that may occur when Congress adopts the 2015 budget. The following budget accounts are impacted by the budget: B00115, B00215, B00415 and B200**. Consolidated Plan KENT 1 OMB Control No: 2506-0117 (exp. 07/31/2015) Executive Summary ES-05 Executive Summary - 91.200(c), 91.220(b) 1. Introduction The Consolidated Plan for Housing and Community Development is a report which informs the community, stakeholders and the Department of Housing and Urban Development (HUD) how the City of Kent (hereinafter referred to as “the City”) will invest its Community Development Block Grant from 2015-201p. The report also identifies the objectives and strategies that will guide the City’s investment. Objectives and strategies are fueled by the City’s overarching goal to build a healthy community. 2. Summary of the objectives and outcomes identified in the Plan The outcomes and objectives are as follows: Accessibility to decent housing Accessibility to a suitable living environment Accessibility to economic opportunities To accomplish these outcomes and objectives, the City invests in programs that meet community basics, increase self-reliance, strengthen children and families, and build a safer community.[1] 3. Evaluation of past performance In 2013, the City realized significant gains on its investments and improved the lives of many Kent residents.[1] Outcomes were as follows: Accessibility to decent housing 111 households received home repair assistance 53 persons received transitional housing and case management 5 individuals received shelter Accessibility to suitable living environment 147 persons received financial assistance and case management for housing 14 persons received medical services Consolidated Plan KENT 2 OMB Control No: 2506-0117 (exp. 07/31/2015) 628 persons received culturally responsive food Accessibility to economic opportunities 15 persons enrolled in micro-enterprise business training classes 13 new micro-enterprise businesses were created or developed [1]Data from 2013 was the most current data available when this document was drafted. 4. Summary of citizen participation process and consultation process The City of Kent, Division of Housing and Human Services, consulted with intercity departments, government agencies, public and private agencies, mental health organizations, the local housing authority, organizations serving persons with HIV/AIDS, agencies serving people with disabilities, refugee and immigrant organizations, organizations working with seniors, faith-based institutions, the business community, Department of Social and Health Services, and foundations. The City published a draft Consolidated Plan and Notice of Public Hearing on the City of Kent website. A public hearing was held on October 16, 2014. 5. Summary of public comments 6. Summary of comments or views not accepted and the reasons for not accepting them 7. Summary In summary, Kent residents, stakeholders, service providers and others consulted during the citizen participation process support the outcomes and objectives of the Consolidated Plan for Housing and Community Development. The remainder of this report will provide details on how the City proposes to prioritize its investment. Consolidated Plan KENT 3 OMB Control No: 2506-0117 (exp. 07/31/2015) The Process PR-05 Lead & Responsible Agencies - 91.200(b) 1. Describe agency/entity responsible for preparing the Consolidated Plan and those responsible for administration of each grant program and funding source The following are the agencies/entities responsible for preparing the Consolidated Plan and those responsible for administration of each grant program and funding source. Agency Role Name Department/Agency Lead Agency KENT CDBG Administrator HOPWA Administrator HOME Administrator HOPWA-C Administrator Table 1– Responsible Agencies Narrative The City of Kent, Housing and Human Services Division, is the lead agency for the CDBG Program. Katherin Johnson, Housing and Human Services Manager, is the program administrator. Dinah Wilson, CDBG Coordinator, is the primary staff responsible for the day to day implementation of the program. The City also worked closely with the King County Housing Authority (KCHA), which manages over 3,000 units of housing, including 546 public housing units in Kent. KCHA also provides Section 8 Housing Choice Vouchers to another 1,321 low/moderate income households in the City[1]. KCHA gives preference for housing to families with children, seniors or disabled persons. Detailed information about KCHA is provided in the Public Housing sections of this document. In addition, several non-profit agencies are responsible for administering programs funded by CDBG and were consulted during the development of the Consolidated Plan. These agencies are listed in the Annual Action Plan section of this document. [1]KCHA data base for addresses of Section 8 Vouchers located in one of the three primary zip codes in the City (98030, 98031, and 98032). Consolidated Plan Public Contact Information Katherin Johnson Housing and Human Services Manager Consolidated Plan KENT 4 OMB Control No: 2506-0117 (exp. 07/31/2015) City of Kent 220 4th Ave S Kent, WA 98032 253.856.5070 kjohnson@kentwa.gov Consolidated Plan KENT 5 OMB Control No: 2506-0117 (exp. 07/31/2015) PR-10 Consultation - 91.100, 91.200(b), 91.215(l) 1. Introduction The City of Kent consulted with multiple entities, including South King County cities (the cities of Auburn and Federal Way are the two other entitlement cities in South County), the King County Housing Authority, King County Department of Community and Human Services, nonprofit agencies delivering services in Kent and the sub-region and Washington State Department of Social and Health Services. The City of Kent carries out homeless planning and coordination as a regional issue. Kent works with the Committee to End Homelessness, King County, cities, mainstream systems, Safe Harbors, housing funders, community agencies, United Way, the private sector (including businesses), and homeless people. Provide a concise summary of the jurisdiction’s activities to enhance coordination between public and assisted housing providers and private and governmental health, mental health and service agencies (91.215(I)). Kent Housing and Human Services Division meets regularly with other King County jurisdictions, public housing authorities and State Departments to develop strategies and implement plans to improve the quality of service and access for low-income residents in the city and throughout the region. Additionally, the City participates in quarterly meetings with King County staff, including the Public Health Seattle/King County, to review implementation and delivery of services funded through regional efforts. The City will continue to participate in the Committee to End Homelessness, funding review panels for Continuum of Care (CoC), Emergency Shelter Grant and McKinney funding. In 2012, the Coordinated Entry program was launched providing a single point of entry for homeless families. Housing providers, funders and government agencies provide support to this program. Kent staff participates on the advisory board for the project. Unless there is a legitimate reason not to participate, housing providers contracting with the city must participate in Coordinated Entry and Safe Harbors, the Seattle/King County Homeless Information Management System (HMIS) program. Describe coordination with the Continuum of Care and efforts to address the needs of homeless persons (particularly chronically homeless individuals and families, famil ies with children, veterans, and unaccompanied youth) and persons at risk of homelessness McKinney Continuum of Care - Supportive Housing Program (SHP) SHP funds support transitional housing and related supportive services for people moving from homelessness to independent living, as well as permanent supportive housing for persons with disabilities. McKinney SHP funds are competitive federal dollars through the U.S. Department of Housing Consolidated Plan KENT 6 OMB Control No: 2506-0117 (exp. 07/31/2015) and Urban Development (HUD). A Consolidated Application for SHP funds is submitted to HUD each year by the Seattle - King County CoC, which includes Seattle, all suburban communities, and King County. McKinney funding is critical to our region’s implementation of the Ten-Year Plan to End Homelessness in King County. These funds help homeless persons meet three goals: Achieve residential stability Increase their skill levels and/or incomes Strengthen their ability to influence decisions that affect their lives Since 1995, the City of Seattle and King County have applied for these funds on behalf of a regional consortium of service providers, and administered distribution of the money to approximately 70 programs operating throughout the county. Each program has a focus on a specific audience -- families, single adults, single women and single men, victims of domestic violence, veterans or persons with severe mental illness. The Supportive Housing Program component of McKinney specifically helps people make the transition from homelessness to independent living. Other McKinney programs are the Emergency Shelter Grants Program for emergency shelter; Shelter Plus Care for permanent supportive housing, and Section 8 Moderate Rehabilitation for Single Room Occupancy Dwellings for Homeless Individuals, another permanent housing option. The Ten-Year Plan to End Homelessness in King County offers a blueprint for how the region will work collaboratively to confront the issues that cause homelessness and create the housing and supportive services needed to end homelessness for the thousands of men, women and children who are not permanently housed. The plan, introduced in March 2005, has been approved by the Metropolitan King County Council and endorsed by cities representing 85 percent of the county's population, including Kent, as well as by dozens of social organizations and faith communities countywide. The Committee to End Homelessness in King County, made up of representatives from business, faith, social services, government, homeless and formerly homeless people and advocacy groups, is working to implement the Ten-Year Plan to End Homelessness in King County. The Plan calls for prevention of homelessness where possible, creation of new permanent housing, and providing supportive services to those who need them to maintain housing. Describe consultation with the Continuum(s) of Care that serves the jurisdiction's area in determining how to allocate ESG funds, develop performance standards and evaluate outcomes, and develop funding, policies and procedures for the administration of HMIS To receive McKinney funding, HUD requires applicants to work through a local Continuum of Care. For Seattle and King County, the Continuum of Care encompasses programs and activities within the borders of King County, including Seattle.In June 2014, The Committee to End Homelessness (CEH) in King County was approved by the local CoC to represent its interests pursuant to CoC interim rule Consolidated Plan KENT 7 OMB Control No: 2506-0117 (exp. 07/31/2015) 578.5(b). CEH Governance sets funding priorities and needs for our region, and includes representatives from healthcare, criminal justice, business, local government, faith-based organizations, elected officials, philanthropy, education, organizations and projects serving homeless subpopulations (including homeless individuals), etc. Kent staff participates in regional planning activities, and staff formerly served on the CoC Governance Board. 2. Describe Agencies, groups, organizations and others who participated in the process and describe the jurisdictions consultations with housing, social service agencies and other entities Consolidated Plan KENT 8 OMB Control No: 2506-0117 (exp. 07/31/2015) Table 2– Agencies, groups, organizations who participated 1 Agency/Group/Organization Jewish Family Services of Seattle Agency/Group/Organization Type Services-Employment What section of the Plan was addressed by Consultation? Homeless Needs - Families with children Economic Development How was the Agency/Group/Organization consulted and what are the anticipated outcomes of the consultation or areas for improved coordination? Agency was provided with a draft of the Consolidated Plan, surveyed and conducted key informant interview. Outcomes include improved access to homeless housing and services. 2 Agency/Group/Organization Kent Youth and Family Services Agency/Group/Organization Type Housing Services-Children What section of the Plan was addressed by Consultation? Homeless Needs - Families with children How was the Agency/Group/Organization consulted and what are the anticipated outcomes of the consultation or areas for improved coordination? Agency was provided with a draft of the Consolidated Plan, surveyed and conducted key informant interview. Outcomes include improved access to youth housing and services. 3 Agency/Group/Organization CATHOLIC COMMUNITY SERVICES OF WESTERN WASHINGTON Agency/Group/Organization Type Housing Services - Housing Services-Elderly Persons Services-Persons with Disabilities Services-homeless What section of the Plan was addressed by Consultation? Homeless Needs - Chronically homeless Homelessness Needs - Veterans Homelessness Needs - Unaccompanied youth Non-Homeless Special Needs How was the Agency/Group/Organization consulted and what are the anticipated outcomes of the consultation or areas for improved coordination? Agency was provided with a draft of the Consolidated Plan, surveyed and conducted key informant interview. Outcomes include improved access to homeless housing and services. Consolidated Plan KENT 9 OMB Control No: 2506-0117 (exp. 07/31/2015) Identify any Agency Types not consulted and provide rationale for not consulting Other local/regional/state/federal planning efforts considered when preparing the Plan Name of Plan Lead Organization How do the goals of your Strategic Plan overlap with the goals of each plan? Continuum of Care King County The goals of Kent's Strategic Plan align with the goals of the Continuum of Care to meet the needs of homeless in the community and reduce the risk of homelessness. Table 3– Other local / regional / federal planning efforts Describe cooperation and coordination with other public entities, including the State and any adjacent units of general local government, in the implementation of the Consolidated Plan (91.215(l)) The City of Kent works with the State of Washington and King County in the implementation of the Consolidated Plan through participation on committees, review panels, boards and planning groups. The City coordinates funding opportunities where possible with other jurisdictions. The city works with state and county funders to assist non-profit organizations develop funding packages with multiple funding streams to provide housing for homeless and those at-risk of becoming homeless. Narrative Consolidated Plan KENT 10 OMB Control No: 2506-0117 (exp. 07/31/2015) PR-15 Citizen Participation - 91.401, 91.105, 91.200(c) 1. Summary of citizen participation process/Efforts made to broaden citizen participation Summarize citizen participation process and how it impacted goal -setting Citizen participation is critical to the successful execution of the City's Consolidated Plan. The goals of citizen participation are: To hear the community's recommendations on how the City should invest it CDBG dollars; To consult with individuals who may not initiate contact with the City because of language/cultural differences or who do not come from experiences where government sought their opinions; and To convene public hearings and meetings to increase opportunities for housing providers, service agencies, and healthcare organizations to come together and discuss how they can coordinate services and pool funding to achieve the greatest impact. To this end, the City targeted and surveyed the following groups for citizen participation: Neighborhood Councils Residents who walk-in to the Housing and Human Services Office seeking services-a large percentage of these residents are homeless or at-risk of homelessness Faith-based institutions People of Color Ethnic-based organizations Residents and stakeholders who visit the City's website-the Citizen Participation Survey was posted on the website and a Draft Consolidated Plan and Notice of Public Hearing were posted on the website Businesses Organizations that receive CDBG funds HIV/AIDS organization Organizations serving people with disabilities The City continuously seeks input by meeting with individuals and organizations on an ongoing basis. Organizations that receive funding are monitored throughout the year and discuss trends and emerging needs with City staff. City staff meets regularly with human service providers and other funders to discuss services for homeless individuals and families to ensure that goals and objectives are met and gaps in services are identified. The City submitted a draft of the Consolidated Plan to Kent Cultural Diversity Initiative Group. This group includes several small, ethnic-based organizations and faith-based institutions that were not previously connected to the City prior to the formation of KCDIG in 2009. Representatives from the groups listed-above were invited to a Public Meeting. Consolidated Plan KENT 11 OMB Control No: 2506-0117 (exp. 07/31/2015) Citizen Participation Outreach Sort Order Mode of Outreach Target of Outreach Summary of response/attendance Summary of comments received Summary of comments not accepted and reasons URL (If applicable) 1 Public Meeting Minorities Persons with disabilities Non- targeted/broad community Residents of Public and Assisted Housing Nonprofit agencies Table 4– Citizen Participation Outreach Consolidated Plan KENT 12 OMB Control No: 2506-0117 (exp. 07/31/2015) Needs Assessment NA-05 Overview Needs Assessment Overview Many sources were used to estimate the housing needs projected for the next five years. The main data source that the City used to estimate 2015-2019 housing needs was the HUD Comprehensive Housing Affordability Strategy (CHAS) data taken from the 2000 Census (CHAS data from the 2010 census was not available for all data sets). CHAS data is gathered “to demonstrate the number of households in need of housing assistance.”[1] In addition, the City considered comments received during the citizen public hearing, meetings, focus groups, electronic correspondence, and interviews with stakeholders and agencies working with low/moderate-income Kent individuals and families. Analysis Process Used to Determine Priority Needs The City of Kent uses demographic data, community response, and stakeholder input to develop housing and human services priorities. City priorities, HUD national objectives, and eligible activities are the criteria used by the Kent Human Services Commission to select projects for CDBG funding. [1]Department of Housing and Urban Development. Data Sets, CHAS Background. Washington, DC: U.S. Department of Housing and Urban Development.http://www.huduser.org/portal/pdrdatas_landing.html (accessed August 8, 2012). Consolidated Plan KENT 13 OMB Control No: 2506-0117 (exp. 07/31/2015) NA-50 Non-Housing Community Development Needs - 91.415, 91.215 (f) Describe the jurisdiction’s need for Public Facilities: The City of Kent has several key public facilities, owned by nonprofit organizations that are located within the city. These include, but are not necessarily limited to, the following: Alliance Center Catholic Community Services Domestic Abuse Women’s Network (DAWN) Dynamic Partners HealthPoint Kent Youth and Family Services-Administrative Facility and Watson Manor Transitional Housing King County Housing Authority Buildings Mercy Housing Pediatric Interim Care Center YWCA-Anita Vista Transitional Housing The City may use CDBG capital funds for public facility improvements and infrastructure updates. This will be determined on a case-by-case basis. The City needs additional space in neighborhoods to provide recreational and afterschool activities to improve accessibility to low income families and individuals. The City is currently working to improve connectivity in neighborhoods so residents can bike or walk to schools and parks. The City of Kent and South King County need a facility to co-house human services organizations that serve ethnic/racial populations or new residents. New residents are broadly defined as anyone born outside of the United States who moved to the United States as a refugee or immigrant and speaks English as a Second Language, is learning to speak ESL, or is non-English Proficient. How were these needs determined? The City of Kent's Parks and Open Space Plan adopted in 2010 used public input, demographic data and usage data to set the goals and policies. The need for an ethnic based facility was determined through the Preserving and Strengthening Ethnic- Based Community Organizations Capacity Assessment interviews, discussions between human services staff and community leaders, meetings between the Mayor’s Office and community leaders, and feedback from Kent Cultural Diversity Initiative Group participants. The City is interested in participating in determining a response to this need. Consolidated Plan KENT 14 OMB Control No: 2506-0117 (exp. 07/31/2015) Describe the jurisdiction’s need for Public Improvements: The City does not anticipate using CDBG funds for public improvements; public improvement needs are supported by other City funds. How were these needs determined? Public improvement needs within the City are determined by city staff, community and life cycle. Describe the jurisdiction’s need for Public Services: The City of Kent has been impacted by the poor economy of the last several years. Agencies providing public services in the city have had funding cuts at all levels including federal, state and county. Additionally the sharp increase in the number of residents living in poverty or with low and moderate incomes has increased the demand for services particularly those addressing basic needs. The City anticipates using the full 15% of its CDBG allocation to support public services programs over the five- year Consolidated Plan period. How were these needs determined? The public services needs were determined using demographic information, needs assessments, unemployment rates, welfare caseloads and public input. The determination to use up to the full federally allowed amount of CDBG funds for public services projects was determined in consultation with nonprofit organization, stakeholders and community leaders. The City also arrived at this decision by considering comments received through a Citizen Participation Survey, at the public hearing, and other written comments. Based on the needs analysis above, describe the State's needs in Colonias Consolidated Plan KENT 15 OMB Control No: 2506-0117 (exp. 07/31/2015) Housing Market Analysis MA-05 Overview Housing Market Analysis Overview: Economy Beginning in August 2008, the King County unemployment rate was a modest 4.7% but the rate increased for seven consecutive months as the recession took hold. In spring 2009, it began to level off in the 8% range before drifting up and finally peaking at 9.6% in January 2010. Unemployment remained above 9% until December 2010.10 to 7.1% in 2011. Unemployment decreased from 8.6% in 2010 to 7.1% in 2011. According to Forecasechart.com, the unemployment rate is projected to be 8% in August 2013. Rental Market The average rent for a two-bedroom apartment in the Seattle-Bellevue area was $1,176 in 2011 and $1,098 in 2012. The apartment vacancy rate in King County was 4.1% in March 2012, down from 6.1% in 2010. If unemployment increases and incomes do not keep up with the cost of living, the demand on the rental market will continue to rise as people will not be able to affordable to purchase houses. Home Values A major impact of the recent recession has been the impact of falling home values on owners. Median prices for homes in Kent have fallen from a high of $208,328 in early 2008 to as low as $195,000 in February 2012 before making a modest rise to $196,600 by April. However, between May 2011 and April 2012, home values decreased by 8.3%. The implication of these huge drops is that homes purchased with high leverage just a few years ago, now have values less than the mortgage debt and are ripe for foreclosure. In February 2012, 33% of King County homeowners owed mortgages greater than the value of their home. In Kent, the “negative equity” reached over 50% of homeowners, according to the Zillow Real Estate Analysis: Negative Equity Report-Second Quarter 2012. The Housing Market Analysis will cover the following points: Significant characteristics of the City’s housing market in general, including the supply, demand, and condition and cost of housing; Consolidated Plan KENT 16 OMB Control No: 2506-0117 (exp. 07/31/2015) Housing stock available to serve persons with disabilities and other special needs; Condition and needs of public and assisted housing; Brief inventory of facilities, housing, and services that meet the needs of homeless persons; Regulatory barriers to affordable housing; and Significant characteristics of the City’s economy. MA-45 Non-Housing Community Development Assets - 91.410, 91.210(f) Introduction Kent has a favorable location in terms of the central Puget Sound economic region as it lies between the major ports of Seattle and Tacoma connected by freeways and an improving public transportation links provided by metropolitan buses and the Sounder Commuter Train. In addition, its location is generally central within the largest metropolitan area in the Pacific Northwest on trade routes to Canada and Asia. The 1990's saw the County make extraordinary growth in employment, population and wages. At the same time, the area was continually reducing its once significant dependency on the aerospace industry as a major engine for the economy. A high-tech job boom occurred as information technology and research added to the diversity of jobs in the economy. The major sectors in the County, with more than 100,000 estimated jobs at the beginning of 2012 included professional, scientific and technical services, retail trade, health care, leisure and hospitality, and government. It is anticipated that jobs in the government sector will continue to decrease until/unless tax revenues increase substantially.[1] Overall employment has tended to fluctuate over the past 10 years as it has in most of the country as a result of the impact of the economic recession. In 2000 total employment stood at 60,700 increasing steadily to 2007 when it peaked at 64,500 before dropping to 60,300 in 2010. The industrial area of Kent has geographically been the dominate employment area with 36,440 jobs in 2010, followed in the distance by Downtown Kent at 4,380 jobs.[2] Over the past century, Kent has transformed from a predominately agricultural community to a diverse economy with no dominate sector of employment and very limited agriculture. The sector of management, business and financial is the largest employer, but still only accounts for 28% of the jobs in the City Wholesale/transportation/utilities is the second largest employer (26%) Manufacturing jobs account for 22% of the employment Consolidated Plan KENT 17 OMB Control No: 2506-0117 (exp. 07/31/2015) Government/education and retail account for 9% each in employment Agriculture jobs make up less than 1% of the employment sector The employment base has been anything but constant in recent years: in 1995 manufacturing dominated at 36% before dropping to 22% of the total jobs in Kent by 2010. The Puget Sound Regional Council anticipates a continued decline in the number of manufacturing jobs and a decline in the proportion of these jobs to total jobs in the region. By 2030, manufacturing jobs should account for just 23% of the jobs in the Green River Valley. Downtown Kent experienced significant revitalization and notable job growth since 2000 and now represents a major component of the area’s economy and social life. Improvements to the historical district, construction of the King County Regional Justice Center, the development of ShoWare Center, and the Kent Station shopping center have created focal points for the Valley. Kent Station is an 18 acre mixed-used urban village located in the Kent downtown core. It includes a 14-screen theater, branch campus of Green River Community college, national and local retail shops, and restaurants. Apartment construction is planned along with other retail development. By 2010, the downtown area accounted for 5.5% of the City’s $696 taxable sales. Because of its geographical location and available land, Kent has room for additional economic growth. It is estimated that several areas of the City have parcels of land which are available for greater infill development. The Downtown area includes 150 identified parcels where greater development is possible while both the East Hill and the West Hill have 130 parcels each fitting that category. Economic Development Market Analysis Business Activity Business by Sector Number of Workers Number of Jobs Share of Workers % Share of Jobs % Jobs less workers % Agriculture, Mining, Oil & Gas Extraction 289 108 1 0 -1 Arts, Entertainment, Accommodations 4,910 3,367 12 7 -5 Construction 2,147 3,464 5 7 2 Education and Health Care Services 5,919 4,062 14 8 -6 Finance, Insurance, and Real Estate 2,062 1,810 5 4 -1 Information 1,299 748 3 2 -1 Consolidated Plan KENT 18 OMB Control No: 2506-0117 (exp. 07/31/2015) Business by Sector Number of Workers Number of Jobs Share of Workers % Share of Jobs % Jobs less workers % Manufacturing 7,007 9,794 17 20 3 Other Services 2,994 2,495 7 5 -2 Professional, Scientific, Management Services 3,320 3,049 8 6 -2 Public Administration 0 0 0 0 0 Retail Trade 5,683 5,646 14 11 -3 Transportation and Warehousing 2,688 5,473 6 11 5 Wholesale Trade 3,118 9,575 8 19 11 Total 41,436 49,591 -- -- -- Table 5 - Business Activity Data Source: 2007-2011 ACS (Workers), 2011 Longitudinal Employer-Household Dynamics (Jobs) Labor Force Total Population in the Civilian Labor Force 54,312 Civilian Employed Population 16 years and over 49,692 Unemployment Rate 8.51 Unemployment Rate for Ages 16-24 24.33 Unemployment Rate for Ages 25-65 5.52 Table 6 - Labor Force Data Source: 2007-2011 ACS Occupations by Sector Number of People Management, business and financial 10,258 Farming, fisheries and forestry occupations 2,697 Service 4,962 Consolidated Plan KENT 19 OMB Control No: 2506-0117 (exp. 07/31/2015) Occupations by Sector Number of People Sales and office 13,542 Construction, extraction, maintenance and repair 4,393 Production, transportation and material moving 3,912 Table 7 – Occupations by Sector Data Source: 2007-2011 ACS Travel Time Travel Time Number Percentage < 30 Minutes 25,758 55% 30-59 Minutes 15,894 34% 60 or More Minutes 5,188 11% Total 46,840 100% Table 8 - Travel Time Data Source: 2007-2011 ACS Education: Educational Attainment by Employment Status (Population 16 and Older) Educational Attainment In Labor Force Civilian Employed Unemployed Not in Labor Force Less than high school graduate 4,810 758 2,681 High school graduate (includes equivalency) 9,883 884 2,718 Some college or Associate's degree 14,547 868 3,047 Bachelor's degree or higher 11,670 484 1,683 Table 9 - Educational Attainment by Employment Status Data Source: 2007-2011 ACS Consolidated Plan KENT 20 OMB Control No: 2506-0117 (exp. 07/31/2015) Educational Attainment by Age Age 18–24 yrs 25–34 yrs 35–44 yrs 45–65 yrs 65+ yrs Less than 9th grade 157 1,146 1,260 1,320 1,019 9th to 12th grade, no diploma 1,965 1,429 1,504 1,590 679 High school graduate, GED, or alternative 3,693 4,076 3,950 5,503 2,472 Some college, no degree 3,667 3,654 3,041 6,421 2,071 Associate's degree 1,125 1,180 1,455 2,817 433 Bachelor's degree 609 2,697 2,795 4,906 1,376 Graduate or professional degree 0 587 1,073 1,849 630 Table 10 - Educational Attainment by Age Data Source: 2007-2011 ACS Educational Attainment – Median Earnings in the Past 12 Months Educational Attainment Median Earnings in the Past 12 Months Less than high school graduate 22,471 High school graduate (includes equivalency) 32,178 Some college or Associate's degree 36,798 Bachelor's degree 54,048 Graduate or professional degree 61,764 Table 11 – Median Earnings in the Past 12 Months Data Source: 2007-2011 ACS Based on the Business Activity table above, what are the major employment sectors within your jurisdiction? The major employment sectors are: Consolidated Plan KENT 21 OMB Control No: 2506-0117 (exp. 07/31/2015) Manufacturing 20% Wholesale Trade-19% Retail trade 11% Transportation/warehousing-11% Education and Healthcare Services-8% Arts/entertainment/accommodations-7% Describe the workforce and infrastructure needs of the business community: The presence of marquee businesses, like Boeing, REI and others offer an opportunity to elevate Kent’s image. Testimonials from companies with strong brands can promote Kent as a location for business success. Stakeholders cite positive relationships with the City overall and a call to consider the effect of all regulatory decisions on local businesses. The following concerns were raised but do not represent consensus: Traffic impact fees and other regulatory and development requirements present hardships for some businesses, while others praise City leadership, staff and processes overall Utility rates are reportedly higher than in other places Decisions aren’t always made with input from business community; city may not realize unintended consequences of policies Stakeholders compared Kent to Seattle and explained Kent’s business-friendly atmosphere as a comparative advantage; additional improvements to communication strategies and transparency in fees and regulations are important to local business planning Reduction of traffic congestion in the downtown core during prime-time commuter hours Scarcity of highly educated people in the workforce More highly educated workforce Describe any major changes that may have an economic impact, such as planned local or regional public or private sector investments or initiatives that have affected or may affect job and business growth opportunities d uring the planning period. Describe any needs for workforce development, business support or infrastructure these changes may create. Public/private investment: Consolidated Plan KENT 22 OMB Control No: 2506-0117 (exp. 07/31/2015) Kent is being considered as part of the FAA regional HQ competition. The project would result in 1600 jobs, and infrastructure improvements if awarded Amazon is opening a new warehouse facility that will add 400 jobs. The Midway Area Comprehensive Plan and Zoning District map amendments and development regulations changed to accommodate transit-oriented development in Kent area called Midway where there will be a Sound Transit Light Rail Station. The draft EIS will be issued Dec 2014 or Jan 2015. The Sound Transit Board will select the preferred alternative by early 2015 Kent’s focus on urban core housing has resulted in the Platform, a large apartment complex in downtown and a proposal for another complex in Kent Station. Grandview development in Midway area will result in 261 housing units targeted for 60% AMI. Continued Green River Levee improvements to achieve Corps certification will support continued development in valley. Initiatives: Increased SEPA thresholds below which no SEPA review is required will streamline the permitting process. Planned Action and Infill Exemption Ordinances within Downtown area with an upfront SEPA review done so applicable projects can proceed directly to building permit How do the skills and education of the current workforce correspond to employment opportunities in the jurisdiction? Table 49 shows the highest level of education achieved by residents age 18 and older as captured by the 2006-2009 American Community Survey. A significant number of Kent residents between the ages of 18 to 65 lacked a high school diploma or equivalent (16%). At the higher end of education scale, substantially fewer Kent residents between the ages of 25 to 65 had a BA degree or higher (25%) than was true in King County between 2006-2010 (45%) or Washington State (31%). Education level is an important predictor of both employability and earnings. The higher the education level, the lower the rate of unemployment and the higher the earnings. For example, in 2011 the unemployment rate was less than 5% for those with graduate or professional degrees while 14% of persons without high school diplomas were unemployed (Table 49). Describe any current workforce training initiatives, including those supported by Workforce Investment Boards, community colleges and other organizations. Describe how these efforts will support the jurisdiction's Co nsolidated Plan. Consolidated Plan KENT 23 OMB Control No: 2506-0117 (exp. 07/31/2015) Green River Community College is a Collegiate Training Initiative Institutional Participant with the Federal Aviation Administration (FAA) to train future air traffic control (ATC) specialists. A number of those receiving an Associate Degree in ATC are hired by the FAA. One of the goals of the FAA is to achieve cultural diversity in its workforce. Green River’s Aviation Technology and Air Transportation degree programs also prepares students for careers in aircraft dispatch, professional pilot, helicopter pilot, and air transportation. Renton Technical College, which is located in a neighboring jurisdiction and is open to Kent residents, partners with the Washington Aerospace Training Resource Center to provide skilled aerospace assembly mechanics for local aerospace companies; 76% of students in workforce training programs at RTC are employed after graduation These initiatives support the City’s Consolidated Plan by offering economic opportunities to residents. Does your jurisdiction participate in a Comprehensive Economic Development Strategy (CEDS)? Yes If so, what economic development initiatives are you undertaking that may be coordinated with the Consolidated Plan? If not, describe other local/regional plans or initiatives that impact economic growth. The Workforce Development Council of Seattle-King County Local Strategic Plan for 2009-2011 includes Action Steps for the Automotive Work Force. The Employment Security Department projected an up to 19% gain in automotive-related occupations; certified technicians, in particular, are predicted to be in demand over several decades. A potential initiative is to explore how to provide information to youth on these occupations, the education and training required, etc. Youth could be assisted with enrolling in community college-related programs and business classes in preparation for owning automobile repair businesses someday. In addition, the City will encourage the Workforce Development Council to add sites and affiliates in the Kent area. This would increase access to jobs and training for Kent residents. A second initiative for economic development is to increase economic self-sufficiency by supporting micro-enterprise businesses. For several years, the City has invested in programs that provide business training and counseling to create and expand micro-enterprise businesses. The City will continue its investment in this initiative. Consolidated Plan KENT 24 OMB Control No: 2506-0117 (exp. 07/31/2015) Discussion In 2013, the Kent Cultural Diversity Initiative Group, which is staffed by the City, convened a Refugee Employment Summit. The purpose of the Summit was to unite refugee leaders, employers, and job developers to increase job opportunities for refugees and to develop closer ties between the groups. As a result of employment conversations held in nine ethnic communities, KC-DIG held a Refugee Small Business Development Workshop. The City will continue to work with Washington CASH and other business development organizations to increase employment