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City Council Committees - Public Works Committee - 12/10/2018 (2)
Unless otherwise noted, the Public Works Committee meets at 4 p.m. on the first and third Mondays of each month in the Kent City Hall, Council Chambers East, 220 Fourth Avenue South, Kent, WA 98032. For additional information please contact Public Works Administration at 253 -856-5500, or email Cheryl Viseth at CViseth@KentWA.gov. Any person requiring a disability accommodation should contact the City Clerk’s Office at 253-856-5725 in advance. For TDD relay service call Washington Telecommunications Relay Service at 7-1-1. Public Works Committee Agenda Chair - Dennis Higgins Brenda Fincher– Toni Troutner Monday, December 10, 2018 4:00 p.m. Item Description Action Speaker Time 1. Call to Order Chair 01 MIN. 2. Roll Call Chair 01 MIN. 3. Changes to the Agenda Chair 01 MIN. 4. Approval of November 19, 2018 Minutes YES Chair 05 MIN. 5. Small Cell Franchise with New Cingular Wireless (AT&T) YES Christina Schuck 15 MIN. 6. Consultant Services Agreement with Transportation Solutions, Inc. (TSI) for 4th and Willis Roundabou YES Thomas Leyrer 05 MIN. 7. Contract with KBA, Inc. S. 228th UPR Grade Separation Ground Improv YES Jason Barry 05 MIN. 8. Parking Ordinance for West Smith St. YES Rob Brown 05 MIN. 9. Information Only/Mill Creek Rehabilitation Project - Update NO Melissa Dahl 15 MIN. 10. King County Solid Waste Division/Waste Reduction and Recycling Grant (WRR) - Recommend YES Tony Donati 05 MIN. 11. Info Only/King County Disposal Rate Increase NO Tony Donati 05 MIN. 12. Information Only/Plastic Bags NO Tony Donati 15 MIN. Public Works Committee CC PW Special Meeting December 10, 2018 13. Information Only/Quiet Zone Update NO Chad Bieren 05 MIN. 14. Adjournment Chair 01 MIN. Page 1 of 3 Pending Approval Public Works Committee CC PW Regular Meeting Minutes November 19, 2018 Date: November 19, 2018 Time: 4:00 PM Place: Chambers East Attending: Dennis Higgins, Chair Brenda Fincher, Councilmember Toni Troutner, Councilmember Agenda: 1. Call to Order 4:02 PM 2. Roll Call Attendee Name Title Status Arrived Dennis Higgins Chair Present Brenda Fincher Councilmember Present Toni Troutner Councilmember Present 3. Changes to the Agenda 4. Approval of Minutes dated November 5, 2018 MOTION: Move to approve the Minutes dated November 5, 2018 RESULT: APPROVED [UNANIMOUS] MOVER: Toni Troutner, Councilmember SECONDER: Brenda Fincher, Councilmember AYES: Higgins, Fincher, Troutner 5. Consultant Services Agreement with Fehr & Peers, Inc. for the Transportation Master Plan (TMP) - Recommend April Delchamps, Sr. Transportation Planner noted that staff began updating the Transportation Master Plan (TMP) in early 2018. Consultant services are needed to assist city staff with transportation priorities, levels of service metrics, and model development for the TMP. MOTION: Authorize the Mayor to sign a Consultant Services Agreement with Fehr & Peers, Inc. in an amount not to exceed $48,920, to provide consultant services for the Transportation Master Plan Update, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. 4 Packet Pg. 3 Mi n u t e s A c c e p t a n c e : M i n u t e s o f N o v 1 9 , 2 0 1 8 4 : 0 0 P M ( O P E N S E S S I O N ) Public Works Committee CC PW Regular Meeting Minutes November 19, 2018 Kent, Washington Page 2 of 3 RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 12/11/2018 7:00 PM MOVER: Brenda Fincher, Councilmember SECONDER: Toni Troutner, Councilmember AYES: Higgins, Fincher, Troutner 6. Consultant Services Agreement with Skillings Connolly, Inc. for the Operations and Maintenance Facility Fuel Island Replacement Project - Recommend Bryan Bond, Engineering Project Coordinator, showed photos of the 30-year- old fuel tanks that are currently being used by staff. Bond stated that 200,000 gallons of unleaded gasoline and 50,000 gallons of diesel are purchased each year to fuel equipment. The current fueling tanks, pumps and associated equipment are in need of replacement. Bond noted that by having our own fueling facility, the City saves upwards of $130,000 per year in fuel costs. MOTION: Move to recommend Council authorize the Mayor to sign a Consultant Services Agreement with Skillings Connolly, Inc. in an amount not to exceed $120,000.00, for the Russell Road Operations and Maintenance Facility Fuel Island Replacement Project, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 12/11/2018 7:00 PM MOVER: Toni Troutner, Councilmember SECONDER: Brenda Fincher, Councilmember AYES: Higgins, Fincher, Troutner 7. Downey Farmstead Contaminated Soil Removal Grant - Recommend Matt Knox, City Biologist, noted that the grant would fund up to $125,000 worth of contaminated soil clean-up and additional testing to ensure that contaminated soil is remediated. MOTION: Move to recommend Council authorize the Mayor to sign the 2017/2018 WaterWorks Grant Agreement with King County to fund removal of contaminated soil at the Downey Farmstead project site, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. 4 Packet Pg. 4 Mi n u t e s A c c e p t a n c e : M i n u t e s o f N o v 1 9 , 2 0 1 8 4 : 0 0 P M ( O P E N S E S S I O N ) Public Works Committee CC PW Regular Meeting Minutes November 19, 2018 Kent, Washington Page 3 of 3 RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 12/11/2018 7:00 PM MOVER: Brenda Fincher, Councilmember SECONDER: Toni Troutner, Councilmember AYES: Higgins, Fincher, Troutner 8. Downey Farmstead/Frager Road Right of Way Establishment Matt Knox, City Biologist noted that the city owns several tax parcels of which the proposed new roadway will bisect. The quit claim deed he brought before the committee will transfer ownership of a 6-foot swath of land from the City to King County providing new right-of-way for a realigned Frager Road. MOTION: Move to recommend Council authorize the Mayor to sign the enclosed quit claim deed to dedicate new right-of-way for the proposed new Frager Road to King County, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 12/11/2018 7:00 PM MOVER: Toni Troutner, Councilmember SECONDER: Brenda Fincher, Councilmember AYES: Higgins, Fincher, Troutner 9. Information Only/China National Sword Update Tony Donati, Conservation Coordinator updated the committee on the recycling market with regards to the China Sword issue and how it has affected our region. 10. Information Only/Quiet Zone Update Chad Bieren, Deputy Director / City Engineer, noted that the UPRR Notice of Intent 60-day comment period ended on November 10, 2018. Comments are currently being received through the mail. Comments from the Washington State Department of Transportation have been received. Comments are still expected from the Washington Utilities and Transportation Commission. Staff are reviewing comments from the BNSF Notice of Intent and evaluating suggestions from the respondents. 11. Adjournment 5:04 AM Cheryl Viseth Committee Secretary 4 Packet Pg. 5 Mi n u t e s A c c e p t a n c e : M i n u t e s o f N o v 1 9 , 2 0 1 8 4 : 0 0 P M ( O P E N S E S S I O N ) PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee SUBJECT: Small Cell Franchise with New Cingular Wireless (AT&T) MOTION: Move to recommend Council adopt an ordinance, establishing a 5-year franchise agreement with New Cingular Wireless, subject to final terms and conditions acceptable to the City Attorney. SUMMARY: The City has been negotiating franchise agreements with a number of telecommunications companies that are seeking to deploy new small cell equipment on Puget Sound Energy utility poles throughout the City. Small cells are relatively new wireless technology that by all accounts will be integral to the future deployment of 5G wireless technology. Small cells are low-powered and have a smaller profile than traditional wireless communication facilities, i.e., monopoles. They are deployed to provide additional capacity for networks and sometimes to provide coverage in areas where the traditional cell phone towers are challenged by terrain or buildings. As consumers’ reliance upon mobile devices continues to increase, wireless infrastructure must continue to be upgraded and improved to keep up with demand. Accordingly, small cell deployment is expected to increase dramatically, with hundreds of individual cells deployed throughout the City. The installation of small cells raises safety and aesthetic concerns and will consume considerable City resources, including staff time. Small cell equipment can be small and compact, but can also be the size of a small refrigerator. Deploying this equipment on existing utility poles often means that the pole must be replaced to accommodate the additional load. Electrical safety standards must also be met, leading to the installation of taller replacement poles. Importantly, small cells also require fiber optics. Fiber is attached to small cells via conduits installed on the poles. Additionally, this fiber must run either aerially on wires or be installed underground. All of these small cell components directly impact the City’s rights-of- way. Staff has presented small cell technology and the issues associated with its deployment to the City Council in two Council workshops earlier this year on February 20, 2018 and April 3, 2018. Recently, Council adopted an ordinance updating the zoning code (KCC 15.08.035) to exempt small cells attached to utility poles in the right-of-way from land use review. This will streamline the review and permitting process of the hundreds of small cells proposed to be deployed throughout the City. 5 Packet Pg. 6 In drafting the terms of the franchise agreements, staff has attempted to balance the desire to embrace new technology with the need to address the safety and aesthetic concerns this technology raises. With this in mind, staff developed and negotiated robust design standards set forth within Section 17 of the franchise. These design standards will be consistent among agreements with other carriers, but will also allow for the differences in the technology each carrier employs. They were also drafted to be flexible enough to accommodate the 5G equipment that is still being developed. Because small cell technology and the legal landscape surrounding it will continue to evolve, the franchise term was set for five years. Additionally, the franchise includes terms governing the relocation of small cell facilities to accommodate public improvements; requirements for the franchisee to keep detailed records of its facilities; and stiff penalties for the installation of unauthorized facilities. BUDGET IMPACT: N/A SUPPORTS STRATEGIC PLAN GOAL: Evolving Infrastructure, Innovative Government RECOMMENDED BY: Christina Schuck ATTACHMENTS: 1. 5 - Exhibit A ATT Small Cell Franchise (PDF) 2. 5 - Exhibit B ATT Kent Small Cell Franchise Ordinance (DOCX) 5 Packet Pg. 7 Kent Node 6 - Wood Pole (Pico) 111 Central Avenue S Kent WA 98032 Accuracy of photo simulation based upon information provided by project applicant. ©2018 Google MapsLocation Existing Looking north across E Gowe StreetProposed View 1 proposed antenna mount proposed antenna mounted on top of existing wood utility pole proposed power and fiber conduits proposed pole mounted radio equipment enclosure (pico) proposed pole mounted disconnect proposed 5g panel antennas 5.a Packet Pg. 8 At t a c h m e n t : 5 - E x h i b i t A A T T S m a l l C e l l F r a n c h i s e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) Kent Node 6 - Wood Pole (Micro) 111 Central Avenue S Kent WA 98032 Accuracy of photo simulation based upon information provided by project applicant. ©2018 Google MapsLocation Existing Looking north across E Gowe StreetProposed View 1 proposed antenna mount proposed antenna mounted on top of existing wood utility pole proposed power and fiber conduits proposed pole mounted radio equipment enclosure (micro) proposed pole mounted disconnect proposed 5g panel antennas 5.a Packet Pg. 9 At t a c h m e n t : 5 - E x h i b i t A A T T S m a l l C e l l F r a n c h i s e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 1 ORDINANCE NO. ______________________ AN ORDINANCE OF THE CITY OF KENT, WASHINGTON, GRANTING TO NEW CINGULAR WIRELESS PCS, LLC AND ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND NONEXCLUSIVE FRANCHISE FOR FIVE YEARS, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A SMALL CELL TELECOMMUNICATIONS NETWORK, IN, ACROSS, OVER, ALONG, UNDER, THROUGH AND BELOW CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF KENT, WASHINGTON. RECITALS A. New Cingular Wireless PCS, LLC, a Delaware limited liability company (the “Franchisee”) has requested that the City Council grant it a nonexclusive franchise (this “Franchise”) to construct, maintain, operate, repair, upgrade, remove, replace and restore small cell networks in the City’s right-of-way; and B. The City Council has the authority to grant franchises for the use of its streets and other public properties pursuant to RCW 35A.47.040. C. Small cell facilities are relatively new technology deployed by wireless providers to meet the evolving needs of consumers and their increased reliance upon mobile devices. To meet demand, wireless infrastructure must continue to be upgraded and improved. D. In contrast to the familiar cell phone towers and monopoles, small cells are low-powered and low profile wireless base stations that function like cells in a mobile wireless network and typically cover localized (smaller) areas. Wireless providers use small cells to provide connectivity in areas where the coverage and capacity of traditional cell towers are challenged by terrain or buildings and they also use small cells to provide enhanced capacity to users (e.g., more data, more quickly). Because they are smaller, small cells are often mounted to existing structures within the right-of-way, such as utility poles and light poles. 5.b Packet Pg. 10 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 2 E. Small cell facilities and networks will also be integral to the deployment of the next generation of wireless service, known as “5G” or “5th Generation.” Wireless providers and the Federal Communications Commission claim that 5G will provide additional capacity in existing networks for emergency service, increased data use, telecommuting, and the support of Internet of Things applications. F. The City embraces and supports small cell technology and the advances the City expects it to provide, yet also has a fundamental role to manage the rights-of-way fairly for the residents and tax-payers and protect the City’s significant investments of time, resources and money in construction, design standards and undergrounding of utilities. G. In order to balance the deployment of new technology with the City’s role to manage the rights-of-way, this franchise includes robust, yet flexible design standards for the small cells. It also includes requirements to keep a detailed record of small cell installations, relocation requirements and penalties for unauthorized installations. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DO ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. – Definitions. In addition to terms otherwise defined herein, the following definitions shall apply generally to the provisions of this Franchise. 1.1 “Director” means the Public Works Director, the Economic and Community Development Director, or his/her designee. 1.2 “Rights-of-Way” (singular “Right-of-Way”) as used in this Franchise, means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, way, lane, public way, drive, circle, 5.b Packet Pg. 11 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 3 pathways, spaces, or other public right-of-way, and over which the City has authority to grant permits, licenses or franchises for use thereof, or has regulatory authority thereover. Rights-of-Way for the purpose of this Franchise do not include railroad right-of-way, airports, harbor areas, buildings, parks, poles, conduits, open spaces, nature trails, dedicated but un-opened right-of-way, undedicated streets and/or right- of-way, environmentally sensitive areas and any land, facilities, or property owned, maintained, or leased by the City in its governmental or proprietary capacity or as an operator of a utility. 1.3 “Small Cell Equipment” or “Small Cell Facilities” means Wireless Telecommunications Facilities attached, mounted, or installed on a proprietary or leased pole, excluding monopole towers, that is located in Right-of-Way and used to provide “personal wireless service” as defined in Title 47, United States Code, Section 332(c)(7)(C), including all future amendments and is substantially similar in aesthetics and proportion to those pictured in Exhibit A. 1.4 “Utility Pole” means a pole or vertical structure owned by a utility company or other third party with the right either pursuant to state law or a franchise to place such facilities in the Right-of-Way. An “Original Utility Pole” is a pole that has not been replaced to accommodate Small Cell Facilities, but that is capable of accommodating Small Cell Facilities. A “Replacement Utility Pole” means a pole that replaces an Original Utility Pole to accommodate Small Cell Facilities and does not result in an increase in the total number of Utility Poles. Each reference to a Utility Pole herein includes any Original Utility Pole and any Replacement Utility Pole. SECTION 2. - Franchise Granted. 2.1 Pursuant to RCW 35A.47.040, the City of Kent, a Washington municipal corporation (“City”), hereby grants to Franchisee, its successors, legal representatives and assigns, subject to the terms and conditions set forth below, a non-exclusive Franchise for a period of five (5) years beginning on the effective date of this ordinance, set forth in Section 46. 5.b Packet Pg. 12 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 4 2.2 This Franchise ordinance grants Franchisee the right, privilege, and authority to construct, operate, maintain, replace, relocate, restore, upgrade, remove, excavate, acquire, and use the Small Cell Facilities, as defined in Section 1.3, for its telecommunications network, in, under, on, across, over, through, along or below the public Rights-of-Way located in the City of Kent, as approved pursuant to City codes and permits issued pursuant to this Franchise. This Franchise does not authorize the installation of any ground mounted equipment anywhere within the Rights-of-Way. 2.3 This Franchise shall not prevent the City from granting franchises in, along, over, through, under, below, or across any Rights-of-Way. This Franchise shall not prevent or prohibit the City from using any Rights-of-Way or affect its jurisdiction over any Rights-of-Way or any part of Rights-of-Way. The City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of Right-of-Way as the City deems fit, including the dedication, establishment, maintenance, and improvement of all new Rights-of-Way, thoroughfares, and other public properties of every type and description. SECTION 3. - Authority Limited to Occupation of Public Rights-of-Way for Services. 3.1 The authority granted by this Franchise is a limited authorization to occupy and use the Rights-of-Way throughout the City (the “Franchise Area”). The Franchisee is authorized to place its Facilities in the Rights-of-Way only consistent with this Franchise, the City of Kent Zoning Code, the Comprehensive Plan, the Area Design and Construction Standards and the Kent Municipal Code (collectively the “Codes”). Nothing contained herein shall be construed to grant or convey any right, title, or interest in the Rights-of-Way of the City to the Franchisee other than for the purpose of providing telecommunications services. Franchisee hereby warrants that it expects to provide the following services within the City: small cell network consisting of a collection of interrelated Small Cell Facilities designed to deliver personal wireless services (the “Services”). Services do not include personal wireless services and associated facilities that fall outside of the definition of Small Cell Facilities (i.e., macro facilities). 5.b Packet Pg. 13 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 5 3.2 This Franchise does not grant Franchisee the right to install and operate wires and facilities to provide wireline broadband transmission services, whether provided by a third party provider, Franchisee, or a corporate affiliate of Franchisee. Any entity that provides such wireline broadband transmission services must have an independent franchise to use the Rights-of-Way outside of this Franchise. Further, this Franchise does not grant the right to offer cable internet services or Cable Services as those terms are defined in 47 U.S.C. § 522(6) by wireline transmission. 3.3 This Franchise does not grant Franchisee the right to install any facility, infrastructure, wires, lines, cables, or other equipment, on any City property other than a Right-of-Way, or upon private property without the owner’s consent, or upon or in any City, public or privately owned poles or conduits. 3.4 Nothing within this Franchise shall be construed to grant or convey any right, title, or interest in the Rights-of-Way of the City to Franchisee other than for the purpose of providing the Services, or to subordinate the primary use of the Right-of- Way as a public thoroughfare. 3.5 If Franchisee desires to expand the Services provided within the City, it shall request a written amendment to this Franchise. If Franchisee desires to use City owned property, including poles and structures within the Rights-of-Way it shall enter into a separate lease or license agreement with the City. 3.6 Franchisee shall have the right, without prior City approval, to lease the Facilities, grant a right of user interest in the Facilities or any portion thereof or offer or provide capacity or bandwidth to its lessees or customers consistent with this Franchise provided: a. Franchisee at all times retains exclusive control over its telecommunications system, Facilities and Services and remains responsible for constructing, installing, and maintaining its Facilities pursuant to the terms and conditions of this Franchise; b. Franchisee may not grant rights to any customer or lessee that are greater than any rights Franchisee has pursuant to this Franchise; 5.b Packet Pg. 14 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 6 c. Such customer or lessee shall not be construed to be a third-party beneficiary under this Franchise; and d. No such customer or lessee may use the telecommunications system or Services for any purpose not authorized by this Franchise, nor to sell or offer for sale any service to the citizens of the City without all required business licenses, franchise or other form of state wide approval. SECTION 4. - Location of Facilities. 