opportunities for refugees. Consolidated Plan KENT 25 OMB Control No: 2506-0117 (exp. 07/31/2015) MA-50 Needs and Market Analysis Discussion Are there areas where households with multiple housing problems are concentrated? (include a definition of "concentration") Housing conditions vary throughout Kent, both in quality and age as noted by the following discussion of housing in Kent neighborhoods: Valley Neighborhoods Housing in the valley neighborhoods is considerably older than in the plateau neighborhoods - with the exception of homes recently built in the northern sector of the North of James neighborhood and a few infill units in the South of Willis neighborhood. The generally good quality of construction and size of these new homes reflects a strong confidence on the part of investors and owners and bodes well for the continued viability of the surrounding area. In addition, both neighborhoods show signs of owner investment in the older housing stock, demonstrated by improved condition and recent rehabilitation of some homes. While there are some exceptions, most blocks contained a mix of both well-maintained and poorly- maintained units. As a general rule, houses located near the railroad tracks are in worse condition than houses further from the tracks. Neighborhoods would benefit from continued support of the housing rehabilitation program to improve some of the more dilapidated homes. West Plateau Neighborhoods Homes in the West Plateau area have experienced deterioration due to a number of factors. There has been an increase in the number of rental units owned by out-of-state landlords, an increase in the number of low-income families living in the area, and deferred maintenance on many units. Poor economic conditions may signal continued deterioration, particularly in Del Mar West where over one- half of the housing shows a need for improvement. Programs to arrest and reverse this decline might be considered in the future. East Hill Neighborhoods East Hill Neighborhoods contain a greater number of well-maintained housing, with the exception of some neighborhoods with deteriorating units. The overall condition of housing in the East Hill neighborhoods is much better than in the valley. The Panther Lake area has a greater mix of single family owned neighborhoods vs. rental homes. There is a good mix of older, fairly well- maintained to well-maintained housing in newer neighborhoods. While there are exceptions, overall, housing in the Panther Lake area is in fair to good condition. It must be noted that this recent annexation area is not yet recognized in HUD's system and is therefore not represented in any of the tables in this document. Consolidated Plan KENT 26 OMB Control No: 2506-0117 (exp. 07/31/2015) The Panther Lake area also has approximately eight Manufactured/Mobile home parks. The Kenton Firs area has more poorly maintained neighborhoods of manufactured housing with considerable homeownership. Residents of the Pantera Lago neighborhood pay lot space rent. Because of age and condition, both developments benefit from the home repair program. Are there any areas in the jurisdiction where racial or ethnic minorities or low -income families are concentrated? (include a definition of "concentration") As stated previously, housing conditions vary throughout the neighborhoods highlighted-above. Low- income households are located throughout the city. There is a high concentration on the valley floor and East Hill. Racial and ethnic minorities are most highly concentrated on the East Hill. What are the characteristics of the market in these areas/neighborhoods? The valley floor has the most affordable housing in the City both for home ownership and to rent. East Hill rents vary as do home ownership opportunities. The majority of the subsidized housing is on East Hill. The highest concentration of senior housing is in the Valley. The greatest majority of the senior housing is subsidized. Neither area has a large selection of housing appropriate for large or extended families which are needed by the racial and ethnic communities. Are there any community assets in these areas/neighborhoods? Community assets include the people, micro-enterprise and small businesses, produce markets, faith- based institutions, schools, community spaces, King County Housing Authority and its residents, ethnic restaurants, grocery stores, an event center, etc. Are there other strategic opportunities in any of these areas? The City is working on the Kent East Hill Revitalization Project and will weigh investing in other communities. Lessons learned from KEHR will serve as a marker. Consolidated Plan KENT 27 OMB Control No: 2506-0117 (exp. 07/31/2015) Strategic Plan SP-05 Overview Strategic Plan Overview The Strategic Plan includes several key points: Geographic Priorities: Based on its analysis of needs, the City decided not to set priorities on a geographic basis; rather, residents in all areas of the City have priority needs. Priority Needs: This section will explain the rationale for establishing priorities based on data, citizen participation, resident/stakeholder survey results, interviews, etc. Influence of Market Conditions: The Strategic Plan will include a housing strategy, which will indicate how the characteristics of the housing market influenced the City’s decisions on how to allocate funds; e.g., rental assistance, rehabilitation of old units and/or the acquisition of existing units. Anticipated Resources: Anticipated resources serve a primary role in determining strategies and goals. Institutional Delivery Structure: This section identifies potential sub-recipients and partners that will undertake the objectives outlined in the Strategic Plan. Goals: The U.S. Department of Housing and Urban Development (HUD) selected twenty-two (22) Goal Outcome Indicators that jurisdictions must use to specify proposed numeric accomplishments that the City aspires to achieve during the five-year Strategic Plan; goals must connect with priority needs. Public Housing: Explains how the City’s Strategic Plan meets the needs of public housing residents and King County Public Housing developments. Barriers to Affordable Housing: This section identifies the City’s strategies for removing or mitigating public policies that are barriers to affordable housing. Homelessness Strategy: This section describes the City’s strategy for reducing and ending homelessness through outreach, shelter activities, rapid re-housing, and homeless prevention. It includes both housing and supportive services. Lead-based Paint Hazards: This section covers the proposed actions the City will take to evaluate and reduce lead- based paint hazards. Anti-Poverty Strategy: This section will summarize the City’s goals, programs, and policies for reducing family poverty. Monitoring: In this area, the City will describe the standards and procedures used to monitor sub-recipients. Consolidated Plan KENT 28 OMB Control No: 2506-0117 (exp. 07/31/2015) SP-10 Geographic Priorities - 91.415, 91.215(a)(1) Geographic Area Table 12 - Geographic Priority Areas General Allocation Priorities Describe the basis for allocating investments geographically within the state Consolidated Plan KENT 29 OMB Control No: 2506-0117 (exp. 07/31/2015) SP-25 Priority Needs - 91.415, 91.215(a)(2) Priority Needs Table 13 – Priority Needs Summary 1 Priority Need Name Basic Needs Services Priority Level High Population Extremely Low Low Large Families Families with Children Elderly Public Housing Residents Chronic Homelessness Individuals Families with Children Mentally Ill Chronic Substance Abuse veterans Elderly Frail Elderly Persons with Mental Disabilities Persons with Alcohol or Other Addictions Victims of Domestic Violence Geographic Areas Affected Associated Goals Basic Needs Description Basic human needs such as food, shelter, health care, etc. Basis for Relative Priority 2 Priority Need Name Affordable Housing Priority Level High Consolidated Plan KENT 30 OMB Control No: 2506-0117 (exp. 07/31/2015) Population Extremely Low Low Moderate Middle Large Families Families with Children Elderly Geographic Areas Affected Associated Goals Affordable Housing to homeless and those at risk Description Standard housing costing less than 30% of household income Basis for Relative Priority 3 Priority Need Name Economic Opportunities Priority Level High Population Extremely Low Low Moderate Middle Large Families Families with Children Public Housing Residents Chronic Homelessness Individuals Families with Children veterans Geographic Areas Affected Associated Goals Increase Self Sufficiency Description Job training, micro enterprise development, small business development, Basis for Relative Priority 4 Priority Need Name Services for at risk seniors Priority Level High Consolidated Plan KENT 31 OMB Control No: 2506-0117 (exp. 07/31/2015) Population Extremely Low Low Elderly Frail Elderly Geographic Areas Affected Associated Goals Decrease isolation of at-risk seniors Description Medical, in home care and transportation services Basis for Relative Priority 5 Priority Need Name Planning and Administration Priority Level High Population Extremely Low Low Moderate Large Families Families with Children Elderly Public Housing Residents Chronic Homelessness Individuals Families with Children Mentally Ill Chronic Substance Abuse veterans Persons with HIV/AIDS Victims of Domestic Violence Unaccompanied Youth Elderly Frail Elderly Persons with Mental Disabilities Persons with Physical Disabilities Persons with Developmental Disabilities Persons with Alcohol or Other Addictions Persons with HIV/AIDS and their Families Victims of Domestic Violence Non-housing Community Development Consolidated Plan KENT 32 OMB Control No: 2506-0117 (exp. 07/31/2015) Geographic Areas Affected Associated Goals Planning and Administration Description Plan and implement strategies to improve quality of life in the community for low and moderate income residents. Basis for Relative Priority Narrative (Optional) Consolidated Plan KENT 33 OMB Control No: 2506-0117 (exp. 07/31/2015) SP-35 Anticipated Resources - 91.420(b), 91.215(a)(4), 91.220(c)(1,2) Introduction The City of Kent anticipates having the following funding sources available over the next five years: CDBG City of Kent General Fund Allocation for Human Services Anticipated Resources Program Source of Funds Uses of Funds Expected Amount Available Year 1 Expected Amount Available Reminder of ConPlan $ Narrative Description Annual Allocation: $ Program Income: $ Prior Year Resources: $ Total: $ CDBG public - federal Acquisition Admin and Planning Economic Development Housing Public Improvements Public Services 914,731 0 914,731 1,829,462 3,660,000 CDBG funds leverage additional federal and state funds. Agencies are able to combine funding sources in order to provide a wider range of services to the community. General Fund public - federal Public Services 872,866 0 0 872,866 3,600,000 City of Kent General Funds dedicated by ordinance for human services Table 14 - Anticipated Resources Consolidated Plan KENT 34 OMB Control No: 2506-0117 (exp. 07/31/2015) Explain how federal funds will leverage those additional resources (private, state and local funds), including a description of how matching requirements will be satisfied CDBG funds do not require a match. CDBG funding for public services and public facility projects is on a portion of the total funding required. Other funding is secured for the project. If appropriate, describe publically owned land or property located within the state that may be used to address the needs identified in the plan N/A Discussion Consolidated Plan KENT 35 OMB Control No: 2506-0117 (exp. 07/31/2015) SP-40 Institutional Delivery Structure - 91.415, 91.215(k) Explain the institutional structure through which the jurisdiction will carry out its consolidated plan including private industry, non-profit organizations, and public institutions. Responsible Entity Responsible Entity Type Role Geographic Area Served City of Kent Government Economic Development Homelessness Non-homeless special needs Planning public facilities public services Jurisdiction Table 15 - Institutional Delivery Structure Assess of Strengths and Gaps in the Institutional Delivery System Generally, the institutional delivery system is strong; however, a few gaps exist. Gaps include: · Consistent loss and decrease of funds to human services agencies · Loss or temporary closing of human services agencies due to decrease in or lack of funding-EBCOs and small organizations are especially at-risk Strengths in the system include: · Tremendous collaboration between nonprofits, businesses, faith-based institutions, government, foundations, residents, the Public Housing Authority, etc. · Support of human services from City leadership · Strong homeless service provider system · Strong domestic/sexual assault prevention services system · Educational institution located in Kent and surrounding communities · Visionary leaders who are recognizing and support the needs of the residents of Kent and King County Availability of services targeted to homeless persons and persons with HIV and mainstream services Consolidated Plan KENT 36 OMB Control No: 2506-0117 (exp. 07/31/2015) Homelessness Prevention Services Available in the Community Targeted to Homeless Targeted to People with HIV Homelessness Prevention Services Counseling/Advocacy X X Legal Assistance X Mortgage Assistance X Rental Assistance X X Utilities Assistance X Street Outreach Services Law Enforcement X Mobile Clinics X X Other Street Outreach Services X X Supportive Services Alcohol & Drug Abuse X X Child Care X Education X Employment and Employment Training X X Healthcare X X HIV/AIDS X Life Skills X X Mental Health Counseling X X Transportation X Other Table 16 - Homeless Prevention Services Summary Describe how the service delivery system including, but not limited to, the services listed above meet the needs of homeless persons (particularly chronically homeless individuals and families, families with children, veterans and their families, and unaccompanied youth) The King County Committee to End Homelessness has developed a plan to coordinate the delivery of services throughout King County. While the system provides many services the length of the recession has impacted the ability of the system to meet the ever growing need particularly of families and youth. The budget crisis being faced by the State, County and City has resulted in cuts to mental health, primary medical, substance abuse and housing services at a time when the homeless population is growing. There is a critical need for employment, housing support services, mental health treatment and housing assistance in order to move people from homelessness to being housed. For those able to access the system there are opportunities to move out of homelessness. Consolidated Plan KENT 37 OMB Control No: 2506-0117 (exp. 07/31/2015) Describe the strengths and gaps of the service delivery system for special needs population and persons experiencing homelessness, including, but not limited to, the services listed above Strengths The county-wide systems for both homelessness and special needs allow funders and providers to coordinate services more effectively. This has resulted in having a single point of entry for homeless families and a county supported veteran services program. Services are coordinated at a regional level. Gaps There are still gaps in the system that in part are a result of the current economic crisis. There are more homeless now than five years ago and include: · Youth and Young Adults · Immigrants and Refugees · Families · Veterans Services across the board are limited for veterans. Immigrants and refugees are without the resources to maintain their housing after government support is exhausted. The lack of employment opportunities for everyone has had a significant impact on the number of homeless and a reduction in opportunities for persons with special needs. Provide a summary of the strategy for overcoming gaps in the institutional structure and service delivery system for carrying out a strategy to address priority needs Service gaps will require additional funding resources that are currently not available. The City of Kent will continue to work with providers to develop strategies that will expand the use of resources by removing silos that have kept providers from being able to meet emergent needs. The institutional structure in King County has undergone significant change in the past five years and is currently working well. Consolidated Plan KENT 38 OMB Control No: 2506-0117 (exp. 07/31/2015) SP-45 Goals - 91.415, 91.215(a)(4) Goals Summary Information Sort Order Goal Name Start Year End Year Category Geographic Area Needs Addressed Funding Goal Outcome Indicator 1 Basic Needs 2015 2019 Homeless Non-Housing Community Development Basic Needs Services CDBG: $445,875 General Fund: $1,000,000 Public service activities other than Low/Moderate Income Housing Benefit: 370 Persons Assisted 2 Affordable Housing to homeless and those at risk 2015 2019 Affordable Housing Homeless Affordable Housing CDBG: $3,038,280 General Fund: $1,105,000 Public service activities for Low/Moderate Income Housing Benefit: 80 Persons Assisted Homeowner Housing Rehabilitated: 450 Household Housing Unit Homeless Person Overnight Shelter: 5 Persons Assisted Consolidated Plan KENT 39 OMB Control No: 2506-0117 (exp. 07/31/2015) Sort Order Goal Name Start Year End Year Category Geographic Area Needs Addressed Funding Goal Outcome Indicator 3 Increase Self Sufficiency 2015 2019 Non-Housing Community Development Economic Opportunities Employment, Training, Education CDBG: $132,000 General Fund 851,600 Businesses assisted: 150 Persons Assisted 4 Decrease isolation of at- risk seniors 2015 2019 Non-Homeless Special Needs Services for at risk seniors CDBG: $50,000 General Fund 160,000 Public service activities other than Low/Moderate Income Housing Benefit: 1,020 Persons Assisted 5 Planning and Administration 2015 2019 Planning and Administration Planning and Administration CDBG: $914,500 Other: 0 Other Table 17 – Goals Summary Goal Descriptions 1 Goal Name Basic Needs Goal Description Basic needs such as food, financial assistance, clothing, community meals, health care 2 Goal Name Affordable Housing to homeless and those at risk Goal Description Transitional and permanent housing, rehabilitation assistance for those at risk of homelessness 3 Goal Name Increase Self Sufficiency Goal Description Economic opportunities such as micro-enterprise development, services for youth with intellectual disabilities 4 Goal Name Decrease isolation of at-risk seniors Goal Description Congregate meal with socialization and life skill training in a culturally appropriate manner Consolidated Plan KENT 40 OMB Control No: 2506-0117 (exp. 07/31/2015) 5 Goal Name Planning and Administration Goal Description Development and administration of the CDBG Program. Community and homeless planning. Estimate the number of extremely low-income, low-income, and moderate-income families to whom the jurisdiction will provide affordable housing as defi ned by HOME 91.315(b)(2) Kent does not receive HOME funds as a direct entitlement; and therefore, does not directly provide housing. The City supports Housing Stability by providing financial assistance to help families to move into housing or stay in housing. The City also supports transitional housing that provides housing to homeless women and women with children. Over a five-year period, 70 households will be assisted. SP-65 Lead-based Paint Hazards - 91.415, 91.215(i) Actions to address LBP hazards and increase access to housing without LBP hazards The Residential Lead-Based Paint Hazard Reduction Act of 1992 seeks to identify and mitigate sources of lead in the home. A high level of lead in the blood is particularly toxic to children aged 6 and younger. Lead can damage the central nervous system, cause mental retardation, convulsions, and sometimes death. Even low levels of lead can result in lowered intelligence, reading and learning disabilities, decreased attention span, hyperactivity and aggressive behavior. A leading source of lead in the home is lead-based paint. Deteriorating paint, friction in sliding windows, lead on impact surfaces, as well as unsafe renovation practices can result in the accumulation of dust in the house and lead in the soil. The presence of deteriorating paint, lead-contaminated dust, based paint hazards. According to a 1999 national survey of homes, 27% of all homes in the United States had significant lead-based paint (LBP) hazards. The national survey found that location in the country was a factor in the probability of hazards. Significant LBP hazards are more prevalent in the northeast (43%) than in the west (19%). Age of housing is also important and commonly used to estimate the risk of significant hazards in the home. Lead was banned from residential paint in 1978. The 1999 national survey found that 67% of housing built before 1940 had significant LBP hazards. This declined to 51% of houses built between 1940 and 1959, 10% of houses built between 1960 and 1977 and just 1% after that. While housing in Kent is relatively new, 3% was constructed prior to 1940, 6% between 1940 and 1959, and 37% between 1960 and 1979. Given the changes in housing in Kent between 1990 and 2000, date of construction is the best indication of level of risk. City of Kent home repair staff is trained in Safe Work Practices and presumes the presence of lead on repairs to housing built prior to 1978, meaning that safety measures are in place. Kent home repair staff has access to certified risk assessment inspectors when needed. Consolidated Plan KENT 41 OMB Control No: 2506-0117 (exp. 07/31/2015) Home repair staff does not renovate six square feet or more of painted surfaces in interior projects or more than twenty square feet of painted surfaces for exterior projects in housing, childcare facilities or schools; therefore, federal law does not require that staff provide lead-based paint informational materials to homeowners. Auditors may verify this by reviewing home repair work orders. How are the actions listed above integrated into housing policies and procedures? City of Kent home repair staff is trained in Safe Work Practices and presumes the presence of lead on repairs to housing built prior to 1978, meaning that safety measures are in place. Kent home repair staff has access to certified risk assessment inspectors when needed. In addition, the City identifies and mitigates the source of lead in Kent homes by: · Assuring that homeowners served by the Home Repair Program receive and comprehend the Lead Based Paint informational materials · Assuring that Home Repair staff uses the Lead-Safe Housing Rule Checklist for General Compliance Documentation as a guide to verify compliance with lead-based paint rules and that a Lead-Safe Housing Rule Applicability Form is completed on every Home Repair client Assuring adherence to and enforcement of lead-based paint abatement regulations Consolidated Plan KENT 42 OMB Control No: 2506-0117 (exp. 07/31/2015) SP-70 Anti-Poverty Strategy - 91.415, 91.215(j) Jurisdiction Goals, Programs and Policies for reducing the number of Poverty -Level Families Poverty is an issue facing almost 25% of Kent's residents. Although the City of Kent is a strong hub for business development and transportation to other areas providing job opportunities, rising unemployment rates caused by the current recession has forced many employers to downsize. The number of young and fragile families, often with one or more children, is growing. Among the more expensive items for families to maintain are housing and utility costs, child care and transportation. The current, tenuous state of the human service infrastructure is creating further strain on low/moderate-income people seeking or trying to maintain employment. The City's anti-poverty strategy focuses on reducing the high cost of basic human needs while seeking innovative solutions to increasing basic income and the provision of supportive services. A key part of the strategy is to provide a range of housing at affordable levels. Affordable rental assistance is provided to over 3,000 low/moderate-income Kent households through the King County Housing Authority and other sponsors of the Section 8 rental assistance program. The City supports the provision of additional vouchers for low- and moderate-income persons paying more than affordable rents. For persons without housing or at-risk of eviction or displacement, Kent area homeless providers offer a continuum of housing and services in a cooperative effort through the Seattle/King County Continuum of Care, the South King Council of Human Services and the South King County Homeless Alliance. The City, in cooperation with other jurisdictions and providers will continue to pursue effective solutions to ongoing issues affecting individuals and families at or below 80% of the median income. To the greatest extent possible, the City will maintain the Human Services General Fund budget, providing over $800,000 annually in funding for vital, basic needs human services programs. The City will continue to work regionally and sub-regionally, in collaboration with other funders, including the King County HOME Consortium, the King County Housing Authority Weatherization Program, the South King County Planners’ group, as well as various human service provider groups to coordinate common housing and human service goals. City of Kent staff will work closely with providers and case managers offering homeless housing and services in Kent, assisting clients with information, advocacy and job application assistance to maximize their benefits from programs for which they are eligible. In addition, programs serving the homeless and other low- and moderate-income persons are becoming increasingly skilled at providing clients with a range of services designed to meet their particular needs, including job skills training, job retention skills, job referral and counseling. Future funding within the timeframe of the plan could include services provided on an advocacy-based model, aimed at ongoing assistance with specific basic needs to increase Consolidated Plan KENT 43 OMB Control No: 2506-0117 (exp. 07/31/2015) job retention, employee work experience/ethic and assisting consumers to progress to earning living wage. The City's economic development/jobs strategies will be pursued to support improved income, job expansion and job accessibility. Efforts will be made to develop partnerships with businesses and educational institutions to create works-site and distance learning strategies for job progression skills. Also, the City will strive to increase business opportunities and jobs in the downtown core as development of the Kent Planned Action Site Project progresses. How are the Jurisdiction’s poverty reducing goals, programs, and policies coordinated with this affordable housing plan The City’s poverty reducing goals, programs, and policies are coordinated with this Strategic Plan in several ways: Investment in micro-enterprise businesses Investment in emergency rental assistance grants and case management torefugees and immigrants Investment in eviction prevention grants Investment in shelters and transitional housing for the homeless Investment in healthcare services for the homeless Staff will convene and/or work with organizations and institutions that specialize in employment services to increase employment opportunities for Kent residents Consolidated Plan KENT 44 OMB Control No: 2506-0117 (exp. 07/31/2015) SP-80 Monitoring - 91.230 Describe the standards and procedures that the jurisdiction will use to monitor activities carried out in furtherance of the plan and will use to ensure long-term compliance with requirements of the programs involved, including minority business outreach and the comprehensive planning requirements Standards and Procedures for Monitoring The City monitors its CDBG program throughout the year. Programs funded by the City are expected to maintain high standards. Organizations are informed that the failure to comply with contractual requirements and regulations could result in remedial actions and/or the termination of funding. Quarterly performance reports are reviewed by the Human Services Commission. Standards and procedures are further outlined below: Staff meets with newly funded projects before and/or during the contract year. Projects are monitored closely to ensure that staff has a good understanding of program administration, program performance standards, fiscal administration, contractual requirements, and recordkeeping and reporting. Issues that need clarification are addressed. At a minimum, all projects receive quarterly monitoring. Programs that need guidance in achieving performance measures or adhering to contractual requirements receive technical assistance, are required to attend a meeting with City staff, and/or receive an on-site monitoring visit. Monitoring concerns/finding are reviewed with agency staff and documented in writing. When applicable, corrective action is required on a timely basis. Additional time for corrective action may be allowed on a case-by-case basis. Agencies are required to provide supporting documentation verifying that deficiencies have been corrected. Failure to take corrective action could lead to the withholding or the loss of funding to a sub- recipient. Housing and Human Services Division is responsible for developing the comprehensive plan chapters on housing and human services. Staff is participating in the current planning process for the County Comprehensive Plan (CCP) and is providing input into the needs for affordable housing. The CCP will set the targets for housing each jurisdiction must be. Staff is working toward including preservations and rehabilitation of affordable housing as a target. Consolidated Plan KENT 45 OMB Control No: 2506-0117 (exp. 07/31/2015) Expected Resources AP-15 Expected Resources – 91.220(c) (1, 2) Introduction 2015 CDBG ESTIMATED RESOURCES One of the major tools for accomplishing the goals of the Consolidated Plan is the annual allocation of CDBG funds provided by the U.S. Department of Housing and Urban Development. In 2014, the City received an allocation of $914,731. This represented a slight increase from 2013 ($232). The City estimates that it will receive $914,731 for the January 1, 2015 to December 31, 2015 budget year. The priority table describes how CDBG resources will be used. CDBG ESTIMATED RESOURCES Priority Table Program Source of Funds Uses of Funds Expected Amount Available Year 1 Expected Amount Available Reminder of ConPlan $ Narrative Description Annual Allocation: $ Program Income: $ Prior Year Resources: $ Total: $ Consolidated Plan KENT 46 OMB Control No: 2506-0117 (exp. 07/31/2015) Program Source of Funds Uses of Funds Expected Amount Available Year 1 Expected Amount Available Reminder of ConPlan $ Narrative Description Annual Allocation: $ Program Income: $ Prior Year Resources: $ Total: $ CDBG public - federal Acquisition Admin and Planning Economic Development Housing Public Improvements Public Services 914,731 0 0 914,731 3,658,924 The City estimates that it will receive $914,731 in CDBG. Table 18 - Expected Resources – Priority Table Explain how federal funds will leverage those additional resources (private, state and local funds), including a description of how matching requirements will be satisfied CDBG funds will be used in conjunction with $872,866 of City general funds to address human service needs; general funds support public service projects. Community agencies report that for every $1 provided by the City of Kent, another $7 is leveraged. Community agencies receive the balance of their funding from other federal agencies, the State of Washington, King County, local municipalities, United Way and other charitable giving campaigns, foundations, private donations and fundraising. Each year, the City submits Letters in Support of funding applications for organizations that receive CDBG and general funds. These letters confirms the City's investment in human services, document the difference that organizations make in the lives of low/moderate-income residents and encourage funders to leverage the City's investments. Consolidated Plan KENT 47 OMB Control No: 2506-0117 (exp. 07/31/2015) If appropriate, describe publically owned land or property located within the jurisdiction that may be used to address the needs identified in the plan N/A. Discussion The City will continue its track record of wise investments through organizations that share its funding priorities. Consolidated Plan KENT 48 OMB Control No: 2506-0117 (exp. 07/31/2015) Annual Goals and Objectives AP-20 Annual Goals and Objectives - 91.420, 91.220(c)(3)&(e) Goals Summary Information Sort Order Goal Name Start Year End Year Category Geographic Area Needs Addressed Funding Goal Outcome Indicator 1 Affordable Housing to homeless & those at-risk 2015 2019 Affordable Housing Homeless City of Kent Basic Needs Services Affordable housing CDBG: $607,656 Public service activities for Low/Moderate Income Housing Benefit: 16 Households Assisted Homeowner Housing Rehabilitated: 90 Households Housing Unit Homeless Person Overnight Shelter: 1 Persons Assisted 2 Increase self- sufficiency 2015 2019 Non-Housing Community Development City of Kent Economic Opportunities CDBG: $32,000- 2015; ($25,000- 2016-2019) Other: 30 Other 3 Basic Needs 2015 2019 Homeless City of Kent Basic Needs Services CDBG: $89,175 Public service activities other than Low/Moderate Income Housing Benefit: 74 Persons Assisted 4 Decrease isolation of at-risk seniors 2015 2019 Non-Homeless Special Needs City of Kent Services for at- risk seniors CDBG: $10,000 Public service activities other than Low/Moderate Income Housing Benefit: 30 Persons Assisted Consolidated Plan KENT 49 OMB Control No: 2506-0117 (exp. 07/31/2015) Sort Order Goal Name Start Year End Year Category Geographic Area Needs Addressed Funding Goal Outcome Indicator 5 Planning and Administration 2015 2019 Planning and Administration City of Kent Planning and Administration CDBG: $182,900 Other: 0 Other Table 19 – Goals Summary Goal Descriptions 1 Goal Name Affordable Housing to homeless & those at-risk Goal Description CDBG funds will provide transitional housing, shelter, housing rehabilitation assistance, and provide energy efficient home improvements. 2 Goal Name Increase self-sufficiency Goal Description The City's funds will facilitate economic opportunities by providing business training classes and technical assistance to those who wish to create or expand a microenterprise business. 3 Goal Name Basic Needs Goal Description CDBG funds will provide emergency assistance grants and case management to refugees and immigrants. A second project will provide housing stability grants to prevent eviction. A third project will provide case management services to youth with intellectual disabilities and their families. 4 Goal Name Decrease isolation of at-risk seniors Goal Description City funding will support a congregate meal program for Bhutanese, Somali and other refugee and immigrant seniors residing on the East Hill of Kent. These elders are isolated due to language, ability to drive, and limited opportunities to socialize with seniors from the same or a similar cultural background. Consolidated Plan KENT 50 OMB Control No: 2506-0117 (exp. 07/31/2015) 5 Goal Name Planning and Administration Goal Description Federal regulations allow the City to invest up to 20 percent of its CDBG allocation for planning and administration to support CDBG program staff and program activities that support the Five-Year Consolidated Plan. The City will use the full 20% for P & A. Table 20 – Goal Descriptions Estimate the number of extremely low-income, low-income, and moderate-income families to whom the jurisdiction will provide affordable housing as defined by HOME 91.215(b): It is estimated that the City will provide shelter to one person, transitional housing to 16 individuals, and provide housing rehabilitation services to 80 households, and provide energy efficient improvements to 10 households. Consolidated Plan KENT 51 OMB Control No: 2506-0117 (exp. 07/31/2015) AP-35 Projects – 91.220(d) Introduction The projects funded by the City in 2015 address the priority needs of providing assistance to prevent and respond to homelessness, maintain affordable housing, housing for the homeless, increasing self- sufficiency, and decreasing isolation. Services include minor home repair services, improving homes by making them more energy efficient, rent assistance to prevent eviction, healthcare services for the homeless, shelter and transitional housing, case management and emergency assistance for refugees, senior meal program for refugees and micro-enterprise business classes to increase self-sufficiency for low and-moderate income individuals. # Project Name 1 Kent Home Repair Program 2 Catholic Community Services-Katherine's House 3 Multi-Service Center-Housing Stability 4 Refugee Women's Alliance-Case Management & EMS Assistance 5 Refugee Women's Alliance-Senior Meals 6 Washington CASH-Kent Micro-enterprise Initiative 7 YWCA-Anita Vista Transitional Housing 8 Planning and Administration 9 Open Doors for Multicultural Families 10 City of Kent-Energy Efficient Housing Program 11 St. Stephen Housing Association Table 21 – Project Information Consolidated Plan KENT 52 OMB Control No: 2506-0117 (exp. 07/31/2015) Describe the reasons for allocation priorities and any obstacles to addressing underserved needs The City's distribution of funds aligns with the City's objectives of accessibility to decent housing, a suitable living environment and economic opportunities. CONTINGENCY PLANS Public Services In the event of a funding increase, funds will be allocated proportionally among projects. In the event of a funding decrease, funds will be deducted proportionally among projects. All projects will receive at least $10,000. Capital In the event of a funding increase, funds will be allocated to the City's Energy-Efficient Housing Program. In the event of a funding decrease, the Energy-Efficient Housing Program budget will be reduced. Consolidated Plan KENT 53 OMB Control No: 2506-0117 (exp. 07/31/2015) Projects AP-38 Projects Summary Project Summary Information Table 22 – Project Summary 1 Project Name Kent Home Repair Program Target Area City of Kent Goals Supported Affordable Housing to homeless & those at-risk Needs Addressed Affordable housing Funding CDBG: $462,656 Description Capital: Low/moderate-income homeowners in Kent receive minor and major home repairs Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that 80 households will be assisted. Families assisted consist of seniors and low/moderate-income residents. Location Description Throughout the City of Kent. Planned Activities Activities will include minor and major home repairs. 2 Project Name Catholic Community Services-Katherine's House Target Area City of Kent Goals Supported Affordable Housing to homeless & those at-risk Needs Addressed Affordable housing Consolidated Plan KENT 54 OMB Control No: 2506-0117 (exp. 07/31/2015) Funding CDBG: $10,000 Description Public Service: Sub-recipient provides shelter and case management services to women residing in transitional shelter Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that one woman in recovery will benefit from overnight shelter (79 bed- nights). Location Description The shelter for women in recovery is located in Kent. Planned Activities Shelter provided for homeless women in recovery who formerly resided in Kent 3 Project Name Multi-Service Center-Housing Stability Target Area City of Kent Goals Supported Basic Needs Affordable Housing to homeless & those at-risk Needs Addressed Basic Needs Services Funding CDBG: $64,175 Description Public Service: Funding used for housing stability grants to low-income individuals Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that 44 individuals will benefit. Location Description Individuals reside in housing located throughout Kent. Planned Activities Project provides grants to prevent eviction and homelessness 4 Project Name Refugee Women's Alliance-Case Management & EMS Assistance Target Area City of Kent Consolidated Plan KENT 55 OMB Control No: 2506-0117 (exp. 07/31/2015) Goals Supported Basic Needs Affordable Housing to homeless & those at-risk Needs Addressed Basic Needs Services Funding CDBG: $15,000 Description Public Service: Funds emergency assistance and case management services to refugees living in Kent Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that nine immigrant and refugee families will benefit from this activity. Location Description Individuals residing throughout the City of Kent. Planned Activities Project provides emergency assistance grants and case management to refugees and immigrants residing in Kent 5 Project Name Refugee Women's Alliance-Senior Meals Target Area City of Kent Goals Supported Decrease isolation of at-risk seniors Needs Addressed Services for at-risk seniors Funding CDBG: $10,000 Description Public Service: Project provides meals to refugee seniors residing in Kent Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that 204 individuals will benefit from this activity. Location Description Meals will be provided at Birch Creek Apartments on the East Hill of Kent. Consolidated Plan KENT 56 OMB Control No: 2506-0117 (exp. 07/31/2015) Planned Activities Refugee seniors receive congregate meals and information to maintain good health 6 Project Name Washington CASH-Kent Micro-enterprise Initiative Target Area City of Kent Goals Supported Increase self-sufficiency Needs Addressed Economic Opportunities Funding CDBG: $32,000 Description Capital: Project provides business classes and assistance for micro-enterprise businesses Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that 30 individuals will benefit from this activity. Location Description This activity will be conducted at the Kent Senior Center or at another location in the City of Kent. Planned Activities Business classes for low/moderate-income residents or business owners in Kent to create or expand micro-enterprise businesses 7 Project Name YWCA-Anita Vista Transitional Housing Target Area City of Kent Goals Supported Affordable Housing to homeless & those at-risk Needs Addressed Affordable housing Funding CDBG: $18,000 Description Public Service: Project provides transitional housing to domestic violence survivors Target Date 12/31/2015 Consolidated Plan KENT 57 OMB Control No: 2506-0117 (exp. 07/31/2015) Estimate the number and type of families that will benefit from the proposed activities It is estimated that 14 individuals will benefit from this activity. Location Description Planned Activities Transitional housing to domestic violence survivors and their children 8 Project Name Planning and Administration Target Area City of Kent Goals Supported Planning and Administration Needs Addressed Planning and Administration Funding CDBG: $182,900 Description City uses funds to administer the CDBG project carried out by the City, to monitor sub- recipients, and to deliver strategies outlined in the 2015-2019 Consolidated Plan. Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities N/A Location Description City of Kent Planned Activities Management of the CDBG Program and implementation of the goals and strategies of the Annual Action Plan 9 Project Name Open Doors for Multicultural Families Target Area City of Kent Goals Supported Increase self-sufficiency Needs Addressed Basic Needs Services Funding CDBG: $10,000 Consolidated Plan KENT 58 OMB Control No: 2506-0117 (exp. 07/31/2015) Description This project provides case management services to youth with intellectual disabilities and their families. Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that 22 individuals will benefit from this activity. Location Description Activities will be provided in Kent. Planned Activities Project will provide case management services to youth with intellectual disabilities and their families. 10 Project Name City of Kent-Energy Efficient Housing Program Target Area Will pilot in a City neighborhood Goals Supported Affordable Housing to homeless & those at-risk Needs Addressed Affordable housing Funding CDBG: $100,000 Description This project provides energy efficient improvements to houses located in the City of Kent. Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that 10 households will benefit from this activity. Location Description Kent Neighborhood Planned Activities Energy-efficient improvements will be provided in homes that have high energy costs; the City will target a neighborhood to pilot this project. 11 Project Name St. Stephen Housing Association Target Area City of Kent Consolidated Plan KENT 59 OMB Control No: 2506-0117 (exp. 07/31/2015) Goals Supported Affordable Housing to homeless & those at-risk Needs Addressed Affordable housing Funding CDBG: $10,000 Description This project provides temporary housing to homeless families. Target Date 12/31/2015 Estimate the number and type of families that will benefit from the proposed activities It is estimated that 2 households will benefit from this activity. Location Description This activity is located in the City of Kent. Planned Activities This project will provide temporary housing to homeless individuals. Consolidated Plan KENT 60 OMB Control No: 2506-0117 (exp. 07/31/2015) AP-50 Geographic Distribution – 91.220(f) Description of the geographic areas of the entitlement (including areas of low -income and minority concentration) where assistance will be directed CDBG funds are distributed throughout the city. Low/moderate-income households exist in all of the census tracts in the city. The heavier concentrations can be found on both the East and West Hill of Kent. Geographic Distribution Target Area Percentage of Funds City of Kent 100 Table 23 - Geographic Distribution Rationale for the priorities for allocating investments geographically N/A. Discussion Poverty is high in pockets throughout the City (over 20%), and 53% of children in the Kent School District qualify for free and reduced lunches. Unemployment and dependence on public assistance has forced many households to use public services for basic needs; including food, utility assistance, rental assistance, medical services, etc. The increased need and high volume of usage dictates the availability of services to all low/moderate-income households in the City of Kent. Consolidated Plan KENT 61 OMB Control No: 2506-0117 (exp. 07/31/2015) AP-85 Other Actions – 91.420, 91.220(k) Introduction The City of Kent will enhance coordination by continuing to work with racial and ethnic minority providers to develop strategies that increase collaboration and leveraging of resources. The City of Kent will continue work to reduce the number of families in poverty through micro- enterprise training, maintaining relationships with local training schools, encouraging business to hire low-income residents, encouraging and supporting collaboration between employment specialists and outreach to increase opportunities for low-income residents to obtain livable wage jobs. In 2013, Kent Cultural Diversity Initiative Group (this project is staffed by the City), provided funding and supported a Refugee Employment Summit (RES) to increase jobs and connections between refugee leaders, employers and employment specialists. Using funds leftover from the RES, Kent Cultural Diversity Initiative Group (KC-DIG) and the City responded to requests from racial/ethnic communities and hosted a Refugee Small Business Development Workshop in May 2014. In 2015, the City will provide additional CDBG funding to Washington CASH to provide technical assistance (TA) to micro-enterprise business owners and developers, targeting new residents from Bhutan, Burma, Somalia, Afghanistan, Iraq; etc. WA CASH will partner with a consultant or organization that provides culturally/linguistically-responsive services. The City of Kent is committed to maintaining the affordable housing stock in our community. Using CDBG funds for the Home Repair Program allows home owners to maintain their homes and preserve housing stock. Actions planned to address obstacles to meeting underserved needs The City is actively engaged with refugee and immigrant communities through KC-DIG. The City will continue to partner with regional funders like The Seattle Foundation, King County, and United Way of King County to increase resources and funding to meet the needs of under-served populations. The City will work with these funders to implement the recommendations/strategies outlined in Tuvute Pamoja: Capacity Assessment Interviews of Ethnic Community Based Organizations. City staff will continue to work with The Seattle Foundation and King County on the Communities of Opportunity Grant which provides funds to organizations whose activities reduce inequities in the areas of health, housing and economic opportunities. Actions planned to foster and maintain affordable housing Consolidated Plan KENT 62 OMB Control No: 2506-0117 (exp. 07/31/2015) The City will continue its long-term collaboration and participation on Boards, committees, funding review teams; etc., to foster and maintain affordable housing for the South County Region. Through sub- regional efforts, City staff and stakeholders will engage in discussions with elected officials and Land Use and Planning Board members about the impact that affordable housing has on the long term viability of the community. Actions planned to reduce lead-based paint hazards No actions are planned. Actions planned to reduce the number of poverty-level families Actions to reduce the number of poverty level families includes funding micro-enterprise training and TA, maintaining relationships with local training schools, encouraging business to hire low-income residents and outreach to increase opportunities for low-income residents to obtain livable wage jobs. Actions planned to develop institutional structure No actions are planned. Actions planned to enhance coordination between public an d private housing and social service agencies The City has been instrumental in developing relationships between these entities and will continue to foster and participate in these collaborations, including the Homeless Forum (a monthly meeting of housing and support service providers), South King Council of Human Services, South King County Housing Development Group, and the King County Housing Development Consortium. Discussion Consolidated Plan KENT 63 OMB Control No: 2506-0117 (exp. 07/31/2015) Program Specific Requirements AP-90 Program Specific Requirements – 91.420, 91.220(l)(1,2,4) Introduction The City of Kent will use CDBG funds to benefit low/moderate-income residents. The full amount allowable by regulation will be used for Public Services and Planning and Administration. The balance of funds will be used for housing rehabilitation services and economic development. The City will not receive program income from prior years. Community Development Block Grant Program (CDBG) Reference 24 CFR 91.220(l)(1) Projects planned with all CDBG funds expected to be available during the year are identified in the Projects Table. The following identifies program income that is available for use that is included in projects to be carried out. 1. The total amount of program income that will have been received before the start of the next program year and that has not yet been reprogrammed 0 2. The amount of proceeds from section 108 loan guarantees that will be used during the year to address the priority needs and specific objectives identified in the grantee's strategic plan. 0 3. The amount of surplus funds from urban renewal settlements 0 4. The amount of any grant funds returned to the line of credit for which the planned use has not been included in a prior statement or plan 0 5. The amount of income from float-funded activities 0 Total Program Income: 0 Other CDBG Requirements 1. The amount of urgent need activities 0 2. The estimated percentage of CDBG funds that will be used for activities that benefit persons of low and moderate income. Overall Benefit - A consecutive period of one, two or three years may be used to determine that a minimum overall benefit of 70% of CDBG funds is used to benefit persons of low and moderate income. Specify the years covered that include this Annual Action Plan. 100.00% Consolidated Plan KENT 64 OMB Control No: 2506-0117 (exp. 07/31/2015) Discussion The City will use all of its funds to benefit low/moderate-income individuals. Consolidated Plan KENT 65 OMB Control No: 2506-0117 (exp. 07/31/2015) Appendix - Alternate/Local Data Sources 1 Data Source Name Census Data List the name of the organization or individual who originated the data set. US Census Bureau Provide a brief summary of the data set. Data provides information on economic, racial, ethnic, housing, population, age, sex etc. What was the purpose for developing this data set? Data analysis was done by Kent staff for the purpose of determining the degree of need for human services. How comprehensive is the coverage of this administrative data? Is data collection concentrated in one geographic area or among a certain population? Data is generalized across the city. What time period (provide the year, and optionally month, or month and day) is covered by this data set? 10 years What is the status of the data set (complete, in progress, or planned)? Being updated with latest information that includes annexed area of the City APPLICATION FOR OMB Approval No. 0348-0043 FEDERAL ASSISTANCE 2. DATE SUBMITTED Applicant Identifier 1. TYPE OF SUBMISSION: 3. DATE RECEIVED BY STATE State Application Identifier Application Preapplication 4. DATE RECEIVED BY FEDERAL AGENCY Federal Identifier 5. APPLICANT INFORMATION Legal Name:Organizational Unit: Address (give city, county, State, and zip code):Name and telephone number of person to be contacted on matters involving this application (give area code) 6. EMPLOYER IDENTIFICATION NUMBER (EIN):7. TYPE OF APPLICANT: (enter appropriate letter in box) A. State H. Independent School Dist. 8. TYPE OF APPLICATION: B. County I. State Controlled Institution of Higher Learning C. Municipal J. Private University D. Township K. Indian Tribe If Revision, enter appropriate letter(s) in box(es) E. Interstate L. Individual F. Intermunicipal M. Profit Organization A. Increase Award B. Decrease Award C. Increase Duration G. Special District N. Other (Specify) ____________________ D. Decrease Duration Other (specify): 9. NAME OF FEDERAL AGENCY: 10. CATALOG OF FEDERAL DOMESTIC ASSISTANCE NUMBER: 11. DESCRIPTIVE TITLE OF APPLICANT’S PROJECT: TITLE: 12. AREAS AFFECTED BY PROJECT (Cities, Counties, States, etc.): 13. PROPOSED PROJECT 14. CONGRESSIONAL DISTRICTS OF: Start Date Ending Date a. Applicant b. Project 15. ESTIMATED FUNDING: 16. IS APPLICATION SUBJECT TO REVIEW BY STATE EXECUTIVE ORDER 12372 PROCESS? a. Federal $ . 00 a. YES. THIS PREAPPLICATION/APPLICATION WAS MADE b. Applicant $ . 00 AVAILABLE TO THE STATE EXECUTIVE ORDER 12372 PROCESS FOR REVIEW ON: c. State $ . 00 DATE _____________________ d. Local $ . 00 b. No. PROGRAM IS NOT COVERED BY E. O. 12372 e. Other $ . 00 OR PROGRAM HAS NOT BEEN SELECTED BY STATE FOR REVIEW f. Program Income $ . 00 17. IS THE APPLICANT DELINQUENT ON ANY FEDERAL DEBT? g. TOTAL $ . 00 18. TO THE BEST OF MY KNOWLEDGE AND BELIEF, ALL DATA IN THIS APPLICATION/PREAPPLICATION ARE TRUE AND CORRECT, THE DOCUMENT HAS BEEN DULY AUTHORIZED BY THE GOVERNING BODY OF THE APPLICANT AND THE APPLICANT WILL COMPLY WITH THE ATTACHED ASSURANCES IF THE ASSISTANCE IS AWARDED. a. Type Name of Authorized Representative b. Title c. Telephone Number d. Signature of Authorized Representative e. Date Signed Previous Edition Usable Standard Form 424 (Rev. 7-97) Authorized for Local Reproduction Prescribed by OMB Circular A-102 Construction Non-Construction Non-Construction Construction Yes If "Yes," attach an explanation.No New Continuation Revision 1 of 8 | P a g e 2015 CONSOLIDATED PLAN CERTIFICATIONS CERTIFICATIONS In accordance with statutes and the regulations governing Consolidated Plan regulations, the City of Kent certifies that: Affirmatively Further Fair Housing – The City of Kent will affirmatively further fair housing, conducting an analysis of impediments to fair housing choice within the jurisdiction, developing strategies and taking appropriate actions to overcome the effects of any impediments identified through the analysis, and maintaining records reflecting the analysis and actions taken to further the strategies and actions. Anti-displacement and Relocation Plan – The City of Kent will comply with the acquisition and relocation requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, and implementing regulations at 49 CFR 24; and it has in effect and is following a residential anti- displacement and relocation assistance plan required under section 104(d) of the Housing and Community Development Act of 1974, as amended, in connection with any activity assisted with funding under the CDBG or HOME programs. Drug Free Workplace – The City of Kent will continue to provide a drug-free workplace in accordance with the Drug-Free Workplace Act of 1988 (41 USC 701) by: 1. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; 2. Maintaining an ongoing drug-free awareness to inform employees about: (a) The dangers of drug abuse in the workplace; (b) The grantee's policy of maintaining a drug-free workplace. (c) Available drug counseling, rehabilitation, and employee assistance programs; and (d) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; 3. Establishing a policy that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph 1; 4. Notifying each employee in the statement required by paragraph 1 that, as a condition of employment under the grant, the employee will: (a) Abide by the terms of the statement; and 2 of 8 | P a g e (b) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; 5. Notifying HUD in writing, within ten calendar days after receiving notice under subparagraph 4(b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant. 6. Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph 4(b), with respect to any employee who is so convicted: (a) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (b) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; 7. Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs 1, 2, 3, 4, 5 and 6. 8. Providing the street address, city, county, state and zip code for the site or sites where the performance of work in connection with the grant will take place. For functions carried out by employees in several departments or offices, more than one location will be specified. It is further recognized that sites may be added or changed during the course of grant-funded activities. The City of Kent will advise the HUD Field Office by submitting a revised Place of Performance form. The City of Kent recognizes that the period covered by this certification extends until all funds under the specific grant have been expended. 3 of 8 | P a g e Anti-Lobbying – To the best of the City of Kent’s knowledge and belief: 1. No Federally appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement; 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions; and 3. It will require that the language of paragraph 1 and 2 of this anti-lobbying certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 4 of 8 | P a g e Authority of Jurisdiction – The Consolidated Plan is authorized under State and local law (as applicable) and the City of Kent possesses the legal authority to carry out the programs for which it is seeking funding, in accordance with applicable HUD regulations. Consistency with plan – The housing activities to be undertaken with CDBG, HOME, ESG, and HOPWA funds are consistent with the strategic plan. Section 3 – It will comply with Section 3 of the Housing and Urban Development Act of 1968, and implementing regulations at 24 CFR Part 135. _________________________________ Signature/Authorized Official Date Mayor Suzette Cooke APPROVED AS TO FORM: Kent Law Department 5 of 8 | P a g e Specific CDBG Certifications The City of Kent, as an Entitlement Community, certifies that: Citizen Participation – It is in full compliance and following a detailed citizen participation plan that satisfies the requirements of 24 CFR 91.105. Community Development Plan – Its consolidated housing and community development plan identifies community development and housing needs and specifies both short-term and long-term community development objectives that that have been developed in accordance with the primary objective of the statute authorizing the CDBG program, as described in 24 CFR 570.2 and 24 CFR, Part 570. Following the Consolidated Plan – It will follow the five year-Consolidated Plan as approved by HUD. Use of Funds – It has complied with the following criteria: 1. Maximum Feasible Priority. With respect to activities expected to be assisted with CDBG funds, the City of Kent certifies that it has developed its Action Plan so as to give maximum feasible priority to activities which benefit low and moderate income families or aid in the prevention or elimination of slums or blight. The Action Plan may also include activities which the grantee certifies are designed to meet other community development needs having a particular urgency because existing conditions pose a serious and immediate threat to the health or welfare of the community, and other financial resources are not available to meet such needs; 2. Overall Benefit. The aggregate use of CDBG funds including section 108 guaranteed loans during program year 2015 shall principally benefit persons of low and moderate income in a manner that ensures that at least 70 percent of the amount is expended for activities that benefit such persons during the designated period; 3. Special Assessments. The City of Kent will not attempt to recover any capital costs of public improvements assisted with CDBG funds including Section 108 loan guaranteed funds by assessing any amount against properties owned and occupied by persons of low and moderate income, including any fee charged or assessment made as a condition of obtaining access to such public improvements. However, if CDBG funds are used to pay the proportion of a fee or assessment that relates to the capital costs of public improvements (assisted in part with CDBG funds) financed from other revenue sources, an assessment or charge may be made against the property with respect to the public improvements financed by a source other than CDBG funds. Also, in the case of properties owned and occupied by moderate-income (but not low-income) families, an assessment or charge may be made against the property for public improvements financed by a 6 of 8 | P a g e source other than CDBG funds if the jurisdiction certifies that it lacks CDBG funds to cover the assessment Excessive Force – It has adopted and is enforcing: 1. A policy prohibiting the use of excessive force by law enforcement agencies within its jurisdiction against any individuals engaged in non-violent civil rights demonstrations; and 2. A policy of enforcing applicable State and local laws against physically barring entrance to or exit from a facility or location which is the subject of such non- violent civil rights demonstrations within its jurisdiction; Compliance With Anti-discrimination laws – The grant will be conducted and administered in conformity with title VI of the Civil Rights Act of 1964 (42 USC 2000d), the Fair Housing Act (42 USC 3601-3619), and implementing regulations. Lead-Based Paint – The City of Kent’s notification, inspection, testing and abatement procedures concerning lead-based paint will comply with the requirements of 24 CFR 570.608; Compliance with Laws – It will comply with applicable laws. __________________________ Signature/Authorized Official Date Mayor Suzette Cooke APPROVED AS TO FORM: Kent Law Department 7 of 8 | P a g e APPENDIX TO CERTIFICATIONS INSTRUCTIONS CONCERNING LOBBYING AND DRUG-FREE WORKPLACE REQUIREMENTS: A. Lobbying Certification This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. B. Drug-Free Workplace Certification 1. By signing and/or submitting this application or grant agreement, the City of Kent is providing the certification. 2. The certification is a material representation of fact upon which reliance is placed when the agency awards the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug- Free Workplace Act, HUD, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act. 3. Workplaces under grants, for grantees other than individuals, need not be identified on the certification. If known, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the grantee must keep the identity of the workplace(s) on file in its office and make the information available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug- free workplace requirements. 4. Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio stations). 5. If the workplace identified to the agency changes during 8 of 8 | P a g e the performance of the grant, the grantee shall inform the HUD of the change(s), if it previously identified the workplaces in question (see paragraph three). 6. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance (Street address, city, county, state, zip code) City of Kent 220 4th Avenue South Kent, WA 98032 Check if there are workplaces on file that are not identified here. The certification with regard to the drug-free workplace is required by 24 CFR, Part 24, Subpart F. 7. Definitions of terms in the Non-procurement Suspension and Debarment common rule and Drug-Free Workplace common rule apply to this certification. Grantees' attention is called, in particular, to the following definitions from these rules: "Controlled substance" means a controlled substance in Schedules I through V of the Controlled Substances Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15); "Conviction" means a finding of guilt (including a plea of nolo contendre) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes; "Criminal drug statute" means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance; "Employee" means the employee of a grantee directly engaged in the performance of work under a grant, including: (I) All "direct charge" employees; (ii) all "indirect charge" employees unless their impact or involvement is insignificant to the performance of the grant; and (iii) temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the grantee's payroll; or employees of subrecipients or subcontractors in covered workplaces). Proposed 2015 CDBG Budget CITY OF KENT 2015 COMMUNITY DEVELOPMENT BLOCK GRANT PROPOSED CDBG FUNDING ALLOCATIONS CDBG FUNDING - PUBLIC SERVICE PROJECTS Project Funding Amount Catholic Community Services: Katherine’s House $ 10,000 Multi-Service Center: Housing Stability Program $ 64,175 Open Doors for Multicultural Families-Case Management Family Services $ 10,000 Refugee Women’s Alliance (ReWA): Case Management and Emergency Assistance $ 15,000 ReWA: Senior Nutrition and Wellness $ 10,000 St. Stephen’s Housing Association-Temporary Housing $ 10,000 YWCA: Anita Vista Transitional Housing $ 18,000 Total Public Service: $137,175 CDBG FUNDING - CAPITAL PROJECTS Project Funding Amount City of Kent: Energy-Efficient Housing Program $100,000 City of Kent: Home Repair Program $462,656 Washington Community Alliance for Self-Help (WA CASH): Kent Micro-enterprise Initiative $ 32,000 Total Capital: $594,656 CDBG FUNDING - Planning and Administration (P & A) Project Funding Amount City of Kent: Planning & Administration $182,900 TOTAL CDBG FUNDING TOTAL FUNDING Funding Amount Public Services Projects $137,175 Capital Projects $594,656 P & A $182,900 GRAND TOTAL: $914,731 Proposed 2015 CDBG Budget CONTINGENCY PLAN Public Services In the event of a funding increase, funds will be allocated proportionally among projects. In the event of a funding decrease, funds will be deducted proportionally among projects. All projects will receive at least $10,000. Capital In the event of a funding increase, funds will be allocated to the City’s Energy- Efficient Housing Program. In the event of a funding decrease, the Energy-Efficient Housing Program budget will be reduced. Agenda Item: Consent Calendar – 7I TO: City Council DATE: November 4, 2014 SUBJECT: Consultant Contract for Park Plan Update - Authorize SUMMARY: In order to continue to qualify for Washington Recreation and Conservation Office grants for park acquisition and development monies, the city must update its Parks and Open Space Plan every six years. The last Park Plan update was adopted in March, 2010. The planning process for the next update, which will include multiple opportunities for public participation, is expected to take about a year. In order to select a consultant for this contract, two landscape architectural consulting firms were selected off of the city’s consultant roster for interviews. From the interviews, the Berger Partnership was selected. EXHIBITS: Draft Consultant Contract RECOMMENDED BY: Parks and Human Services Committee YEA: Ranniger - Higgins - Fincher NAY: BUDGET IMPACT: Parks Administration General Fund Budget MOTION: Authorize the Mayor to sign the consultant contract with the Berger Partnership P.S. for $119,810.00 to update the Park Plan, subject to final terms and conditions acceptable to the City Attorney and Parks Director. This page intentionally left blank. CONSULTANT SERVICES AGREEMENT - 1 (Over $10,000) CONSULTANT SERVICES AGREEMENT between the City of Kent and The Berger Partnership, P.S. THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation (hereinafter the "City"), and The Berger Partnership, P.S., a Washington Professional Service Corporation, organized under the laws of the State of Washington, located and doing business at 1721 8th Avenue North, Seattle, Wa 98109; Greg Brower, 206-325-6877 (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: Provide consulting services to assist Parks Department staff with updating the City’s Park and Open Space Plan consistent with the City of Kent’s Comprehensive Plan and Washington State laws and policies, and in accordance with the October 17, 2014, proposal attached and incorporated as Exhibit A. 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 12/31/2015. III. COMPENSATION. A. The City shall pay the Consultant, based on time and materials, an amount not to exceed One Hundred Nineteen Thousand Eight Hundred Ten Dollars and No Cents ($119,810.00), 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 A. CONSULTANT SERVICES AGREEMENT - 2 (Over $10,000) 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: 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 CONSULTANT SERVICES AGREEMENT - 3 (Over $10,000) Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance Statement. VII. INDEMNIFICATION. Consultant shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the Consultant's performance of this Agreement, except for that portion of the injuries and damages caused by the City's negligence. The City's inspection or acceptance of any of Consultant's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. 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 B attached and incorporated by this reference. IX. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide reasonable accuracy of any information supplied by it to Consultant for the purpose of completion of the work under this Agreement. X. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents, drawings, designs, reports, or any other records developed or created under this Agreement shall belong to and become the property of the City. All records submitted by the City to the Consultant will be safeguarded by the Consultant. Consultant shall make such data, documents, and files available to the City upon the City’s request. The City’s use or reuse of any of the documents, data and files created by Consultant for this project by anyone other than Consultant on any other project shall be without liability or legal exposure to Consultant. XI. CITY'S RIGHT OF INSPECTION. Even though Consultant is an independent contractor with the authority to control and direct the performance and details of the work CONSULTANT SERVICES AGREEMENT - 4 (Over $10,000) authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure satisfactory completion. XII. WORK PERFORMED AT CONSULTANT'S RISK. Consultant shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. XIII. MISCELLANEOUS PROVISIONS. A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties’ performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section VII of this Agreement. D. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. 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 CONSULTANT SERVICES AGREEMENT - 5 (Over $10,000) 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. City Business License Required. Prior to commencing the tasks described in Section I, Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. J. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. 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: Greg Brower The Berger Partnership P.S. 1721 8th Avenue North Seattle, WA 98109 (206) 325-6877 (telephone) gregb@bergerpartnership.com NOTICES TO BE SENT TO: CITY OF KENT: Hope Gibson City of Kent 220 Fourth Avenue South Kent, WA 98032 (253) 856-5112 (telephone) hgibson@kentwa.gov APPROVED AS TO FORM: Kent Law Department CONSULTANT SERVICES AGREEMENT - 6 (Over $10,000) P:\Planning\Park Plan\2015 Parks Plan Update\Berger Prtnrshp-CONTRACT.docx 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: _________________________________________ 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. 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: _________________________________________ Landscape Architecture Urban Design Berger Partnership PS 1721 8th Ave N Seattle, WA 98109 206 325 6877 bergerpartnership.com 10.17.14 Hope Gibson Park Planning and Development Manager City of Kent 220 Fourth Avenue South Kent, WA 98022 Proposal for Landscape Architectural Services – City of Kent Parks and Open Space Plan Update Dear Hope: We are pleased to have been selected to assist the City of Kent Parks Department with the update of the Park and Open Space Plan. The plan update will be consistent with Kent’s Comprehensive Plan and will comply with the RCW and WAC requirements. This proposal is organized around the required sections of the park plan. The required sections of the plan include: Goals and Objectives Inventory Public Involvement Demand and Need Analysis Level of Service Assessment Capital Improvement Program Adoption The plan will be submitted to RCO for review at the draft stage and at completion of the final plan. This proposal outlines the scope of work and estimated fees by park plan subject area. Goals and Objectives In collaboration with the Parks Department, and with input from the Parks Commission and the residents of Kent, these will be updated to reflect current community priorities and fiscal realities. Review established goals. Revise/update goals as necessary. Develop new goals with input from the Parks Commission and the public. Test goals with needs assessment and public input. 10.17.14 Hope Gibson City of Kent Parks Proposal for Landscape Architectural Services – City of Kent Parks and Open Space Plan Update Page 2 of 6 Deliverables Updated list of goals Inventory Review park and facilities inventory, begin with existing park condition reports. Update/establish evaluation criteria based on quality and condition . Interview park maintenance staff. Site visits: One tour with Parks Planning and Operations staff to calibrate assessments. Update inventory. Deliverables: List of park facilities and condition Scoring criteria Inventory notes and photos Public Involvement Four input opportunities: 1.) Initial web survey; 2.) City event; 3.) Web-based comment period to collect public input on draft; 4.) Targeted outreach to underserved communities in public meetings. Public input strategy meeting Develop web survey information and questions. Review and analyze web survey input. Prepare summary of input. Develop exhibits for public input at city event and targeted outreach meetings . Compile input and comments from city event and targeted outreach meetings . Compile open comment. Validate plan strategies for improvement; make adjustments based on input. Prepare final presentation to Council, Park Commission, and public. Deliverables: Public survey questions Public outreach graphics and exhibits Summary of public input Summary of needs and improvements Demand and Need Analysis This will be based on data provided by the city to include current and projected demographic data and park use data, and will involve a discussion on current and projected park and recreational needs of the community. 10.17.14 Hope Gibson City of Kent Parks Proposal for Landscape Architectural Services – City of Kent Parks and Open Space Plan Update Page 3 of 6 Review park data and understand demand. Develop analysis strategy. Meetings to review direction and progress. Summarize and document demands and needs. Deliverables: Summary of Demand and Need Analysis Level of Service Assessment The manner in which level of service (LOS) is measured has been changing since NRPA established the criteria decades ago. An updated approach for measuring LOS will be used in the update of the park plan. A performance-based approach is proposed to assess current and potential recreational value of every park and recreational facility in the system. The criteria to measure parks’ and recreational facilities’ performance may include quality of space, condition, features, safety, ease of access, location, public use and satisfaction, and maintainability. Establish what is important to park users and the city, i.e., quality of space and experience, condition of amenities, park defining features, safety, ease of access/location, maintenance. Document service areas. Establish level of service goals that are qualitative. Develop metrics for measurable improvement based on performance/quality – weighted by priority/importance. Test approach by questioning criteria and assumptions . Apply findings from public input process, identify needs, and adjust measurement criteria. Prepare GIS maps and charts. Deliverables: Analysis of Current and Potential Park Recreational Value LOS criteria and scoring criteria Updated GIS-based park map(s) LOS summary of qualities and deficiencies Capital Improvement Program Sources of funding provided by Parks. Prepare estimated costs for improvements. Develop schedule for capital improvements. 