4.1 Franchisee may locate its Facilities anywhere within the Franchise Area consistent with the City’s Design and Construction Standards and area design and construction standards and subject to the City’s applicable Code requirements. Franchisee shall not be required to amend this Franchise to construct or acquire Facilities within the Franchise Area, provided that Franchisee does not expand its Services beyond those described in Section 3.1. 4.2 To the extent that any Rights-of-Way within the Franchise Area are part of the state highway system (“State Highways”) and are governed by the provisions of chapter 47.24 RCW and applicable Washington State Department of Transportation (“WSDOT”) regulations, Franchisee shall comply fully with these requirements in addition to local ordinances and other applicable regulations. Without limitation of the foregoing, Franchisee specifically agrees that: a. any pavement trenching and restoration performed by Franchisee within State Highways shall meet or exceed applicable WSDOT requirements; b. any portion of a State Highway damaged or injured by Franchisee shall be restored, repaired and/or replaced by Franchisee to a condition that meets or exceeds applicable WSDOT requirements; and c. without prejudice to any right or privilege of the City, WSDOT is authorized to enforce in an action brought in the name of the State of Washington any condition of this Franchise with respect to any portion of a State Highway. 5.b Packet Pg. 15 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 7 SECTION 5. - Relocation of Small Cell Facilities. 5.1 Relocation Requirement. Franchisee agrees to protect, support, temporarily disconnect and then reconnect, relocate, or remove from any Rights-of-Way any of its Facilities when reasonably required by the City by reason of traffic conditions, public safety, dedications of new Rights-of-Way, the establishment and improvement of new Rights-of-Way, widening or improvement of existing Rights-of-Way or both, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity or as otherwise necessary for the operations of the City or other governmental entity. Collectively, such matters are referred to within this Franchise with the term “Public Improvement.” 5.2 Relocation. If the request for relocation from the City arises from a Public Improvement, in which structures or poles are either replaced or removed, then Franchisee shall relocate or remove its Facilities as required by the City, and at no cost to the City, subject to the procedure in Section 5.4. Franchisee acknowledges and agrees that the placement of Small Cell Facilities on third-party owned or City owned structures does not convey an ownership interest in such structures. Franchisee acknowledges and agrees, that to the extent Franchisee’s Small Cell Facilities are on poles owned by third parties, the City shall not be responsible for any costs associated with requests for relocation which the City makes solely for aesthetic purposes and where such request arises out of a Public Improvement. 5.3 Locate. Upon written request of the City, or a third party performing work in the Right-of-Way, and in order to facilitate the design of City street and Right-of-Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and if determined necessary by the City, to excavate and expose its Facilities for inspection so that the Facilities’ location may be taken into account in the improvement design. The decision as to whether any Facilities need to be relocated in order to accommodate the Public Improvement shall be made by the City upon review of the location and construction of Franchisee’s Facilities. The City shall provide Franchisee at least fourteen (14) calendar days’ written notice prior to any excavation or exposure of 5.b Packet Pg. 16 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 8 Facilities. Franchisee shall be responsible for any delays due to failure to locate its Facilities when requested, except that Franchisee shall not be responsible for delays or damages due to circumstances beyond the control of the Franchisee. 5.4 Notice and Relocation Process. If the City determines that the project necessitates the relocation of Franchisee’s existing Facilities, the City shall: a. At least ninety (90) calendar days prior to commencing the project, provide Franchisee with written notice requiring such relocation and a date by which relocation must be complete; provided, however, that in the event of an emergency situation, defined for purposes of this Franchise as a condition posing an imminent threat to property, life, health, or safety of any person or entity, the City shall give Franchisee written notice as soon as practicable; and b. At least ninety (90) calendar days prior to commencing the project, provide Franchisee with copies of pertinent portions of the plans and specifications for the improvement project and a proposed location for Franchisee’s Facilities so that Franchisee may relocate its Facilities in other City Rights-of-Way in order to accommodate such improvement project; and c. After receipt of such notice and such plans and specifications, Franchisee shall complete relocation of its Facilities consistent with the date for relocation established in accordance with this Section 5.4(a) at no charge or expense to the City, except as otherwise provided by law. Relocation shall be accomplished in such a manner as to accommodate the Public Improvement. 5.5 Alternative Arrangements. The Franchisee may make its own appropriate arrangements in response to a request for relocation of its Facilities from a person or entity other than the City, so long as any improvements being constructed are not or will not become City-owned, operated or maintained; except that any such arrangements shall not unduly delay a City construction project. 5.b Packet Pg. 17 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 9 5.6 Contractor Delay Claims. Franchisee shall be solely responsible for the out-of- pocket costs incurred by the City for delays in a Public Project to the extent the delay is caused by or arises out of Franchisee's failure to comply with the final schedule for the relocation (other than as a result of a Force Majeure Event or causes or conditions caused by the acts or omissions of the City or any third party unrelated to Franchisee; Franchisee vendors and contractors shall not be considered unrelated third parties). Such out-of-pocket costs may include, but are not limited to, payment to the City's contractors and/or consultants for increased costs and associated court costs, interest, and reasonable attorneys' fees incurred by the City to the extent directly attributable to such Franchisee’s caused delay in the Public Project. 5.7 Indemnification. Franchisee will indemnify, hold harmless, and pay the costs of defending the City, in accordance with the provisions of Section 22. 5.8 Moving of Buildings or Other Objects. Franchisee shall, on the request of any individual or private entity holding a valid permit issued by a governmental authority, temporarily remove, raise or lower its Facilities to permit the moving of buildings or other objects. The expense of such temporary removal, raising or lowering of Facilities shall be at the expense of the requestor. 5.9 City’s Costs. If Franchisee fails, neglects, or refuses to remove or relocate its Facilities as directed by the City following the procedures outlined in this Section 5, the City may perform such work or cause it to be done, and the City’s costs shall be paid by Franchisee pursuant to Sections 15.3 and 15.4. 5.10 Survival. The provisions of this Section 5 shall survive the expiration or termination of this Franchise during such time as Franchisee continues to have Facilities in the Rights-of-Way. SECTION 6. Undergrounding of Facilities. 6.1 No installation of Small Cell Facilities in Undergrounded Areas. Franchisee shall not install Small Cell Facilities in areas that already have undergrounding of aerial utilities, except as authorized by the Director and in compliance with any Kent construction standards. Any Facilities so located shall be approved by the Director and 5.b Packet Pg. 18 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 10 if such Facilities include the installation of a new pole or installation on a City-owned pole, Franchisee shall be required to enter into a separate agreement with the City for such installations. 6.2 Requirement to Remove Small Cell Facilities. Franchisee hereby acknowledges and agrees that whenever the City requires the undergrounding of the aerial utilities in any area of the City, which includes the removal of structures (e.g., Utility Poles) in the Rights-of-Way, Franchisee will also be required to remove or relocate its Facilities from such structures within the timeframe set for such undergrounding project. If the aerial utilities are required to be undergrounded, Franchisee’s grant of permission for Small Cell Facilities on Utility Poles in that area will be automatically revoked upon removal of these Utility Poles. Franchisee may re-install any Small Cell Facilities only as authorized by the Director and in compliance with any Kent Construction Standards, unless otherwise approved by the Director. Installation of new poles shall require a separate agreement. 6.3 Survival. The provisions of this Section 6 shall survive the expiration, revocation, or termination of this Franchise. Nothing in this Section 6 shall be construed as requiring the City to pay any costs of undergrounding any of the Franchisee’s Facilities. SECTION 7 - Information, Inventory and Records. 7.1 Information Request. a. Franchisee shall supply and maintain updated, at no cost to the City, any information reasonably requested by the City to coordinate its functions with the Franchisee’s activities and fulfill any municipal functions under state law. This required information may include, but is not limited to, any installation inventory, location of existing or planned Facilities, maps, plans, operational data, and as-built drawings of Franchisee’s Facilities in the City. Franchisee shall warrant the accuracy of all information provided to the City. 5.b Packet Pg. 19 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 11 b. Within thirty (30) calendar days of a written request from the Director, but in no event more than once annually, the Franchisee shall furnish the City with information sufficient to demonstrate: 1) that the Franchisee has complied with all applicable requirements of this Franchise; and 2) that all utility taxes due the City in connection with the Franchisee’s services and Facilities provided by the Franchisee have been properly collected and paid by the Franchisee. 7.2 Current Inventory. a. Franchisee shall maintain a current inventory of Small Cell Facilities throughout the Term of this Franchise. Franchisee shall provide to City a copy of the inventory report no later than one hundred eighty (180) calendar days after the Effective Date of this Franchise, and an updated inventory report shall be provided by December 31 of each year and within thirty (30) calendar days of a reasonable request by the City. The inventory report shall include GIS coordinates, date of installation, type of pole used for installation, description/type of installation for each Small Cell Facility installation and photographs taken before and after the installation of the Small Cell Facility and taken from the public street. b. Small Cell Facilities that are considered Deactivated Facilities, as described in Section 24.1, shall be included in the inventory report and Franchisee shall provide the same information as is provided for active installations as well as the date the Facilities were deactivated and the date the Deactivated Facilities were removed from the Right-of-Way. The City shall compare the inventory report to its records to identify any discrepancies, and the parties will work together in good faith to resolve any discrepancies. Franchisee is not required to report on future inventory reports any Deactivated Facilities which were removed from the Right-of-Way since the last reported inventory and may thereafter omit reference to the Deactivated Facilities. Franchisee shall keep the City 5.b Packet Pg. 20 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 12 reasonably informed of its long-range plans for coordination with the City’s long-range plans. 7.3 Inspection. All books, records, maps, and other documents maintained by Franchisee with respect to its Facilities within the Rights-of-Way shall be made available for inspection by the City at reasonable times and intervals; except that nothing in this Section 7.3 shall be construed to require Franchisee to violate state or federal law regarding customer privacy, nor shall this Section 7.3 be construed to require Franchisee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. Unless otherwise permitted or required by state or federal law, nothing in this Section 7.3 shall be construed as permission to withhold relevant customer data from the City that the City requests in conjunction with a tax audit or review; provided, however, Franchisee may redact identifying information such as names, street addresses (excluding City and zip code), Social Security Numbers, or Employer Identification Numbers related to any confidentiality agreements Franchisee has with third parties. 7.4 Public Records Act. a. Franchisee acknowledges that information submitted to the City is subject to the Washington Public Records Act, chapter 42.56 RCW, and is open to public inspection, subject to any exceptions permitted by law (i.e., unless an exemption applies). b. Franchisee may identify documents submitted to the City that Franchisee believes are non-disclosable, such as trade secrets. Franchisee shall be responsible for clearly and conspicuously identifying the work as confidential or proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under state or federal law. The City agrees to keep confidential any proprietary or confidential books or records to the extent permitted by law. 5.b Packet Pg. 21 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 13 c. If the City receives a public records request under chapter 42.56 RCW or similar law for the disclosure of the documents or any part of the documents Franchisee has designated as confidential, trade secret, or proprietary, the City shall provide Franchisee with written notice of the request, including a copy of the request prior to disclosure so that Franchisee can take appropriate steps to protect its interests. Nothing in this Section 7.4 prohibits the City from complying with chapter 42.56 RCW or any other applicable law or court order requiring the release of public records, and the City shall not be liable to Franchisee for compliance with any law or court order requiring the release of public records. The City will not assert an exemption from disclosure or production on Franchisee’s behalf. d. The City shall comply with any injunction or court order obtained by Franchisee that prohibits the disclosure of any such confidential records. If a higher court overturns an injunction or court order and such higher court action is or has become final and non-appealable, Franchisee shall reimburse the City for any fines or penalties imposed for failure to disclose such records within forty-five (45) calendar days of a request from the City, unless additional time is reasonably necessary under the circumstances and is agreed to by the parties. 7.5 Annual Audit. On an annual basis, upon thirty (30) calendar days prior written notice, the City shall have the right to conduct an independent audit of Franchisee's records reasonably related to the administration or enforcement of this Franchise, in accordance with GAAP. If the audit shows that tax or fee payments have been underpaid by three percent (3%) or more, Franchisee shall pay the total cost of the audit. SECTION 8. - Work in the Rights-of-Way. 8.1 During any period of relocation, construction or maintenance, all work performed by Franchisee or its contractors shall be accomplished in a safe and workmanlike manner and only after obtaining permits pursuant to Section 8.3. Franchisee shall 5.b Packet Pg. 22 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 14 minimize interference with the free passage of traffic and the free use of adjoining property, whether public or private. Franchisee shall at all times post and maintain proper traffic control to warn and direct the road users. Traffic control devices include but are not limited to barricades, traffic cones, traffic drums, tubular markers, flags, certified flaggers, lights, flares, and other measures as required for the safety of all members of the general public. Franchisee shall also comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of Washington, including RCW 39.04.180 for the requirement of trench safety systems for trench excavations. The provisions of this Section 8.1 shall survive the expiration or termination of this Franchise and during such time as Franchisee continues to have Facilities in the Rights of Way. 8.2 Franchisee shall, at its own expense, maintain its Facilities in a safe condition, in good repair, and in a manner suitable to the City. Additionally, Franchisee shall keep its Facilities free of debris and anything of a dangerous, noxious, or offensive nature or which would create a hazard or undue vibration, heat, noise, or any interference with City services. The provisions of this Section 8.2 shall survive the expiration of this Franchise during such time as Franchisee continues to have Facilities in the Rights-of-Way. 8.3 Whenever Franchisee shall commence work in any Rights-of-Way for the purpose of excavation, installation, construction, repair, maintenance, or relocation of its Facilities, it shall apply to the City for a permit to do so. During the progress of the work, the Franchisee shall not unnecessarily obstruct the passage or proper use of the Rights-of-Way, and all work by the Franchisee in the area shall be performed in accordance with applicable City standards and specifications and warranted for a period of two (2) years. In no case shall any work commence within any Rights-of-Way without a permit, except as otherwise provided in this Franchise. 8.4 If either the City or Franchisee plans to make excavations in any area covered by this Franchise and as described in this Section 8.4, the party planning such excavation shall afford the other an opportunity to share such excavation, PROVIDED THAT: 5.b Packet Pg. 23 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 15 a. The joint use shall not unreasonably delay the work of the party causing the excavation to be made; b. The joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and c. The initiating party may deny such request for safety reasons. 8.5 Upon prior written notice from the City, Franchisee shall meet with the City and other franchise holders to schedule and coordinate construction in the Rights-of-Way. To minimize public inconvenience, disruption or damage, the Franchisee shall coordinate all construction locations, activities, and schedules as reasonably directed by the City. 8.6 Franchisee acknowledges that it shall be solely responsible for compliance with all marking and lighting requirements of the FAA and the FCC with respect to Franchisee’s Facilities. Franchisee shall indemnify, defend and hold the City harmless from any fines or other liabilities caused by Franchisee’s failure to comply with these requirements. Should Franchisee or the City be cited by either the FCC or the FAA because the Facilities or Franchisee’s equipment is not in compliance and should Franchisee fail to cure the conditions of noncompliance within the timeframe allowed by the citing agency, the City may elect any or all of the following remedies: (1) cure the conditions of noncompliance at Franchisee’s expense, and collect all reasonable costs from Franchisee in accordance with the provisions of Section 15.3 and Section 15.4; (2) collect damages pursuant to Section 28.2; or (3) revoke this Franchise pursuant to Section 27. Franchisee shall not be liable for any claims, damages or liability resulting from City’s acts in effecting the cure on behalf of Franchisee. SECTION 9. – Trees. 9.1 Franchisee may trim trees upon and overhanging on Rights-of-Way, streets, alleys, sidewalks, and other public places of the City so as to prevent the branches of any such trees from coming in contact with Franchisee’s Facilities. The right to trim trees in this Section 9.1 only applies to the extent necessary to protect above ground Facilities. Franchisee shall avoid unnecessary trimming of trees and vegetation in the vicinity of its Facilities and shall avoid damaging any trees or vegetation. Franchisee 5.b Packet Pg. 24 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 16 shall ensure that its tree trimming activities protect the appearance, integrity, and health of the trees to the extent reasonably possible. Franchisee shall be responsible for all debris removal from such activities. 9.2 Upon the written request of the Director, Franchisee shall prepare and maintain a tree trimming schedule to ensure compliance with this Section 9.2 and to avoid exigent circumstances where tree cutting, trimming, or removal is necessary to protect the public safety or continuity of service. Franchisee shall submit the tree trimming schedule to the Director. Franchisee shall notify and obtain written approval from the City, which shall not be unreasonably withheld, delayed or conditioned, before completing any trimming, except in an emergency. 9.3 All tree trimming shall be completed at the expense of Franchisee. Franchisee may contract for such services, however, City approval is required prior to commencing such trimming, which shall not be unreasonably withheld, delayed or conditioned. Nothing in this Franchise grants Franchisee any authority to act on behalf of the City, to enter upon any private property, or to trim any tree or natural growth not owned by the City. Except in an emergency, all tree trimming must be performed under the direction of an arborist certified by the International Society of Arboriculture, unless otherwise approved by the Director. 