10.17.14 Hope Gibson City of Kent Parks Proposal for Landscape Architectural Services – City of Kent Parks and Open Space Plan Update Page 4 of 6 Develop short- and long-term recommendations. Implementation strategies Assist with development of maintenance costs. Park Department Operations will lead the effort. Deliverables: Cost estimates Maintenance costs List of recommendations Adoption Adoption process administered by Parks with support provided by Berger. Deliverables: SEPA non-project checklist Project Administration and Park Plan Preparation We will provide services for the compilation and editing of the park plan. This includes draft stages as well as the final plan submitted to RCO. We will be responsible for assembling content we prepare as well as content provided by the city. We will also lead the graphic presentation with guidance from Parks. Drafts will be submitted to the city for review and input. Drafts will be provided at 25%, 50%, 75%, and 90% complete with the 50% draft submitted to RCO for review. Plan appearance and graphic strategy Plan preparation Editing and proofreading Park plan drafts at 25%, 50%, 75%, and 90% complete Comment response and revisions for each draft Quality Control Project Meetings (2 per month x 24 months) Deliverables: 25% complete draft park plan update 50% complete draft park plan update (for submittal to RCO) 75% complete draft park plan update 90% complete draft park plan update 100% complete final park plan update 10.17.14 Hope Gibson City of Kent Parks Proposal for Landscape Architectural Services – City of Kent Parks and Open Space Plan Update Page 5 of 6 Assumptions The following assumptions were made during the preparation of this proposal: City Parks Map will be provided, AutoCAD format. Park data, size, classification will be provided. Demographics and population data will be provided. Parks and Facilities Condition Report will be provided. Fees Based on the scope of services identified at this time, we have established the following fee for landscape architectural services. Fees will be billed monthly based upon the percentage of work completed. Goals and Objectives $7,560.00 Inventory $9,540.00 Public Involvement $28,100.00 Demand and Need Analysis $5,200.00 Level of Service Assessment $26,330.00 Capital Improvement Program $8,700.00 Adoption $3,880.00 Project Administration and Park Plan Preparation $29,500.00 Reimbursable Expenses $1,000.00 Total $119,810.00 Services beyond those noted in this proposal will be billed as additional services on an hourly basis as follows, or lump sum fees can be negotiated: Principal $175.00 per hour Associate $130.00 per hour Project Manager $105.00 per hour Landscape Architectural Staff $90.00 per hour Administrative Staff $60.00 per hour 10.17.14 Hope Gibson City of Kent Parks Proposal for Landscape Architectural Services – City of Kent Parks and Open Space Plan Update Page 6 of 6 Printing, reprographic expenses, CAD plots, travel costs, and other reimbursable expenses will be billed in addition to the above fees at cost plus a 10% administrative mark-up. All accounts are due in ten days. Invoices not paid within 30 days of invoice date will be subject to late charges of 1% per month. If payment for services is not received within 90 days of the invoice date, all subsequent services and/or issuance of documents may be postponed until receipt of payment, unless special arrangements are made prior to providing the services. Fees may be subject to renegotiation if the proposal is not accepted within 90 days. If the duration of the contract exceeds one year, hourly rates may be subject to annual adjustments at the anniversary date of the contract. If you have any questions or wish to make any changes please do not hesitate to contact us. We look forward to assisting the Parks Department with the update of the City of Kent Parks and Open Space Plan. Sincerely, Berger Partnership PS Greg Brower Principal Kent Parks Plan Update Tasks, Hours, & Fee Estimate Oct. 17, 2014 PIC = Principal in Charge A = Associate PM = Project Manager LS = Landscape Architectural Staff AS = Administrative Staff Description PIC A PM LS AS Amount Hourly Rate 175 130 105 90 60 Goals and Objectives Review established goals.4 4 Revise/update goals as necessary.8 8 4 Develop new goals with input from the Parks Commission and the general public. 8 8 Test goals with needs assessment and public input.4 4 Subtotal Hours 24 24 0 0 4 Subtotal $4,200 $3,120 $0 $0 $240 $7,560.00 Inventory Review park and facilities inventory, begin with existing park condition reports. 4 4 Update/establish evaluation criteria based on quality and condition. 8 8 8 Interview park maintenance staff.8 4 Site visits: One tour with Parks Planning and Operations staff to calibrate assessments. 4 4 Update inventory.4 4 8 4 Subtotal Hours 28 20 0 20 4 Subtotal $4,900 $2,600 $0 $1,800 $240 $9,540.00 Public Involvement Four input opportunities: 1.) Initial web survey 8 8 16 4 2.) City event 16 8 16 3.) Web-based comment period to collect public input on draft 8 8 4.) Targeted outreach to underserved communities in public meetings. 12 12 24 Public input strategy meeting 4 4 Develop web survey information and questions. (Above) Review and analyze web survey input.4 4 Prepare summary of input.4 4 4 Develop exhibits for public input at city event and targeted outreach meetings. (Above) Compile input and comments from city event and targeted outreach meetings. 4 8 4 Compile open comment.4 4 4 Validate plan strategies for improvement, make adjustments based on input. 8 8 4 Prepare final presentation to Council, Park Commission, and public. 4 8 Subtotal Hours 76 40 0 96 16 Subtotal $13,300 $5,200 $0 $8,640 $960 $28,100.00 Demand and Need Analysis Develop analysis strategy.4 4 Review park data and understand demand.4 8 Meetings to review direction/progress.4 Summarize and document demands and needs.4 8 2 Subtotal Hours 16 12 0 8 2 Subtotal $2,800 $1,560 $0 $720 $120 $5,200.00 Level of Service Assessment Establish what is important to park users and the city, i.e., quality of space and experience, condition of amenities, park defining features, safety, ease of access/location, maintenance. 12 8 8 8 Mapping of parks and service area.8 8 16 Establish level of service goals that are qualitative.8 8 8 Develop metrics for measurable improvement based on performance/quality – weighted by priority/importance. 8 8 16 Test approach by questioning criteria and assumptions 8 8 16 Apply findings from public input process, identify needs, adjust measurement criteria. 8 12 4 Prepare maps and charts –GIS update.2 4 40 Subtotal Hours 54 44 0 116 12 Subtotal $9,450 $5,720 $0 $10,440 $720 $26,330.00 Capital Improvement Program Prepare estimated costs for improvements.8 8 12 Develop schedule for capital improvements.8 4 Develop short- and long-term recommendations.4 4 4 Implementation strategies 4 4 Assist with development of maintenance costs. Park Department Operations will lead the effort. 4 4 Subtotal Hours 28 8 0 28 4 Subtotal $4,900 $1,040 $0 $2,520 $240 $8,700.00 Adoption Adoption process administered by Parks with support provided by Berger. 4 8 SEPA non-project checklist 4 8 8 Subtotal Hours 8 8 0 16 0 Subtotal $1,400 $1,040 $0 $1,440 $0 $3,880.00 Project Administration and Park Plan Preparation Plan appearance and graphics strategy 8 12 Plan preparation 8 8 56 Editing and proofreading 2 8 12 Plan draft - 25%2 4 Plan draft - 50% (submit to RCO)2 4 Plan draft - 75%2 4 Plan draft - 90%2 4 Plan draft - 100%2 4 Comment/input response revisions for each draft 8 16 4 Quality Control 4 8 8 Project Meetings (2 per month x 12 months)36 20 Subtotal Hours 76 36 0 112 24 Subtotal $13,300 $4,680 $0 $10,080 $1,440 $29,500.00 Reimbursable Expenses $1,000.00 Total $119,810.00 Insurance The COHSUltant 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. IM'rnlmum Scope of Insurance Consultant shall obtain insurance of the types described below: 1. Automobile Liability insurance covering al[ awned, 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 Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO farm CG 25 03 11 85. There shall be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse or underground property damage, 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. B. Nliinimum 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 $1,000,000 each occurrence, $1,000,000 general aggregate and a . 1,000,000 products -completed operations 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 Consu[tant's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days pr[or 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 a[I 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. Acceptabiliity of insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANII. E. Verification of Coverage Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, mcfuding but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. F. Subcontractors Consultant shall include all subcontractors as insureds under [fis 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. This page intentionally left blank. Agenda Item: Consent Calendar – 7J TO: City Council DATE: November 4, 2014 SUBJECT: 2014 Third Quarter Fee-in-Lieu Funds – Accept SUMMARY: Between July and September, 2014, the City of Kent received a total of $20,550.00 from the developers listed below, who voluntarily paid fees in lieu of dedicating park land to mitigate the development of single family homes in local subdivisions. The funds will be used at the park locations as noted below. • Lake Meridian Park: $12,675.00 from Jasvir Singh • Springwood Park: $7,875.00 from Zhong Qing EXHIBITS: Copy of Revenue Report RECOMMENDED BY: Parks and Human Services Committee YEA: Ranniger - Higgins - Fincher NAY: BUDGET IMPACTS: Revenue increase of $12,675.00 and $7,875.00 to the Lifecycle Program Budget. MOTION: Authorize the Mayor to accept $20,550.00 for Fee-in-lieu-of funds and amend the Park Lifecycle Program budget for future expenditures. This page intentionally left blank. R55GA014 10/2/2014 11:03:58Search GL by Account Number Page:19/30/20147/1/2014 -GL Dates: Amount PO# Ref 2 PC R/V RecLT Description Vendor or CustomerSubledgerBatch # Doc #GL Date Acount Number 1574867/2/2014 P277042 P20006.56730 (7,875.00)14-51157 530277 Zhong QingJK AA 1582608/20/2014 P282018 P20006.56730 (12,675.00)14-52065 542649 Bank Of America -jasvirJK AA (20,550.00)Account Total (20,550.00)Report Total This page intentionally left blank. Agenda Item: Consent Calendar – 7K TO: City Council DATE: November 4, 2014 SUBJECT: Reappointment to the Public Facilities District (PFD) SUMMARY: Randall Smith has been recommended by Mayor Suzette Cooke to be re- appointed to the Board of Directors for the Kent Events Center Public Facilities District. In accordance with City of Kent Ordinance No. 3852, Public Facilities District Resolution No. 1769, and RCW 35.57.010(3) (a) each director’s term is to be for a period of four years. Mr. Smith’s next four year term would expire on September 1, 2018. Therefore, the Mayor requests Council confirm her re-appointment of Mr. Smith to a new four-year term. If you have any questions prior to the meeting, please call Ben Wolters, 856-5703. EXHIBITS: None RECOMMENDED BY: Mayor Suzette Cooke BUDGET IMPACTS: None MOTION: Recommend Council confirm the Mayor’s re-appointment of Randall Smith to Position 3 of the Kent ShoWare Events Center Public Facilities District board for a four-year term, and ratify all acts consistent with this motion. This page intentionally left blank. Agenda Item: Other Business – 8A TO: City Council DATE: November 4, 2014 SUBJECT: Solid Waste Utility Tax Ordinance - Adopt SUMMARY: The city maintains 320 centerline miles of streets, over half of which are residential. The Solid Waste Utility must operate on these streets to provide services throughout the city. On residential streets the weekly garbage pickup and biweekly recycling and yard waste pickup are the heaviest vehicles these streets will carry. Using data from the American Association of State Highway and Transportation Officials, one fully loaded garbage truck produces the wear and tear of 1,500 cars. This figure takes into account the lighter compressed natural gas solid waste collection trucks required under the current contract. Staff has analyzed potential methods to collect additional revenue to help pay for street wear and tear caused by solid waste trucks. It was determined that an increase to the existing 7.8 percent solid waste utility tax is the most efficient process. To generate 3 million dollars in revenue, the solid waste utility tax would need to be increased to 18.379 percent. For simplicity, this ordinance rounds up that increase to 18.4 percent. If the solid waste utility tax is increased, Kent residents would still enjoy some of the lowest solid waste rates in King County. EXHIBITS: Ordinance RECOMMENDED BY: Public Works Committee YEA: Fincher - Ralph NAY: BUDGET IMPACTS: Increased revenues for expenditures related to transportation projects. MOTION: Adopt Ordinance No. _______, amending Kent City Code 3.18.020(5) increasing the solid waste utility tax to 18.4 percent, and allocating the increase beyond the existing 7.8 percent tax rate to be applied for limited transportation purposes. This page intentionally left blank. ORDINANCE NO. AN ORDINANCE of the city council of the city of Kent, Washington, amending Section 3.18.020 of the Kent City Code to increase the solid waste utility tax to 18.4% and allocating the increase beyond the existing tax rate to be applied to the maintenance of residential roads. RECITALS A. The city operates its own solid waste utility, and contracts with Republic Services to collect, haul, recycle, and dispose of residential and commercial waste throughout the city. B. The city’s solid waste contractor, like all solid waste haulers throughout the region, uses large, heavy trucks to collect solid waste, yard waste, and recyclable materials throughout the approximately 320 miles of city streets. C. Although tractor-trailer combinations are generally heavier on average than the contractor’s trucks, the solid waste, yard waste, and recycling trucks are five or more times heavier than a typical car or SUV and have a disproportionate impact that causes increased maintenance, repair, and overlay of city streets. Unlike most tractor-trailer combinations, the solid waste hauler’s trucks by necessity regularly drive upon the city’s residential streets in order to serve the utility’s residential 1 Solid Waste Utility Tax Ordinance customers. The City estimates that the impact of one of the hauler’s fully- loaded vehicles on a residential street is equal to the impact of 1,500 cars. D. The utility’s constant truck traffic across residential streets dramatically decreases the life of residential streets in particular, because otherwise, heavy truck traffic use of residential streets occurs on a minimal basis. E. Because of this disproportionate impact to city streets, and in particular, the city’s residential streets, the city council has determined that the solid waste utility should contribute additional funds to maintain and repair the city’s streets by raising the solid waste utility tax from the current rate of 7.8% to a new rate of 18.4%. The city estimates that this increase will generate approximately three million dollars in new revenue that will be limited to residential street repair and maintenance only. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. – Amendment. Section 3.18.020 of the Kent City Code is amended as follows: Sec. 3.18.020. Certain utilities subject to tax. A. In addition to the other business and license fees required by the ordinances of the city, the city levies upon all persons, firms, or corporations (including the city) engaged in certain business activities a utilities tax to be collected as follows: 1. Upon every person, firm, or corporation engaging in or carrying on any telephone business within the city, an annual tax equal to 2 Solid Waste Utility Tax Ordinance six (6) percent of the total gross income, including revenues from intrastate toll, derived from the operation of such business within the city. This six (6) percent tax will be allocated as follows: four and seven-tenths (4.7) percent to the general fund, three-tenths (0.3) percent to youth/teen programs, and one (1) percent to street improvement programs. 2. Upon every person, firm, or corporation engaging in or carrying on a business of selling, wheeling, furnishing, distributing, or producing gas, whether manufactured or natural, for commercial or domestic use or purposes, a fee or tax equal to six (6) percent of the total gross income from such business in the city during the tax year for which the license is required. This six (6) percent tax will be allocated as follows: four and seven-tenths (4.7) percent to the general fund, three-tenths (0.3) percent to youth/teen programs, and one (1) percent to street improvement programs. 3. Upon every person, firm, or corporation engaged in or carrying on the business of selling, wheeling, furnishing, or distributing electricity for light and power, a fee or tax equal to six (6) percent of the total gross income from such business in the city during the tax year for which a license is required. This six (6) percent tax will be allocated as follows: four and seven-tenths (4.7) percent to the general fund, three- tenths (0.3) percent to youth/teen programs, and one (1) percent to street improvement programs. 4. Upon every person, firm, or corporation engaged in or carrying on the business providing cable television services, a tax equal to six (6) percent of the total gross income from that business in the city during the tax year for which the license is required. All revenue received from this tax must be applied only to funding the city’s information technology department operations and capital projects budgets in the 3 Solid Waste Utility Tax Ordinance proportion determined by the city council in its biennial budget, including all amendments. 5. Upon every person, firm, or corporation engaging in or carrying on a business providing solid waste collection services, a tax equal to seven and eight-tenthseighteen and four tenths (7.8) percent (18.4%) of the total gross income from such business in the city during the tax year for which the license is required. This seven and eight-tenths (7.8) eighteen and four tenths percent (18.4%) tax will be allocated as follows: six and one-half (6.5) percent (6.5%) to the general fund, three-tenths (0.3)three tenths percent (0.3%) to youth/teen programs, and one (1) percent (1%) to street improvement programs, and ten and six tenths percent (10.6%) to maintain and repair residential streets, including related impacts to curb, gutters, sidewalks and other road amenities, but this ten and six tenths percent (10.6%) portion of the solid waste utility tax shall not be used to expand, extend, or widen existing residential streets or to build new residential streets. 6. Upon every person (including the city) engaging in or carrying on the business of selling, furnishing, or distributing water, sewer, or drainage services, a tax equal to thirteen (13) percent of the total gross income from such business in the city during the tax year. This thirteen (13) percent tax will be allocated as follows: four and seven-tenths (4.7) percent to the general fund for the use as allocated in the city’s budget; four (4) percent to the general fund only for the installation, operation, maintenance, and repair of street lighting, fire hydrants, and fire suppression systems subject to the limitations provided in subsection (A)(6)(a) of this section; two (2) percent dedicated solely to the repayment and elimination of debt in the city’s “other capital projects” fund subject to the limitations provided in subsection (A)(6)(b) of this section; one (1) percent to be applied only to establishing the city’s fund 4 Solid Waste Utility Tax Ordinance balance consistent with council policy and subject to the limitations provided in subsection (A)(6)(c) of this section; one (1) percent to street improvement programs; and three-tenths (0.3) percent to youth/teen programs. a. The four (4) percent allocation for street lighting and fire hydrants and suppression is further contingent on the requirement that the city allocate the funds freed up by this revenue to the city’s capital improvement fund(s). All transferred monies that become available in these reallocated capital improvement fund accounts must be applied equally to (i) information technology capital programs directed at funding long- and short-term hardware and software replacement and (ii) street capital programs, but further restricted to funding street maintenance, repair, and signage only. If the cost to install, operate, maintain, and repair street lighting, fire hydrants, and fire suppression systems is less than the four (4) percent allocation for these purposes, the full four (4) percent amount must still be allocated from the general fund to capital programs for the above-stated purposes. b. The two (2) percent internal tax allocation will be dedicated to the city’s capital improvements fund for the sole purpose of retiring all debt in the city’s other capital projects fund. This two (2) percent portion of the tax shall be eliminated on January 1, 2023, or on the first day of the year following the date the debt in this fund is fully retired, whichever occurs first. c. The one (1) percent internal tax allocation will be dedicated to the city’s general fund balance solely for the purpose of increasing the fund balance until that balance equals ten (10) percent of the city’s prior year operating expenses. This one (1) percent portion of the tax shall be eliminated on the first day of the year following the date 5 Solid Waste Utility Tax Ordinance the city’s general fund balance equals ten (10) percent of the prior year’s operating expenses. B. In computing the tax provided in subsection (A) of this section, the taxpayer may deduct from total gross income the following items: 1. The actual amount of credit losses and uncollectible receivables sustained by the taxpayer. 2. Amounts derived from transactions in interstate and foreign commerce which the city is prohibited from taxing under the laws and Constitution of the United States. SECTION 2. – Severability. If any one or more section, subsection, or sentence of this ordinance is held to be unconstitutional or invalid, that decision shall not affect the validity of the remaining portion of this ordinance and the same shall maintain its full force and effect. SECTION 3. – Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; ordinance, section or subsection numbering; or references to other local, state or federal laws, codes, rules, or regulations. SECTION . – 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; however, the utility tax increase implemented in this ordinance will not take effect and the city will not impose this increase until January 1, 2015. 6 Solid Waste Utility Tax Ordinance SUZETTE COOKE, MAYOR ATTEST: RONALD F. MOORE, CITY CLERK APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY PASSED: day of , 2014. APPROVED: day of , 2014. PUBLISHED: day of , 2014. I hereby certify that this is a true copy of Ordinance No. passed by the City Council of the City of Kent, Washington, and approved by the Mayor of the City of Kent as hereon indicated. (SEAL) RONALD F. MOORE, CITY CLERK 7 Solid Waste Utility Tax Ordinance This page intentionally left blank. Agenda Item: Other Business – 8B TO: City Council DATE: November 4, 2014 SUBJECT: ShoWare Center Sales, Marketing, and Operational Management Services Agreement - Authorize SUMMARY: Since the ShoWare Center’s inception, SMG has provided full facility management and food and beverage services at the ShoWare Center. Under the proposed contract, SMG will continue to provide these services. The initial term will commence January 1, 2015, and extend through December 31, 2019, with an additional five (5) year extension term subject to the mutual agreement of the parties. The base fee will be $135,252 and will be subject to an upward adjustment of the CPI- US City Average on January 1, 2015, and each January 1st thereafter. SMG will also have the opportunity to earn an Incentive Fee of up to $50,000 per year. SMG’s achievement of the incentive would be based upon its ability to exceed a gross revenue benchmark of $2.15 million. SMG would be entitled to 20% of the revenue generated over this benchmark, up to a $50,000 cap. SMG will forgive the existing accounts receivable balance of $200,000. Forgiveness of the amount due will be amortized on a straight-line, non-cash basis over a period of ten (10) years. SMG also will invest $500,000 into the facility to be paid upon execution of the new management agreement. This amount would be amortized on a straight-line, cash basis and paid back over a period of ten (10) years. If the management agreement is terminated prior to the ten (10) year term, the unpaid balance of the investment still would be payable to SMG. EXHIBITS: 1) Agreement – Clean Version 2) Agreement – Track-changed version. In an effort to assist the Council, the City Attorney’s office has compared the original Agreement with the proposed Agreement in an attempt to show the changes between the two documents. RECOMMENDED BY: Operations Committee YEA: Thomas - Ralph - Boyce NAY: BUDGET IMPACTS: Yes MOTION: Authorize the Mayor to sign the ShoWare Center Sales, Marketing, and Operational Management Services Agreement subject to terms and conditions acceptable to the Economic & Community Development Director and the City Attorney This page intentionally left blank. SHOWARE CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT THIS SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT (“Agreement”) is entered into between the City of Kent, a Washington municipal corporation ("City") and SMG, a Pennsylvania general partnership, located and doing business at 300 Conshohocken State Rd., Suite 770, West Conshohocken, PA 19428 (“Contractor”). RECITALS A. The City is the owner of ShoWare Center f/k/a the Kent Events Center (the “Events Center”) on real property located in the City of Kent. B. Contractor was selected through an RFP selection process to perform the Sales, Marketing, and Operational Management Services described in this Agreement. C. Contractor has represented to the City that it has substantial experience and expertise in supervising and operating similar public facilities to those being proposed in the City. AGREEMENT NOW, THEREFORE, in consideration of the covenants, terms, and conditions contained in this Agreement and for other valuable consideration, City and Contractor agree as follows: I. PURPOSE The purpose of this Agreement is to provide for the operation of the Kent Events Center consistent with the goals of the City, in coordination with the Seattle Thunderbirds Western Hockey League team (“Team”) and pursuant to the terms and conditions established in the License Agreement entered into between the City and the Team (“License Agreement”), attached and incorporated as Exhibit A. The City will rely on the Contractor’s ability to provide expertise to the City and to its consultants on the design and operation of a high quality state of the art events center at a cost that is appropriate to the City. The City will rely on the Contractor’s expertise to assist and advise the City with the negotiation of the Events Center contracts for facilities, products, and services, to direct and control pre- opening marketing, and to efficiently and profitably manage and operate all aspects of the Events Center to the highest standards. All work to be performed in accordance with, and subject to, the Team’s rights and obligations contained in the License Agreement. The City will rely on the Contractor’s expertise to provide and maintain the highest quality operations and achieve the greatest possible profitability, consistent with other City objectives, with specific emphasis on the business goal of the Events Center to generate sufficient revenue to cover all debt service and operating expenses. The Contractor will use its best efforts to achieve all of these objectives in a professional manner, consistent with best industry practices and with all applicable laws and ordinances. The Events Center shall be operated in the public interest to create positive economic and entertainment activities for Citizens of the City of Kent and for the South King County region, and the Contractor recognizes this goal in programming for the Events Center. The Contractor shall optimize use of the Events Center, serving the public needs of the KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 1 of 28 community as well as attracting a wide variety of sporting, entertainment, and community events. The City seeks to protect its significant investment in the Events Center, and will rely on the Contractor to support this objective through high quality maintenance and supervision of major repairs and capital re-investment as the need arises. II. SCOPE OF WORK The Contractor shall provide services and staff, and otherwise do all things necessary for, or incidental to, the performance of the contract work, as set forth below: A. Sales and Marketing Services. Provide, or cause to be provided, sales and marketing services for sporting events, concerts, trade shows, community events, and other events as may be appropriate for the Events Center. The Contractor will coordinate those services with the Team to the extent required under the License Agreement. At a minimum, these services shall include: 1. Scheduling events, negotiating contracts, and confirming event bookings. 2. Developing a marketing plan and offering modifications as deemed advisable over time, with the goal of promoting the Events Center to national, regional, and local clients, promoters, and producers, commercial trade shows, and other events that will benefit the financial success of the Events Center. 3. Providing a sales process that will also accommodate the community’s need for a diverse public assembly facility. 4. Developing and implementing a customer service program to provide exceptional customer service to all visitors and guests of the Events Center. 5. Conducting market research to include customer satisfaction surveys of patrons and clients, and reporting those results to the City. 6. Managing all on-site ticket sales with Events Center staff or through a separate ticket sales contract while coordinating those ticket sales and box office use with the Team. 7. Creating Events Center promotional materials, floor plans, maps, and other materials appropriate to market the Events Center. 8. Developing forms, subject to the approval of the City, to contract for all Events Center rentals, decorating, electrical, A/V, telecommunication, and all other event services for events as required. 9. Providing, or causing to be provided, all incidental services required in conjunction with event activity, including food service, concessions, A/V services, telecommunications/data services, and other related or required services. 10. Developing, as a part of the annual budget for the Events Center, revenue projections related to rental/charge structures for the various facilities and rooms of the Events Center, equipment, and services provided by the Events Center and outside contractors, subject to the City’s approval. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 2 of 28 B. Operating Services. Ensure that the Events Center is maintained in first-class order and repair and in clean, safe, and sanitary condition, all to a superior standard, which shall include, at a minimum: 1. Providing operation, maintenance, and repair by competent and qualified employees or contractors, of all HVAC, mechanical, telephone, electrical, plumbing, and other technical systems, such as elevator, sound, lighting, security, fire and life safety monitoring systems, seating, furniture, fixtures, and equipment. 2. Providing major capital repairs/improvements, which shall be made from capital funds supplied by the City. 3. Maintaining and providing superior service levels for all grounds keeping, housekeeping, custodial, setup and maintenance services, specifically including, without limitation, grounds keeping and custodial services in walkways, parking lots, and all public areas of the Events Center. 4. Establishing a schedule of preventative maintenance and renovation to maintain the Events Center in first-class condition. 5. Providing all painting and structural maintenance and ordinary repair work on the Events Center, including maintenance and repair of roofs, ceiling, doors, windows, floors, and walls (both interior and exterior). 6. Meeting Leadership in Energy and Environmental Design (LEED) Silver requirements further described and referenced in Article II, Section C below and as directed by the City. C. LEED Silver Requirements. The Kent Events Center has been designed to conserve energy, water, and material resources and to provide a healthy indoor environment for workers and event participants. It will be participating in the Leadership in Energy and Environmental Design (LEED) rating system established by the U.S. Green Building Council to honor buildings that have made design, construction, and operational decisions that contribute to sustainability. The Events Center is designed to achieve a LEED Silver rating within this system. This rating depends on accomplishing targeted sustainability goals in the building, some of which affect the building operations. Thus, the Contractor is an important member of the sustainability team accomplishing this distinguished rating, along with the design and construction teams, the City, and the Team. Some of the areas which affect building operations are listed below along with the credits within the LEED rating system to which they refer: 1. WEc1.1 and 1.2, Water Efficient Landscaping: These credits require the project to provide no permanent landscape irrigation after a two-year establishment period. After the establishment period, plantings can be watered by hand during drought periods. 2. WEc3.1 and 3.2, Water Use Reduction: These credits will be achieved by installing low-flow water fixtures in the bathroom and locker rooms. 3. MRp1, Storage and Collection of Recyclables: This prerequisite requires paper, glass, plastics, and metal to be collected for recycling in the building. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 3 of 28 4. EQp2, Environmental Tobacco Smoke Control: This prerequisite requires no smoking in the building and requires that designated smoking areas be located as least 25 ft. away from entries, outdoor air intakes, and operable windows. 5. EQc7.2, Thermal Comfort Occupant Survey: This credit requires the Contractor to implement a building occupant thermal comfort survey of all staff and to commit to providing a corrective action plan if the survey responses indicate that more than 20% of the people surveyed are dissatisfied. This survey needs to be conducted within 6-18 months after the building is opened and should collect anonymous responses about overall satisfaction with thermal conditions in the building and identify thermal comfort-related problems. The Contractor must also agree to develop a plan for corrective action if the survey results indicate that more than 20% of occupants are dissatisfied with thermal comfort in the building. The City’s LEED consultant may be available to develop the survey for the building. Alternately, one of several commercially available surveys could be used, but these may need significant changes for this type of facility and may be more extensive than needed for this credit at the Events Center. For an example of a commercially available survey, see the Center for the Built Environment online survey at CBE Demonstration Survey (costs about $1000 per building plus additional costs for changes to the standard survey). 6. IDc1.2, Green Housekeeping: This credit requires Contractor implement a green housekeeping policy specifying the use of green cleaning and maintenance products and processes. The Contractor will be required to develop a green housekeeping plan that includes contracting with a housekeeping service that uses environmentally preferable cleaning products that meet the Green Seal GS-37 standard. In addition, the products selected should prioritize concentrated products and utilize packaging that is minimal, recyclable, and well labeled. The plan also should include a training program to educate operations staff (including administrative procurement staff) and occupants on the requirements of the Green Housekeeping Plan and Policy. 7. IDc1.4, Low Mercury Lamps: This credit requires the use of low mercury lamps in the building. Compliant low mercury lamps will be installed initially in the building and the Contractor will be expected to continue the use of these low mercury lamps at the time of re-lamping. For more information on the detailed performance requirements Contractor must meet to comply with the LEED rating system, Contractor should refer to the U.S. Green Building Council website at www.usgbc.org. D. Administrative Services. Provide the following minimum level of administrative services required to operate the Events Center: 1. Acting as the City’s representative in administering the License Agreement with the Team. 2. Administering all contracts required in the ordinary course of business including, without limitation, the following: services, events, concessions, catering, novelties/merchandise, advertising, and equipment. Negotiate, KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 4 of 28 execute, and deliver, in Contractor’s name as an independent contractor for the City, service contracts and vendor agreements, provided that to the extent that any such contract or agreement will extend beyond the Management Term, the City will approve and execute such contract or agreement. 3. Ensuring that the insurance requirements set forth on Exhibit B are met. 4. Informing the City annually as to the proposed establishment of prices and policies, rates, and rate schedules for space rental, lease, and booking agreements, advertising contracts, concession agreements, and other event commitments that the manager will be responsible to negotiate, but which also will be subject to the City’s prior approval before going into effect. 5. Advising the City on new or potential changes to revenue sources, partnerships, prices, and other factors that will add to the Events Center’s financial success. 6. Preparing an annual operating budget for the Events Center in the format and by scheduled due dates specified by the City, and, specifically, complying with the spending limitations imposed by the budget, including any authorized supplements. 7. Providing or causing to be provided all security services required for the Events Center and as required by the Kent Police Department for all scheduled events. Security services include maintaining a sufficient number of well-trained, courteous, and qualified security personnel in and about the grounds and the Events Center, as well as other additional personnel as may be required to effectively manage events within the City’s lawful requirements. 8. (a) Maintaining an adequate staff of courteous employees on duty and providing appropriate supervision and training of those employees. Employees hired by the Contractor or its subcontractor will be employees of the Contractor or its subcontractor and not of the City. The Contractor will employ or otherwise contract for its operations only those persons who by training, appearance, and habits are judged to be suitable workers appropriate to the environment of the Events Center. (b) The Contractor will be responsible for all personnel-related matters, including compensation, labor relations with any union or association, employee training and development (specifically including, without limitation, diversity training, sexual harassment prevention training, and other discrimination and disability training), contract negotiation, dispute resolution, provision of employee uniforms and equipment, employee hiring, job assignment and performance evaluation, and compliance with equal employment opportunity requirements. (c) With the prior consent of the City, which will not be unreasonably withheld, Contractor shall assign to the Events Center a general manager and director level employees, who shall be competent, full-time employees for the Events Center. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 5 of 28 (d) Except with Contractor’s prior written consent, during the period commencing on the date hereof and ending one (1) year after the termination of this Agreement or one year after separation from Employment, whichever is earlier, the City will not, for any reason, solicit for employment or hire the general manager and/or director-level employees. In addition to any other remedies which Contractor may have, specific performance in the form of injunctive relief shall be available for the enforcement of this provision. 9. Collecting all Operating Revenues (as defined in Article XIV, Section A) generated through the operation of the Events Center. All Operating Revenues collected by the Contractor from operation of the Events Center shall be the sole property of the City and will be held in trust by the Contractor for the City for application as provided for in the budget and cash flow provisions herein. All Operating Revenues derived from operation of the Events Center shall be deposited by Contractor into an interest-bearing account in a local qualified public depository to be designated by the City in writing (“Facility Operating Account”) as soon as practicable upon receipt (but generally not less often than once each business day and based upon an agreed minimum amount of daily funds collected). Revenues that are not defined as Operating Revenues that are received by Contractor shall be disbursed immediately to such accounts City may designate from time to time. The Facility Operating Account shall be established by the City, in the name of the City and under the City’s federal identification number. As provided for in this Agreement, Contractor shall have the right to withdraw and use the funds in the Facility Operating Account to pay the Operating Expenses (as defined in Article XIV, Section A). The specific procedures (and authorized individuals) for making deposits to and withdrawals from such account shall approved by the City, including the procurement of a fidelity bond in an amount approved by the City. 10. Expend from the Operating Revenues collected all Operating Expenses necessary for the proper management, operation, maintenance, and supervision of the Events Center, including the Operating Expenses as required to operate the Events Center as described in the RFP and in the City’s Request for Proposals, within the scope of the established annual budget. Develop short and long term strategies to enhance the financial success of the Events Center and its facilities. 11. Assist the City in developing and implementing rules, regulations, policies and procedures, which may impact the use of the Events Center. 12. Subject to the City’s approval, solicit, as necessary, competitive bids or proposals for those services, as they become necessary, to undertake the functions required to manage and operate the Events Center and service events. This may include, but not be limited to, such services as maintenance activities, A/V services, ticketing, and other services as may be mutually determined by the Contractor and the City. 13. Provide the City with such financial reports and in the form as directed by the City, to keep the City current and knowledgeable as to the financial and operating performance of the Contractor. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 6 of 28 14. Without the prior written consent of the City, which shall not be unreasonably withheld, Contractor shall not enter into any new management agreement for the operation of a similar arena facility within a twenty-five mile radius of the Event Center. Similar arena facilities are defined as arenas having between 4,000 and 8,000 seats. E. Capital Improvements/Funding. The obligation to pay for, and the authority to perform, direct, and supervise Capital Equipment (as defined under GAAP and City policy) and Capital Improvements (as defined under GAAP and City policy) purchases shall remain with the City and will not be considered Operating Expenses. The Contractor shall submit an annual plan that shall include Contractor’s recommendation for Capital Equipment and Capital Improvements purchases to be accomplished during the year and shall be accompanied by an estimate of the cost of all such items and projects and a request that City budget funds therefor. The City shall retain the discretion to determine whether and to what level to fund Capital Equipment and Capital Improvements purchases to the Events Center. F. The operation, by the Contractor of a vehicle or other equipment owned by the City shall be considered within the Scope of Work of the Agreement, and therefore, the defense, indemnity, and hold harmless provisions set forth in Section XIV.M.1 shall apply in the event of any claims, damages, expenses, legal costs and attorney’s fees relating to or arising from the operation of the vehicle or equipment by the Contractor shall be fully insured by the Contractor at all times and that insurance shall be primary and noncontributory for the vehicles under the contract. III. PERIOD OF PERFORMANCE A. Management Term. The “Management Term” of this Agreement shall commence on January 1, 2015, and end at midnight on December 31, 2019, unless earlier terminated pursuant to the provisions of this Agreement. The City may, in its sole discretion, extend the Management Term for a period of five (5) years by so notifying the Contractor in writing no less than 90 days prior to the expiration of this Agreement. The foregoing notwithstanding, this Agreement shall be terminable at the end of the third year of the Management Term, or the third year of any subsequent five-year extension thereof, by giving Contractor no less than 180 days prior written notice of such termination. IV. COMPENSATION AND PAYMENT A. As base compensation to Contractor for providing the services herein specified during the Management Term, the City shall pay Contractor during the Management Term, an annual fixed fee of $135,252, which amount shall be adjusted upward on the first day of each Fiscal Year by the percentage change in the Consumer Price Index ~ All Urban Consumers (CPI-U) - U.S. City Average ~ All Items, during the one year period ending on December 31, as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or of any revised or successor index hereafter published by the Bureau of Labor Statistics or other agency of the United States Government succeeding to its functions (“CPI”). The foregoing annual fixed compensation shall be payable in equal monthly installments due on or before the last day of each month during such Fiscal Year, and Contractor shall be entitled to draw such amounts from the account described in Article V, Section H. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 7 of 28 B. Annual Incentive Fee. In addition to the Fixed Annual Base Fee described above, the Contractor shall be eligible, in each operating year of the period of performance under this Agreement, for an annual incentive fee of up to a maximum of $50,000, which amount shall be adjusted upward on the first day of each Fiscal Year during the Management Term hereof by the percentage change in the CPI (“Annual Incentive Fee”). The Annual Incentive Fee shall be an amount equal to 20% of all Operating Revenues in excess of $2.15 million (subject to the cap as stated above). The incentive fee determined pursuant to this Article IV, Section B shall be payable to Contractor within thirty (30) days after the City’s receipt of an invoice from Contractor setting forth the Operating Revenues and Operating Expenses for the previous Fiscal Year, together with any additional supporting documentation, if approved by the City, and showing the calculation of the incentive fee payable with respect to such Fiscal Year. In no event shall the Annual Incentive Fee for services rendered during any operating year during the term of this Agreement shall not exceed the amount of the Fixed Annual Base Fee for services rendered in the same operating year during the term of this Agreement. C. Overhead. All general home office administrative overhead expenses of Contractor’s offices, including, without limitation, expenses such as staffing costs, utilities, long-distance telephone calls, courier fees, parking fees, postage, and copying charges shall be paid by Contractor out of its own funds and shall not be reimbursable. V. OPERATING BUDGETS/FUNDING/REPORTING PROCEDURES Each annual Operating Budget shall include a projection of Operating Revenues and Operating Expenses, presented on a monthly and annual basis, and the projected Net Operating Loss/Profit for that Operating Year, and the Operating Budget shall serve as an estimate of expected Operating Revenues and Operating Expenses for the Events Center. The Operating Expenses in each annual Operating Budget shall be payable by Contractor with funds from the Facility Operating Account, or from funds otherwise provided by the City, as provided in this Agreement. The following procedures will apply to proposing, establishing, and amending each fiscal year’s annual operating budget, including any mid- year budget adjustments, as well as the reporting and approval protocol required for City approval and payment. A. Annual Operating Budget Proposal. At least ninety (90) days prior to the commencement of each Operating Year, the Contractor will prepare and submit to the City a line item budget (in form specified by the City) for the Events Center (the “Operating Budget”). The City agrees to take reasonable commercial steps to provide Contractor, subject to any limitations of applicable law, with all information in its possession that the City reasonably believes is necessary to enable Contractor to prepare the Operating Budget. B. City Approval Authority. The City and Contractor will use reasonable commercial efforts to cooperate with each other in the preparation of the City’s Operating Budget or any adjustments. In the event of any disagreement regarding a line item expense or the aggregate amounts included in a proposed Operating Budget or adjustment, the City and Contractor shall use reasonable commercial efforts to attempt to resolve the matter to the mutual satisfaction of the parties. Notwithstanding any other provision in this Agreement, each Operating Budget and any adjustments shall be subject to final review and approval by the City, which approval may be withheld or granted in its sole discretion. In order for the City to fully evaluate and analyze the budget or budget adjustment, Contractor KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 8 of 28 will provide, upon the City’s request, any financial information relating to the Events Center in such form as the City requires. C. Contractor’s Right to Opt Out. In the event a proposed Operating Budget has not been approved prior to the first day of the period to which it relates, the Operating Budget shall be the budget designated by the City, provided that Contractor shall have ten (10) days after the City designates the Operating Budget to provide the City written notice of termination if, in its good faith reasonable judgment, the Contractor determines that the monies allocated to the Operating Budget either will be insufficient for Contractor to perform its obligations under this Agreement or will significantly limit its ability to earn the annual Incentive Fees. Any termination notice given within this ten-day period cannot take effect for at least ninety (90) days from the date the City receives this termination notice. Contractor’s election to terminate this Agreement if the parties are unable to agree on the annual Operating Budget shall not constitute a breach or default by either party under this Agreement. If Contractor timely exercises its right of termination under this paragraph, Contractor shall continue to perform its obligations under this Agreement through the termination date, in accordance with the Operating Budget established by the City and the City shall continue to pay Contractor its Fixed Management Fees and Incentive Fees through the date of termination. D. Budget Amendments for Unanticipated Loss or Profit. In the event that it appears reasonably likely, in any Operating Year, that the actual Net Operating Loss/Profit for an Operating Year will be less than projected in the Operating Budget for that Operating Year, the City may either prepare an amended Operating Budget that will be adopted and adhered to by Contractor or request that Contractor prepare a plan for reducing Operating Expenses to a level specified by the City. Contractor shall promptly comply with any expense reduction requested by the City, and the approved budgets for that Operating Year shall be modified accordingly. In the event the City does not approve the amended Operating Budget within a reasonable time after the submission of the amendment, both parties will meet for a period of not more than two (2) days to resolve in good faith any differences. If, at that point, the parties are still unable to agree to the amendment, the parties shall have the termination rights and liabilities established in Article V, Section C above. E. Adjustments for Extraordinary Events. The parties contemplate that certain extraordinary events may occur during the term of this Agreement that may require budget adjustments. Examples of these extraordinary events, by way of example only and without limitation, would include outlay for unanticipated capital expenses, a loss in the City’s available funds, or a dramatic increase in the size and scale of an event or events such that additional funds would be required to cover added operational costs. If extraordinary events occur during any Operating Year that the Contractor could not reasonably have contemplated at the time the corresponding Operating Budget was prepared, Contractor may submit a budget adjustment to that year’s budget for review and approval by the City, which approval may be withheld or granted in its sole discretion. In the event the City does not approve the adjustment to the Operating Budget within a reasonable time after the submission of the amendment, both parties will meet for a period of not more than two (2) days to resolve in good faith any differences. If, at that point, the parties are still unable to agree to the budget adjustment for extraordinary expenses, the parties shall have the termination rights and liabilities established in Article V, Section C above. F. Amendment for Qualified Management Contract. If required by bond counsel, Contractor agrees to make modifications to this Agreement so that the same is, in the opinion of bond counsel, a qualified management contract for purposes of Revenue KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 9 of 28 Procedure 97-13 promulgated by the Internal Revenue Service. In the event those modifications materially increase Contractor’s obligations or materially decrease Contractor’s rights or economic benefits, Contractor and the City will cooperate in good faith for a period of thirty (30) days to amend the Agreement and preserve the economic benefits of both parties in a manner that is satisfactory to Contractor, City and the City’s bond counsel, each acting in their sole discretion. To the extent the parties do not amend this Agreement within this thirty (30) day period, Contractor shall have the right to terminate this Agreement upon giving not less than ninety (90) days prior written notice to the City, which right may be exercised by Contractor only within ten (10) business days after expiration of the thirty (30) day negotiation period. If Contractor timely exercises its right of termination under this paragraph, Contractor shall continue to perform its obligations through the date of termination and the City shall continue to pay Contractor its Fixed Management Fee and Incentive Fee through the date of termination in accordance with this Agreement. G. Adherence to Operating Budget. Contractor shall, in good faith, use its best efforts to manage and operate the Events Center in accordance with the Operating Budget, but shall have no liability for failing to achieve estimated budget amounts, unless that failure is due to Contractor’s breach of the terms of this Agreement. Without the prior written consent of the City, Contractor shall not exceed, commit, or contract to expend any sums in excess of the category amounts allowed in the Operating Budget or otherwise approved by the City, except for the following (“Special Unbudgeted Expenses”): (i) for Operating Expenses for services provided to the Events Center by third parties, the cost of which is not within the reasonable control of Contractor, such as the costs of utilities and insurance; (ii) approved Emergency Repairs; (iii) increased costs resulting from the scheduling by Contractor of additional revenue producing events or activities at the Events Center, so long as prior to the scheduling of those events or activities, Contractor had a good faith belief that the projected Net Operating Profit (or Loss) for the Operating Year as set forth in the applicable Operating Budget would be improved as a result of those additional events or activities. In no event when taking into account the Special Unbudgeted Expenses will Operating Expenses for a particular budget category exceed, without the prior written approval of the City: (i) ten (10%) percent of budgeted expenses for that category (categories shall be Salary and Benefits, Utilities, and Other Operating Costs) or (ii) five percent (5%) of the aggregate budgeted Operating Expenses in the Operating Budget (including any amendments or adjustments, if any). Contractor shall immediately report in writing to the City any anticipated expenditures that may exceed the aggregate budgeted Operating Expenses. Unless previously approved by the City, if Contractor incurs any Operating Expenses in excess of the Operating Budget, that expenditure will constitute a violation of this Section, and Contractor shall be responsible for those excess expenditures from its own funds. H. Source of Funding. Contractor shall pay all Operating Expenses for the operation, maintenance, supervision, and management of the Events Center from the funds in the Facility Operating Account, which Contractor may access periodically for this purpose. The Facility Operating Account shall be funded with amounts generated by operation of the Events Center (including Operating Revenues), or otherwise made available by the City. To ensure sufficient funds are available in the Facility Operating Account, the City will transfer to and/or retain in the Facility Operating Account, by the first (1st) business day of each month, the budgeted or otherwise approved Operating Expenses for that month unless the Facility Operating Account has uncommitted funds equal to those budgeted amounts on that date. To the extent the uncommitted funds in the Facility Operating Account exceed the budgeted Operating Expenses for a given month, the Contractor shall disburse the excess KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 10 of 28 amounts to the City on or before the fifth (5th) day of that month. Except as otherwise set forth in this Agreement, Contractor shall have no liability to the City or any third party in the event Contractor is unable to perform its obligations due to the fact that sufficient funds are not generated from the operation of the Events Center or otherwise made available by the City in a timely manner. I. SMG Capital Contribution. 1. Within ten days after execution of this Management Agreement, SMG shall provide to the Facility the sum of Five Hundred Thousand Dollars ($500,000) for Capital Improvements and Capital Equipment purchases relating to the Facility. If appropriate (i.e., such improvements and purchases are for several different items), SMG will work with the City to prepare, and mutually agree upon, a budget of the Capital Improvements and Capital Equipment purchases to be funded with such contribution, along with the scope of work to be performed thereunder, the supervision of tasks and the estimated time frames for the projects listed in such budget. Such budget will take into account the Capital Improvements and Capital Equipment purchases to be funded by the City as specified herein. SMG shall be in charge of implementing such budget and proposed scope of work and tasks, and of overseeing the estimated time frames. 2. The amount of the SMG Capital Contribution shall be repaid over a period of ten (10) years, amortized on a straight-line, non-interest bearing cash basis. In the event of the expiration or termination of this Agreement for any reason, the City in its discretion may immediately pay, or cause any successor management company immediately to pay, to SMG unconditionally and without set-off the unpaid amount of the SMG Capital Contribution existing as of such expiration or termination. In the event that the City does not immediately pay such unpaid amount, then it shall repay the balance of the SMG Capital Contribution by making equal monthly payments to SMG based on the original amortization schedule, until such time as the balance is fully repaid. J. Accounts Receivable Forgiveness. Upon execution of this Management Agreement, SMG will forgive the existing accounts receivable balance (owing from the City to SMG) in the amount of Two Hundred Thousand Dollars ($200,000) (the “Accounts Receivable Forgiveness”), which amount shall be amortized over a period of ten (10) years on a straight-line, non-cash basis. In the event of the expiration or termination of this Agreement for any reason, the City shall pay, or cause any successor management company to pay, to SMG unconditionally and without set-off the unamortized amount of such Accounts Receivable Forgiveness existing as of such expiration or termination. The payment of any such unamortized amounts shall be made to SMG no later than thirty (30) days following the effective date of such expiration or termination. VI. CAPITAL EXPENDITURES. Contractor shall identify capital needs and shall annually, at the time of submission of the annual Operating Budget to the City, provide the City for its approval, which may be granted or withheld in the City’s sole discretion, a budget of anticipated capital improvements necessary at the Events Center, detailing all aspects of those improvements asserted to be necessary in the coming operating year. This capital expenditures budget shall also contain an annual five (5) and ten (10) year Capital Expenditure forecast for the purpose of allowing the City to consider for inclusion of those forecasts in its future Capital KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 11 of 28 Expenditures budgets and/or for establishment of a capital reserve account. The City shall be solely responsible for all Capital Expenditures at the Events Center; provided, however, that the City shall be under no obligation to make those Capital Expenditures. Contractor shall have no authority to make any material alterations or any capital improvements to the Events Center, unless included in that year’s Capital Expenditures budget or requested by the City in writing, all exclusively subject to the City making the necessary funds available in the Capital Expenditures budget. Notwithstanding the foregoing, Contractor shall have the right to make Capital Expenditures at the Events Center for Emergency Repairs (defined as the repair of a condition which, if not performed immediately, creates an imminent danger to persons or property and/or an unsafe condition), and the City will reimburse Contractor for those expenditures, except that, in the event any Emergency Repair will exceed $10,000 in one occurrence or $25,000 in the aggregate, the City must first provide its written approval before proceeding with the emergency work, unless it would be unreasonable to obtain the approval due to the circumstances of the emergency, in which case Contractor must employ its best efforts to notify via telephone the City’s contract administrator. VII. CITY APPROPRIATION DEFICIENCY. A. Non-Funding. The City shall have no obligation to provide funds for the payment of Operating Expenses incurred or committed for after the date Contractor receives written notice (an “Appropriation Deficiency Notice”) of the fact that insufficient funds or no funds have been appropriated for the Events Center, except for Operating Expenses that were contracted, incurred, or committed to prior to Contractor’s receipt of the Appropriation Deficiency Notice. B. Payment Rights Upon Receipt of Appropriation Deficiency Notice. If the Appropriation Deficiency Notice is of insufficient funds, the City shall pay all Operating Expenses incurred or committed prior to the date Contractor receives the Appropriation Deficiency Notice. In addition, the City shall pay all Operating Expenses incurred or committed after the notice date that are within the aggregate level of appropriated funds specified in the Appropriations Deficiency Notice. Any failure by the City to provide funds (beyond the aggregate level of appropriated funds) for the payment of Operating Expenses incurred or committed after Contractor receives an Appropriations Deficiency Notice shall not be a breach of or default under this Agreement by the City. Except for Operating Expenses that are incurred or committed for after the date Contractor receives the Appropriations Deficiency Notice, any failure by Contractor to perform its obligations under this Agreement shall not be a breach of or default under this Agreement if that breach or default is directly caused by the City’s failure to appropriate sufficient funds for the management, operation, and promotion of the Events Center. C. Termination Rights. If the City appropriates funds at (or reduces appropriated funds to) a level that, in Contractor’s good faith reasonable judgment, renders the management of the Events Center as contemplated in the Agreement not feasible, Contractor and the City shall meet as necessary to formulate a plan to continue management of the Events Center at a reduced level of service consistent with anticipated Operating Revenues and available funding. If the parties are unable to agree on a plan within fifteen (15) days after commencing these discussions, either party may terminate this Amendment without liability or penalty to the other, and in that event, the termination shall not constitute a breach or default by either party. VIII. REPORTING/AUDIT REQUIREMENTS. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 12 of 28 Contractor shall carry out the following reporting and audit activities: A. Monthly Reports. Prepare monthly reports regarding the use and operation of the Events Center as the City may request and in a form that meets the City’s requirements. These reports must include information on the activities associated with the operation, management, supervision, and maintenance of the Events Center as well as financial analysis of how the center is operating, a list of upcoming events, a discussion of operating and maintenance issues/concerns, anticipated changes in management, operations or maintenance activities, and other information as appropriate or as requested by the City. B. Annual Reports. Upon the conclusion of each Operating Year, Contractor shall, as an Operating Expense, cause a certified public accounting firm to develop audited financial reports and to certify compliance with generally accepted accounting practices. The City reserves the right to conduct its own audit of the Events Center. IX. CONTRACT ADMINISTRATION The Contract Administrator for each of the parties shall be the contact person for all communications and billings regarding the performance of this Agreement and in accordance with all notice provisions established in this Agreement. Contract Administrator for Contractor is: Contract Administrator for City is: H. Westley SMG 701 Market Street, Suite 4400 Philadelphia, PA 19106 Phone: 215-592-6600 Fax: 15-592-6699 E-mail address: wwestley@SMGWorld.com Ben Wolters, Economic Development Director City of Kent 220 4th Avenue South Kent, Washington 98032 Phone: (253) 856-5700 Fax: (253) 856-6700 E-mail address: bwolters@ci.kent.wa.us X. REPRESENTATION AND WARRANTIES Contractor represents and warrants to the City as follows: A. There are no actions, suits, or proceedings pending, or to the knowledge of Contractor, threatened against or affecting the Contractor that could have a material adverse effect on the ability of the Contractor to honor its obligations under this Agreement or involving the validity or enforceability of this Agreement at law or in equity. B. Contractor is not in default or in violation with respect to, or operating under or subject to, any order, writ, injunction, decree, or demand of any court or any governmental authority. C. The performance of the work and the transactions contemplated under this Agreement will not result in any breach of, or constitute a default under, any mortgage, deed of trust, lease, bank loan or credit agreement, partnership agreement, corporate charter, bylaws, or other agreement or instrument to which Contractor is a party or by which it or any of its assets may be bound or adversely affected. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 13 of 28 D. Contractor is not insolvent (as such term is defined in the Bankruptcy Code of 1978, 11 U.S.C. Section 101, et seq., as amended) and will not be rendered insolvent by execution of this Agreement or the consummation of the transactions contemplated in this Agreement. Contractor has no counterclaims, offsets, or defenses with respect to this Agreement. XI. INSURANCE The Contractor will procure and maintain for the duration of this Agreement and all amendments insurance of the types and in the amounts required by Exhibit B attached and incorporated by this reference. XII. ASSURANCES Contractor, its officers, agents, and employees shall comply with all laws applicable to Contractor’s management of the Events Center hereunder. Without limiting the foregoing, with respect to the ADA, Contractor will comply with Title III of the ADA and the provision of such auxiliary aids or alternate services as may be required by the ADA. Nothing in this Article XII or elsewhere in this Agreement shall, however, require Contractor to undertake any of the foregoing compliance activity, nor shall Contractor have any liability under this Agreement therefor, if such activity requires any Capital Improvements or Capital Equipment purchases, unless the City provides funds for such Capital Improvements and Capital Equipment purchases pursuant to the provisions hereof. Furthermore, Contractor shall have the right to require any licensee, lessee, tenant, promoter, or user of any portion of the Events Center to comply, and to be financially responsible for compliance, with Title III of the ADA in connection with any activities of such licensee, lessee, tenant, promoter, or user at the Events Center. XIII. ORDER OF PRECEDENCE Each of the Exhibits listed below is by this reference incorporated into this Agreement. In the event of an inconsistency in this Agreement, the inconsistency shall be resolved by giving precedence in the following order: A. Agreed amendments to this Agreement B. This Agreement, including Exhibit B - Insurance Requirements C. Exhibit C – Contractor’s Response to Request for Proposal, dated November 30, 2007 D. Exhibit D – City of Kent Request for Proposals, first published on October 29, 2007 E. Any other provision, term, or material incorporated by reference into this Agreement XIV. GENERAL TERMS AND CONDITIONS A. Definitions. As used throughout this Agreement, the following terms shall have the meaning set forth below: KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 14 of 28 1. “City” shall mean the City of Kent, any division, section, office, unit or other entity of the City, or any of the officers or other officials lawfully representing that City. 2. "Contractor" shall mean that firm, provider, organization, individual or other entity performing service(s) under this Agreement, and shall include all employees of the Contractor. 3. “Fiscal Year” shall mean a period beginning January 1 and ending December 31. 4. “Net Operating Loss/Profit” means Operating Revenues less Operating Expenses. 5. “Operating Expenses” shall mean any and all expenses and expenditures of whatever kind or nature incurred, directly or indirectly, by Contractor in promoting, operating, maintaining, and managing the Events Center, including, but not limited to: employee compensation and related expenses, employee benefits and related costs (e.g., relocation and other related expenses pursuant to Contractor’s relocation policy (a copy of which will be provided upon request)), supplies, material and parts costs, independent contractors, advertising, marketing and public relations costs and commissions, janitorial and cleaning expenses, data processing costs, dues, subscriptions and membership costs, the costs of procuring, administering and maintaining the insurance referred to herein, amounts expended to procure and maintain permits and licenses, charges, taxes (excluding admissions taxes), excises, penalties and fees, professional fees, printing and stationery costs, event expenses, postage and freight costs, bank services charges, equipment rental costs, computer equipment leases and line charges, repairs and maintenance costs (e.g., elevators and HVAC), security expenses, utility and telephone charges, travel and entertainment expenses in accordance with Contractor’s policies, the cost of employee uniforms, safety and medical expenses, exterminator and waste disposal costs, costs relating to the maintenance of signage inventory and systems, the cost of annual independent audits of the Events Center, the cost of compliance with laws and regulations, costs incurred under agreements, commitments, licenses and contracts executed in Contractor’s name as permitted herein, any obligation or liability under or in respect of any contract, agreement or other instrument executed by Contractor in its name as authorized herein provided that Contractor has not breached such contract, agreement or other instrument and the fixed management fees payable to Contractor hereunder, all as determined in accordance with generally accepted accounting principles and recognized on a full accrual basis; provided that Operating Expenses shall not include expenses or expenditures in connection with Capital Improvements and Capital Equipment purchases, the incentive fee payable hereunder and any expenses relating to Contractor personnel based in Contractor’s corporate headquarters in Wesst Conshohocken, Pennsylvania or its regional field locations (other than the reasonable costs of travel by such corporate or regional personnel in connection with Contractor’s management of the Events Center, which costs shall be Operating Expenses). 6. “Operating Revenues” shall mean any and all revenues of every kind or nature derived from owning, operating, managing, or promoting the Events KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 15 of 28 Center, including, but not limited to: license, lease, and concession fees and rentals, revenues from merchandise sales, advertising and sponsorship sales and renewals (including without limitation revenues from the sale of naming rights), event sponsorship revenues, equipment rentals, utility revenues, box office revenues, ticket surcharges (if any), ticket service fees, parking revenues, food service and concession revenues (however, if such revenues are collected in the first instance by and retained by the concessionaire, the amount of such revenues owed by the concessionaire to the Events Center shall be included as Operating Revenues), commissions or other revenues from decoration and set-up, security and other subcontractors (however, if such revenues are collected in the first instance by and retained by such subcontractors, the amount of such revenues owed by such contractors to the Events Center shall be included as Operating Revenues), miscellaneous operating revenues, revenues generated from separate agreements with Contractor Affiliates pertaining to the Events Center, and interest revenues, all as determined in accordance with generally accepted accounting principles and recognized on a full accrual basis. For the sake of clarity, the parties acknowledge that revenues from the sale of tickets for events at the Events Center are not Operating Revenues, but are instead revenues of the promoter and/or performer of each such event. To the extent that Contractor collects such ticket sale revenue on behalf of such promoter and/or performer, such ticket sale revenue shall be the source of funds from which Contractor collects the rental charges and other event reimbursements due by such promoter and/or performer for use of the Events Center, which such charges and reimbursements are Operating Revenues hereunder. 7. "Subcontractor" shall mean any entity in the employment of the Contractor, who is performing all or part of those services under this Agreement under a separate contract with the Contractor. The terms "Subcontractor" and "Subcontractors" means Subcontractor(s) in any tier. B. Access to Data. The Contractor shall provide the City, upon the City’s request, access to data generated under this Agreement. This includes access to all information that supports the findings, conclusions, and recommendations of the Contractor’s reports, including computer models and methodology for those models. C. Amendments. This Agreement may be amended only by mutual agreement of the parties. Amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. D. Assignment. Contractor shall not assign or transfer any interest in this Agreement without the prior written consent of the City, which consent may be withheld or granted on conditions in the City’s sole and absolute discretion. 