9.4 Franchisee shall be solely responsible and liable for any damage to any third parties’ trees or natural growth caused by Franchisee’s actions. Franchisee shall indemnify, defend and hold harmless the City from claims of any nature arising out of any act or negligence of Franchisee with regard to tree and/or natural growth trimming, damage, and/or removal. Franchisee shall reasonably compensate the City or the property owner for any damage caused by trimming, damage, or removal by Franchisee. SECTION 10. - One Call Locator Service. Prior to doing any work in the Rights-of-Way, Franchisee shall follow established procedures, including contacting the Utility Notification Center in Washington and 5.b Packet Pg. 25 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 17 comply with all applicable State statutes regarding the One Call Locator Service pursuant to chapter 19.122 RCW. Further, upon request by the City or a third party, Franchisee shall locate its Facilities consistent with the requirements of chapter 19.122 RCW. The City shall not be liable for any damages to Franchisee’s Facilities or for interruptions in service to Franchisee’s customers that are a direct result of Franchisee’s failure to locate its Facilities within the prescribed time limits and guidelines established by the One Call Locator Service regardless of whether the City issued a permit. SECTION 11. - Safety Requirements. 11.1 Franchisee shall, at all times, employ professional care and shall install and maintain and use industry-standard methods for preventing failures and accidents that are likely to cause damage, injuries, or nuisances to the public. All structures and all lines, equipment, and connections in, over, under, and upon the Rights-of-Way, wherever situated or located, shall at all times be kept and maintained in a safe condition. Franchisee shall comply with all federal, state, and City safety requirements, rules, regulations, laws, and practices, and employ all necessary devices as required by applicable law during the construction, operation, maintenance, upgrade, repair, or removal of its Facilities. By way of illustration and not limitation, Franchisee shall also comply with the applicable provisions of the National Electric Code, National Electrical Safety Code, FCC regulations, and Occupational Safety and Health Administration (OSHA) Standards. The City reserves the general right to inspect the Facilities to evaluate if they are constructed and maintained in a safe condition. 11.2 If an unsafe but non-emergent condition or a violation of Section 11.1 is found to exist, and becomes known to the City, the City agrees to give Franchisee written notice of such condition and afford Franchisee a reasonable opportunity to repair the condition. If Franchisee fails to start to make the necessary repairs and alterations within a reasonable time frame specified in such notice (and pursue such cure to completion), then the City may make such repairs or contract for them to be made. All costs, including administrative costs, incurred by the City in repairing any unsafe 5.b Packet Pg. 26 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 18 conditions shall be borne by Franchisee and reimbursed to the City pursuant to Sections 15.3 and 15.4. 11.3 Additional safety standards include: a. Franchisee shall endeavor to maintain all Facilities in an orderly manner, including, but not limited to, the placement of any cables connecting equipment in an orderly manner. b. All installations of equipment, lines, and ancillary facilities shall be installed in accordance with industry-standard engineering practices and shall comply with all federal, state, and local regulations, ordinances, and laws. c. The Franchisee shall at all times protect any opening or obstruction in the Rights-of-Way or other public places made by Franchisee in the course of its operations by the placement of adequate barriers, fences, or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly marked and visible. 11.4 On notice from the City that any work is being performed contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as reasonably determined by the City, or in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the City. The stop work order shall: a. Be in writing; b. Be given to the person doing the work or posted on the work site; c. Be sent to Franchisee by overnight delivery; d. Indicate the nature of the alleged violation or unsafe condition; and e. Establish conditions under which work may be resumed. SECTION 12. - Work of Contractors and Subcontractors. 5.b Packet Pg. 27 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 19 Franchisee’s contractors and subcontractors shall be licensed and bonded in accordance with State law and the City’s ordinances, regulations, and requirements. Work by contractors and subcontractors are subject to the same restrictions, limitations, and conditions as if the work were performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by Franchisee and shall ensure that all such work is performed in compliance with this Franchise and applicable law. SECTION 13. – Restoration after Construction. 13.1 Franchisee shall repair any damage to the Rights-of-Way, and the property of any third party, after installation, construction, relocation, maintenance, or repair of its Facilities or after abandonment approved pursuant to Section 24, within thirty (30) days following the date of any of these activities at Franchisee’s sole cost and expense. Franchisee shall restore the Rights-of-Way and the surface of the Rights-of-Way to the same or better condition as it was immediately prior to any installation, construction, relocation, maintenance or repair by Franchisee, reasonable wear and tear excepted. Franchisee shall not be responsible for any changes to the Rights-of-Way not caused by Franchisee or anyone doing work for Franchisee. No survey monument may be removed (or replaced) without a professional land surveyor obtaining a permit in advance from the Washington State Department of Natural Resources and submitting a copy of the approved permit to the City. Franchisee shall restore all concrete encased monuments that will be disturbed or displaced by such work to City standards and specifications. The Director shall have final approval of the condition of the Rights-of- Way after repair or restoration by the Franchisee. 13.2 Franchisee agrees to complete all restoration work to the Franchise Area or other affected area at its sole cost and expense and according to the time and terms specified in the construction permit issued by the City. All work by Franchisee pursuant to this Franchise shall be performed in accordance with applicable City standards and warranted for a period of two (2) years and for undiscovered defects as is standard and customary for this type of work. 5.b Packet Pg. 28 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 20 13.3 If conditions (e.g., weather) make the complete restoration required under this Section 13 impracticable, Franchisee shall temporarily restore the affected Right-of- Way or property. Such temporary restoration shall be at Franchisee’s sole cost and expense. Franchisee shall promptly undertake and complete the required permanent restoration when conditions no longer make such permanent restoration impracticable. 13.4 If Franchisee does not repair a Right-of-Way or an improvement in or to a Right- of-Way within the reasonable time agreed to by the Public Works Director, or his/her designee, the City may repair the damage and shall be reimbursed its actual cost within sixty (60) calendar days of submitting an invoice to Franchisee in accordance with the provisions of Section 15.3 and Section 15.4. In addition, and pursuant to Section 15.3 and 15.4, the City may bill Franchisee for expenses associated with the inspection of such restoration work. The failure by Franchisee to complete such repairs shall be considered a breach of this Franchise and is subject to remedies by the City including the imposition of damages consistent with Section 28.2. 13.5 The provisions of this Section 13 shall survive the expiration or termination of this Franchise so long as Franchisee continues to have Facilities in the Rights-of-Way and has not completed all restoration to the City’s standards. SECTION 14. - Emergency Work/Dangerous Conditions. 14.1 In the event of any emergency in which any of Franchisee’s Facilities located in the Rights-of-Way breaks, falls, becomes damaged, or if Franchisee’s Facilities is otherwise in such a condition as to immediately endanger the property, life, health or safety of any person, entity or the City, Franchisee shall immediately take the proper emergency measures to repair its Facilities, to cure or remedy the dangerous conditions for the protection of property, life, health or safety of any person, entity or the City without first applying for and obtaining a permit as required by this Franchise. However, this shall not relieve Franchisee from the requirement of obtaining any permits necessary for this purpose, and Franchisee shall apply for all such permits on the next day Kent City Hall is open for business. 5.b Packet Pg. 29 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 21 14.2 The City retains the right and privilege to cut, move or remove any Small Cell Facilities located within the Rights-of-Way of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency, including the knockdown of a Utility Pole with Small Cell Facilities. 14.3 The City shall not be liable for any damage to or loss of Facilities within the Rights-of-Way as a result of or in connection with any public works, public improvements, construction, grading, excavation, filling, or work of any kind in the Rights-of-Way by or on behalf of the City, except to the extent directly and proximately caused by the gross negligence or willful acts of the City, its employees, contractors, or agents. The City shall further not be liable to Franchisee for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City’s actions under this Section 14 except to the extent caused by the gross negligence or willful acts of the City, its employees, contractors, or agents. 14.4 Whenever the construction, installation or excavation of Facilities authorized by this Franchise has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining street or public place, or endangers the public, an adjoining public place, street utilities or City property, the Public Works Director may direct Franchisee, at Franchisee’s own expense, to take reasonable action to protect the public, adjacent public places, City property or street utilities, and such action may include compliance within a prescribed time. If the Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, before the City can timely contact Franchisee to request Franchisee effect the immediate repair, the City may access the Facilities and take such reasonable actions as are necessary to protect the public, the adjacent streets, or street utilities, or to maintain the lateral support thereof, or reasonable actions regarded as necessary safety precautions, and Franchisee shall be liable to the City for the costs thereof. 14.5 Franchisee shall promptly reimburse the City in accordance with the provisions of Section 15.3 and Section 15.4 for any and all costs the City reasonably incurs in response to any emergency situation involving Franchisee’s Facilities, to the extent the 5.b Packet Pg. 30 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 22 emergency is not the fault of the City. The City agrees to simultaneously seek reimbursement from any franchisee or permit holder who caused or contributed to the emergency situation. SECTION 15. - Recovery of Costs, Taxes and Fees. 15.1 Franchisee shall pay a fee for the actual administrative expenses incurred by the City that are directly related to the receiving and approving this Franchise pursuant to RCW 35.21.860, including the costs associated with the City’s legal costs incurred in drafting and processing this Franchise. No permits shall be issued for the installation of any Facilities until such time as the City has received payment of this fee. 15.2 Franchisee shall further be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise or under the laws of the City. Where the City incurs costs and expenses for review, inspection, or supervision of activities, including but not limited to reasonable fees associated with attorneys, consultants, City Staff and City Attorney time, undertaken through the authority granted in this Franchise or any ordinances relating to the subject for which a permit fee is not established, Franchisee shall pay such costs and expenses directly to the City in accordance with the provisions of Section 15.3. 15.3 Franchisee shall reimburse the City within sixty (60) calendar days of submittal by the City of an itemized billing for reasonably incurred costs, itemized by project, for Franchisee’s proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing, altering, or maintaining any City facility as the result of the presence of Franchisee’s Facilities in the Rights-of-Way. Such costs and expenses shall include but not be limited to Franchisee’s proportionate cost of City personnel assigned to oversee or engage in any work in the Rights-of-Way as the result of the presence of Franchisee’s Facilities in the Rights-of-Way. Such costs and expenses shall also include Franchisee’s proportionate share of any time spent reviewing construction plans in order to either accomplish the relocation of Franchisee’s Facilities or the routing or rerouting of any utilities so as not to interfere with Franchisee’s Facilities. 5.b Packet Pg. 31 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 23 15.4 The time of City employees shall be charged at their respective rate of salary, including overtime if applicable, plus benefits and reasonable overhead. Any other costs will be billed proportionately on an actual cost basis. All billings will be itemized so as to specifically identify the costs and expenses for each project for which the City claims reimbursement. A charge for the actual costs incurred in preparing the billing may also be included in the billing. At the City’s option, the billing may be on an annual basis, but the City shall provide the Franchisee with the City’s itemization of costs, in writing, at the conclusion of each project for information purposes. 15.5 Franchisee hereby warrants that its operations as authorized under this Franchise are those of a telephone business as defined in RCW 82.16.010, or service provider as defined in RCW 35.99.010. As a result, the City will not impose a franchise fee under the terms of this Franchise, other than as described herein. The City hereby reserves its right to impose a franchise fee on Franchisee if Franchisee’s operations as authorized by this Franchise change such that the statutory prohibitions of RCW 35.21.860 no longer apply, or if statutory prohibitions on the imposition of such fees are removed. In either instance, the City also reserves its right to require that Franchisee obtain a separate Franchise for its change in use. Nothing contained herein shall preclude Franchisee from challenging any such new fee or separate agreement under applicable federal, state, or local laws. 15.6 Franchisee acknowledges that certain of its operations within the City constitute a telecommunication business subject to the utility tax imposed pursuant to chapter 3.18 of the Kent City Code. Franchisee stipulates and agrees that certain of its business activities are subject to taxation as a telecommunication business and that Franchisee shall pay to the City the rate applicable to such taxable services under chapter 3.18 of the Kent City Code, and consistent with state and federal law. The parties agree however, that nothing in this Franchise shall limit the City's power of taxation as may exist now or as later imposed by the City. This provision does not limit the City's power to amend chapter 3.18 of the Kent City Code as may be permitted by law. SECTION 16. - Small Cell Facilities – Approvals and Permits. 5.b Packet Pg. 32 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 24 16.1 City Retains Approval Authority. The City shall have the authority at all times to control by appropriately exercised police powers through ordinance or regulation, consistent with 47 U.S.C. § 253, 47 U.S.C. § 332(c)(7) and the laws of the State of Washington, the location, elevation, manner of construction, and maintenance of any Small Cell Facilities by Franchisee, and Franchisee shall promptly conform with all such requirements, unless compliance would cause Franchisee to violate other requirements of law. This Franchise does not prohibit the City from exercising its rights under federal, state or local law to deny or give conditional approval to an application for a permit to construct any individual Small Cell Facility. 16.2 City Approvals and Permits. The granting of this Franchise is not a substitute for any other City required approvals to construct Franchisee’s Facilities in the Rights- of-Way (“City Approvals”). The parties agree that such City Approvals (except Right- of-Way use permits as described in Section 8.3) are not considered use permits, as that term is defined in RCW 35.99.010. These City Approvals do not grant general authorization to enter and utilize the Rights-of-Way but rather grant Franchisee permission to build its specific Small Cell Facilities. Therefore City Approvals are not subject to the thirty (30) day issuance requirement described in RCW 35.99.030. The parties recognize that this provision is specifically negotiated as consideration for designating the entire City as the Franchise Area. Such City Approvals shall be issued consistent with the Codes, state and federal laws governing wireless communication facility siting and shall be in addition to any permits required under Section 8.3. This Section does not affect the thirty (30) day issuance requirement described in RCW 35.99.030 required for use permits such as Right-of-Way use permits and traffic control permits. SECTION 17 – Design Standards. 17.1 Purpose. The Franchisee acknowledges that the purpose of the Design Standards set forth within this Section 17 is to locate Small Cell Facilities in the City’s Rights-of-Way in a manner that minimizes potential incompatibilities with adjacent uses, limits bulk and minimizes aesthetic impacts. 5.b Packet Pg. 33 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 25 17.2 Concealment. Franchisee shall construct its Facilities consistent with the concealment or stealth requirements as described or shown in the Kent City Code, any Kent Construction Standards, this Franchise and in the applicable permit(s), in order to minimize the visual impact of such Facilities. The design standards within this Franchise or in a future Franchise Utility Permit, including the dimensions and number of antennas and equipment boxes and the pole height are intended and stipulated to be concealment features when considering whether a proposed modification is a substantial change under Section 6409(a) of the Spectrum Act, 47 U.S.C. § 1455(a). a. Locations. i. Franchisee shall locate Small Cell Facilities on Utility Poles in a location that minimizes the appearance of Small Cell Facilities from existing adjacent residential structures to the maximum extent feasible. For example, Franchisee shall use its best efforts to avoid locations where Facilities would be close to windows, in front of historically or architecturally significant buildings, or in locations where Facilities would disturb views of significance. ii. In order to minimize negative visual impact to the surrounding area, the Director may deny a request for a proposed Small Cell Facility where the proposed location is deemed inappropriate due to the extent of existing above ground wireless telecommunications or other electrical or cable facilities existing within a one hundred fifty foot (150’) radius of the proposed Small Cell Facility location. The Director may also deny a request for a proposed Small Cell Facility on a Utility Pole already containing more than one electrical transformer. iii. A Utility Pole shall not contain more than one Small Cell Facility. b. Replacement Utility Poles Height. The height of any Replacement Utility Pole including antennas shall be: fifty (50) feet or less; or not extended to a height of more than ten percent (10%) above its preexisting height as a result, whichever is greater. 5.b Packet Pg. 34 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 26 c. Small Cell Facilities Design. Small Cell Facilities shall comply with the Design Standards set forth within this Section 17 and be in a design substantially similar in aesthetics and proportion to those pictured in Exhibit A. i. Color. Small Cell Facilities antennas, conduit, mounting hardware and equipment cabinets shall be painted a neutral color to match the color of the Utility Pole, or at the City’s preference, Franchisee shall paint its Small Cell Facilities any color of the City’s choosing, so long as the paint is reasonably commercially available. ii. Mount. Small Cell Facilities shall be mounted as closely to the Utility Pole as possible, and shall not extend out more than three (3) feet from the pole. Ground mounted equipment is prohibited. iii. No Illumination. Except as otherwise required by applicable law, Small Cell Facilities shall not be illuminated. iv. Concealed Wires. Small Cell Facilities’ external cables and wires shall be enclosed in a conduit so that wires are protected and not visible or visually minimized to the maximum extent feasible. The number of conduit shall be minimized to the number necessary to accommodate the Small Cell Facility and the conduit shall be mounted as closely to the pole, while still meeting the required safety clearances necessary for the pole to remain climbable. The color of external cables and wires and conduit shall match the color of the Utility Pole or be a neutral color such as black, brown, beige, off-white, or light gray. All cables shall be also be concealed to the extent feasible. Franchisee agrees to require any third party installing cables or wires on its Small Cell Facilities to comply with the requirements in this Section, subject to the approval of the pole owner. 5.b Packet Pg. 35 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 27 v. Bulk. 1. Except as provided below, primary small cell equipment enclosures shall not exceed twelve (12) cubic feet in volume. 2. Multiple antennas are permitted provided that the cumulative total antenna volume shall not exceed twelve (12) cubic feet. 3. If, due to technological reasons, the proposed equipment enclosures do not comply with Section 17.2(c)(v)(1), the Director may approve primary small cell equipment enclosures up to twenty-eight (28) cubic feet in volume following a submission to the Director by the Franchisee demonstrating that Franchisee is proposing to use the smallest small cell equipment enclosure that is technologically feasible for the specific Small Cell Facility. vi. Stickers. The use of stickers on Utility Poles should be minimized to the extent feasible. SECTION 18 – Unauthorized Facilities. Any Small Cell Facilities installations in the City Right-of-Way that were not authorized under this Franchise or other required City Approval or were installed substantially out of compliance with the Design Standards in Section 17(c) (“Unauthorized Facilities”) will be subject to the payment of an Unauthorized Facilities charge by Franchisee. City shall provide written notice to Franchisee of any Unauthorized Facilities identified by City staff and Franchisee shall have thirty (30) calendar days thereafter in which to establish that this installation was authorized or obtain the applicable permit. Failure to establish that the installation is authorized will result in the imposition of an Unauthorized Facilities charge in the amount of One Thousand Dollars ($1,000.00) per Unauthorized Facility per day starting on the thirty-first (31st) day. Franchisee may submit an application to the City under this Franchise for approval of the Unauthorized Facilities. If the application for the Unauthorized Facilities is not approved, Franchisee shall remove the Unauthorized Facilities from the City’s Right-of-Way within thirty (30) calendar days after the expiration of all appeal periods for such denial. The City shall 5.b Packet Pg. 36 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 28 not refund any Unauthorized Facilities charges, unless Franchisee is successful in an appeal. This Franchise remedy is in addition to any other remedy available to the City at law or equity. SECTION 19 - Graffiti Abatement. As soon as practical, but not later than fourteen (14) days from the date Franchisee receives written notice or is otherwise aware, Franchisee shall remove all graffiti on any of its Small Cell Facilities in which it is the owner of the pole or structure or on the Small Cells Facilities themselves attached to a third-party pole (e.g., graffiti on the shrouding protecting the radios). The foregoing shall not relieve Franchisee from complying with any City graffiti or visual blight ordinance or regulation. SECTION 20 - Emissions Reports. 20.1 Franchisee is obligated to comply with all laws relating to allowable presence of or human exposure to Radiofrequency Radiation ("RFs") or Electromagnetic Fields ("EMFs") on or off any poles or structures in the Rights-of-Way, including all applicable FCC standards as now or hereafter adopted, whether such RF or EMF presence or exposure results from the Small Cell Facility alone or from the cumulative effect of the Small Cell Facility added to all other sources on or near the specific pole or structure. 20.2 Franchisee must provide to the City a copy of the report (the “Emissions Report”) from a duly qualified engineer analyzing whether RF and EMF emissions at the proposed Small Cell Facility locations would comply with FCC General Population standards. Franchisee may provide one standard Emissions Report which certifies that a standard Small Cell configuration (including power output, elevation of antennas above ground level, number of antennas) complies with FCC standards for its entire deployment, provided that the configuration of its Facilities remains identical (“Master Emissions Report”). Franchisee shall provide multiple Master Emissions Reports if it deploys different configurations within the City. All applications for Small Cells shall certify that the configuration is the same as or emits less emissions than the design in the standard Emissions Report. If an installation differs from the standard report as being more intrusive, then Franchisee will be required to provide a customized Emissions Report 5.b Packet Pg. 37 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 29 for such Small Cell installation. If not provided earlier as part of a Master Emissions Report, Franchisee must submit the Emissions Report to the City with the applicable Small Cell Permit application. Further, following any subsequent modification to a Small Cell Facility that materially alters the configuration of such Small Cell Facility, Franchisee shall, at its own cost and expense, perform an RF emissions test following such modification to validate that the Small Cell Facilities once modified comply with the FCC standards. 20.3 If the City discovers that the emissions from a Facility exceeds the FCC standards, then the City may order Franchisee to immediately turn off the Facility or portion thereof committing the violation, until the emissions exposure is remedied. 20.4 If Small Cell Facilities have already been installed by the Franchisee or other entities within the vicinity of a proposed Small Cell Facility, Franchisee shall provide an Emissions Report for the proposed Facility that includes the cumulative effects of all of these already existing Facilities. SECTION 21 – No Interference. 21.1 Interference with Public Facilities. Franchisee’s Small Cell Facilities shall not interfere with any City operations (including, but not limited to, traffic lights, radio systems, or other City communications infrastructure), or PSERN (or its successor entity) communications operation or equipment. If the City reasonably determines that the Small Cell Facilities cause such interference, Franchisee shall respond to the City’s request to address the source of the interference as soon as practicable, but in no event later than forty-eight (48) hours of receipt of written notice. The City may require, by written notice, that Franchisee cease operation of the specific Small Cell Facilities causing such interference and either modify, remove or relocate such Small Cell Facilities. If, within ten (10) calendar days after receipt of such written notice from the City of such interference, Franchisee has not abated such interference, such Small Cell Facility may be deemed an Unauthorized Facility and subject to the provisions of Section 18. 5.b Packet Pg. 38 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 30 21.2 Interference with Other Facilities. Franchisee is solely responsible for determining whether its Small Cell Facilities interfere with telecommunications facilities of utilities and franchisees existing within the Rights-of-Way prior to Franchisee’s installation. Franchisee shall comply with the rules and regulations of the Federal Communications Commission regarding radio frequency interference when siting its Small Cell Facilities within the Franchise Area. Franchisee, in the performance and exercise of its rights and obligations under this Franchise shall not physically or technically interfere in any manner with the existence and operation of any and all existing utilities, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, electroliers, cable television, and other telecommunications, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties. SECTION 22. – Indemnification. 22.1 General Indemnification. Franchisee shall indemnify, defend, and hold the City, its officers, officials, boards, commissions, agents, and employees, harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees or reasonable expenses, arising from any casualty or accident to person or property, including, without limitation, damages in any way arising out of, or by reason of, any construction, excavation, operation, maintenance, reconstruction, or any other act done under this Franchise, by or for Franchisee, its agents, or its employees, or by reason of any neglect or omission of Franchisee. Franchisee shall consult and cooperate with the City while conducting its defense of the City under this Franchise. Franchisee shall not be obligated to indemnify the City to the extent of the City’s negligence or willful misconduct. 22.2 Indemnification for Radio Frequency Emissions or Radiation. Franchisee shall also indemnify, defend and hold harmless the City, its officers, employees, agents, volunteers and representatives from any and all claims, costs, judgments, awards or liability to any person arising from radio frequency emissions or radiation emitted from Franchisee’s Facilities located in the Rights-of-Way, regardless of whether Franchisee’s equipment complies with applicable federal statutes and/or FCC regulations related 5.b Packet Pg. 39 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 31 thereto. These indemnification obligations shall extend to claims that are not reduced to a suit and any claims that may be compromised, with Franchisee’s prior written consent, prior to the culmination of any litigation or the institution of any litigation. 22.3 Indemnification for Relocation. Franchisee shall defend, indemnify, and hold the City harmless for any damages, claims, additional costs or reasonable expenses and attorneys’ fees, including contractor construction delay damages, assessed against or payable by the City and arising out of or resulting from Franchisee's failure to remove, adjust, or relocate any of its Facilities in the Rights-of-Way in accordance with any relocation required by the City, provided that Franchisee shall not be liable under this section in the event Franchisee’s failure to remove, adjust or relocate any of its Facilities is the result of a force majeure event or events beyond the control of Franchisee. 22.4 Avoidance. a. Inspection or acceptance by the City of any work performed by Franchisee at the time of completion of construction shall not be grounds for avoidance by Franchisee of any of its obligations under this Section 22. b. The fact that Franchisee carries out any activities under this Franchise through independent contractors shall not constitute an avoidance of or defense to Franchisee's duty of defense and indemnification under this subsection. 22.5 Procedures and Defense. If a claim or action arises, the City or any other indemnified party shall promptly notify Franchisee of such claim or action and tender the defense of the claim or action to Franchisee, which defense shall be at Franchisee’s expense. The City’s failure to so notify and request indemnification shall not relieve Franchisee of any liability that Franchisee might have, except to the extent that such failure prejudices Franchisee’s ability to defend such claim or suit. The City may participate in the defense of a claim, but if Franchisee provides a defense at Franchisee’s expense then Franchisee shall not be liable for any attorneys’ fees, 5.b Packet Pg. 40 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 32 expenses, or other costs the City may incur if it chooses to participate in the defense of a claim, unless and until separate representation as described in Section 22.6 is required. In that event, the provisions of Section 22.6 shall govern Franchisee’s responsibility for City’s attorney’s fees, expenses, or other costs. In any event, Franchisee may not agree to any settlement of claims affecting the City without the City's consent, such consent not to be unreasonable withheld or delayed. 22.6 Payment of fees and costs. a. If Franchisee refuses the tender of defense in any suit or any claim, as required pursuant to the indemnification provisions within this Franchise, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Franchisee, Franchisee shall pay all of the City’s reasonable costs for defense of the action, including all expert witness fees, costs, and attorney’s fees, and including costs and fees incurred in recovering under this indemnification provision. b. If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest between the City and the counsel selected by Franchisee to represent the City, Franchisee shall pay, from the date such separate representation is required forward, all reasonable expenses incurred by the City in defending itself with regard to any action, suit, or proceeding subject to indemnification by Franchisee. Provided, however, that in the event that such separate representation is or becomes necessary, and the City desires to hire counsel or any other outside experts or consultants and desires Franchisee to pay those expenses, then the City shall be required to obtain Franchisee’s consent to the engagement of such counsel, experts, or consultants, such consent not to be unreasonably withheld. The City's expenses shall include all reasonable out of pocket costs and expenses, such as consultants' fees and court costs, but shall not include outside attorneys’ fees for services that are unnecessarily duplicative of services 5.b Packet Pg. 41 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 33 provided the City by Franchisee, except in the event of a conflict of interest where such duplication may be required. Each party agrees to cooperate and to cause its employees and agents to cooperate with the other party in the defense of any claim or action. 22.7 RCW 4.24.115. Should a court of competent jurisdiction determine that this Franchise is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Franchisee and the City, its officers, officials, employees, and volunteers, the Franchisee’s liability hereunder shall be only to the extent of the Franchisee’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Franchisee's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Franchise. 22.8 Assumption of Risk. Notwithstanding any other provisions of this Section 22, Franchisee assumes the risk of damage to its Facilities located in the Rights-of-Way and upon City-owned property from activities conducted by the City, its officers, agents, employees, volunteers, elected and appointed officials, and contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or the willful or criminal actions of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Franchisee releases and waives any and all such claims against the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Franchisee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages, lost profits and consequential damages, brought by or under users of Franchisee’s Facilities as the result of any interruption of service due to damage or destruction of Franchisee’s Facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors, except to the extent any such damage or destruction is caused by or arises from the gross negligence or any willful misconduct on the part 5.b Packet Pg. 42 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 34 of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. 22.9 Survival. The provisions of this Section 22 shall survive the expiration, revocation, or termination of this Franchise. SECTION 23 - Insurance. 23.1 Insurance Limits. Franchisee shall maintain in full force and effect at its own cost and expense each of the following policies of insurance: a. Commercial General Liability insurance with limits of Five Million Dollars ($5,000,000.00) per occurrence and Five Million Dollars ($5,000,000.00) general aggregate. Coverage shall be at least as broad as that provided by the ISO Form CG 00 01 or its equivalent and include severability of interests. Such insurance shall include the City, its officers, officials and employees as additional insureds per ISO CG 2026 or its equivalent. There shall be a waiver of subrogation and rights of recovery against the City, its officers, officials and employees. Coverage shall apply as to claims between insureds on the policy, if applicable. Coverage may take the form of a primary layer and a secondary or umbrella excess layer, but the combination of layers must equal Five Million Dollars ($5,000,000.00) at a minimum; b. Commercial Automobile Liability insurance with combined single limits of Five Million Dollars ($5,000,000.00) each occurrence with respect to each of Franchisee’s owned, hired and non-owned vehicles assigned to or used in the operation of the Facilities in the City. The policy shall contain a severability of interests provision; c. Workers’ Compensation coverage or qualified self insurance as required by the Industrial Insurance laws of the State of Washington and 5.b Packet Pg. 43 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 35 employer’s liability with limits of One Million Dollars ($1,000,000.00) each accident/disease/policy limit. 23.2 Deductibles/Certificate of Insurance. Any deductible of the policies shall not in any way limit Franchisee’s liability to the City. 23.3 Endorsements. All required liability policies shall contain, or shall be endorsed so that: a. The City, its officers, officials, boards, commissions, employees, and agents are to be covered as, and have the rights of, additional insureds with respect to liability arising out of activities performed by, or on behalf of, Franchisee under this Franchise or Applicable Law, or in the construction, operation or repair, or ownership of the Cable System; b. Franchisee's required insurance coverage shall be primary insurance with respect to the City, its officers, officials, boards, commissions, employees, and agents. Any insurance or self-insurance maintained by the City, its officers, officials, boards, commissions, employees, and agents shall be in excess of the Franchisee's required insurance and shall not contribute to it; and c. Franchisee's required insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer’s liability. d. Notwithstanding the forgoing, Licensee may, in its sole discretion, self- insure any of the required insurance under the same terms as required by this Agreement. In the event Licensee elects to self-insure its obligation under this Agreement to include Licensor as an additional insured, the following conditions apply: (i) Licensor shall promptly and no later than sixty (60) calendar days after notice thereof provide Licensee with written notice of any claim, demand, lawsuit, or the like for which it 5.b Packet Pg. 44 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 36 seeks coverage pursuant to this Section and provide Licensee with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; (ii) Licensor shall not settle any such claim, demand, lawsuit, or the like without the prior written consent of Licensee; and (iii) Licensor shall fully cooperate with Licensee in the defense of the claim, demand, lawsuit, or the like. 23.4 Acceptability of Insurers. The insurance obtained by Franchisee shall be placed with insurers with a Best’s rating of no less than “A minus VII." 23.5 Verification of Coverage. The Franchisee shall furnish the City with (a) certificates of insurance and (b) the additional insured endorsements or a copy of the page of the policy reflecting blanket additional insured status. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices. 23.6 Maintenance of Insurance. Franchisee’s maintenance of insurance as required by this Section 23 shall not be construed to limit the liability of Franchisee to the coverage provided by such insurance, or otherwise limit the City’s recourse to any remedy available at law or equity. Further, Franchisee’s maintenance of insurance policies required by this Franchise shall not be construed to excuse unfaithful performance by Franchisee. SECTION 24. - Abandonment of Franchisee’s Telecommunications Network. 24.1 Where any Facilities or portions of Facilities are no longer needed and their use is to be discontinued, the Franchisee shall immediately report such Facilities in writing (“Deactivated Facilities”) to the Public Works Director. This notification is in addition to the inventory revisions addressed in Section 7.2. Deactivated Facilities, or portions thereof, shall be completely removed within ninety (90) days and the site, pole or infrastructure restored to its pre-existing condition, reasonable wear and tear and damage by casualty excepted. 5.b Packet Pg. 45 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 37 24.2 If Franchisee leases a structure from a landlord and such landlord later abandons the structure, for example by building a replacement structure, Franchisee shall remove or relocate its Facilities as soon as possible but no later than ninety (90) calendar days of such written notification from the landlord, at no cost to the City. 24.3 Upon the expiration, termination, or revocation of the rights granted under this Franchise, Franchisee shall remove all of its Facilities from the Rights-of-Way within ninety (90) calendar days of receiving written notice from the Director. The Facilities, in whole or in part, may not be abandoned by Franchisee without written approval by the City. Any plan for abandonment or removal of Franchisee’s Facilities must be first approved by the Public Works Director or his/her designee and all necessary permits must be obtained prior to such work. Franchisee shall restore the Rights-of-Way to at least the same condition the Rights-of-Way were in immediately prior to any such installation, construction, relocation, maintenance or repair (reasonable wear and tear and damage by casualty excepted), provided Franchisee shall not be responsible for any changes to the Rights-of-Way not caused by Franchisee or any person doing work for Franchisee. Franchisee shall be solely responsible for all costs associated with removing its Facilities. 24.4 Notwithstanding Section 24.3, the City may permit Franchisee’s Facilities to be abandoned in place in such a manner as the City may prescribe. Upon permanent abandonment, and Franchisee’s agreement to transfer ownership of the Facilities to the City, Franchisee shall submit to the City a proposal and instruments for transferring ownership to the City. 24.5 Any Facilities which are not removed within one hundred and eighty (180) calendar days of either the date of termination or revocation of this Franchise or the date the City issued a permit authorizing removal, whichever is later, shall automatically become the property of the City. Any costs incurred by the City in safeguarding such Facilities or removing the Facilities shall be reimbursed by Franchisee. Nothing contained within this Section 24.5 shall prevent the City from compelling Franchisee to remove any such Facilities through judicial action when the City has not permitted Franchisee to abandon these Facilities in place. 