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. E. Collateral Assignment. Not withstanding the foregoing, Contractor shall be entitled to assign its rights to receive its fees under the Agreement to its lender(s) as collateral security for Contractor’s obligations under any credit facilities provided to it by such lender(s), provided that such collateral assignment shall not in any event cover or affect Contractor’s rights to manage, promote or operate the Events Center. Additionally, KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 16 of 28 Contractor generally reserves the right to assign it rights to an affiliate of Contractor in connection with a restructuring of its business with written approval of the City, which approval will not be unreasonably withheld. F. Attorneys’ Fees. Except as provided in Article XIV, Section M below, in the event of litigation or other action brought to enforce any of the provisions of this Agreement, each party is responsible to pay all its own attorney fees and costs in bringing that dispute, claim, or litigation, including all appeals. G. Confidentiality / Safeguarding of Information. The Contractor shall not use or disclose any information concerning the City, or information which may be classified as confidential, for any purpose not directly connected with the administration of this Agreement, except with prior written consent of the City, or as may be required by law. The parties hereto agree that they shall keep secret and confidential any and all proprietary information (which shall include all documents which Contractor marks as confidential or proprietary), and neither party shall divulge any such information, in whole or in part, to any third party, except as required by law, without the prior written consent of the other party. The parties shall provide notice to the other party of any known or suspected violations of this Section. H. Conflict of Interest. Notwithstanding any determination by the Executive Ethics Board or other tribunal, the City may, in its sole discretion, by written notice to the Contractor terminate this Agreement if it is found after due notice and examination by the City that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW, or any similar statute involving the Contractor in the procurement of, or services under this Agreement. In the event this Agreement is terminated as provided above, the City shall be entitled to pursue the same remedies against the Contractor as it could pursue in the event of a breach of this Agreement by the Contractor. The rights and remedies of the City provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which the City makes any determination under this clause shall be an issue and may be reviewed as provided in the “Disputes” clause of this Agreement. I. Copyright Provisions. Unless otherwise provided, all Materials produced under this Agreement shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by the City. The City shall be considered the author of those Materials. In the event the Materials are not considered “works for hire” under the U.S. Copyright laws, Contractor hereby irrevocably assigns all right, title, and interest in Materials, including all intellectual property rights, to the City effective from the moment of creation of those Materials. As used in this Section titled, “COPYRIGHT PROVISIONS,” “Materials” means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. Ownership includes the right to copyright, patent, register, and the ability to transfer these rights. For Materials that are delivered under the Agreement, but that incorporate pre- existing materials not produced under the Agreement, Contractor hereby grants to the City a nonexclusive, royalty-free, irrevocable license (with rights to sublicense others) in those Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 17 of 28 publicly display. The Contractor warrants and represents that Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to the City. The Contractor shall exert all reasonable effort to advise the City, at the time of delivery of Materials furnished under this Agreement, of all known or potential copyright infringement issues contained in the Materials and of any portion of those Materials that was not produced in the performance of this Agreement. The City shall receive prompt written notice of each notice or claim of copyright infringement received by the Contractor with respect to any data delivered under this Agreement. The City shall have the right to modify or remove any restrictive markings placed upon the data by the Contractor. J. Covenant Against Contingent Fees. The Contractor warrants that no person or selling agent has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established agents maintained by the Contractor for the purpose of securing business. The City shall have the right, in the event of breach of this clause by the Contractor, to annul this Agreement without liability or, in its discretion, to deduct or recover by other means from the contract price or consideration the full amount of such commission, percentage, brokerage or contingent fee. K. Disputes. If the parties are unable to settle any dispute, difference, or claim arising from the parties’ performance of this Agreement, the exclusive means of resolving that dispute, difference, or claim, shall only be by filing suit exclusively under the venue, rules, and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. City and Contractor agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this Agreement. L. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington, and the venue of any action brought hereunder shall be in the Superior Court for King County. M. Indemnification. 1. Contractor shall defend, indemnify, and hold the City, its officers, officials, agents, volunteers, and employees harmless from and against any and all claims, damages, and expenses, including all legal costs and attorneys fees) (collectively, “Losses”) arising from or connected with the Contractor’s adjudicated willful misconduct or negligent performance of this Agreement; provided, however, Contractor shall not be responsible for any Losses directly attributable to the following: (a) any breach or default by the party seeking indemnification, (b) Losses that are covered by commercial insurance (i.e., fire insurance) covering (1) the Events Center and its premises for physical damage or other loss and (2) business interruption and extra expenses, or (c) the services of architects, engineers and agents (other than Contractor) retained by the City in connection with the Events Center KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 18 of 28 2. City shall indemnify, defend, and hold harmless Contractor, its partners, officers, agents, and employees from and against any and all Losses arising from or connected with the City’s adjudicated willful misconduct or negligent performance of this Agreement; provided, however, City shall not be responsible for any Losses directly attributable to the following: (a) any breach or default by the party seeking indemnification, or (b) Losses that are covered by commercial insurance (i.e., fire insurance) covering (1) the Events Center and its premises for physical damage or other loss and (2) business interruption and extra expenses. 3. Third party defense costs when neither party has an indemnification claim shall be an Operating Expense. 4. 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. 5. The provisions of this Article XIV, Section M, “Indemnification,” shall survive the expiration or termination of this Agreement. N. Independent Capacity of the Contractor. The parties intend that an independent contractor relationship will be created by this Agreement. The Contractor and its employees or agents performing under this Agreement are not employees or agents of the City. The Contractor will not hold itself out as or claim to be an officer or employee of the City by reason of this Agreement, nor will the Contractor make any claim of right, privilege, or benefit that would accrue to a City employee under law. Conduct and control of the work will be solely with the Contractor. O. Industrial Insurance Coverage. The Contractor will at all times comply with all applicable workers’ compensation title 51 RCW provisions, occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable. The City will not be held responsible in any way for claims filed by the Contractor or its employees for services performed under the terms of this Agreement. Prior to performing work under this Agreement, the Contractor shall provide or purchase industrial insurance coverage for the Contractor’s employees, as may be required of an “employer” as defined in Title 51 RCW, and shall maintain full compliance with Title 51 RCW during the course of this Agreement. If the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, the City may deduct the amount owed by the Contractor to the accident fund from the amount payable to the Contractor by the City under this Agreement, and transmit the deducted amount to the Department of Labor and Industries, Division of Insurance Services. In addition, failure to maintain and pay for this insurance constitutes a material breach under this Agreement, and the City may immediately or prospectively to a date certain terminate this Agreement without further cause and without further recourse by the Contractor. This provision does not waive any of L&I’s rights to collect from the Contractor. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 19 of 28 P. Compliance with Laws, Licensing, Accreditation, And Registration. The Contractor shall comply with all applicable local, state, and federal laws, rules, and regulations, including without limitation licensing, accreditation, and registration requirements/standards, necessary for the performance of this Agreement. The Contractor must be licensed to do business in the State of Washington and the City of Kent. Q. Limitation Of Authority. Any alteration, amendment, modification, or waiver of any clause or condition of this Agreement can only be effective or binding if made in writing and signed by both parties. Further, only the Contract Administrator, or designee, by writing (delegation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Agreement. 1. Non-Compliance with Non-Discrimination Laws. In the event of the Contractor’s noncompliance or refusal to comply with any nondiscrimination law, regulation, or policy, this Agreement may be rescinded, canceled, or terminated in whole or in part. The Contractor shall, however, be given a reasonable time (which time the City shall determine in its sole discretion) in which to cure this noncompliance. 2. Non-Discrimination. During the performance of this Agreement, the Contractor shall comply with all federal and state nondiscrimination laws, regulations, and policies. R. Notices - Generally. Any and all notices or other communications required or permitted by this Agreement or by law to be delivered to, served on, or given to either party to this Agreement shall be in writing and shall be deemed properly delivered, given, or served when personally delivered to such party, or in lieu of personal service, mailed by United States mail, express, certified, or registered, postage prepaid to the contact person and addresses set forth in this Agreement. Any written notice hereunder shall become effective three (3) calendar days after the date of mailing, or if mailed via overnight delivery services, twenty-four (24) hours after delivery to the overnight delivery service. Either party may change its address for the purpose of this Section by giving ten (10) calendar days’ advance written notice of that change to the other party in the manner provided herein. S. Notice of Claims and Lawsuits. In the event a claim is filed or lawsuit is brought against Contractor or its employees for actions arising out of its operation and maintenance of the Events Center, Contractor shall notify and provide the City with a copy of such claim or lawsuit within five (5) business days of its receipt by Contractor. T. Privacy. To the extent allowed by law, personal information collected, used, or acquired in connection with this Agreement shall be used solely for the purposes of this Agreement. Contractor and its Subcontractors agree not to release, divulge, publish, transfer, sell, or otherwise make known to unauthorized persons personal information without the express written consent of the City or as provided by law. Contractor agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access of personal information. Contractor acknowledges the City is a public agency subject to the state Public Records Act, chapter 42.56 RCW, and may be required to disclose records within the City’s possession or control that relate to the Contractor, its business, or the operation and maintenance of the Events Center upon the City’s receipt of a proper request for such records. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 20 of 28 The City reserves the right to monitor, audit, or investigate the use of personal information collected, used, or acquired by the Contractor through this Agreement. The monitoring, auditing, or investigating may include but is not limited to salting by the City. Contractor shall certify return or destruction of all personal information upon expiration of this Agreement. “Salting” is the act of placing a record containing unique but false information in a database that can be used later to identify inappropriate disclosure of data contained in the database. Any breach of this provision may result in termination of the Agreement and the demand for return of all personal information. For purposes of this provision, personal information includes, but is not limited to, information identifiable to an individual that relates to a natural person’s health, finances, education, business, use or receipt of governmental services, or other activities, names, addresses, telephone numbers, social security numbers, driver license numbers, financial profiles, credit card numbers, financial identifiers, and other identifying numbers. U. Publicity. The Contractor agrees to submit to the City all advertising and publicity matters relating to this Agreement which, in the City’s judgment, City’s name can be implied or is specifically mentioned. The Contractor agrees not to publish or use such advertising and publicity matters without the prior written consent of the City. V. Records Maintenance. The Contractor shall maintain complete financial records relating to this Agreement and the services rendered, including all books, records, documents, electronic database, magnetic media, receipts, invoices, and shall maintain all other evidence relating to this Agreement and performance of the services described herein, including but not limited to, accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement. Contractor shall retain these records for a period of six years following the date of final payment. At no additional cost, these records shall be subject at all reasonable times to inspection, review, or audit by the City, the Office of the State Auditor, and federal and state officials so authorized by law, rule, regulation, or agreement. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved. W. Registration With Department Of Revenue. The Contractor shall complete registration with the Washington State Department of Revenue and be responsible for payment of all taxes due on payments made under this Agreement. X. Right Of Inspection. The Contractor shall provide right of access to the City, or any of its officers, or to any other authorized agent or official of the state of Washington or the federal government, at all reasonable times at any of its business locations, in order to monitor and evaluate performance, compliance, and/or quality assurance under this Agreement. Y. Site Security. While on City premises, Contractor, its agents, employees, or Subcontractors shall conform in all respects with physical, fire, or other security regulations. Z. Subcontracting. Neither the Contractor nor any Subcontractor shall enter into subcontracts for any of the work contemplated under this Agreement without obtaining prior written approval of the City. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 21 of 28 AA. Taxes. All payments accrued on account of payroll taxes, unemployment contributions, any other taxes, insurance or other expenses for the Contractor or its staff, and all filings therefor, shall be the sole responsibility of the Contractor. BB. Waiver. Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Agreement unless stated to be such in writing and signed by both parties. XV. TERMINATION A. Termination For Default. Either party may terminate this Agreement upon a default by the other party hereunder. A party shall be in default hereunder if (i) such party fails to pay any sum payable hereunder within thirty (30) days after same is due and payable, or (ii) such party fails in any material respect to perform or comply with any of the other terms, covenants, agreements, or conditions hereof and such failure continues for more than thirty (30) days after written notice thereof from the other party. In the event that a default (other than a default in the payment of money) is not reasonably susceptible to being cured within the thirty (30) day period, the defaulting party shall not be considered in default if it shall within three (3) days have commenced with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default. In the event of a default, the City reserves the right to suspend all or part of the Agreement, withhold further payments, or prohibit the Contractor from incurring additional obligations of funds during investigation of the alleged compliance breach and pending corrective action by the Contractor or a decision by the City to terminate the Agreement. B. Damages. In the event of termination, the Contractor shall be liable for damages as authorized by law including, but not limited to, any cost difference between the original Agreement and the replacement or cover contract and all administrative costs directly related to the replacement contract, e.g. cost of the competitive bidding, mailing, advertising and staff time. The rights and remedies of the City provided in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. C. Termination Procedures. Upon termination of this Agreement, the City, in addition to any other rights provided in this Agreement, may require the Contractor to deliver to the City any property specifically produced or acquired for the performance of the part of this Agreement that was terminated. The provisions of the "Treatment of Assets" clause shall apply in such property transfer. The City shall pay to the Contractor the agreed upon price, if separately stated, for completed work and services accepted by the City, and the amount agreed upon by the parties for (i) completed work and services for which no separate price is stated, (ii) partially completed work and services, (iii) other property or services that are accepted by the City, and (iv) the protection and preservation of property, unless the termination is for default, in which case the City shall determine the extent of the liability of the City. Failure to agree to the City’s determination shall be a dispute within the meaning of the "Disputes" clause of this Agreement. The City may withhold from any amounts due the Contractor such sum as the City determines to be necessary to protect the City against potential loss or liability. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 22 of 28 The rights and remedies of the City provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. After receipt of a notice of termination, and except as otherwise directed by the City’s Contract Administrator, without any further action on the part of Contractor or the City, the City shall, or shall cause another management company retained by it to, accept the assignment of Contractor’s rights, and assume and perform all of Contractor’s obligations, arising after the date of expiration or termination of this Agreement, under any licenses, occupancy agreements, rental agreements, booking commitments, advertising agreements, concession agreements, and any other contracts relating to the Events Center which have been executed by Contractor hereunder, except (a) to the extent that any such license, agreement, commitment or contract was executed by Contractor in violation of any of the restrictions applicable to Contractor’s right to execute such licenses, agreements, commitments or contracts contained in this Agreement and (b) for any such license, agreement, commitment or contract to which the consent of the other party thereto is required for such assignment and assumption unless such consent is obtained (in the case of any such consent, Contractor will use commercially reasonable efforts to obtain such consent and the City will cooperate in any reasonable manner with Contractor to obtain such consent). Without limiting the generality of the foregoing, the Contractor shall: 1. Stop work under the Agreement on the date, and to the extent specified, in the notice; 2. Place no further orders or subcontracts for materials, services, or facilities except as may be necessary for completion of such portion of the work under the Agreement that is not terminated and except for those materials and services absolutely necessary to continue the contract work up to the termination date; 3. Assign to the City or a successor management company hired by the City, in the manner, at the times, and to the extent directed by the City’s Contract Administrator, all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the City has the right, at its sole discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts. 4. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the City to the extent City may require, which approval or ratification shall be final for all the purposes of this clause; 5. Transfer title to the City and deliver in the manner, at the times, and to the extent directed by the City any property which, if the Agreement had been completed, would have been required to be furnished to the City; 6. Complete performance of such part of the work as shall not have been terminated by the City; and 7. Take such action as may be necessary, or as the City may direct, for the protection and preservation of the property related to this Agreement which is in the possession of the Contractor and in which the City has or may acquire an interest. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 23 of 28 XVI. TREATMENT OF ASSETS A. Treatment Of Assets. Title to all property furnished by the City shall remain with the City. Title to all property furnished by the Contractor, the cost of which the Contractor is entitled to be reimbursed as a direct item of cost under this Agreement, shall pass to and vest in the City upon delivery of such property. Title to other property, the cost of which is reimbursable to the Contractor under this Agreement, shall pass to and vest in the City upon (i) issuance for use of such property in the performance of this Agreement, or (ii) commencement of use of such property in the performance of this Agreement, or (iii) reimbursement of the cost thereof by the City in whole or in part, whichever first occurs. 1. Any property of the City furnished to the Contractor shall, unless otherwise provided herein or approved by the City, be used only for the performance of this Agreement. 2. The Contractor shall be responsible for any loss or damage to personal property of the City which results from the willful misuse or negligence of the Contractor or which results from the failure on the part of the Contractor to maintain and administer that property in accordance with sound management practices, normal wear and tear excepted. 3. If any City personal property is lost, destroyed or damaged through the negligence of Contractor, the Contractor shall immediately notify the City and shall immediately replace that property from its operating funds and, if damaged, take all reasonable steps to protect the property from further damage. 4. The Contractor shall surrender to the City all property of the City prior to settlement upon completion, termination or cancellation of this Agreement. 5. All reference to the Contractor under this clause shall also include Contractor’s employees, agents or Subcontractors. XVII DISCRIMINATION. In the hiring of employees for the performance of work under this Agreement or any sub- contract, the Contractor, its sub-contractors, or any person acting on behalf of the Contractor or sub-contractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. Contractor shall execute the attached City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance Statement. XVIII. SEVERABILITY The provisions of this Agreement are intended to be severable. If any term or provision is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the Agreement. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 24 of 28 XIX. ENTIRE AGREEMENT This Agreement, including its referenced exhibits, represent all the terms and conditions agreed to between the parties and shall supersede all prior verbal statements of any officer or representative of the City. No other understandings or representations, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties. Nothing contained in this Agreement shall be deemed to give any third party any claim or right of action against the City or the Contractor that does not otherwise exist without regard to this Agreement. XX. CONFORMANCE If any provision of this Agreement violates any statute or rule of law of the State of Washington, it is considered modified to conform to that statute or rule of law. XXI. FORCE MAJEURE No party will be liable or responsible to the other party for any delay, damage, loss, failure, or inability to perform caused by “Force Majeure” if notice is provided to the other party within ten (10) days of date on which such party gains actual knowledge of the event of “Force Majeure” that such party is unable to perform. The term “Force Majeure” as used in this Agreement means the following: an act of God, strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics, landslides, lightening storms, earthquakes, floods, storms, washouts, civil disturbances, explosions, freezing of equipment, terrorist acts, and any other cause which is not reasonably within the control of the party whose performance is to be excused and which by the exercise of due diligence could not be reasonably prevented or overcome (it being acknowledged that under no circumstances shall a failure to pay amounts due and payable hereunder be excusable due to a Force Majeure). XXII. APPROVAL This Agreement shall be subject to the written approval of the Kent City Council, the City’s authorized representative, and its City Attorney, and shall not be binding until so approved. [Signatures on Following Page} KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 25 of 28 THIS AGREEMENT, consisting of 28 pages and Exhibits A through D, is executed by the persons signing below who warrant that they have the authority to execute the Agreement. SMG City of Kent Signature Suzette Cooke Mayor Title Date Title Date Ben Wolters, Economic Dev. Director Date Approved as to Form: Tom Brubaker, City Attorney Date P:\Civil\Files\Open Files\1071-ShoWareCenter\Operational Management Services Agreement 2015.doc KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 26 of 28 SHOWAREKENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT THIS SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT (“Agreement”) is entered into between the City of Kent, a Washington municipal corporation ("City") and SMG, a Pennsylvania general partnership, located and doing business at 701 Market Street300 Conshohocken State Rd., Suite 770, PhiladelphiaWest Conshohocken, PA 1910619428 (“Contractor”). RECITALS A. The City is the owner of ShoWare Center f/k/a has determined to pursue the design, construction, development, leasing, and operation of the Kent Events Center (the “Events Center”) on real property located in the City of Kent. B. Contractor hawass been selected through an RFP selection process and has offered to perform the Sales, Marketing, and Operational Management Services described in this Agreement. C. Contractor has represented to the City that it has substantial experience and expertise in supervising and operating similar public facilities to those being proposed in the City. AGREEMENT NOW, THEREFORE, in consideration of the covenants, terms, and conditions contained in this Agreement and for other valuable consideration, City and Contractor agree as follows: I. PURPOSE The purpose of this Agreement is to provide for the operation of the Kent Events Center consistent with the goals of the City, in coordination with the Seattle Thunderbirds Western Hockey League team (“Team”) and pursuant to the terms and conditions established in the License Agreement entered into between the City and the Team (“License Agreement”), attached and incorporated as Exhibit A. The City will rely on the Contractor’s ability to provide expertise to the City and to its consultants on the design and operation of a high quality state of the art events center at a cost that is appropriate to the City. The City will rely on the Contractor’s expertise to assist and advise the City with the negotiation of the Events Center contracts for facilities, products, and services, to direct and control pre- opening marketing, and to efficiently and profitably manage and operate all aspects of the Events Center to the highest standards. All work to be performed in accordance with, and subject to, the Team’s rights and obligations contained in the License Agreement. The City will rely on the Contractor’s expertise to provide and maintain the highest quality operations and achieve the greatest possible profitability, consistent with other City objectives, with specific emphasis on the business goal of the Events Center to generate sufficient revenue to cover all debt service and operating expenses. The Contractor will use its best efforts to achieve all of these objectives in a professional manner, consistent with best industry practices and with all applicable laws and ordinances. The Events Center shall be operated in the public interest to create positive economic and entertainment activities for Citizens of the City of Kent and for the South King County KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 1 of 28 region, and the Contractor recognizes this goal in programming for the Events Center. The Contractor shall optimize use of the Events Center, serving the public needs of the community as well as attracting a wide variety of sporting, entertainment, and community events. The City seeks to protect its significant investment in the Events Center, and will rely on the Contractor to support this objective through high quality maintenance and supervision of major repairs and capital re-investment as the need arises. II. SCOPE OF WORK The Contractor shall provide services and staff, and otherwise do all things necessary for, or incidental to, the performance of the contract work, as set forth below: A. Pre-Opening Services. During the Pre-Opening Period (defined below in Article III), provide support services to the City prior to and during construction of the Events Center and provide those services necessary to market the Events Center and prepare it for opening and operation. At a minimum, these services shall include but not be limited to the following tasks: 1. Provide input to the City, the Team, and its consultants regarding the design of the Events Center. 2. Provide plan review and other consulting activities to assure the quality of the Events Center prior to and during construction. 3. Prepare all policies and procedures required for successful operation of the Events Center. 4. Conduct pre-opening marketing activities. 5. Plan for grand opening activities. 6. Hire and train all staff to assure a quality level of performance at the time of the Events Center’s opening. 7. Assist the City in negotiating required contracts and agreements. 8. Coordinate with local officials to assure that all legal requirements are satisfied prior to opening, including health requirements, liquor licenses, occupancy permits, and any other required certificates or licenses that may be required for operation of the Events Center. 9. Provide all Pre-Opening products and services promised and described in Section 3.2(A) of Contractor’s “Proposal for Sales, Marketing, and Operational Management Services for the Kent Events Center,” dated November 30, 2007 (“RFP”), specifically including, and without limitation, the following: facility construction and design assistance; furnishings, fixtures and equipment (“FFE”) design, selection, procurement, and installation; and, procurement of sponsorships, advertisers, and naming rights. BA. Sales and Marketing Services. Provide, or cause to be provided, sales and marketing services for sporting events, concerts, trade shows, community events, and other events as may be appropriate for the Events Center. The Contractor will coordinate those KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 2 of 28 services with the Team to the extent required under the License Agreement. At a minimum, these services shall include: 1. Scheduling events, negotiating contracts, and confirming event bookings. 2. Developing a three (3) year marketing plan and offering modifications as deemed advisable over time, with the goal of promoting the Events Center to national, regional, and local clients, promoters, and producers, commercial trade shows, and other events that will benefit the financial success of the Events Center. 3. Providing a sales process that will also accommodate the community’s need for a diverse public assembly facility. 4. Developing and implementing a customer service program to provide exceptional customer service to all visitors and guests of the Events Center. 5. Conducting market research to include customer satisfaction surveys of patrons and clients, and reporting those results to the City. 6. Managing all on-site ticket sales with Events Center staff or through a separate ticket sales contract while coordinating those ticket sales and box office use with the Team. 7. Creating Events Center promotional materials, floor plans, maps, and other materials appropriate to market the Events Center. 8. Developing forms, subject to the approval of the City, to contract for all Events Center rentals, decorating, electrical, A/V, telecommunication, and all other event services for events as required. 9. Providing, or causing to be provided, all incidental services required in conjunction with event activity, including food service, concessions, A/V services, telecommunications/data services, and other related or required services. 10. Developing, as a part of the annual budget for the Events Center, revenue projections related to rental/charge structures for the various facilities and rooms of the Events Center, equipment, and services provided by the Events Center and outside contractors, subject to the City’s approval. CB. Operating Services. Ensure that the Events Center is maintained in first-class order and repair and in clean, safe, and sanitary condition, all to a superior standard, which shall include, at a minimum: 1. Providing operation, maintenance, and repair by competent and qualified employees or contractors, of all HVAC, mechanical, telephone, electrical, plumbing, and other technical systems, such as elevator, sound, lighting, security, fire and life safety monitoring systems, seating, furniture, fixtures, and equipment. 2. Providing major capital repairs/improvements, which shall be made from capital funds supplied by the City. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 3 of 28 3. Maintaining and providing superior service levels for all grounds keeping, housekeeping, custodial, setup and maintenance services, specifically including, without limitation, grounds keeping and custodial services in walkways, parking lots, and all public areas of the Events Center. 4. Establishing a schedule of preventative maintenance and renovation to maintain the Events Center in first-class condition. 5. Providing all painting and structural maintenance and ordinary repair work on the Events Center, including maintenance and repair of roofs, ceiling, doors, windows, floors, and walls (both interior and exterior). 6. Meeting Leadership in Energy and Environmental Design (LEED) Silver requirements further described and referenced in Article II, Section DC below and as directed by the City. DC. LEED Silver Requirements. The Kent Events Center has been designed to conserve energy, water, and material resources and to provide a healthy indoor environment for workers and event participants. It will be participating in the Leadership in Energy and Environmental Design (LEED) rating system established by the U.S. Green Building Council to honor buildings that have made design, construction, and operational decisions that contribute to sustainability. The Events Center is designed to achieve a LEED Silver rating within this system. This rating depends on accomplishing targeted sustainability goals in the building, some of which affect the building operations. Thus, the Contractor is an important member of the sustainability team accomplishing this distinguished rating, along with the design and construction teams, the City, and the Team. Some of the areas which affect building operations are listed below along with the credits within the LEED rating system to which they refer: 1. WEc1.1 and 1.2, Water Efficient Landscaping: These credits require the project to provide no permanent landscape irrigation after a two-year establishment period. After the establishment period, plantings can be watered by hand during drought periods. 2. WEc3.1 and 3.2, Water Use Reduction: These credits will be achieved by installing low-flow water fixtures in the bathroom and locker rooms. 3. MRp1, Storage and Collection of Recyclables: This prerequisite requires paper, glass, plastics, and metal to be collected for recycling in the building. 4. EQp2, Environmental Tobacco Smoke Control: This prerequisite requires no smoking in the building and requires that designated smoking areas be located as least 25 ft. away from entries, outdoor air intakes, and operable windows. 5. EQc7.2, Thermal Comfort Occupant Survey: This credit requires the Contractor to implement a building occupant thermal comfort survey of all staff and to commit to providing a corrective action plan if the survey responses indicate that more than 20% of the people surveyed are dissatisfied. This survey needs to be conducted within 6-18 months after the building is opened and should collect anonymous responses about overall satisfaction with thermal conditions in the building and identify thermal KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 4 of 28 comfort-related problems. The Contractor must also agree to develop a plan for corrective action if the survey results indicate that more than 20% of occupants are dissatisfied with thermal comfort in the building. The City’s LEED consultant may be available to develop the survey for the building. Alternately, one of several commercially available surveys could be used, but these may need significant changes for this type of facility and may be more extensive than needed for this credit at the Events Center. For an example of a commercially available survey, see the Center for the Built Environment online survey at CBE Demonstration Survey (costs about $1000 per building plus additional costs for changes to the standard survey). 6. IDc1.2, Green Housekeeping: This credit requires Contractor implement a green housekeeping policy specifying the use of green cleaning and maintenance products and processes. The Contractor will be required to develop a green housekeeping plan that includes contracting with a housekeeping service that uses environmentally preferable cleaning products that meet the Green Seal GS-37 standard. In addition, the products selected should prioritize concentrated products and utilize packaging that is minimal, recyclable, and well labeled. The plan also should include a training program to educate operations staff (including administrative procurement staff) and occupants on the requirements of the Green Housekeeping Plan and Policy. 7. IDc1.4, Low Mercury Lamps: This credit requires the use of low mercury lamps in the building. Compliant low mercury lamps will be installed initially in the building and the Contractor will be expected to continue the use of these low mercury lamps at the time of re-lamping. For more information on the detailed performance requirements Contractor must meet to comply with the LEED rating system, Contractor should refer to the U.S. Green Building Council website at www.usgbc.org. ED. Administrative Services. Provide the following minimum level of administrative services required to operate the Events Center: 1. Acting as the City’s representative in administering the License Agreement with the Team. 2. Administering all contracts required in the ordinary course of business including, without limitation, the following: services, events, concessions, catering, novelties/merchandise, advertising, and equipment. Negotiate, execute, and deliver, in Contractor’s name as an independent contractor for the City, service contracts and vendor agreements, provided that to the extent that any such contract or agreement will extend beyond the Management Term, the City will approve and execute such contract or agreement. 3. Ensuring that the insurance requirements set forth on Exhibit B are met. 4. Informing the City annually as to the proposed establishment of prices and policies, rates, and rate schedules for space rental, lease, and booking agreements, advertising contracts, concession agreements, and other event commitments that the manager will be responsible to negotiate, but which also will be subject to the City’s prior approval before going into effect. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 5 of 28 5. Advising the City on new or potential changes to revenue sources, partnerships, prices, and other factors that will add to the Events Center’s financial success. 6. Preparing an annual operating budget for the Events Center in the format and by scheduled due dates specified by the City, and, specifically, complying with the spending limitations imposed by the budget, including any authorized supplements. 