5.b Packet Pg. 46 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 38 24.6 The provisions of this Section 24 shall survive the expiration, revocation, or termination of this Franchise and for so long as Franchisee has Facilities in Rights-of- Way. SECTION 25. - Bonds. 25.1 Construction Guarantee. As a condition of performing work in the Right-of-Way, the timely, complete, and faithful performance of all construction work in the Right-of- Way shall be guaranteed in an amount equal to one hundred twenty-five percent (125%) of the cost estimate (prepared by a licensed contractor, professional engineer, or architect) of the construction work. The guarantee may be by performance bond or irrevocable letter of credit. If Franchisee, in the sole judgment of the City, has a history of corrections or defaults, Franchisee must provide the full guarantee by assignment of funds. These funds shall guarantee the following: (1) timely completion of construction; (2) construction in compliance with all applicable plans, permits, technical codes, and standards; (3) proper location of the Facilities as specified by the City; (4) restoration of the Rights-of-Way and other City properties affected by the construction; (5) submission of as-built drawings after completion of construction; and (6) timely payment and satisfaction of all claims, demands, or liens for labor, materials, or services provided in connection with the work that could be asserted against the City or City property. The guarantee must remain in full force until the completion of construction, including final inspection, corrections, and final approval of the work, recording of all easements, provision of as-built drawings, and the posting of a maintenance bond as described in Section 25.2. Compliance with the performance guarantee requirement of the City’s current Design and Construction Standards shall satisfy the provisions of this Section 25.1. 25.2 Maintenance Bond. Maintenance and the successful operation of the Right-of- Way improvements shall be bonded for a period of at least two (2) years (or other period as required by Kent City Code) from the date of final construction approval. The bond shall be in an amount to be determined by the City. The minimum maintenance guarantee shall be Five Thousand Dollars ($5,000.00) or twenty percent (20%) of the original performance construction guarantee as described in Section 25.1, whichever 5.b Packet Pg. 47 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 39 is greater. At six (6)-month intervals during this maintenance period, the City will inspect the improvements and identify to Franchisee any noted deficiencies. Franchisee will have thirty (30) days to correct any deficiencies. The satisfactory correction of the work may commence a new two (2)-year maintenance period for the improvements as corrected, as determined by the City. The City will initiate collection against the financial guarantee if deficiencies are not satisfactorily addressed by the end of the thirty (30)-day response period. Compliance with the maintenance guarantee requirement of the City’s current Design and Construction Standards shall satisfy the provisions of this Section 25.2. Original financial guarantee amounts described in Section 25.1 and Section 25.2 above may be reduced one time only prior to the maintenance period, at the discretion of the City. If an extension to any associated permits are granted, the financial guarantees may be increased based on an updated engineer’s cost estimate or as determined by the City. Financial guarantees will be fully released only after all final punch list items are accomplished, final construction approval, and the elapse of the two (2)-year maintenance guarantee period with all corrective actions complete and accepted by the City. 25.3 Franchise Bond. Franchisee shall provide the City with a bond in the amount of Twenty-Five Thousand Dollars ($25,000.00) (“Franchise Bond”) running or renewable for the term of this Franchise, in a form and substance reasonably acceptable to the City. If Franchisee fails to substantially comply with any one or more of the provisions of this Franchise, following written notice and a reasonable opportunity to cure, then there shall be recovered jointly and severally from Franchisee and the bond any actual damages suffered by the City as a result thereof, including but not limited to staff time, material and equipment costs, compensation or indemnification of third parties, and the cost of removal or abandonment of Facilities. Franchisee specifically agrees that its failure to comply with the terms of this Section 25 shall constitute a material breach of this Franchise, subject to the notice and cure provisions of Section 28. Franchisee further agrees to replenish the Franchise Bond within fourteen (14) calendar days after written notice from the City that there is a deficiency in the amount of the Franchise Bond. The amount of the Franchise Bond shall not be construed to limit Franchisee's 5.b Packet Pg. 48 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 40 liability or to limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. 25.4 Form of Bonds. All bonds provided to the City under this Section 25 shall be on a form provided by the City and with sureties registered with the Washington State Insurance Commissioner or other financial institutions acceptable to the City. SECTION 26. - Modification. The City and Franchisee hereby reserve the right to alter, amend, or modify the terms and conditions of this Franchise upon written agreement of both parties to such alteration, amendment or modification. SECTION 27. - Revocation. If Franchisee willfully violates or fails to comply with any material provisions of this Franchise, then at the election of the City Council after at least thirty (30) calendar days written notice to Franchisee specifying the alleged violation or failure, or such extended periods as may be required beyond the thirty (30) day cure period to cure any violation if the nature of the cure is such that it reasonably requires more than thirty (30) days to cure, the City may revoke all rights conferred and this Franchise may be revoked by the City Council after a hearing held upon such notice to Franchisee. Such hearing shall be open to the public and Franchisee and other interested parties may offer written and/or oral evidence explaining or mitigating such alleged noncompliance. Within thirty (30) calendar days after the hearing, the City Council, on the basis of the record, will make the determination as to whether there is cause for revocation, whether the Franchise will be terminated, or whether lesser sanctions should otherwise be imposed. The City Council may in its sole discretion fix an additional time period to cure violations. If the deficiency has not been cured at the expiration of any additional time period or if the City Council does not grant any additional period, the City Council may by resolution declare the Franchise to be revoked and forfeited or impose lesser sanctions. If Franchisee appeals revocation and termination, such revocation may be held in abeyance pending judicial review by a 5.b Packet Pg. 49 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 41 court of competent jurisdiction, provided Franchisee is otherwise in compliance with the Franchise. SECTION 28. - Remedies to Enforce Compliance. 28.1 The City may elect, without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling Franchisee to comply with the provisions of the Franchise and to recover damages and costs incurred by the City by reason of Franchisee’s failure to comply. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Provided, further, that by entering into this Franchise, it is not the intention of the City or Franchisee to waive any other rights, remedies, or obligations as otherwise provided by law equity, or otherwise, and nothing contained here shall be deemed or construed to effect any such waiver. 28.2 If Franchisee shall violate, or fail to comply with any of the provisions of this Franchise, or should it fail to heed or comply with any notice given to Franchisee under the provisions of this Franchise, the City shall provide Franchisee with written notice specifying with reasonable particularity the nature of any such breach and Franchisee shall undertake all commercially reasonable efforts to cure such breach within thirty (30) calendar days of receipt of notification. If the parties reasonably determine the breach cannot be cured within (30) thirty days, the City may specify a longer cure period, and condition the extension of time on Franchisee's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or Franchisee does not comply with the specified conditions, the City may, at its sole discretion, (1) revoke this Franchise with no further notification, or (2) claim damages of Two Hundred Fifty Dollars ($250.00) per day against the Franchise Bond set forth in Section 25.3, or (3) pursue other remedies as described in this Section 28. Liquidated damages described in this Section 28.2 shall 5.b Packet Pg. 50 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 42 not be offset against any sums due to the City as a tax or reimbursement pursuant to Section 15.6. SECTION 29. - Non-Waiver. The failure of the City to insist upon strict performance of any of the covenants and agreements of this Franchise or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of any such covenants, agreements or option or any other covenants, agreements or option. SECTION 30. - Police Powers and City Ordinances. Nothing herein shall be deemed to restrict the City’s ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this Franchise, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to reasonably control by appropriate regulations the location, elevation, manner of construction and maintenance of Facilities by Franchisee, and Franchisee shall promptly conform with all such regulations unless compliance would cause Franchisee to violate other requirements of law. In the event of a conflict between the provisions of this Franchise and any other generally applicable ordinance(s) enacted under the City’s police power authority, such other ordinances(s) shall take precedence over the provisions set forth herein. SECTION 31. - Cost of Publication. The cost of publication of this Franchise shall be borne by Franchisee. SECTION 32. - Acceptance. Franchisee shall execute and return to the City its execution and acceptance of this Franchise in the form attached hereto as Exhibit B. In addition, Franchisee shall submit proof of insurance obtained and additional insured endorsement pursuant to Section 23, any Construction Guarantee, if applicable, pursuant to Section 25.1 and the Franchise Bond required pursuant to Section 25.3. The administrative fee pursuant to Section 15.1 is due within thirty (30) days of receipt of the invoice from the City. 5.b Packet Pg. 51 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 43 SECTION 33. - Survival. All of the provisions, conditions, and requirements of Section 5, Section 6, Section 8, Section 13, Section 22, and Section 24 of this Franchise shall be in addition to any and all other obligations and liabilities Franchisee may have to the City at common law, by statute, or by contract, and shall survive the City’s Franchise to Franchisee for the use of the Franchise Area, and any renewals or extensions thereof. All of the provisions, conditions, regulations and requirements contained in this Franchise shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of Franchisee and all privileges, as well as all obligations and liabilities of Franchisee shall inure to its heirs, successors and assigns equally as if they were specifically mentioned where Franchisee is named herein. SECTION 34. - Assignment. 34.1 This Franchise may not be directly or indirectly assigned, transferred, or disposed of by sale, lease, merger, consolidation or other act of Franchisee, by operation of law or otherwise, unless approved in writing by the City, which approval shall not be unreasonably withheld, conditioned or delayed. The above notwithstanding, Franchisee may freely assign this Franchise in whole or in part to a parent, subsidiary, or affiliated entity or for collateral security purposes. Franchisee shall provide prompt, written notice to the City of any such assignment. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such consent shall not be required unless and until the secured party elects to realize upon the collateral. For purposes of this Section 34, no assignment or transfer of this Franchise shall be deemed to occur based on the public trading of Franchisee’s stock; provided, however, any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of this Franchise. Any transactions which singularly or collectively result in a change of fifty percent (50%) or more of the ownership or working control (for example, management of Franchisee or its Telecommunications facilities) of the Franchisee or of the ownership or working control of the Franchisee's Telecommunications facilities within the City, or of the ownership or 5.b Packet Pg. 52 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 44 working control having ownership or working control of the Franchisee or of the Franchisee's Telecommunications facilities within the City, or of control of the capacity or bandwidth of the Franchisee's Telecommunication facilities within the City, shall be considered an assignment or transfer requiring notice to the City pursuant to this Franchise. Such transactions between affiliated entities are not exempt from notice requirements. A Franchisee shall notify the City of any proposed change in, or transfer of, or acquisition by any other party of control of a Franchisee within sixty (60) days following the closing of the transaction. 34.2 Franchisee’s obligation to remain fully responsible for compliance with the terms under this Section 34 shall survive the expiration of this Franchise but only if and to the extent and for so long as Franchisee is still the owner or has exclusive control over the Facilities used by a third party. SECTION 35. - Extension. If this Franchise expires without renewal, the City may, subject to applicable law either allow Franchisee to maintain and operate its Facilities on a month-to-month basis, provided that Franchisee maintains insurance for such Facilities during such period and continues to comply with this Franchise; or order the removal of any and all Facilities at Franchisee’s sole cost and expense consistent with Section 24.3. SECTION 36. - Entire Agreement. This Franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon execution of this Franchise. SECTION 37. - Eminent Domain. The existence of this Franchise shall not preclude the City from acquiring by condemnation in accordance with applicable law, all or a portion of the Franchisee’s Facilities for the fair market value thereof. In determining the value of such Facilities, no value shall be attributed to the right to occupy the area conferred by this Franchise. SECTION 38. - Vacation. 5.b Packet Pg. 53 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 45 If at any time the City, by ordinance, vacates all or any portion of the area affected by this Franchise, the City shall not be liable for any damages or loss to the Franchisee by reason of such vacation. The City shall notify the Franchisee in writing not less than sixty (60) calendar days before vacating all or any portion of any such area. The City may, after sixty (60) calendar days’ written notice to the Franchisee, terminate this Franchise with respect to such vacated area. SECTION 39. - Notice. Any Notice or information required or permitted to be given to the parties under this Franchise agreement may be sent to the following addresses unless otherwise specified: If to Licensee (including invoices): New Cingular Wireless PCS, LLC Attn: Tower Asset Group – Lease Administration Re: Wireless Installation on Public Structures (City of Kent) (WA) FA No.: _________________________ 575 Morosgo Drive NE Atlanta, GA 30324 If to Licensor: CITY OF KENT Attn: City Clerk 220 Fourth Avenue South Kent, WA 98032 With a copy to the AT&T Legal Department: New Cingular Wireless PCS, LLC Attn: AT&T Legal Dept. - Network Operations 5.b Packet Pg. 54 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 46 Re: Wireless Installation on Public Structures (City of Kent) (WA) FA No: __________________________ 208 S. Akard Street Dallas, TX 75202-4206 SECTION 40. - Severability. If any section, sentence, clause or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise unless such invalidity or unconstitutionality materially alters the rights, privileges, duties, or obligations hereunder, in which event either party may request renegotiation of those remaining terms of this Franchise materially affected by such court’s ruling. SECTION 41. - Compliance with All Applicable Laws. Franchisee agrees to comply with all present and future federal, state and local laws, ordinances, rules and regulations, except to the extent that the Franchisee has a vested right in accordance with the vested rights doctrine under Washington case law or as codified at RCW 19.27.095. This Franchise is subject to ordinances of general applicability enacted pursuant to the City’s police powers. Franchisee shall, at its own expense, maintain its Facilities in a safe condition, in good repair and in a manner suitable to the City. Additionally, Franchisee shall keep its Facilities free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or any interference with City services. City reserves the right at any time to amend this Franchise to conform to any hereafter enacted, amended, or adopted federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City ordinance enacted 5.b Packet Pg. 55 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 47 pursuant to such federal or state statute or regulation upon providing Franchisee with thirty (30) calendar days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. Said amendment shall become automatically effective upon expiration of the notice period unless, before expiration of that period, Franchisee makes a written request for negotiations over the terms of the amendment. If the parties do not reach agreement as to the terms of the amendment within thirty (30) days of the call for negotiations, City may enact the proposed amendment, by incorporating Franchisee's concerns to the maximum extent City deems possible. SECTION 42. - Attorneys’ Fees. If a suit or other action is instituted in connection with any controversy arising out of this Franchise, the prevailing party shall be entitled to recover all of its costs and expenses, including such sum as the court may judge as reasonable for attorneys’ fees, costs, expenses and attorneys’ fees upon appeal of any judgment or ruling. SECTION 43. - Hazardous Substances. Franchisee shall not introduce or use any hazardous substances (chemical or waste), in violation of any applicable law or regulation, nor shall Franchisee allow any of its agents, contractors or any person under its control to do the same. Franchisee will be solely responsible for and will defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from and against any and all claims, costs and liabilities including reasonable attorneys’ fees and costs, arising out of or in connection with the cleanup or restoration of the property associated with Franchisee’s use, storage, or disposal of hazardous substances, whether or not intentional, and the use, storage or disposal of such substances by Franchisee’s agents, contractors or other persons acting under Franchisee’s control, whether or not intentional. SECTION 44. - Licenses, Fees and Taxes. Prior to constructing any improvements, Franchisee shall obtain a business or utility license from the City. Franchisee shall pay promptly and before they become delinquent, all taxes on personal property and improvements owned or placed by 5.b Packet Pg. 56 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 48 Franchisee and shall pay all license fees and public utility charges relating to the conduct of its business, shall pay for all permits, licenses and zoning approvals, shall pay any other applicable tax unless documentation of exemption is provided to the City and shall pay utility taxes and license fees imposed by the City. SECTION 45. - Miscellaneous. 45.1 City and Franchisee respectively represent that its signatory is duly authorized and has full right, power and authority to execute this Franchise. 45.2 This Franchise shall be construed in accordance with the laws of the State of Washington. Venue for any dispute related to this Franchise shall be the United States District Court for the Western District of Washington, or King County Superior Court, without waiver of any right to removal. 45.3 Section captions and headings are intended solely to facilitate the reading thereof. Such captions and headings shall not affect the meaning or interpretation of the text herein. 45.4 Where the context so requires, the singular shall include the plural and the plural includes the singular. 45.5 Franchisee shall be responsible for obtaining all other necessary approvals, authorizations and agreements from any party or entity and it is acknowledged and agreed that the City is making no representation, warranty or covenant whether any of the foregoing approvals, authorizations or agreements are required or have been obtained by Franchisee by any person or entity. 45.6 This Franchise may be enforced at both law and equity. SECTION 46. - Ordinance Effective Date. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect thirty (30) days after its passage and publication (“Effective Date”). 5.b Packet Pg. 57 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 49 5.b Packet Pg. 58 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 50 APPROVED: _______________________ MAYOR ATTEST/AUTHENTICATED: _______________________________ CITY CLERK APPROVED AS TO FORM: ________________________________ CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: 5.b Packet Pg. 59 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 51 SUMMARY OF ORDINANCE NO. (201_) City of Kent, Washington __________________________________________________________________ ____________ On the ___ day of _______, 201__, the City Council of the City of ___________________________ passed Ordinance No. _____ (201__). A summary of the content of said Ordinance, consisting of the title, is provided as follows: AN ORDINANCE OF THE CITY OF KENT, WASHINGTON, GRANTING TO NEW CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, AND ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND NONEXCLUSIVE FRANCHISE FOR TEN YEARS, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A TELECOMMUNICATIONS NETWORK, IN, ACROSS, OVER, ALONG, UNDER, THROUGH AND BELOW CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF KENT, WASHINGTON. The full text of this Ordinance will be mailed upon request. ___________________________________ CITY CLERK FILED WITH THE CITY CLERK: , 201_ PASSED BY THE CITY COUNCIL: _______, 201_ PUBLISHED: ______, 201_ EFFECTIVE DATE: , 201_ ORDINANCE NO.: (201_) 5.b Packet Pg. 60 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } EXHIBIT A REPRESENTATIVE PHOTO SIMULATIONS OF SMALL CELL FACILITIES 5.b Packet Pg. 61 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 5.b Packet Pg. 62 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } 5.b Packet Pg. 63 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) {ERZ1744692.DOCX;2/00085.080011/ } EXHIBIT B STATEMENT OF ACCEPTANCE New Cingular Wireless PCS, LLC, a Delaware limited liability company, for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Franchise attached hereto and incorporated herein by this reference. ___________________________________ By: ____________________________________ Date: ______________________________ Name: ____________________ Title: ____________________ STATE OF ________________ ) )ss. COUNTY OF ______________ ) On this ____ day of _______________, 201_, before me the undersigned, a Notary Public in and for the State of _________________, duly commissioned and sworn, personally appeared, __________________ of New Cingular Wireless PCS, LLC, the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. _____________________________________________ Signature _____________________________________________ NOTARY PUBLIC in and for the State of __________________, residing at ________________________ MY COMMISSION EXPIRES: ______________________________ 5.b Packet Pg. 64 At t a c h m e n t : 5 - E x h i b i t B A T T K e n t S m a l l C e l l F r a n c h i s e O r d i n a n c e ( 1 4 9 2 : S m a l l C e l l F r a n c h i s e w i t h N e w C i n g u l a r W i r e l e s s ( A T & T ) ) PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee SUBJECT: Consultant Services Agreement with Transportation Solutions, Inc. (TSI) for 4th and Willis Roundabout Design MOTION: Move to recommend Council authorize the Mayor to sign a Consultant Services Agreement with Transportation Solutions, Inc. for Transportation Engineering services for the 4th Avenue & Willis Street Roundabout Project in an amount not to exceed $79,570.00, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. SUMMARY: Transportation Solutions, Inc. (TSI) was selected to prepare the Channelization Plans for WSDOT review and approval for the roundabout at the intersection of 4th Avenue and Willis Street (SR 516). TSI will be responsible to obtain and analyze traffic volumes, perform Sidra traffic modeling, develop layout alternatives of channelization features, coordinate with WSDOT, develop materials for public outreach meetings, and develop and work with WSDOT to obtain approval for the required Intersection Control Evaluation, Basis of Design, and any applicable design deviations. BUDGET IMPACT: State funds from the 2018 Supplemental Transportation Budget will be used for this Contract. SUPPORTS STRATEGIC PLAN GOAL: Thriving City, Evolving Infrastructure RECOMMENDED BY: Tim LaPorte ATTACHMENTS: 1. 6 - Exhibit TSI 4th and Willis Roundabout ConsultantServicesAgreement- Over20K (PDF) 6 Packet Pg. 65 CONSULTANT SERVICES AGREEMENT - 1 (Over $20,000) CONSULTANT SERVICES AGREEMENT between the City of Kent and Transportation Solutions, Inc. THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation (hereinafter the "City"), and Transportation Solutions, Inc. organized under the laws of the State of Washington, located and doing business at 8250 165th Ave NE, Suite 100 Redmond, WA 98052-6628, Phone: (425) 883-4134 Ext. 120; Contact: Victor Salemann (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 obtain and analyze traffic data, prepare and provide channelization plans, coordinate with stakeholders, obtain approval for the required Intersection Control Evaluation, Basis of Design and any applicable design deviations for the 4 th Avenue and Willis Roundabout 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, 2019. III. COMPENSATION. A. The City shall pay the Consultant, based on time and materials, an amount not to exceed Seventy-Nine Thousand, Five Hundred and Seventy Dollars ($79,570.00), 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-3. 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: 6.a Packet Pg. 66 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h CONSULTANT SERVICES AGREEMENT - 2 (Over $20,000) A. The Consultant has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. B. The Consultant maintains and pays for its own place of business from which Consultant’s services under this Agreement will be performed. C. The Consultant has an established and independent business that is eligible for a business deduction for federal income tax purposes that existed before the City retained Consultant’s services, or the Consultant is engaged in an independently established trade, occupation, profession, or business of the same nature as that involved under this Agreement. D. The Consultant is responsible for filing as they become due all necessary tax documents with appropriate federal and state agencies, including the Internal Revenue Service and the state Department of Revenue. E. The Consultant has registered its business and established an account with the state Department of Revenue and other state agencies as may be required by Cons ultant’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 rel ates. Consultant shall execute the attached City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance Statement. VII. INDEMNIFICATION. Consultant shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connec tion with the Consultant's performance of this Agreement, except for that portion of the injuries and damages caused by the City's negligence. The City's inspection or acceptance of any of Consultant's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's duty to defend, indemnify, and hold the City harmless, and Consultant’s liability accruing from that obligation shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL 6.a Packet Pg. 67 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h CONSULTANT SERVICES AGREEMENT - 3 (Over $20,000) 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 indemni fication 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 re asonable 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 Consultant acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington. As such, the Consultant agrees to cooperate fully with the City in satisfying the City’s duties and obligations under th e Public Records Act. The City’s use or reuse of any of the documents, data, and files created by Consultant for this project by anyone other than Consultant on any other project shall be without liability or legal exposure to Consultant. XI. CITY'S RIGHT OF INSPECTION. Even though Consultant is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to th e 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 th e 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 6.a Packet Pg. 68 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h CONSULTANT SERVICES AGREEMENT - 4 (Over $20,000) 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 add ress 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 p rovisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Consultant. G. Entire Agreement. The written provisions and terms of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner this Agreement. All of the above documents are hereby made a part of this Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. H. Compliance with Laws. The Consultant agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or accr uing out of the performance of those operations. I. Public Records Act. The Consultant acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, emails, and other records prepared or gathered by the Consultant in its performance of this Agreement may be subject to public review and disclosure, even if those records are not produced to or possessed by the City of Kent. As such, the Consultant agrees to cooperate fully with the City in satisfying the City’s duties and obligations under the Public Records Act. J. City Business License Required. Prior to commencing the tasks described in Section I, Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. K. Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. / / / / / / / / / / 6.a Packet Pg. 69 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h CONSULTANT SERVICES AGREEMENT - 5 (Over $20,000) IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed to have applied. CONSULTANT: By: (signature) Print Name: Its (title) DATE: CITY OF KENT: By: (signature) Print Name: Dana Ralph Its Mayor DATE: NOTICES TO BE SENT TO: CONSULTANT: Victor Salemann Transportation Solutions, Inc. 8250 165th Ave NE, Suite 100 Redmond, WA 98052-6628 (425) 883-4134 Ext. 120 (telephone) (425) 867-0898 (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 ATTEST: Kent City Clerk 6.a Packet Pg. 70 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h 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: _________________________________________ 6.a Packet Pg. 71 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h 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. 6.a Packet Pg. 72 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h 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: _________________________________________ 6.a Packet Pg. 73 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h ffil EXHIBIT 4.1 8250 - 1 65th Avenue llE Suite 100 Redmond, t¡t A 98052-6628f 425.883.4134 r 425.867.0898 www.tsinw.com Transportation $olutions, lnc. City of Kent - Willis St (SR 516) and 4th Avenue S Roundabout Lzl03l2Ot8 Exh¡b¡t A-1 Scope of Services City of Kent Roundabout Design Consultant Services - 4th Avenue & Willis Street Roundabout Transportation Solutions, lnc. PROJECT DESCRIPTION A. Project Purpose and lntent The City's comprehensive plan envisions the economic redevelopment of properties along Naden Avenue S north of Willis Street (SR 516) and south of W Meeker Street. This includes providing limited access to Naden Avenue S from Willis Street. No existing access points to the north of Willis St exist between SR 167 and 4th Avenue S. The intent of this project is to allow access to the Naden site from SR L67 via Willis St (SR 516) by providing a U-turn route via a roundabout at 4th/Willis. The new access to serve the Naden development north of Willis St (SR 516) and east of SR 167 will be r¡ght-in/r¡ght-out from/to Willis St (SR s16). The distance between the NB on/oll ramp of SR 1-67 and the Willis Street/74th Avenue St intersection is approximately 290 feet. Heavy freight traffic from existing commercial development along 74th Avenue S south coupled with traffic operations of SR L67 and SR 516 (Willis Street) contribute to heavy congestion in the corridor. To mitigate the reconfiguration at the intersection of Willis Street (SR 516) and 74th Avenue S, the City intends to build a roundabout at the signalized intersection of Willis St (SR 516) and 4th Avenue S, This roundabout will function as a U-Turn route for vehicles turn¡ng right on to Willis Street (SR 516) at 74th Avenue S that are heading to SR 167 or WB SR 156. Kent's vision for downtown calls for enhanced facilities to encourage the easy and frequent movement of all modes of transportation. A roundabout at the intersection will also improve safety for all users, including pedestrians and bicycles. The City of Kent has selected Transportation Solutions, lnc. to provide the City with Channelization Plans to be submitted to WSDOT for review and approval, for a roundabout at the intersection of 4th Avenue and Willis Street (SR 516). TSI will be responsible to obtain and analyze traffic volumes, perform Sidra traffic modeling, develop layout alternatives of channelization features, coordinate with WSDOT, develop materials for public outreach meetings, and develop and work with WSDOT to obtain approval for the required lntersection Control Evaluation, Basis of Design, and any applicable design deviations, The scope of work, fee estimate, and project schedule are fully defined in the following sections contained herein, KentScopeofwork_l203201 8.doc Page 1 of 10 6.a Packet Pg. 74 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h rsr Transportalion Solutions, lnc. 8250 - I 65th Ave¡ue fIE Suite 100 Redmond. WA 98052-6628 T 425.883.4134f 425.867-0898 www.t8inw.c0m City of Kent - Willis St (SR 516) and 4th Avenue S Roundabout Lzl03l2Ot8 B. lnformation, Responsibilities, and Services Provided by the CITY The following information will be provided by the CITY, This is not intended to be an exhaustive list and additional data to be provided by the CITY are included throughout the scope of work: AutoCAD Civil 3D base map file Roadway and utility as-built drawings (if available) Planning and land use data (See task 4.3,1) 5-year crash data Existing right-of-way plans for the project area C. General Project Assumptions This Scope of Services is based upon certain assumptions and exclusions, identified below and under specific tasks. The following assumptions were used in the development of this scope of services: AutoCAD 2018 will be utilized on the project. AutoCAD files will be submitted in .dwg format. MS Excel will be utilized for spreadsheets. MS Word will be utilized for word processing. Roundabout LOS will be analyzed using SIDRA and WSDOT LOS procedures. D. Change Management This is a time and materials contract with a not to exceed maximum. The level of effort for various tasks are estimates and may vary, CONSULTANT will work closely with CITY staff to identify and determine if additional request for work items and/or task requests are outside of the scope and fee contained herein. E. Schedule CONSULTANT has provided a schedule shown in Exhibit A-2. The schedule shows approximate durations of work activity by task and graphs a forecast of Cumulative Percent Complete. The CONSULTANT cannot control review times by the CITY and/or other agencies such as WSDOT. The specific date for notice to proceed is subject to the CiW's approval process. a a a a a a a a a KentScopeofWork_12032018.doc Page 2 of 10 6.a Packet Pg. 75 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h ffit 8250 . l65th Avenue t'lE suite 100 Redmond. WA 98052.6628 T 425.883.4134 r 425.867"0898 www.tsinw.com Transportation $olutions, lnc. City of Kent - Willis St (SR 516) and 4th Avenue S Roundabout t2l03l2OL8 F. Payment CONSULTANT invoice period closes on the L5th day of each month. CONSULTANT shall prepare monthly progress reports discussing work activity that occurred during the reporting period. The progress report will identify any unforeseen changes in the scope and schedule and will forecast key work act¡vity for the upcoming reporting period. Exhibit A-3 provides the Fee Estimate. The estimate cost is: Labor S 73,970.00 Expenses S 5.600.00 Total s 79,570.00 Task 1.0 - PROJECT MANAGEMENT AND QUAIITY CONTROL L.L Project Management Project management will be on-going during the course of the project. CONSULTANT's project manager will maintain regular communication with the CITY's project manager. CONSULTANT will monitor the project's scope, schedule, and budget, will coordinate and communicate status reports, and other similar project management tasks. 1.2 Monthly Progress Reports and lnvoices CONSULTANT will provide monthly progress reports and invoices in accordance with the CITY's procedures. CONSULTANT will coordinate the first invoice so that the format is acceptable to the CITY. Each progress report and invoice package will include the CONSULTANT invoice showing all labor and direct expenses included for the period, the monthly progress report, and full documentation of labor hours and direct expenses charged for the period. Assumptions . The invoice format for this project will be one that is acceptable to the City. . Progress Report and lnvoice packages will be prepared monthly, Deliverables . Monthly Progress Report and lnvoice Packages . Periodic Project Schedule update as agreed to between the CIW and CONSULTANT 1.3 Quality Control/Quality Assurance Review Quality Control reviews will be completed prior to submittal of major deliverables. This will include . SIDRA modeling . Basis of Design ¡ lntersection Control Evaluation (lCE) . Deviations KentScopeofWork_1 2032018.doc Page 3 of 10 6.a Packet Pg. 76 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h ffit 8250. t651h Avenue fIE Suite 100 Redmond. WA 98052-6628ï 425.883.4134 r 425.867.08S8 www.tsinw.com City of Kent - Willis St (SR 516) and 4th Avenue S Roundabout Lzl03l2Ot8 Channelization Layout ICE Memo 1.4 Project Closeout CONSULTANT shall deliver all documents in agreed to electronic formats. CONSULTANT shall prepare a final closeout progress report and final invoices. Task 2.0 DATA COLLECTION AND SURVEY 2.L Obtain Background Data The CONSULTANT will obtain data needed to develop the analysis. Existing traffic volumes will be collected during AM (6:00 am to g:00 am), Midday (11-:00 am to 1:00 pm) and PM (4:00 pm to 7:00 pm) periods. CONSULTANT will utilize existing traffic volume forecasts provided by the city if deemed applicable. CONSULTANT shall obtain traffic counts for: Iransportation Solutions, lnc. AM Midday PM a Turning Movement Counts Turning Movement Counts Tu rning Movement Cou nts 6:00 am to 9:00 am L1:00 am to 1:00 pm 4:00 pm to 7:00 pm at the following locations '1) Willis St (SR 516) and SB o11/on Ramp to SR 167 ¡ Turning Movement Counts '2) Willis St (SR 516)and NB on/ofl Ramp to SR L67 o Turning Movement Counts '3) Willis St (SR 516) and 74th Avenue W o Turning Movement Counts o Count of vehicles turning left from NB 74th Avenue W onto Willis St (SR 516) and turning right to NB SR 1-67 o Count of vehicles turning left from NB 74th Avenue W onto Willis St (SR 516) and turning left to SB SR 167 '4) Willis St (SR 516) and UP RR Crossing o Count the number of trains and duration of time the train blocks Willis St (SR 516) for each reporting period '5) Willis St (SR 516) and 4th Avenue S KentScopeofwork_1 2032018.doc Page 4 of 10 6.a Packet Pg. 77 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h rsr 8250 . lô5th Avenue ilE Suite 100 Redmond. WA S8052.6628r 425.883.4134t 425-867-0898 www.tsinw.com Tlansponaüon $olutions, lnc. City of Kent - Willis St (SR 516) and 4th Avenue S Roundabout o Turning Movement Counts L2lO3l2Ot8 '6) W Saar St and 4th Avenue S o Turning Movement Counts '7) W Willis Street and 4th Avenue S o Turning Movement Counts '8) W Willis St (SR 516)and BNSF RR Crossing ¡ Count the number of trains and duration of time the train blocks Willis St (SR 516) for each reporting period '9) W Willis St (SR 516) and CentralAvenue S o Turning Movement Counts Deliverables . CONSULTANT shall provide all traffic count data collected as part of this project to the CITY for CITY's use 2.2 Data lnput into Traffic Models and Reports CONSULTANT shall use data obtained for the project for input into software programs and traffic analysis reports. Deliverables . SIDRA model report Task 3.0 CITY COUNCIL AND STAKEHOLDER MEETINGS 3.L Public Open House Meeting and City Council Meeting CONSULTANT will attend two (2) CITY public meetings; one (1) with the Public and one (1) with the CITY Council. 3.2 Preparation for Public Meetings Preparation for the City Council Meeting will include developing graphics and renderings and power point presentation slides as agreed to by the CITY and the CONSULTANT. Deliverables . Exhibits (graphics, renderings, etc.) for public meetings . PowerPoint file KentScopeofWork_1203 2018.doc Page 5 of 10 6.a Packet Pg. 78 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h r$r ïransportation Solutions, lnc. 8250 . I 65th Avente NE Suite 100 Redmond, WA 98052'6628 T 425.883.4r34r 425-867.0898 wrvw.tsinw.c0m City of Kent - Willis St (SR 516) and th Avenue S Roundabout Task 4.0 INTERSECTION CONTROL EVALUATION 4.L Background and Project Needs t2lo3l2Ot8 4.L.L Existing Conditions The CONSULTANT will describe the existing conditions including physical characteristics of the site, posted speeds, trafficvolumes, channelization and control features, Level of Service, crash history, multimodal facilities, context, and modal priority. 4.1-.2 Establish Project Needs The analysis shall include the intersections of: A) Willis St (SR 516) and 4th Avenue S; B) Willis St (SR 5L6) and 74th Avenue S. CONSULTANT will document the project needs and which performance measures will be used for analysis and comparison. Project needs includes identifying safety and mobility needs from multimodal users. Performance measures include coordinating with the CITY to identify acceptable design criteria including design vehicles and vehicles to accommodate through the intersection; minimum existing and future LOS; identifying multimodal users; identifying future development and anticipated growth; identifying sensitive areas; and identifying stakeholders. 4.1.3 ldentify Alternatives The CONSULTANT will identify alternative ¡ntersect¡on controltypes including up to three (3) roundabout types and traffic signal controlled. 4.1.4 Analyze Alternatives The CONSULTANT will analyze the identified alternative intersection control types to determine if it is expected to meet the basic needs of the project. lf an alternative is not practicable from any of these perspectives, it will be removed from further consideration. 4,2 Feasibility 4.2. 1 Sketch Alternatives The CONSULTANT will develop two (2) alternatives at a sketch level to determine the footprint required to achieve performance measures. 