7. Providing or causing to be provided all security services required for the Events Center and as required by the Kent Police Department for all scheduled events. Security services include maintaining a sufficient number of well-trained, courteous, and qualified security personnel in and about the grounds and the Events Center, as well as other additional personnel as may be required to effectively manage events within the City’s lawful requirements. 8. (a) Maintaining an adequate staff of courteous employees on duty and providing appropriate supervision and training of those employees. Employees hired by the Contractor or its subcontractor will be employees of the Contractor or its subcontractor and not of the City. The Contractor will employ or otherwise contract for its operations only those persons who by training, appearance, and habits are judged to be suitable workers appropriate to the environment of the Events Center. (b) The Contractor will be responsible for all personnel-related matters, including compensation, labor relations with any union or association, employee training and development (specifically including, without limitation, diversity training, sexual harassment prevention training, and other discrimination and disability training), contract negotiation, dispute resolution, provision of employee uniforms and equipment, employee hiring, job assignment and performance evaluation, and compliance with equal employment opportunity requirements. (c) With the prior consent of the City, which will not be unreasonably withheld, Contractor shall assign to the Events Center a general manager and director level employees, who shall be competent, full-time employees for the Events Center. (d) Except with Contractor’s prior written consent, during the period commencing on the date hereof and ending one (1) year after the termination of this Agreement or one year after separation from Employment, whichever is earlier, the City will not, for any reason, solicit for employment or hire the general manager and/or director-level employees. In addition to any other remedies which Contractor may have, specific performance in the form of injunctive relief shall be available for the enforcement of this provision. 9. Collecting all Operating Revenues (as defined in Article XIV, Section A) generated through the operation of the Events Center. All Operating Revenues collected by the Contractor from operation of the Events Center shall be the sole property of the City and will be held in trust by the KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 6 of 28 Contractor for the City for application as provided for in the budget and cash flow provisions herein. All Operating Revenues derived from operation of the Events Center shall be deposited by Contractor into an interest-bearing account in a local qualified public depository to be designated by the City in writing (“Facility Operating Account”) as soon as practicable upon receipt (but generally not less often than once each business day and based upon an agreed minimum amount of daily funds collected). Revenues that are not defined as Operating Revenues that are received by Contractor shall be disbursed immediately to such accounts City may designate from time to time. The Facility Operating Account shall be established by the City, in the name of the City and under the City’s federal identification number. As provided for in this Agreement, Contractor shall have the right to withdraw and use the funds in the Facility Operating Account to pay the Operating Expenses (as defined in Article XIV, Section A). The specific procedures (and authorized individuals) for making deposits to and withdrawals from such account shall approved by the City, including the procurement of a fidelity bond in an amount approved by the City. 10. Expend from the Operating Revenues collected all Operating Expenses necessary for the proper management, operation, maintenance, and supervision of the Events Center, including the Operating Expenses as required to operate the Events Center as described in the RFP and in the City’s Request for Proposals, within the scope of the established annual budget. Develop short and long term strategies to enhance the financial success of the Events Center and its facilities. 11. Assist the City in developing and implementing rules, regulations, policies and procedures, which may impact the use of the Events Center. 12. Subject to the City’s approval, solicit, as necessary, competitive bids or proposals for those services, as they become necessary, to undertake the functions required to manage and operate the Events Center and service events. This may include, but not be limited to, such services as maintenance activities, A/V services, ticketing, and other services as may be mutually determined by the Contractor and the City. 13. Provide the City with such financial reports and in the form as directed by the City, to keep the City current and knowledgeable as to the financial and operating performance of the Contractor. 14. Without the prior written consent of the City, which shall not be unreasonably withheld, Contractor shall not enter into any new management agreement for the operation of a similar arena facility within a twenty-five mile radius of the Event Center. Similar arena facilities are defined as arenas having between 4,000 and 8,000 seats. F. Event Fund. On or before the opening of the Events Center to the public, Contractor shall make a One Hundred Thousand Dollar ($100,000) contribution to a segregated account for the purposes of promoting and developing new event activity at the Events Center (“Event Fund”). Contractor shall, subject to periodic consultation with and consent from the City, manage the Event Fund. The Event Fund will be replenished from the Events Center’s profits, if any, from relevant events so that the maximum amount of the Event Fund shall not exceed $100,000. Losses, if any, shall be deducted from the Event KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 7 of 28 Fund without recourse. The Event Fund shall be amortized over five (5) years on a straight- line basis beginning on January 1, 2009. Upon termination of this Agreement, Contractor shall be entitled to withdrawal an amount equal to $100,000 minus the number of Fiscal Years managed by Contractor multiplied by $20,000, without any funding from or set-off rights afforded to the City. For example, in the event that this Agreement is terminated after three (3) years and there is a balance of $60,000 in the Event Fund, Contractor would receive $40,000 and the City would retain the remainder of the Event Fund (i.e. $20,000). In the event that the Management Term expires at the end of five (5) years, the Event Fund shall be fully amortized and fully for the account of the Events Center. GE. Capital Improvements/Funding. The obligation to pay for, and the authority to perform, direct, and supervise Capital Equipment (as defined under GAAP and City policy) and Capital Improvements (as defined under GAAP and City policy) purchases shall remain with the City and will not be considered Operating Expenses. The Contractor shall submit an annual plan that shall include Contractor’s recommendation for Capital Equipment and Capital Improvements purchases to be accomplished during the year and shall be accompanied by an estimate of the cost of all such items and projects and a request that City budget funds therefor. The City shall retain the discretion to determine whether and to what level to fund Capital Equipment and Capital Improvements purchases to the Events Center. F. The operation, by the Contractor of a vehicle or other equipment owned by the City shall be considered within the Scope of Work of the Agreement, and therefore, the defense, indemnity, and hold harmless provisions set forth in Section XIV.M.1 shall apply in the event of any claims, damages, expenses, legal costs and attorney’s fees relating to or arising from the operation of the vehicle or equipment by the Contractor shall be fully insured by the Contractor at all times and that insurance shall be primary and noncontributory for the vehicles under the contract. H. Food and Beverage and Catering Services. Effective as of the commencement of the Extended Term (January 1, 2012) and for the balance of the Extended Term (unless earlier terminated pursuant to the provisions of this Agreement), the Contractor shall exclusively provide food and beverage concessions and catering services at the Events Center pursuant to this Agreement, as further described in new Exhibit E attached to this Agreement (the “Food, Beverage and Catering Services”). In addition, at the end of the Extended Term, the performance of the Food, Beverage and Catering Services may be extended by the City for a period not to exceed two (2) months, if necessary in the sole judgment of the City to facilitate the process of securing competitive proposals on a replacement concessionaire for such services, at a mutually agreed upon compensation arrangement for the Contractor during such two month period. The City shall extend the Food, Beverage and Catering Services by providing the Contractor with written notice of the extension at least sixty (60) days before such expiration date. III. PERIOD OF PERFORMANCE A. Pre-Opening Period. 1. During the period beginning on March 1, 2008, and ending on December 31, 2008 (“Pre-Opening Period”), Contractor will provide pre-opening consulting services as described in this Agreement to the City with respect to the Events Center. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 8 of 28 2. In order to provide funding for the expenses set forth in a budget prepared by Contractor and approved by the City for the Pre-Opening Period (“Pre-Opening Period Budget”), the City shall, within thirty (30) days of the execution hereof, advance to the Contractor for deposit in an interest-bearing account established in accordance herewith and withdrawal upon incurring such pre-opening expenses (“Pre-Opening Fund”), an amount equal to or greater than the aggregate of the projected Pre-Opening Budget expenses for the three (3) month period beginning on the date hereof. By no later than the first day of each successive (3) three month period during the Pre-Opening Consulting Period, the City shall advance to Contractor such amount as is necessary to replenish the Pre-Opening Fund to a minimum amount equal to the aggregate of projected pre-opening expenses set forth in the Pre-Opening Period Budget for the next three (3) months then in effect. If, at the end of the Pre-Opening Period, there is a balance in the Pre-Opening Fund in an amount in excess of the then accrued expenses set forth in the Pre-Opening Period Budget, Contractor shall disburse such excess to the Events Center account established hereunder for ongoing maintenance and operations during the Events Center’s first year of operation. If, after the first day of any month, the amount of moneys on deposit in the Pre-Opening Fund shall be insufficient for the payment of (a) pre-opening expenses set forth in the Pre-Opening Period Budget then due or budgeted to become due during such month, but only within established budgets or within budget extensions if previously approved by the Contract Administrator, or (b) emergency expenditures to which the Contract Administrator has consented, Contractor may, but shall not be required to, advance the amount of such insufficiency out of its funds. In that event, Contractor shall immediately notify the City of any such advance, and the City shall promptly, but in no event later than the tenth (10th) day following the giving of such notice, reimburse Contractor in an amount equal to such advance.B Additionally, the Management Term shall be extended for an additional three- year term, commencing on January 1, 2012 and ending at midnight on December 31, 2014 (the “Extended Term”), unless earlier terminated pursuant to the provisions of this Agreement. Unless otherwise expressly provided in the Agreement, references in the Agreement to the Management Term shall include the Extended Term. A. Management Term. The “Management Term” of this Agreement shall commence on January 1, 20092015, and end at midnight on December 31, 20112019, unless earlier terminated pursuant to the provisions of this Agreement. The City may, in its sole discretion, extend the Management Term for a period of five (5) years by so notifying the Contractor in writing no less than 90 days prior to the expiration of this Agreement. this Agreement for an additional two (2) year period by notifying the Contractor in writing on or before September 15, 2011.The foregoing notwithstanding, this Agreement shall be terminable at the end of the third year of the Management Term, or the third year of any subsequent five-year extension thereof, by giving Contractor no less than 180 days prior written notice of such termination. IV. COMPENSATION AND PAYMENT A. Pre-Opening Fee/Fixed Annual Base Fee. 1. As compensation for Contractor’s services during the Pre-Opening Services, the City will pay Contractor $2,000 per month on or before the last day of each month during the Pre-Opening Period. 2. As base compensation to Contractor for providing the services herein specified during the Management Term, the City shall pay Contractor during the Management Term, an annual fixed fee of $134,400, which amount shall be adjusted upward on the first day of each Fiscal Year, other than the first Fiscal Year ending December KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 9 of 28 31, 2008, by the percentage change in the Consumer Price Index -- All Urban Consumers (CPI-U) -- U.S. City Average -- All Items, during the one year period ending on December 31, as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or of any revised or successor index hereafter published by the Bureau of Labor Statistics or other agency of the United States Government succeeding to its functions (“CPI”). The foregoing annual fixed compensation shall be payable in equal monthly installments due on or before the last day of each month during such Fiscal Year, and Contractor shall be entitled to draw such amounts from the account described in Article V, Section H. A. As base compensation to Contractor for providing the services herein specified during theExtended (including the Food, Beverage and Catering Services), the City shall pay Contractor during the Extended Term, an annual fixed fee of $130,000, which shall be adjusted upward on the first day of each Fiscal Year during such term, commencing with the Fiscal Year that begins on January 1, 2013, by the change in the CPI as described in Artile IV, Section A.2. The foregoing annual fixed compensation shall be payable in equal monthly installments due on or before the last day of each month during such Fiscal Year, and Contractor shall be entitled to draw such amounts for the account described in Article V, Section H. For avoidance of double, the base compensation described in Article IV, Section A.2 shall only apply to the Management Term through December 31, 2011. Management Term, the City shall pay Contractor during the Management Term, an annual fixed fee of $135,252, which amount shall be adjusted upward on the first day of each Fiscal Year by the percentage change in the Consumer Price Index ~ All Urban Consumers (CPI-U) - U.S. City Average ~ All Items, during the one year period ending on December 31, as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or of any revised or successor index hereafter published by the Bureau of Labor Statistics or other agency of the United States Government succeeding to its functions (“CPI”). The foregoing annual fixed compensation shall be payable in equal monthly installments due on or before the last day of each month during such Fiscal Year, and Contractor shall be entitled to draw such amounts from the account described in Article V, Section H. B. Annual Incentive Fee. In addition to the Fixed Annual Base Fee described above, the Contractor shall be eligible, in each operating year of the period of performance under this Agreement, for an annual incentive fee of up to a maximum of $57,60050,000, which amount shall be adjusted upward on the first day of each Fiscal Year during the Management Term hereof, other than the first Fiscal Year ending December 31, 2008, during the Management Term hereof by the percentage change in the CPI (“Annual Incentive Fee”). The Annual Incentive Fee shall be an amount equal to 20% of all Operating Revenues in excess of $2.15 million (subject to the cap as stated above). composed as follows: Not withstanding anything to the contrary contained in this Artice IV, Section B, the Annual Incentive Fee that the Contractor may earn for the Fiscal Years during the Extended Term shall be as set forth below in this paragraph. The maximum Annual Incentive Fee in any such year shall be $10,000, which shall be split into four, equal parts of $2,500 each (unless the parties agree in any such year to modify such split). A condition to Contractor’s earning each part of the Annual Incentive Fee in any such year shall be based upon the Events Centerhosting a concert or show that earns a profit therefrom that covers the full amount of such part of the Annual Incentive Fee. The profit from such concert or show shall be calculated based upon the Operating Revenues and Operatingf Expenses therefrom as reflected in the event profit and loss statement prepared by Contractor following such concert of show. For illustrative purposes only, (i_ if during such Fiscal Year the Events Center hosts six (6) concerts or shows, (ii) if there is no change in the one- fourth (1/4) split of the maximum Annual Incentive Fee, and (iii) if the Evnets Center (A) loses $1,000 on one of them, (B) breaks even on another one, (C) earns a profit of $2,000 on another, and (D) earns a profit in excess of $4,000 on the other 3 concerts or shows, then the Contractor shall earn an Annual Incentivce Fee of $7,500 (which is $2,500 x the 3 KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 10 of 28 concerts/shows that earn a profit equal to or in excess of $2,500). At the end of any month in which such a concert or show occurs, the Contractor shall deliver an invoice to the City for any portion of the Annual Incentivce Fee earned, along with a copy of the applicable event profit and loss statement(s), and the City shall pay such portion of the fee within thirty (30) days after receipt of such invoice. 1. Twenty percent (20%) of the Annual Incentive Fee will be based on customer, City, and Team satisfaction. The level of satisfaction shall be determined by survey conducted by an independent third-party selected by the City. In order to achieve this portion of the Annual Incentive Fee the survey results must show that the Contractor has achieved an average customer/client satisfaction rating of at least eighty percent (80%) or greater over the course of the operating year. The questions and rating system of the survey instrument will be developed in collaboration with the Contractor, however, the City reserves the right to make final determination as to the content and rating system of the survey instrument. 2. Ten percent (10%) of the Annual Incentive Fee will be based on completion of specific operating goals and objectives which shall be assigned annually to the Contractor by the City. In order to achieve this portion of the Annual Incentive Fee, the Contractor must have completely and successfully completed those assigned goals and objectives. Determination of successful completion shall be at the sole discretion of the City. 3. Fifty percent (50%) of the Annual Incentive Fee shall be based on the Contractor achieving the operating results set out in the Contractor’s proforma as presented in the Contractor’s RFP. If the Contractor achieves 100% or more of the positive operating results projected in the RFP, the Contractor shall be entitled to 50% of the Annual Incentive Fee. If the Contractor achieves at least 90% but less than 100% of such projected positive operating results, the Contractor shall be entitled to 30% of the Annual Incentive Fee. If the Contractor achieves at least 80% but less than 90% of such projected positive operating results, the Contractor shall be entitled to 20% of the Annual Incentive Fee. If the Contractor achieves at least 70% but less than 80% of such projected positive operating results, the Contractor shall be entitled to 10% of the Annual Incentive Fee. If the Contractor achieves results below 70% of such projected positive operating results, the Contractor shall not be entitled to any of this portion of the incentive fee. 4. Ten percent (10%) of the Annual Incentive Fee shall be based on the responsiveness of the Contractor to the City. The determination of the Contractor’s success shall be made in the sole discretion of the City. 5. Ten percent (10%) of the Annual Incentive Fee shall be based on the creativity of the Contractor in presenting ideas and concepts that could reasonably be expected to either increase revenue, reduce expense, or improve customer service. The determination of the Contractor’s success shall be made in the sole discretion of the City. The incentive fee determined pursuant to this Article IV, Section B shall be payable to Contractor within thirty (30) days after the City’s receipt of an invoice from Contractor setting forth the Operating Revenues and Operating Expenses for the previous Fiscal Year, KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 11 of 28 together with any additional supporting documentation, if approved by the City, and showing the calculation of the incentive fee payable with respect to such Fiscal Year. In no event shallThe amount of the Annual Incentive Fee for services rendered during any operating year during the term of this Agreement shall not exceed the amount of the Fixed Annual Base Fee for services rendered in the same operating year during the term of this Agreement. C. Overhead. All general home office administrative overhead expenses of Contractor’s offices, including, without limitation, expenses such as staffing costs, utilities, long-distance telephone calls, courier fees, parking fees, postage, and copying charges shall be paid by Contractor out of its own funds and shall not be reimbursable. V. OPERATING BUDGETS/FUNDING/REPORTING PROCEDURES Each annual Operating Budget shall include a projection of Operating Revenues and Operating Expenses, presented on a monthly and annual basis, and the projected Net Operating Loss/Profit for that Operating Year, and the Operating Budget shall serve as an estimate of expected Operating Revenues and Operating Expenses for the Events Center. The Operating Expenses in each annual Operating Budget shall be payable by Contractor with funds from the Facility Operating Account, or from funds otherwise provided by the City, as provided in this Agreement. The following procedures will apply to proposing, establishing, and amending each fiscal year’s annual operating budget, including any mid- year budget adjustments, as well as the reporting and approval protocol required for City approval and payment. A. Annual Operating Budget Proposal. At least ninety (90) days prior to the commencement of each Operating Year, the Contractor will prepare and submit to the City a line item budget (in form specified by the City) for the Events Center (the “Operating Budget”). The City agrees to take reasonable commercial steps to provide Contractor, subject to any limitations of applicable law, with all information in its possession that the City reasonably believes is necessary to enable Contractor to prepare the Operating Budget. B. City Approval Authority. The City and Contractor will use reasonable commercial efforts to cooperate with each other in the preparation of the annualCity’s Operating Budget or any mid-year adjustments. In the event of any disagreement regarding a line item expense or the aggregate amounts included in a proposed Operating Budget or mid-year adjustment, the City and Contractor shall use reasonable commercial efforts to attempt to resolve the matter to the mutual satisfaction of the parties. Notwithstanding any other provision in this Agreement, each annual Operating Budget and any mid-year adjustments shall be subject to final review and approval by the City, which approval may be withheld or granted in its sole discretion. In order for the City to fully evaluate and analyze the budget or budget adjustment, Contractor will provide, upon the City’s request, any financial information relating to the Events Center in such form as the City requires. C. Contractor’s Right to Opt Out. In the event a proposed Operating Budget has not been approved prior to the first day of the period to which it relates, the Operating Budget shall be the budget designated by the City, provided that Contractor shall have ten (10) days after the City designates the Operating Budget to provide the City written notice of termination if, in its good faith reasonable judgment, the Contractor determines that the monies allocated to the Operating Budget either will be insufficient for Contractor to perform its obligations under this Agreement or will significantly limit its ability to earn the annual KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 12 of 28 Incentive Fees. Any termination notice given within this ten-day period cannot take effect for at least ninety (90) days from the date the City receives this termination notice. Contractor’s election to terminate this Agreement if the parties are unable to agree on the annual Operating Budget shall not constitute a breach or default by either party under this Agreement. If Contractor timely exercises its right of termination under this paragraph, Contractor shall continue to perform its obligations under this Agreement through the termination date, in accordance with the Operating Budget established by the City and the City shall continue to pay Contractor its Fixed Management Fees and Incentive Fees through the date of termination. D. Budget Amendments for Unanticipated Loss or Profit. In the event that it appears reasonably likely, in any Operating Year, that the actual Net Operating Loss/Profit for an Operating Year will be less than projected in the Operating Budget for that Operating Year, the City may either prepare an amended Operating Budget that will be adopted and adhered to by Contractor or request that Contractor prepare a plan for reducing Operating Expenses to a level specified by the City. Contractor shall promptly comply with any expense reduction requested by the City, and the approved budgets for that Operating Year shall be modified accordingly. In the event the City does not approve the amended Operating Budget within a reasonable time after the submission of the amendment, both parties will meet for a period of not more than two (2) days to resolve in good faith any differences. If, at that point, the parties are still unable to agree to the amendment, the parties shall have the termination rights and liabilities established in Article V, Section C above. E. Adjustments for Extraordinary Events. The parties contemplate that certain extraordinary events may occur during the term of this Agreement that may require budget adjustments. Examples of these extraordinary events, by way of example only and without limitation, would include outlay for unanticipated capital expenses, a loss in the City’s available funds, or a dramatic increase in the size and scale of an event or events such that additional funds would be required to cover added operational costs. If extraordinary events occur during any Operating Year that the Contractor could not reasonably have contemplated at the time the corresponding Operating Budget was prepared, Contractor may submit a budget adjustment to that year’s budget for review and approval by the City, which approval may be withheld or granted in its sole discretion. In the event the City does not approve the adjustment to the Operating Budget within a reasonable time after the submission of the amendment, both parties will meet for a period of not more than two (2) days to resolve in good faith any differences. If, at that point, the parties are still unable to agree to the budget adjustment for extraordinary expenses, the parties shall have the termination rights and liabilities established in Article V, Section C above. F. Amendment for Qualified Management Contract. If required by bond counsel, Contractor agrees to make modifications to this Agreement so that the same is, in the opinion of bond counsel, a qualified management contract for purposes of Revenue Procedure 97-13 promulgated by the Internal Revenue Service. In the event those modifications materially increase Contractor’s obligations or materially decrease Contractor’s rights or economic benefits, Contractor and the City will cooperate in good faith for a period of thirty (30) days to amend the Agreement and preserve the economic benefits of both parties in a manner that is satisfactory to Contractor, City and the City’s bond counsel, each acting in their sole discretion. To the extent the parties do not amend this Agreement within this thirty (30) day period, Contractor shall have the right to terminate this Agreement upon giving not less than ninety (90) days prior written notice to the City, which right may be exercised by Contractor only within ten (10) business days after expiration of the thirty (30) day negotiation period. If Contractor timely exercises its right of termination KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 13 of 28 under this paragraph, Contractor shall continue to perform its obligations through the date of termination and the City shall continue to pay Contractor its Fixed Management Fee and Incentive Fee through the date of termination in accordance with this Agreement. G. Adherence to Operating Budget. Contractor shall, in good faith, use its best efforts to manage and operate the Events Center in accordance with the Operating Budget, but shall have no liability for failing to achieve estimated budget amounts, unless that failure is due to Contractor’s breach of the terms of this Agreement. Without the prior written consent of the City, Contractor shall not exceed, commit, or contract to expend any sums in excess of the category amounts allowed in the Operating Budget or otherwise approved by the City, except for the following (“Special Unbudgeted Expenses”): (i) for Operating Expenses for services provided to the Events Center by third parties, the cost of which is not within the reasonable control of Contractor, such as the costs of utilities and insurance; (ii) approved Emergency Repairs; (iii) increased costs resulting from the scheduling by Contractor of additional revenue producing events or activities at the Events Center, so long as prior to the scheduling of those events or activities, Contractor had a good faith belief that the projected Net Operating Profit (or Loss) for the Operating Year as set forth in the applicable Operating Budget would be improved as a result of those additional events or activities. In no event when taking into account the Special Unbudgeted Expenses will Operating Expenses for a particular budget category exceed, without the prior written approval of the City: (i) ten (10%) percent of budgeted expenses for that category (categories shall be Salary and Benefits, Utilities, and Other Operating Costs) or (ii) five percent (5%) of the aggregate budgeted Operating Expenses in the Operating Budget (including any amendments or adjustments, if any). Contractor shall immediately report in writing to the City any anticipated expenditures that may exceed the aggregate budgeted Operating Expenses. Unless previously approved by the City, if Contractor incurs any Operating Expenses in excess of the Operating Budget, that expenditure will constitute a violation of this Section, and Contractor shall be responsible for those excess expenditures from its own funds. H. Source of Funding. Contractor shall pay all Operating Expenses for the operation, maintenance, supervision, and management of the Events Center from the funds in the Facility Operating Account, which Contractor may access periodically for this purpose. The Facility Operating Account shall be funded with amounts generated by operation of the Events Center (including Operating Revenues), or otherwise made available by the City. To ensure sufficient funds are available in the Facility Operating Account, the City will transfer to and/or retain in the Facility Operating Account, by the first (1st) business day of each month, the budgeted or otherwise approved Operating Expenses for that month unless the Facility Operating Account has uncommitted funds equal to those budgeted amounts on that date. To the extent the uncommitted funds in the Facility Operating Account exceed the budgeted Operating Expenses for a given month, the Contractor shall disburse the excess amounts to the City on or before the fifth (5th) day of that month. Except as otherwise set forth in this Agreement, Contractor shall have no liability to the City or any third party in the event Contractor is unable to perform its obligations due to the fact that sufficient funds are not generated from the operation of the Events Center or otherwise made available by the City in a timely manner. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 14 of 28 I. SMG Capital Contribution. 1. Within ten days after execution of this Management Agreement, SMG shall provide to the Facility the sum of Five Hundred Thousand Dollars ($500,000) for Capital Improvements and Capital Equipment purchases relating to the Facility. If appropriate (i.e., such improvements and purchases are for several different items), SMG will work with the City to prepare, and mutually agree upon, a budget of the Capital Improvements and Capital Equipment purchases to be funded with such contribution, along with the scope of work to be performed thereunder, the supervision of tasks and the estimated time frames for the projects listed in such budget. Such budget will take into account the Capital Improvements and Capital Equipment purchases to be funded by the City as specified herein. SMG shall be in charge of implementing such budget and proposed scope of work and tasks, and of overseeing the estimated time frames. 2. The amount of the SMG Capital Contribution shall be repaid over a period of ten (10) years, amortized on a straight-line, non-interest bearing cash basis. In the event of the expiration or termination of this Agreement for any reason, the City in its discretion may immediately pay, or cause any successor management company immediately to pay, to SMG unconditionally and without set-off the unpaid amount of the SMG Capital Contribution existing as of such expiration or termination. In the event that the City does not immediately pay such unpaid amount, then it shall repay the balance of the SMG Capital Contribution by making equal monthly payments to SMG based on the original amortization schedule, until such time as the balance is fully repaid. J. Accounts Receivable Forgiveness. Upon execution of this Management Agreement, SMG will forgive the existing accounts receivable balance (owing from the City to SMG) in the amount of Two Hundred Thousand Dollars ($200,000) (the “Accounts Receivable Forgiveness”), which amount shall be amortized over a period of ten (10) years on a straight-line, non-cash basis. In the event of the expiration or termination of this Agreement for any reason, the City shall pay, or cause any successor management company to pay, to SMG unconditionally and without set-off the unamortized amount of such Accounts Receivable Forgiveness existing as of such expiration or termination. The payment of any such unamortized amounts shall be made to SMG no later than thirty (30) days following the effective date of such expiration or termination. VI. CAPITAL EXPENDITURES. Contractor shall identify capital needs and shall annually, at the time of submission of the annual Operating Budget to the City, provide the City for its approval, which may be granted or withheld in the City’s sole discretion, a budget of anticipated capital improvements necessary at the Events Center, detailing all aspects of those improvements asserted to be necessary in the coming operating year. This capital expenditures budget shall also contain an annual five (5) and ten (10) year Capital Expenditure forecast for the purpose of allowing the City to consider for inclusion of those forecasts in its future Capital Expenditures budgets and/or for establishment of a capital reserve account. The City shall be solely responsible for all Capital Expenditures at the Events Center; provided, however, that the City shall be under no obligation to make those Capital Expenditures. Contractor shall have no authority to make any material alterations or any capital improvements to the Events Center, unless included in that year’s Capital Expenditures budget or requested by the City in writing, all exclusively subject to the City making the necessary funds available KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 15 of 28 in the Capital Expenditures budget. Notwithstanding the foregoing, Contractor shall have the right to make Capital Expenditures at the Events Center for Emergency Repairs (defined as the repair of a condition which, if not performed immediately, creates an imminent danger to persons or property and/or an unsafe condition), and the City will reimburse Contractor for those expenditures, except that, in the event any Emergency Repair will exceed $10,000 in one occurrence or $25,000 in the aggregate, the City must first provide its written approval before proceeding with the emergency work, unless it would be unreasonable to obtain the approval due to the circumstances of the emergency, in which case Contractor must employ its best efforts to notify via telephone the City’s contract administrator. VII. CITY APPROPRIATION DEFICIENCY. A. Non-Funding. The City shall have no obligation to provide funds for the payment of Operating Expenses incurred or committed for after the date Contractor receives written notice (an “Appropriation Deficiency Notice”) of the fact that insufficient funds or no funds have been appropriated for the Events Center, except for Operating Expenses that were contracted, incurred, or committed to prior to Contractor’s receipt of the Appropriation Deficiency Notice. B. Payment Rights Upon Receipt of Appropriation Deficiency Notice. If the Appropriation Deficiency Notice is of insufficient funds, the City shall pay all Operating Expenses incurred or committed prior to the date Contractor receives the Appropriation Deficiency Notice. In addition, the City shall pay all Operating Expenses incurred or committed after the notice date that are within the aggregate level of appropriated funds specified in the Appropriations Deficiency Notice. Any failure by the City to provide funds (beyond the aggregate level of appropriated funds) for the payment of Operating Expenses incurred or committed after Contractor receives an Appropriations Deficiency Notice shall not be a breach of or default under this Agreement by the City. Except for Operating Expenses that are incurred or committed for after the date Contractor receives the Appropriations Deficiency Notice, any failure by Contractor to perform its obligations under this Agreement shall not be a breach of or default under this Agreement if that breach or default is directly caused by the City’s failure to appropriate sufficient funds for the management, operation, and promotion of the Events Center. C. Termination Rights. If the City appropriates funds at (or reduces appropriated funds to) a level that, in Contractor’s good faith reasonable judgment, renders the management of the Events Center as contemplated in the Agreement not feasible, Contractor and the City shall meet as necessary to formulate a plan to continue management of the Events Center at a reduced level of service consistent with anticipated Operating Revenues and available funding. If the parties are unable to agree on a plan within fifteen (15) days after commencing these discussions, either party may terminate this Amendment without liability or penalty to the other, and in that event, the termination shall not constitute a breach or default by either party. VIII. REPORTING/AUDIT REQUIREMENTS. Contractor shall carry out the following reporting and audit activities: A. Monthly Reports. Prepare monthly reports regarding the use and operation of the Events Center as the City may request and in a form that meets the City’s requirements. These reports must include information on the activities associated with the operation, management, supervision, and maintenance of the Events Center as well as KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 16 of 28 financial analysis of how the center is operating, a list of upcoming events, a discussion of operating and maintenance issues/concerns, anticipated changes in management, operations or maintenance activities, and other information as appropriate or as requested by the City. B. Annual Reports. Upon the conclusion of each Operating Year, Contractor shall, as an Operating Expense, cause a certified public accounting firm to develop audited financial reports and to certify compliance with generally accepted accounting practices. The City reserves the right to conduct its own audit of the Events Center. IX. CONTRACT ADMINISTRATION The Contract Administrator for each of the parties shall be the contact person for all communications and billings regarding the performance of this Agreement and in accordance with all notice provisions established in this Agreement. Contract Administrator for Contractor is: Contract Administrator for City is: H. Westley SMG 701 Market Street, Suite 4400 Philadelphia, PA 19106 Phone: 215-592-6600 Fax: 15-592-6699 E-mail address: wwestley@SMGWorld.com Ben Wolters, Economic Development Director City of Kent 220 4th Avenue South Kent, Washington 98032 Phone: (253) 856-5700 Fax: (253) 856-6700 E-mail address: bwolters@ci.kent.wa.us X. REPRESENTATION AND WARRANTIES Contractor represents and warrants to the City as follows: A. There are no actions, suits, or proceedings pending, or to the knowledge of Contractor, threatened against or affecting the Contractor that could have a material adverse effect on the ability of the Contractor to honor its obligations under this Agreement or involving the validity or enforceability of this Agreement at law or in equity. B. Contractor is not in default or in violation with respect to, or operating under or subject to, any order, writ, injunction, decree, or demand of any court or any governmental authority. C. The performance of the work and the transactions contemplated under this Agreement will not result in any breach of, or constitute a default under, any mortgage, deed of trust, lease, bank loan or credit agreement, partnership agreement, corporate charter, bylaws, or other agreement or instrument to which Contractor is a party or by which it or any of its assets may be bound or adversely affected. D. Contractor is not insolvent (as such term is defined in the Bankruptcy Code of 1978, 11 U.S.C. Section 101, et seq., as amended) and will not be rendered insolvent by execution of this Agreement or the consummation of the transactions contemplated in this Agreement. Contractor has no counterclaims, offsets, or defenses with respect to this Agreement. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 17 of 28 XI. INSURANCE The Contractor will procure and maintain for the duration of this Agreement and all amendments insurance of the types and in the amounts required by Exhibit B attached and incorporated by this reference. XII. ASSURANCES Contractor, its officers, agents, and employees shall comply with all laws applicable to Contractor’s management of the Events Center hereunder. Without limiting the foregoing, with respect to the ADA, Contractor will comply with Title III of the ADA and the provision of such auxiliary aids or alternate services as may be required by the ADA. Nothing in this Article XII or elsewhere in this Agreement shall, however, require Contractor to undertake any of the foregoing compliance activity, nor shall Contractor have any liability under this Agreement therefor, if such activity requires any Capital Improvements or Capital Equipment purchases, unless the City provides funds for such Capital Improvements and Capital Equipment purchases pursuant to the provisions hereof. Furthermore, Contractor shall have the right to require any licensee, lessee, tenant, promoter, or user of any portion of the Events Center to comply, and to be financially responsible for compliance, with Title III of the ADA in connection with any activities of such licensee, lessee, tenant, promoter, or user at the Events Center. XIII. ORDER OF PRECEDENCE Each of the Exhibits listed below is by this reference incorporated into this Agreement. In the event of an inconsistency in this Agreement, the inconsistency shall be resolved by giving precedence in the following order: A. Agreed amendments to this Agreement B. This Agreement, including Exhibit B - Insurance Requirements C. Exhibit C – Contractor’s Response to Request for Proposal, dated November 30, 2007 D. Exhibit D – City of Kent Request for Proposals, first published on October 29, 2007 E. Any other provision, term, or material incorporated by reference into this Agreement XIV. GENERAL TERMS AND CONDITIONS A. Definitions. As used throughout this Agreement, the following terms shall have the meaning set forth below: 1. “City” shall mean the City of Kent, any division, section, office, unit or other entity of the City, or any of the officers or other officials lawfully representing that City. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 18 of 28 2. "Contractor" shall mean that firm, provider, organization, individual or other entity performing service(s) under this Agreement, and shall include all employees of the Contractor. 3. “Fiscal Year” shall mean a period beginning January 1 and ending December 31. 4. “Net Operating Loss/Profit” means Operating Revenues less Operating Expenses. 5. “Operating Expenses” shall mean any and all expenses and expenditures of whatever kind or nature incurred, directly or indirectly, by Contractor in promoting, operating, maintaining, and managing the Events Center, including, but not limited to: employee compensation and related expenses, employee benefits and related costs (e.g., relocation and other related expenses pursuant to Contractor’s relocation policy (a copy of which will be provided upon request)), supplies, material and parts costs, independent contractors, advertising, marketing and public relations costs and commissions, janitorial and cleaning expenses, data processing costs, dues, subscriptions and membership costs, the costs of procuring, administering and maintaining the insurance referred to herein, amounts expended to procure and maintain permits and licenses, charges, taxes (excluding admissions taxes), excises, penalties and fees, professional fees, printing and stationery costs, event expenses, postage and freight costs, bank services charges, equipment rental costs, computer equipment leases and line charges, repairs and maintenance costs (e.g., elevators and HVAC), security expenses, utility and telephone charges, travel and entertainment expenses in accordance with Contractor’s policies, the cost of employee uniforms, safety and medical expenses, exterminator and waste disposal costs, costs relating to the maintenance of signage inventory and systems, the cost of annual independent audits of the Events Center, the cost of compliance with laws and regulations, costs incurred under agreements, commitments, licenses and contracts executed in Contractor’s name as permitted herein, any obligation or liability under or in respect of any contract, agreement or other instrument executed by Contractor in its name as authorized herein provided that Contractor has not breached such contract, agreement or other instrument and the fixed management fees payable to Contractor hereunder, all as determined in accordance with generally accepted accounting principles and recognized on a full accrual basis; provided that Operating Expenses shall not include expenses or expenditures in connection with Capital Improvements and Capital Equipment purchases, the incentive fee payable hereunder and any expenses relating to Contractor personnel based in Contractor’s corporate headquarters in PhiladelphiaWesst Conshohocken, Pennsylvania or its regional field locations (other than the reasonable costs of travel by such corporate or regional personnel in connection with Contractor’s management of the Events Center, which costs shall be Operating Expenses). 6. “Operating Revenues” shall mean any and all revenues of every kind or nature derived from owning, operating, managing, or promoting the Events Center, including, but not limited to: license, lease, and concession fees and rentals, revenues from merchandise sales, advertising and sponsorship sales and renewals (including without limitation revenues from the sale of naming rights), event sponsorship revenues, equipment rentals, utility revenues, box KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 19 of 28 office revenues, ticket surcharges (if any), ticket service fees, parking revenues, food service and concession revenues (however, if such revenues are collected in the first instance by and retained by the concessionaire, the amount of such revenues owed by the concessionaire to the Events Center shall be included as Operating Revenues), commissions or other revenues from decoration and set-up, security and other subcontractors (however, if such revenues are collected in the first instance by and retained by such subcontractors, the amount of such revenues owed by such contractors to the Events Center shall be included as Operating Revenues), miscellaneous operating revenues, revenues generated from separate agreements with Contractor Affiliates pertaining to the Events Center, and interest revenues, all as determined in accordance with generally accepted accounting principles and recognized on a full accrual basis. For the sake of clarity, the parties acknowledge that revenues from the sale of tickets for events at the Events Center are not Operating Revenues, but are instead revenues of the promoter and/or performer of each such event. To the extent that Contractor collects such ticket sale revenue on behalf of such promoter and/or performer, such ticket sale revenue shall be the source of funds from which Contractor collects the rental charges and other event reimbursements due by such promoter and/or performer for use of the Events Center, which such charges and reimbursements are Operating Revenues hereunder. 7. "Subcontractor" shall mean any entity in the employment of the Contractor, who is performing all or part of those services under this Agreement under a separate contract with the Contractor. The terms "Subcontractor" and "Subcontractors" means Subcontractor(s) in any tier. B. Access to Data. The Contractor shall provide the City, upon the City’s request, access to data generated under this Agreement. This includes access to all information that supports the findings, conclusions, and recommendations of the Contractor’s reports, including computer models and methodology for those models. C. Amendments. This Agreement may be amended only by mutual agreement of the parties. Amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. D. Assignment. Contractor shall not assign or transfer any interest in this Agreement without the prior written consent of the City, which consent may be withheld or granted on conditions in the City’s sole and absolute discretion. 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. E. Collateral Assignment. Not withstanding the foregoing, Contractor shall be entitled to assign its rights to receive its fees under the Agreement to its lender(s) as collateral security for Contractor’s obligations under any credit facilities provided to it by such lender(s), provided that such collateral assignment shall not in any event cover or affect Contractor’s rights to manage, promote or operate the Events Center. Additionally, Contractor generally reserves the right to assign it rights to an affiliate of Contractor in connection with a restructuring of its business with written approval of the City, which approval will not be unreasonably withheld. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 20 of 28 F. Attorneys’ Fees. Except as provided in Article XIV, Section M below, in the event of litigation or other action brought to enforce any of the provisions of this Agreement, each party is responsible to pay all its own attorney fees and costs in bringing that dispute, claim, or litigation, including all appeals. G. Confidentiality / Safeguarding of Information. The Contractor shall not use or disclose any information concerning the City, or information which may be classified as confidential, for any purpose not directly connected with the administration of this Agreement, except with prior written consent of the City, or as may be required by law. The parties hereto agree that they shall keep secret and confidential any and all proprietary information (which shall include all documents which Contractor marks as confidential or proprietary), and neither party shall divulge any such information, in whole or in part, to any third party, except as required by law, without the prior written consent of the other party. The parties shall provide notice to the other party of any known or suspected violations of this Section. H. Conflict of Interest. Notwithstanding any determination by the Executive Ethics Board or other tribunal, the City may, in its sole discretion, by written notice to the Contractor terminate this Agreement if it is found after due notice and examination by the City that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW, or any similar statute involving the Contractor in the procurement of, or services under this Agreement. In the event this Agreement is terminated as provided above, the City shall be entitled to pursue the same remedies against the Contractor as it could pursue in the event of a breach of this Agreement by the Contractor. The rights and remedies of the City provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which the City makes any determination under this clause shall be an issue and may be reviewed as provided in the “Disputes” clause of this Agreement. I. Copyright Provisions. Unless otherwise provided, all Materials produced under this Agreement shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by the City. The City shall be considered the author of those Materials. In the event the Materials are not considered “works for hire” under the U.S. Copyright laws, Contractor hereby irrevocably assigns all right, title, and interest in Materials, including all intellectual property rights, to the City effective from the moment of creation of those Materials. As used in this Section titled, “COPYRIGHT PROVISIONS,” “Materials” means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. Ownership includes the right to copyright, patent, register, and the ability to transfer these rights. For Materials that are delivered under the Agreement, but that incorporate pre- existing materials not produced under the Agreement, Contractor hereby grants to the City a nonexclusive, royalty-free, irrevocable license (with rights to sublicense others) in those Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The Contractor warrants and represents that Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to the City. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 21 of 28 The Contractor shall exert all reasonable effort to advise the City, at the time of delivery of Materials furnished under this Agreement, of all known or potential copyright infringement issues containedissues contained in the Materials and of any portion of those Materials that was not produced in the performance of this Agreement. The City shall receive prompt written notice of each notice or claim of copyright infringement received by the Contractor with respect to any data delivered under this Agreement. The City shall have the right to modify or remove any restrictive markings placed upon the data by the Contractor. J. Covenant Against Contingent Fees. The Contractor warrants that no person or selling agent has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established agents maintained by the Contractor for the purpose of securing business. The City shall have the right, in the event of breach of this clause by the Contractor, to annul this Agreement without liability or, in its discretion, to deduct or recover by other means from the contract price or consideration the full amount of such commission, percentage, brokerage or contingent fee. K. Disputes. If the parties are unable to settle any dispute, difference, or claim arising from the parties’ performance of this Agreement, the exclusive means of resolving that dispute, difference, or claim, shall only be by filing suit exclusively under the venue, rules, and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. City and Contractor agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this Agreement. L. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington, and the venue of any action brought hereunder shall be in the Superior Court for King County. M. Indemnification. 1. Contractor shall defend, indemnify, and hold the City, its officers, officials, agents, volunteers, and employees harmless from and against any and all claims, damages, and expenses, including all legal costs and attorneys fees) (collectively, “Losses”) arising from or connected with the Contractor’s adjudicated willful misconduct or negligent performance of this Agreement; provided, however, Contractor shall not be responsible for any Losses directly attributable to the following: (a) any breach or default by the party seeking indemnification, (b) Losses that are covered by commercial insurance (i.e., fire insurance) covering (1) the Events Center and its premises for physical damage or other loss and (2) business interruption and extra expenses, or (c) the services of architects, engineers and agents (other than Contractor) retained by the City in connection with the Events Center 2. City shall indemnify, defend, and hold harmless Contractor, its partners, officers, agents, and employees from and against any and all KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 22 of 28 Losses arising from or connected with the City’s adjudicated willful misconduct or negligent performance of this Agreement; provided, however, City shall not be responsible for any Losses directly attributable to the following: (a) any breach or default by the party seeking indemnification, or (b) Losses that are covered by commercial insurance (i.e., fire insurance) covering (1) the Events Center and its premises for physical damage or other loss and (2) business interruption and extra expenses. 3. Third party defense costs when neither party has an indemnification claim shall be an Operating Expense. 4. 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. 5. The provisions of this Article XIV, Section M, “Indemnification,” shall survive the expiration or termination of this Agreement. N. Independent Capacity of the Contractor. The parties intend that an independent contractor relationship will be created by this Agreement. The Contractor and its employees or agents performing under this Agreement are not employees or agents of the City. The Contractor will not hold itself out as or claim to be an officer or employee of the City by reason of this Agreement, nor will the Contractor make any claim of right, privilege, or benefit that would accrue to a City employee under law. Conduct and control of the work will be solely with the Contractor. O. Industrial Insurance Coverage. The Contractor will at all times comply with all applicable workers’ compensation title 51 RCW provisions, occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable. The City will not be held responsible in any way for claims filed by the Contractor or its employees for services performed under the terms of this Agreement. Prior to performing work under this Agreement, the Contractor shall provide or purchase industrial insurance coverage for the Contractor’s employees, as may be required of an “employer” as defined in Title 51 RCW, and shall maintain full compliance with Title 51 RCW during the course of this Agreement. If the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, the City may deduct the amount owed by the Contractor to the accident fund from the amount payable to the Contractor by the City under this Agreement, and transmit the deducted amount to the Department of Labor and Industries, Division of Insurance Services. In addition, failure to maintain and pay for this insurance constitutes a material breach under this Agreement, and the City may immediately or prospectively to a date certain terminate this Agreement without further cause and without further recourse by the Contractor. This provision does not waive any of L&I’s rights to collect from the Contractor. P. Compliance with Laws, Licensing, Accreditation, And Registration. The Contractor shall comply with all applicable local, state, and federal laws, rules, and KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 23 of 28 regulations, including without limitation licensing, accreditation, and registration requirements/standards, necessary for the performance of this Agreement. The Contractor must be licensed to do business in the State of Washington and the City of Kent. Q. Limitation Of Authority. Any alteration, amendment, modification, or waiver of any clause or condition of this Agreement can only be effective or binding if made in writing and signed by both parties. Further, only the Contract Administrator, or designee, by writing (delegation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Agreement. 1. Non-Compliance with Non-Discrimination Laws. In the event of the Contractor’s noncompliance or refusal to comply with any nondiscrimination law, regulation, or policy, this Agreement may be rescinded, canceled, or terminated in whole or in part. The Contractor shall, however, be given a reasonable time (which time the City shall determine in its sole discretion) in which to cure this noncompliance. 2. Non-Discrimination. During the performance of this Agreement, the Contractor shall comply with all federal and state nondiscrimination laws, regulations, and policies. R. Notices - Generally. Any and all notices or other communications required or permitted by this Agreement or by law to be delivered to, served on, or given to either party to this Agreement shall be in writing and shall be deemed properly delivered, given, or served when personally delivered to such party, or in lieu of personal service, mailed by United States mail, express, certified, or registered, postage prepaid to the contact person and addresses set forth in this Agreement. Any written notice hereunder shall become effective three (3) calendar days after the date of mailing, or if mailed via overnight delivery services, twenty-four (24) hours after delivery to the overnight delivery service. Either party may change its address for the purpose of this Section by giving ten (10) calendar days’ advance written notice of that change to the other party in the manner provided herein. S. Notice of Claims and Lawsuits. In the event a claim is filed or lawsuit is brought against Contractor or its employees for actions arising out of its operation and maintenance of the Events Center, Contractor shall notify and provide the City with a copy of such claim or lawsuit within five (5) business days of its receipt by Contractor. T. Privacy. To the extent allowed by law, personal information collected, used, or acquired in connection with this Agreement shall be used solely for the purposes of this Agreement. Contractor and its Subcontractors agree not to release, divulge, publish, transfer, sell, or otherwise make known to unauthorized persons personal information without the express written consent of the City or as provided by law. Contractor agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access of personal information. Contractor acknowledges the City is a public agency subject to the state Public Records Act, chapter 42.56 RCW, and may be required to disclose records within the City’s possession or control that relate to the Contractor, its business, or the operation and maintenance of the Events Center upon the City’s receipt of a proper request for such records. The City reserves the right to monitor, audit, or investigate the use of personal information collected, used, or acquired by the Contractor through this Agreement. The KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 24 of 28 monitoring, auditing, or investigating may include but is not limited to salting by the City. Contractor shall certify return or destruction of all personal information upon expiration of this Agreement. “Salting” is the act of placing a record containing unique but false information in a database that can be used later to identify inappropriate disclosure of data contained in the database. Any breach of this provision may result in termination of the Agreement and the demand for return of all personal information. For purposes of this provision, personal information includes, but is not limited to, information identifiable to an individual that relates to a natural person’s health, finances, education, business, use or receipt of governmental services, or other activities, names, addresses, telephone numbers, social security numbers, driver license numbers, financial profiles, credit card numbers, financial identifiers, and other identifying numbers. U. Publicity. The Contractor agrees to submit to the City all advertising and publicity matters relating to this Agreement which, in the City’s judgment, City’s name can be implied or is specifically mentioned. The Contractor agrees not to publish or use such advertising and publicity matters without the prior written consent of the City. V. Records Maintenance. The Contractor shall maintain complete financial records relating to this Agreement and the services rendered, including all books, records, documents, electronic database, magnetic media, receipts, invoices, and shall maintain all other evidence relating to this Agreement and performance of the services described herein, including but not limited to, accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement. Contractor shall retain these records for a period of six years following the date of final payment. At no additional cost, these records shall be subject at all reasonable times to inspection, review, or audit by the City, the Office of the State Auditor, and federal and state officials so authorized by law, rule, regulation, or agreement. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved. W. Registration With Department Of Revenue. The Contractor shall complete registration with the Washington State Department of Revenue and be responsible for payment of all taxes due on payments made under this Agreement. X. Right Of Inspection. The Contractor shall provide right of access to the City, or any of its officers, or to any other authorized agent or official of the state of Washington or the federal government, at all reasonable times at any of its business locations, in order to monitor and evaluate performance, compliance, and/or quality assurance under this Agreement. Y. Site Security. While on City premises, Contractor, its agents, employees, or Subcontractors shall conform in all respects with physical, fire, or other security regulations. Z. Subcontracting. Neither the Contractor nor any Subcontractor shall enter into subcontracts for any of the work contemplated under this Agreement without obtaining prior written approval of the City. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 25 of 28 AA. Taxes. All payments accrued on account of payroll taxes, unemployment contributions, any other taxes, insurance or other expenses for the Contractor or its staff, and all filings therefor, shall be the sole responsibility of the Contractor. BB. Waiver. Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Agreement unless stated to be such in writing and signed by both parties. XV. TERMINATION A. Termination For Default. Either party may terminate this Agreement upon a default by the other party hereunder. A party shall be in default hereunder if (i) such party fails to pay any sum payable hereunder within thirty (30) days after same is due and payable, or (ii) such party fails in any material respect to perform or comply with any of the other terms, covenants, agreements, or conditions hereof and such failure continues for more than thirty (30) days after written notice thereof from the other party. In the event that a default (other than a default in the payment of money) is not reasonably susceptible to being cured within the thirty (30) day period, the defaulting party shall not be considered in default if it shall within three (3) days have commenced with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default. In the event of a default, the City reserves the right to suspend all or part of the Agreement, withhold further payments, or prohibit the Contractor from incurring additional obligations of funds during investigation of the alleged compliance breach and pending corrective action by the Contractor or a decision by the City to terminate the Agreement. B. Damages. In the event of termination, the Contractor shall be liable for damages as authorized by law including, but not limited to, any cost difference between the original Agreement and the replacement or cover contract and all administrative costs directly related to the replacement contract, e.g. cost of the competitive bidding, mailing, advertising and staff time. The rights and remedies of the City provided in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. C. Termination Procedures. Upon termination of this Agreement, the City, in addition to any other rights provided in this Agreement, may require the Contractor to deliver to the City any property specifically produced or acquired for the performance of the part of this Agreement that was terminated. The provisions of the "Treatment of Assets" clause shall apply in such property transfer. The City shall pay to the Contractor the agreed upon price, if separately stated, for completed work and services accepted by the City, and the amount agreed upon by the parties for (i) completed work and services for which no separate price is stated, (ii) partially completed work and services, (iii) other property or services that are accepted by the City, and (iv) the protection and preservation of property, unless the termination is for default, in which case the City shall determine the extent of the liability of the City. Failure to agree to the City’s determination shall be a dispute within the meaning of the "Disputes" clause of this Agreement. The City may withhold from any amounts due the Contractor such sum as the City determines to be necessary to protect the City against potential loss or liability. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 26 of 28 The rights and remedies of the City provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. After receipt of a notice of termination, and except as otherwise directed by the City’s Contract Administrator, without any further action on the part of Contractor or the City, the City shall, or shall cause another management company retained by it to, accept the assignment of Contractor’s rights, and assume and perform all of Contractor’s obligations, arising after the date of expiration or termination of this Agreement, under any licenses, occupancy agreements, rental agreements, booking commitments, advertising agreements, concession agreements, and any other contracts relating to the Events Center which have been executed by Contractor hereunder, except (a) to the extent that any such license, agreement, commitment or contract was executed by Contractor in violation of any of the restrictions applicable to Contractor’s right to execute such licenses, agreements, commitments or contracts contained in this Agreement and (b) for any such license, agreement, commitment or contract to which the consent of the other party thereto is required for such assignment and assumption unless such consent is obtained (in the case of any such consent, Contractor will use commercially reasonable efforts to obtain such consent and the City will cooperate in any reasonable manner with Contractor to obtain such consent). Without limiting the generality of the foregoing, the Contractor shall: 1. Stop work under the Agreement on the date, and to the extent specified, in the notice; 2. Place no further orders or subcontracts for materials, services, or facilities except as may be necessary for completion of such portion of the work under the Agreement that is not terminated and except for those materials and services absolutely necessary to continue the contract work up to the termination date; 3. Assign to the City or a successor management company hired by the City, in the manner, at the times, and to the extent directed by the City’s Contract Administrator, all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the City has the right, at its sole discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts. 4. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the City to the extent City may require, which approval or ratification shall be final for all the purposes of this clause; 5. Transfer title to the City and deliver in the manner, at the times, and to the extent directed by the City any property which, if the Agreement had been completed, would have been required to be furnished to the City; 6. Complete performance of such part of the work as shall not have been terminated by the City; and 7. Take such action as may be necessary, or as the City may direct, for the protection and preservation of the property related to this Agreement which is in the possession of the Contractor and in which the City has or may acquire an interest. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 27 of 28 XVI. TREATMENT OF ASSETS A. Treatment Of Assets. Title to all property furnished by the City shall remain with the City. Title to all property furnished by the Contractor, the cost of which the Contractor is entitled to be reimbursed as a direct item of cost under this Agreement, shall pass to and vest in the City upon delivery of such property. Title to other property, the cost of which is reimbursable to the Contractor under this Agreement, shall pass to and vest in the City upon (i) issuance for use of such property in the performance of this Agreement, or (ii) commencement of use of such property in the performance of this Agreement, or (iii) reimbursement of the cost thereof by the City in whole or in part, whichever first occurs. 1. Any property of the City furnished to the Contractor shall, unless otherwise provided herein or approved by the City, be used only for the performance of this Agreement. 2. The Contractor shall be responsible for any loss or damage to personal property of the City which results from the willful misuse or negligence of the Contractor or which results from the failure on the part of the Contractor to maintain and administer that property in accordance with sound management practices, normal wear and tear excepted. 3. If any City personal property is lost, destroyed or damaged through the negligence of Contractor, the Contractor shall immediately notify the City and shall immediately replace that property from its operating funds and, if damaged, take all reasonable steps to protect the property from further damage. 4. The Contractor shall surrender to the City all property of the City prior to settlement upon completion, termination or cancellation of this Agreement. 5. All reference to the Contractor under this clause shall also include Contractor’s employees, agents or Subcontractors. XVII DISCRIMINATION. In the hiring of employees for the performance of work under this Agreement or any sub- contract, the Contractor, its sub-contractors, or any person acting on behalf of the Contractor or sub-contractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. Contractor shall execute the attached City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance Statement. XVIII. SEVERABILITY The provisions of this Agreement are intended to be severable. If any term or provision is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the Agreement. KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 28 of 28 XIX. ENTIRE AGREEMENT This Agreement, including its referenced exhibits, represent all the terms and conditions agreed to between the parties and shall supersede all prior verbal statements of any officer or representative of the City. No other understandings or representations, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties. Nothing contained in this Agreement shall be deemed to give any third party any claim or right of action against the City or the Contractor that does not otherwise exist without regard to this Agreement. XX. CONFORMANCE If any provision of this Agreement violates any statute or rule of law of the State of Washington, it is considered modified to conform to that statute or rule of law. XXI. FORCE MAJEURE No party will be liable or responsible to the other party for any delay, damage, loss, failure, or inability to perform caused by “Force Majeure” if notice is provided to the other party within ten (10) days of date on which such party gains actual knowledge of the event of “Force Majeure” that such party is unable to perform. The term “Force Majeure” as used in this Agreement means the following: an act of God, strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics, landslides, lightening storms, earthquakes, floods, storms, washouts, civil disturbances, explosions, freezing of equipment, terrorist acts, and any other cause which is not reasonably within the control of the party whose performance is to be excused and which by the exercise of due diligence could not be reasonably prevented or overcome (it being acknowledged that under no circumstances shall a failure to pay amounts due and payable hereunder be excusable due to a Force Majeure). XXII. APPROVAL This Agreement shall be subject to the written approval of the Kent City Council, the City’s authorized representative, and its City Attorney, and shall not be binding until so approved. [Signatures on Following Page} KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 29 of 28 THIS AGREEMENT, consisting of 28 pages and Exhibits A through D, is executed by the persons signing below who warrant that they have the authority to execute the Agreement. SMG City of Kent Signature Suzette Cooke Mayor Title Date Title Date Ben Wolters, Economic Dev. Director Date Approved as to Form: Tom Brubaker, City Attorney Date P:\Civil\Files\Open Files\1071-ShoWareCenter\Operational Management Services Agreement 2015.doc KENT EVENTS CENTER SALES, MARKETING, AND OPERATIONAL MANAGEMENT SERVICES AGREEMENT - Page 30 of 28 BIDS This page intentionally left blank. REPORTS FROM STANDING COMMITTEES, COUNCIL, AND STAFF A. Council President B. Mayor C. Administration D. Economic & Community Development E. Operations F. Parks & Human Services G. Public Safety H. Public Works I. Regional Fire Authority J. Other K. Other This page intentionally left blank. EXECUTIVE SESSION ACTION AFTER EXECUTIVE SESSION This page intentionally left blank.