4.2.2 Ev aluate Alternatives The CONSULTANT will evaluate each alternative sketched for its physical aspects as a facility serving specific transportation objectives. lf an alternative is not practicable from any of these perspectives, it will be removed from further consideration, KentScopeofWork_1 2032018.doc Page 6 of 10 6.a Packet Pg. 79 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h rsr 8250 . I 65th Avenue NE Suite 100 Redmond, WA 98052-6628 T 425.883.4134r 425.867.0898 www.tsinw.com Transponafi on Solutions, Inc. City of Kent - Willis St (SR 516) and 4th Avenue S Roundabout t2l03l2Ot8 Assumptions: . Right of Way Evaluation includes: The CONSULTANT's design will fit within CIW controlled/obtained right of way limits. Conceptual Roundabout layouts will include sufficient detail of channelization features based upon the survey base mapping provided by the ClW. 4.3 Analysis As part of the analysis portion of this scope, the project needs, such as safety and mobilityfor multimodal users, will be addressed. CONSULTANT shall consider future plans for a trail connection through the project limits, landscaping accommodations to be developed by others, and Puget Sound Regional Fire Authority - Fire Station #TL access through the corridor. 4,3.1 Traffic Analysis The CONSULTANT will develop design year traffic analyses for the PM peak hour. Analysis will include the no-build condition and all design alternatives. Traffic growth forecasts will be generated by the CONSULTANT using the following data provided by the City: o Puget Sound Regional Council growth for the City of Kent o Naden Site Traffic lmpact Study referenced in SCJ Technical Memorandum. . Transportation Element of the City's Comprehensive Plan. o Other relevant plans or studies the City would like considered in the analysis 4.3.2 Crash Analysis The CONSULTANT will develop a crash analysis for the study intersection. Historical crash data will be reviewed to identify safety needs and to estimate expected average crash frequency for each alternative. 4.3.3 Multimodal Analysis The CONSULTANT will briefly discuss how the design for each alternative is expected to affect multimodal users. Assumptions: . Multimodal users include: pedestrians; bicyclists - both students and more advanced road cyclist; passenger vehicles; school busses; transit busses; major freight tractor-trailers; and other users as identified in the Background and Project Needs portion of the lCE. 4.4 Selection The CONSULTANT will recommend an alternative based on performance tradeoffs and documented project needs. 4.5 Prepare Final lntersection Control Evaluation (lCE) KentScopeofWork_1203201 8.doc Page 7 of 10 6.a Packet Pg. 80 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h $t ïlansportation $olutions, lnc. 8250. l65lh Avenue NE Suire 100 Redmond, l¡VA 98052.6628 T 425.883.4134 F 425.867.0898 www.tsinw.com City of Kent - Willis St (SR 516) and 4th Avenue S Roundabout LzlOgl2OLg The CONSULTANT will prepare an ICE report summarizing the information gathered, analyses conducted, and alternative selected as outlined in this scope. 4.6 Meetings with WSDOT CONSULTANT shall coordinate and attend phone conference call meeting with WSDOT and CITY staffto discuss specific project details associated with the analysis and channelization layout of the rou nda bout. Assum ption: CONSULTANT assumes up to two (2) meetings at WSDOT's Regional Office in Shoreline and four (4) conference calls with WSDOT lasting up to L hour per meeting or conference call. Task 4 Deliverables: . WSDOT approved lntersection Control Evaluation o WSDOT approved Basis of Design ¡ WSDOT approved List of Design Deviations o WSDOT approved Safety Analysis o Progress AutoCAD files 5.0 Finalize Channelization Plan for WSDOT Channelization Plan Approval 5.L Finalize Channelization Plans CONSULTANT will work with the CITY and WSDOT to prepare final channelization plans and documentation necessary to obtain final WSDOT Channelization Plan Approval. CONSULTANT is responsible for obtaining WSDOT approval for all proposed design deviations. 5,2 Revise Channelization Plans Per WSDOT Comments CONSULTANT will receive written comments from WSDOT to correction and update. CONSULTANT will draft the required changes, document justifications, and submit a revised packet to the WSDOT and the CITY. Assumption: CONSULTANT assumes that's the WSDOT review comment cycle will take up to three (3) cycles. Any work effort requested by WSDOT beyond three (3) review cycles is considered extra work. CONSULTANT assumes that WSDOT will require 3 to 4 weeks to create and return written comments to the CONSULTANT. Task 5 Deliverables: . WSDOT approved Channelization Plans o AutoCAD file of Approved Channelization Plans Kentscopeofwork 12032018.doc Page 8 of 10 6.a Packet Pg. 81 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h r$r EXHIBIT A-2 ïransportation $olutions, lnc, City of Kent - Willis St (SR 515) and 4th Avenue S Roundabout EXHIBIT A-2 8250 . ¡ 65th Avenue NE $uire 100 Redmond, WA 98052.6628 T 425.883.4134 r 425.867"0898 www.tsinw.G0m L2/03/2OL8 oz ìêil UO Ìê6rea ut c, = c, -f E ag (9 út É,at aDg =E.9 att .blE 5 e.t o .E E(l, g ı t Ø F¡ ã È Õz Fzu =úo 4 tsOU oæ4 <? oÉFz <>o U É =ØÕz F ô I ÉUÕ o-UY É rt z<)F = oÉ*zoozoÉoUØÉ H = úo z Sd ¿ =() UN =¿L q sid *¿; €: ûì g- àa gq a3ì ñ= FË ñi ñ5 @g os >* OR: @&ì :e os eà;-È99 -qs EEEE ()O o oac o= oou:l,oOùEoı>o'Es_g q=-E-(J xsssssssñssqçq9qqqqqq9 =o KentScopeofWork_1203201 8.doc Page 9 of 10 6.a Packet Pg. 82 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h ffir EXHIBIT A.3 8250 . I 65$ Avenue fIE Suire I 00 Redmond, WA 98052.6628 T 425"883.4134r 425-867-0898 l¡r,ww.tsinw.c0m tzlo3l2Ot8 Transponation $olutions, lnc. City of Kent - Willis St (SR 516) and th Avenue S Roundabout Exhibit A-3 Fee Esi¡mate 12t3t20'.t8 City of Kent - 4th Avenue S & Willis Street Roundabout - De$gn Consultant Services Transportation Solutions lnc - Fee Schedule B¡ll Rate --> PIC PM Sr. Engr Sr. Engr Sr, Eng Tech Planne|l Adm¡n VS JE ALB MM PM JS JB \lctor Jeff Arìdrew l\il¡chelle Phil Jenn¡fer Jill Salemann Elekes Bratlien N¡ach McDonald Salemann Berber¡ch $ 226.56 $ 204.83 $ 161.38 $ 173.80 $ 162.93 $ 98.00 $ 124j4 Antic¡pate Work Elements Tas¡((s)Task Hours Task Cost TasK 1.0 PROJECT MANAGEMENTAND QUATIW CONTROT Task 1.1 Project Management Task 1.2 Monthly Progress Reports and lnvoices Task 1.3 Quality Control/Quality Assurance Review Task 1.4 Project Closeout 1E 20 12 6 0 0 0 12 8 to 2 2 4 50 $ 9,664.30 Task 2.0 DATA COLLECTION AN D SURVEY Task 2.1 Obtain Background Data lask 2.2 Data Input into Trafflc Models and Reports 1 1 2 1 1 20 4 16 0 0 24 0 24 47 $ 6,215.86 IASI( 3.0 CITY COUNCIT AND STAKEHOTDER MEETINGS Task 3.1 Public Open House Meeting and City Council Meetin( Task 3.2 Preparation br Public Meet¡ngs 14 12 2 0 0 28 12 16 0 t6 0 16 5E $ 9,506.07 Task I âsk 4.0 INTERSECTION CONIROL EVATUATON 4.1 Background and Project Needs ïask 4.1.1 Ex¡sting Condit¡ons Task 4.1.2 Establish Project Needs Task 4.1.3 ldentiñ/ Altemati\Æs Task 4. 1.4 Analyze Alternatires Task 4.2 Feasib¡lity Task 4.2.1 Sketch Altematiles -lask 4.2.2 E\Êluate Alternati\ês Task 4.3 Analysis Task 4.3.1 Trafic Analysis Task 4.3.2 Crash Analysis Task 4.3.3 Mult¡modal Analysis Task 4.4 Selection Task 4.5 Prepare Final lntersection Control E\aluat¡on Task 4.6 Meetings with WSDOT t6 1 2 1 1 4 36 90 0 20 2 4 4 I 16 28 32 12 1 1 't2 I 1 2 6 8 2 12 12 2 2 b 168 $ 28,103.88 TASI( 5.0 FINATIZE CHAN, PI.AN FOR WSDOT APPROVAT Task 5.1 Final¡ze Channelization Plans Task 5.2 Revise Channelization Plans Per WSDOT Requireme 10 6 4 4 2 2 0 32 24 I 72 56 16 0 0 11E $ 20,377.58 Labor Esümate 59 30 56 150 72 60 14 441 $ 73,967.69 rd $ 2.31-5-75p7ı¡ı' Expense Esiimate 6 trips @ 60 miles/tr¡p Tra\êl 360 Traffc Counts - Vendor - IDAX Data Display Boards 6 0.545 100 $/mile Lump Sum $/ea m¡les each rd $ 196.20 $ 4,800.00 $ 600.00 $ 3.80 $ 5,600.00 Grand Total $ 79,570.00 KentScopeofWork_12032018.doc Page 10 of 10 6.a Packet Pg. 83 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h 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 City shall be named as an insured under the Consultant’s Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 3. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Professional Liability insurance appropriate to the Consultant’s profession. B. Minimum Amounts of Insurance Consultant shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate and a $1,000,000 products-completed operations aggregate limit. 6.a Packet Pg. 84 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h EXHIBIT B (Continued) 3. Professional Liability insurance shall be written with limits no less than $3,000,000 per claim and $4,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: 1. The Consultant’s insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant’s insurance and shall not contribute with it. 2. The Consultant’s insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the Consultant and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Consultant’s Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer’s liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. F. Subcontractors Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Consultant. 6.a Packet Pg. 85 At t a c h m e n t : 6 - E x h i b i t T S I 4 t h a n d W i l l i s R o u n d a b o u t C o n s u l t a n t S e r v i c e s A g r e e m e n t - O v e r 2 0 K ( 1 4 9 3 : C o n s u l t a n t S e r v i c e s A g r e e m e n t w i t h PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee SUBJECT: Contract Agreement with KBA, Inc. for S. 228th Union Pacific Railroad Grade Separation Ground Improvements and Embankments - Recommend MOTION: Move to recommend Council authorize the Mayor to sign a contract with KBA, Inc. for Contract Administration, Management, Quality Control, and Inspection in the amount of $467,960.00 for the S. 228th Union Pacific Railroad Grade Separation Ground Improvements and Embankment project, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. SUMMARY: The S. 228th Union Pacific Railroad Grade Separation Ground Improvements and Embankments project is located on S. 228th St between 4th Ave N. and the West limits of Interurban Trail. This is a federally funded project that will provide business access revisions, stone column ground improvements, water main relocation, drilled bridge shafts, retaining walls, structural earth walls, and embankments as part of the phased S. 228th St UPRR Grade Separation project. This particular project is Phase 4 of 5. This consultant contract is needed to provide a Resident Engineer, Inspector, Contract Administrator, and subconsultant to perform contract administration, construction management, quality control, and inspection on this federally funded project. Through our selection process following WSDOT LAG Manual guidelines we have selected KBA, Inc. to provide this staff in addition to a subconsultant to provide quality control. KBA is a firm that specializes in providing construction management and contract administration on federally funded capital improvement projects for local municipalities throughout the Puget Sound region. BUDGET IMPACT: The project will be paid for using a Puget Sound Regional Council Grant, and other city funds. RECOMMENDED BY: Tim LaPorte ATTACHMENTS: 1. 7 - Exhibit KBA S 228th St UPRR Grade Separation - LP_AEPS- NegotiatedHourlyRate (PDF) 7 Packet Pg. 86 Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 1 of 34 Local Agency A&E Professional Services Negotiated Hourly Rate Consultant Agreement Agreement Number: Firm/Organization Legal Name (do not use dba’s): Address Federal Aid Number UBI Number Federal TIN or SSN Number Execution Date Completion Date 1099 Form Required Yes No Federal Participation Yes No Project Title Description of Work Yes ________________ No DBE Participation Yes ________________ No MBE Participation Yes ________________ No WBE Participation Yes ________________ No SBE Participation Maximum Amount Payable: Index of Exhibits Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Scope of Work DBE Participation/SBE Plan Preparation and Delivery of Electronic Engineering and Other Data Prime Consultant Cost Computations Sub-consultant Cost Computations Title VI Assurances Certification Documents Liability Insurance Increase Alleged Consultant Design Error Procedures Consultant Claim Procedures NA NA NA 7.a Packet Pg. 87 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 2 of 34 THIS AGREEMENT, made and entered into as shown in the “Execution Date” box on page one (1) of this AGREEMENT, between the _________________________________________________________________, hereinafter called the “AGENCY,” and the “Firm / Organization Name” referenced on page one (1) of this AGREEMENT, hereinafter called the “CONSULTANT.” WHEREAS, the AGENCY desires to accomplish the work referenced in “Description of Work” on page one (1) of this AGREEMENT and hereafter called the “SERVICES;” and does not have sufficient staff to meet the required commitment and therefore deems it advisable and desirable to engage the assistance of a CONSULTANT to provide the necessary SERVICES; and WHEREAS, the CONSULTANT represents that they comply with the Washington State Statutes relating to professional registration, if applicable, and has signified a willingness to furnish consulting services to the AGENCY. NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performance contained herein, or attached and incorporated and made a part hereof, the parties hereto agree as follows: I.General Description of Work The work under this AGREEMENT shall consist of the above-described SERVICES as herein defined, and necessary to accomplish the completed work for this project. The CONSULTANT shall furnish all services, labor, and related equipment and, if applicable, sub-consultants and subcontractors necessary to conduct and complete the SERVICES as designated elsewhere in this AGREEMENT. II.General Scope of Work The Scope of Work and projected level of effort required for these SERVICES is described in Exhibit “A” attached hereto and by this reference made a part of this AGREEMENT. The General Scope of Work was developed utilizing performance based contracting methodologies. III.General Requirements All aspects of coordination of the work of this AGREEMENT with outside agencies, groups, or individuals shall receive advance approval by the AGENCY. Necessary contacts and meetings with agencies, groups, and/or individuals shall be coordinated through the AGENCY. The CONSULTANT shall attend coordination, progress, and presentation meetings with the AGENCY and/or such State, Federal, Community, City, or County officials, groups or individuals as may be requested by the AGENCY. The AGENCY will provide the CONSULTANT sufficient notice prior to meetings requiring CONSULTANT participation. The minimum required hours or days’ notice shall be agreed to between the AGENCY and the CONSULTANT and shown in Exhibit “A.” The CONSULTANT shall prepare a monthly progress report, in a form approved by the AGENCY, which will outline in written and graphical form the various phases and the order of performance of the SERVICES in sufficient detail so that the progress of the SERVICES can easily be evaluated. The CONSULTANT, any sub-consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations, and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. 7.a Packet Pg. 88 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 3 of 34 Participation for Disadvantaged Business Enterprises (DBE) or Small Business Enterprises (SBE), if required, per 49 CFR Part 26, shall be shown on the heading of this AGREEMENT. If DBE firms are utilized at the commencement of this AGREEMENT, the amounts authorized to each firm and their certification number will be shown on Exhibit “B” attached hereto and by this reference made part of this AGREEMENT. If the Prime CONSULTANT is, a DBE certified firm they must comply with the Commercial Useful Function (CUF) regulation outlined in the AGENCY’s “DBE Program Participation Plan” and perform a minimum of 30% of the total amount of this AGREEMENT. It is recommended, but not required, that non-DBE Prime CONSULTANTS perform a minimum of 30% of the total amount of this AGREEMENT. In the absence of a mandatory UDBE, a voluntary SBE goal amount of ten percent of the Consultant Agreement is established. The Consultant shall submit a SBE Participation Plan prior to commencing work. Although the goal is voluntary, the outreach efforts to provide SBE maximum practicable opportunities are not. The CONSULTANT, on a monthly basis, shall enter the amounts paid to all firms (including Prime) involved with this AGREEMENT into the wsdot.diversitycompliance.com program. Payment information shall identify any DBE Participation. Non-minority, woman owned DBEs does not count towards UDBE goal attainment. All Reports, PS&E materials, and other data furnished to the CONSULTANT by the AGENCY shall be returned. All electronic files, prepared by the CONSULTANT, must meet the requirements as outlined in Exhibit “C – Preparation and Delivery of Electronic Engineering and other Data.” All designs, drawings, specifications, documents, and other work products, including all electronic files, prepared by the CONSULTANT prior to completion or termination of this AGREEMENT are instruments of service for these SERVICES, and are the property of the AGENCY. Reuse by the AGENCY or by others, acting through or on behalf of the AGENCY of any such instruments of service, not occurring, as a part of this SERVICE, shall be without liability or legal exposure to the CONSULTANT. Any and all notices or requests required under this AGREEMENT shall be made in writing and sent to the other party by (i) certified mail, return receipt requested, or (ii) by email or facsimile, to the address set forth below: If to AGENCY: If to CONSULTANT: Name: Name: Agency: Agency: Address: Address: City: City: State: Zip: State: Zip: Email: Email: Phone: Phone: Facsimile: Facsimile: IV.Time for Beginning and Completion The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authorized in writing by the AGENCY. All work under this AGREEMENT shall conform to the criteria agreed upon detailed in the AGREEMENT documents. These SERVICES must be completed by the date shown in the heading of this AGREEMENT titled “Completion Date.” The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but may be extended by the AGENCY in the event of a delay attributable to the AGENCY, or because of unavoidable delays caused by an act of GOD, governmental actions, or other conditions beyond the control of the CONSULTANT. A prior supplemental AGREEMENT issued by the AGENCY is required to extend the established completion time. 7.a Packet Pg. 89 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 4 of 34 V. Payment Provisions The CONSULTANT shall be paid by the AGENCY for completed SERVICES rendered under this AGREEMENT as provided hereinafter. Such payment shall be full compensation for SERVICES performed or SERVICES rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete SERVICES. The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 (www.ecfr.gov). A.Hourly Rates: Hourly rates are comprised of the following elements - Direct (Raw) Labor, Indirect Cost Rate, and Fixed Fee (Profit). The CONSULTANT shall be paid by the AGENCY for work done, based upon the negotiated hourly rates shown in Exhibits “D” and “E” attached hereto and by reference made part of this AGREEMENT. These negotiated hourly rates will be accepted based on a review of the CONSULTANT’s direct labor rates and indirect cost rate computations and agreed upon fixed fee. The accepted negotiated rates shall be memorialized in a final written acknowledgment between the parties. Such final written acknowledgment shall be incorporated into, and become a part of, this AGREEMENT. The initially accepted negotiated rates shall be applicable from the approval date, as memorialized in a final written acknowledgment, to 180 days following the CONSULTANT’s fiscal year end (FYE) date. The direct (raw) labor rates and classifications, as shown on Exhibits “D” and “E” shall be subject to renegotiations for each subsequent twelve (12) month period (180 days following FYE date to 180 days following FYE date) upon written request of the CONSULTANT or the AGENCY. The written request must be made to the other party within ninety (90) days following the CONSULTANT’s FYE date. If no such written request is made, the current direct (raw) labor rates and classifications as shown on Exhibits “D” and “E” will remain in effect for the twelve (12) month period. Conversely, if a timely request is made in the manner set forth above, the parties will commence negotiations to determine the new direct (raw) labor rates and classifications that will be applicable for the twelve (12 month period. Any agreed to renegotiated rates shall be memorialized in a final written acknowledgment between the parties. Such final written acknowledgment shall be incorporated into, and become a part of, this AGREEMENT. If requested, the CONSULTANT shall provide current payroll register and classifications to aid in negotiations. If the parties cannot reach an agreement on the direct (raw) labor rates and classifications, the AGENCY shall perform an audit of the CONSULTANT’s books and records to determine the CONSULTANT’s actual costs. The audit findings will establish the direct (raw) labor rates and classifications that will applicable for the twelve (12) month period. The fixed fee as identified in Exhibits “D” and “E” shall represent a value to be applied throughout the life of the AGREEMENT. The CONSULTANT shall submit annually to the AGENCY an updated indirect cost rate within 180 days of the close of its fiscal year. An approved updated indirect cost rate shall be included in the current fiscal year rate under this AGREEMENT, even if/when other components of the hourly rate are not renegotiated. These rates will be applicable for the twelve (12) month period. At the AGENCY’s option, a provisional and/or conditional indirect cost rate may be negotiated. This provisional or conditional indirect rate shall remain in effect until the updated indirect cost rate is completed and approved. Indirect cost rate costs incurred during the provisional or conditional period will not be adjusted. The CONSULTANT may request an extension of the last approved indirect cost rate for the twelve (12) month period. These requests for provisional indirect cost rate and/or extension will be considered on a case-by-case basis, and if granted, will be memorialized in a final written acknowledgment. The CONSULTANT shall maintain and have accessible support data for verification of the components of the hourly rates, i.e., direct (raw) labor, indirect cost rate, and fixed fee (profit) percentage. The CONSULTANT shall bill each employee’s actual classification, and actual salary plus indirect cost rate plus fixed fee. 7.a Packet Pg. 90 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 5 of 34 B.Direct Non-Salary Costs: Direct Non-Salary Costs will be reimbursed at the actual cost to the CONSULTANT. These charges may include, but are not limited to, the following items: travel, printing, long distance telephone, supplies, computer charges, and fees of sub-consultants. Air or train travel will be reimbursed only to lowest price available, unless otherwise approved by the AGENCY. The CONSULTANT shall comply with the rules and regulations regarding travel costs (excluding air, train, and rental car costs) in accordance with the WSDOT’s Accounting Manual M 13-82, Chapter 10 – Travel Rules and Procedures, and all revisions thereto. Air, train, and rental car costs shall be reimbursed in accordance with 48 Code of Federal Regulations (CFR) Part 31.205-46 “Travel Costs.” The billing for Direct Non-salary Costs shall include an itemized listing of the charges directly identifiable with these SERVICES. The CONSULTANT shall maintain the original supporting documents in their office. Copies of the original supporting documents shall be supplied to the STATE upon request. All above charges must be necessary for the SERVICES provided under this AGREEMENT. C.Maximum Amount Payable: The Maximum Amount Payable by the AGENCY to the CONSULTANT under this AGREEMENT shall not exceed the amount shown in the heading of this AGREEMENT on page one (1.) The Maximum Amount Payable does not include payment for extra work as stipulated in section XIII, “Extra Work.” No minimum amount payable is guaranteed under this AGREEMENT. D.Monthly Progress Payments: Progress payments may be claimed on a monthly basis for all costs authorized in A and B above. Detailed statements shall support the monthly billings for hours expended at the rates established in Exhibit “D,” including names and classifications of all employees, and billings for all direct non-salary expenses. To provide a means of verifying the billed salary costs for the CONSULTANT’s employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, salary rates, and present duties of those employees performing work on the SERVICES at the time of the interview. E.Final Payment: Final Payment of any balance due the CONSULTANT of the gross amount earned will be made promptly upon its verification by the AGENCY after the completion of the SERVICES under this AGREEMENT, contingent upon receipt of all PS&E, plans, maps, notes, reports, electronic data, and other related documents, which are required to be furnished under this AGREEMENT. Acceptance of such Final Payment by the CONSULTANT shall constitute a release of all claims for payment, which the CONSULTANT may have against the AGENCY unless such claims are specifically reserved in writing and transmitted to the AGENCY by the CONSULTANT prior to its acceptance. Said Final Payment shall not, however, be a bar to any claims that the AGENCY may have against the CONSULTANT or to any remedies the AGENCY may pursue with respect to such claims. The payment of any billing will not constitute agreement as to the appropriateness of any item and at the time of final audit all required adjustments will be made and reflected in a final payment. In the event that such final audit reveals an overpayment to the CONSULTANT, the CONSULTANT will refund such overpayment to the AGENCY within thirty (30) calendar days of notice of the overpayment. Such refund shall not constitute a waiver by the CONSULTANT for any claims relating to the validity of a finding by the AGENCY of overpayment. Per WSDOT’s “Audit Guide for Consultants,” Chapter 23 “Resolution Procedures,” the CONSULTANT has twenty (20) working days after receipt of the final Post Audit to begin the appeal process to the AGENCY for audit findings F.Inspection of Cost Records: The CONSULTANT and their sub-consultants shall keep available for inspection by representatives of the AGENCY and the United States, for a period of six (6) years after receipt of final payment, the cost records and accounts pertaining to this AGREEMENT and all items related to or bearing upon these records with the following exception: if any litigation, claim or audit arising out of, in connection with, or related to this AGREEMENT is initiated before the expiration of the six (6) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. An interim or post audit may be performed on this AGREEMENT. The audit, if any, will be performed by the State Auditor, WSDOT’s Internal Audit Office and /or at the request of the AGENCY’s Project Manager. 7.a Packet Pg. 91 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 6 of 34 VI.Sub-Contracting The AGENCY permits subcontracts for those items of SERVICES as shown in Exhibit “A” attached hereto and by this reference made part of this AGREEMENT. The CONSULTANT shall not subcontract for the performance of any SERVICE under this AGREEMENT without prior written permission of the AGENCY. No permission for subcontracting shall create, between the AGENCY and sub-consultant, any contract or any other relationship. Compensation for this sub-consultant SERVICES shall be based on the cost factors shown on Exhibit “E” attached hereto and by this reference made part of this AGREEMENT. The SERVICES of the sub-consultant shall not exceed its maximum amount payable identified in each sub consultant cost estimate unless a prior written approval has been issued by the AGENCY. All reimbursable direct labor, indirect cost rate, direct non-salary costs and fixed fee costs for the sub-consultant shall be negotiated and substantiated in accordance with section V “Payment Provisions” herein and shall be memorialized in a final written acknowledgement between the parties All subcontracts shall contain all applicable provisions of this AGREEMENT, and the CONSULTANT shall require each sub-consultant or subcontractor, of any tier, to abide by the terms and conditions of this AGREEMENT. With respect to sub-consultant payment, the CONSULTANT shall comply with all applicable sections of the STATE’s Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011. The CONSULTANT, sub-recipient, or sub-consultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this AGREEMENT. The CONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this AGREEMENT, which may result in the termination of this AGREEMENT or such other remedy as the recipient deems appropriate. VII.Employment and Organizational Conflict of Interest The CONSULTANT warrants that they have not employed or retained any company or person, other than a bona fide employee working solely for the CONSULTANT, to solicit or secure this contract, and that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the CONSULTANT, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making of this contract. For breach or violation of this warrant, the AGENCY shall have the right to annul this AGREEMENT without liability or, in its discretion, to deduct from this AGREEMENT price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. Any and all employees of the CONSULTANT or other persons while engaged in the performance of any work or services required of the CONSULTANT under this AGREEMENT, shall be considered employees of the CONSULTANT only and not of the AGENCY, and any and all claims that may arise under any Workmen’s Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a third party as a consequence of any act or omission on the part of the CONSULTANT’s employees or other persons while so engaged on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONSULTANT. The CONSULTANT shall not engage, on a full- or part-time basis, or other basis, during the period of this AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of the United States Department of Transportation or the AGENCY, except regularly retired employees, without written consent of the public employer of such person if he/she will be working on this AGREEMENT for the CONSULTANT. 7.a Packet Pg. 92 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 7 of 34 VIII. Nondiscrimination During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, sub-consultants, subcontractors and successors in interest, agrees to comply with the following laws and regulations: •Title VI of the Civil Rights Act of 1964 (42 U.S.C. Chapter 21 Subchapter V § 2000d through 2000d-4a) •Federal-aid Highway Act of 1973 (23 U.S.C. Chapter 3 § 324) •Rehabilitation Act of 1973 (29 U.S.C. Chapter 16 Subchapter V § 794) •Age Discrimination Act of 1975 (42 U.S.C. Chapter 76 § 6101 et. seq.) •Civil Rights Restoration Act of 1987 (Public Law 100-259) •American with Disabilities Act of 1990 (42 U.S.C. Chapter 126 § 12101 et. seq.) •23 CFR Part 200 •49 CFR Part 21 •49 CFR Part 26 • RCW 49.60.180 In relation to Title VI of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit “F” attached hereto and by this reference made part of this AGREEMENT, and shall include the attached Exhibit “F” in every sub-contract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. IX.Termination of Agreement The right is reserved by the AGENCY to terminate this AGREEMENT at any time with or without cause upon ten (10) days written notice to the CONSULTANT. In the event this AGREEMENT is terminated by the AGENCY, other than for default on the part of the CONSULTANT, a final payment shall be made to the CONSULTANT for actual hours charged at the time of termination of this AGREEMENT, plus any direct non-salary costs incurred up to the time of termination of this AGREEMENT. No payment shall be made for any SERVICES completed after ten (10) days following receipt by the CONSULTANT of the notice to terminate. If the accumulated payment made to the CONSULTANT prior to Notice of Termination exceeds the total amount that would be due when computed as set forth in paragraph two (2) of this section, then no final payment shall be due and the CONSULTANT shall immediately reimburse the AGENCY for any excess paid. If the services of the CONSULTANT are terminated by the AGENCY for default on the part of the CONSULTANT, the above formula for payment shall not apply. In the event of a termination for default, the amount to be paid to the CONSULTANT shall be determined by the AGENCY with consideration given to the actual costs incurred by the CONSULTANT in performing SERVICES to the date of termination, the amount of SERVICES originally required which was satisfactorily completed to date of termination, whether that SERVICE is in a form or a type which is usable to the AGENCY at the time of termination, the cost to the AGENCY of employing another firm to complete the SERVICES required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the SERVICES performed at the time of termination. Under no circumstances shall payment made under this subsection exceed the amount, which would have been made using the formula set forth in paragraph two (2) of this section. If it is determined for any reason, that the CONSULTANT was not in default or that the CONSULTANT’s failure to perform is without the CONSULTANT’s or its employee’s fault or negligence, the termination shall be deemed to be a termination for the convenience of the AGENCY. In such an event, the CONSULTANT would be reimbursed for actual costs in accordance with the termination for other than default clauses listed previously. 7.a Packet Pg. 93 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 8 of 34 The CONSULTANT shall, within 15 days, notify the AGENCY in writing, in the event of the death of any member, partner, or officer of the CONSULTANT or the death or change of any of the CONSULTANT’s supervisory and/or other key personnel assigned to the project or disaffiliation of any principally involved CONSULTANT employee. The CONSULTANT shall also notify the AGENCY, in writing, in the event of the sale or transfer of 50% or more of the beneficial ownership of the CONSULTANT within 15 days of such sale or transfer occurring. The CONSULTANT shall continue to be obligated to complete the SERVICES under the terms of this AGREEMENT unless the AGENCY chooses to terminate this AGREEMENT for convenience or chooses to renegotiate any term(s) of this AGREEMENT. If termination for convenience occurs, final payment will be made to the CONSULTANT as set forth in the second and third paragraphs of this section. Payment for any part of the SERVICES by the AGENCY shall not constitute a waiver by the AGENCY of any remedies of any type it may have against the CONSULTANT for any breach of this AGREEMENT by the CONSULTANT, or for failure of the CONSULTANT to perform SERVICES required of it by the AGENCY. Forbearance of any rights under the AGREEMENT will not constitute waiver of entitlement to exercise those rights with respect to any future act or omission by the CONSULTANT. X.Changes of Work The CONSULTANT shall make such changes and revisions in the completed work of this AGREEMENT as necessary to correct errors appearing therein, without additional compensation thereof. Should the AGENCY find it desirable for its own purposes to have previously satisfactorily completed SERVICES or parts thereof changed or revised, the CONSULTANT shall make such revisions as directed by the AGENCY. This work shall be considered as Extra Work and will be paid for as herein provided under section XIII “Extra Work.” XI.Disputes Any disputed issue not resolved pursuant to the terms of this AGREEMENT shall be submitted in writing within 10 days to the Director of Public Works or AGENCY Engineer, whose decision in the matter shall be final and binding on the parties of this AGREEMENT; provided however, that if an action is brought challenging the Director of Public Works or AGENCY Engineer’s decision, that decision shall be subject to judicial review. If the parties to this AGREEMENT mutually agree, disputes concerning alleged design errors will be conducted under the procedures found in Exhibit “J”. In the event that either party deem it necessary to institute legal action or proceeding to enforce any right or obligation under this AGREEMENT, this action shall be initiated in the Superior Court of the State of Washington, situated in the county in which the AGENCY is located. The parties hereto agree that all questions shall be resolved by application of Washington law and that the parties have the right of appeal from such decisions of the Superior Court in accordance with the laws of the State of Washington. The CONSULTANT hereby consents to the personal jurisdiction of the Superior Court of the State of Washington, situated in the county in which the AGENCY is located. XII.Legal Relations The CONSULTANT, any sub-consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. The CONSULTANT shall defend, indemnify, and hold the State of Washington (STATE) and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the negligence of, or the breach of any obligation under this AGREEMENT by, the CONSULTANT or the CONSULTANT’s agents, employees, sub consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable; provided that nothing herein shall require a CONSULTANT 7.a Packet Pg. 94 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 9 of 34 to defend or indemnify the STATE and the AGENCY and their officers and employees against and hold harmless the STATE and the AGENCY and their officers and employees from claims, demands or suits based solely upon the negligence of, or breach of any obligation under this AGREEMENT by the STATE and the AGENCY, their agents, officers, employees, sub-consultants, subcontractors or vendors, of any tie , or any other persons for whom the STATE and /or the AGENCY may be legally liable; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT or the CONSULTANT’s agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT is legally liable, and (b) the STATE and/or AGENCY, their agents, officers, employees, sub-consultants, subcontractors and or vendors, of any tier, or any other persons for whom the STATE and/or AGENCY may be legally liable, the defense and indemnity obligation shall be valid and enforceable only to the extent of the CONSULTANT’s negligence or the negligence of the CONSULTANT’s agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable. This provision shall be included in any AGREEMENT between CONSULTANT and any sub-consultant, subcontractor and vendor, of any tier. The CONSULTANT shall also defend, indemnify, and hold the STATE and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions by the CONSULTANT or the CONSULTANT’s agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable, in performance of the Work under this AGREEMENT or arising out of any use in connection with the AGREEMENT of methods, processes, designs, information or other items furnished or communicated to STATE and/or the AGENCY, their agents, officers and employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions resulting from STATE and/or AGENCY’s, their agents’, officers and employees’ failure to comply with specific written instructions regarding use provided to STATE and/or AGENCY, their agents, officers and employees by the CONSULTANT, its agents, employees, sub- consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable. The CONSULTANT’s relation to the AGENCY shall be at all times as an independent contractor. Notwithstanding any determination by the Executive Ethics Board or other tribunal, the AGENCY may, in its sole discretion, by written notice to the CONSULTANT terminate this AGREEMENT if it is found after due notice and examination by the AGENCY that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the CONSULTANT in the procurement of, or performance under, this AGREEMENT. The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT’s own employees or its agents against the STATE and/or the AGENCY and, solely for the purpose of this indemnification and defense, the CONSULTANT specifically waives any immunity under the state industrial insurance law, Title 51 RCW. The Parties have mutually negotiated this waiver. Unless otherwise specified in this AGREEMENT, the AGENCY shall be responsible for administration of construction contracts, if any, on the project. Subject to the processing of a new sole source, or an acceptable supplemental AGREEMENT, the CONSULTANT shall provide On-Call assistance to the AGENCY during contract administration. By providing such assistance, the CONSULTANT shall assume no responsibility for proper construction techniques, job site safety, or any construction contractor’s failure to perform its work in accordance with the contract documents. The CONSULTANT shall obtain and keep in force during the terms of this AGREEMENT, or as otherwise required, the following insurance with companies or through sources approved by the State Insurance Commissioner pursuant to Title 48 RCW. 7.a Packet Pg. 95 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 10 of 34 Insurance Coverage A.Worker’s compensation and employer’s liability insurance as required by the STATE. B.Commercial general liability insurance written under ISO Form CG 00 01 12 04 or its equivalent with minimum limits of one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the aggregate for each policy period. C.Business auto liability insurance written under ISO Form CG 00 01 10 01 or equivalent providing coverage for any “Auto” (Symbol 1) used in an amount not less than a one million dollar ($1,000,000.00) combined single limit for each occurrence. Excepting the Worker’s Compensation Insurance and any Professional Liability Insurance, the STATE and AGENCY, their officers, employees, and agents will be named on all policies of CONSULTANT and any sub- consultant and/or subcontractor as an additional insured (the “AIs”), with no restrictions or limitations concerning products and completed operations coverage. This coverage shall be primary coverage and non- contributory and any coverage maintained by the AIs shall be excess over, and shall not contribute with, the additional insured coverage required hereunder. The CONSULTANT’s and the sub-consultant’s and/or subcontractor’s insurer shall waive any and all rights of subrogation against the AIs. The CONSULTANT shall furnish the AGENCY with verification of insurance and endorsements required by this AGREEMENT. The AGENCY reserves the right to require complete, certified copies of all required insurance policies at any time. All insurance shall be obtained from an insurance company authorized to do business in the State of Washington. The CONSULTANT shall submit a verification of insurance as outlined above within fourteen (14) days of the execution of this AGREEMENT to: Name: ______________________________________ Agency: ____________________________________ Address: ____________________________________ City: ________________ State: _______ Zip: ______ Email: ______________________________________ Phone: ______________________________________ Facsimile: ___________________________________ No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY. The CONSULTANT’s professional liability to the AGENCY, including that which may arise in reference to section IX “Termination of Agreement” of this AGREEMENT, shall be limited to the accumulative amount of the authorized AGREEMENT or one million dollars ($1,000,000.00), whichever is greater, unless the limit of liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT’s professional liability to third parties be limited in any way. The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third part, and no third party beneficiary is intended or created by the execution of this AGREEMENT. The AGENCY will pay no progress payments under section V “Payment Provisions” until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action as is available to it under other provisions of this AGREEMENT, or otherwise in law. 7.a Packet Pg. 96 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 11 of 34 XIII.Extra Work A.The AGENCY may at any time, by written order, make changes within the general scope of this AGREEMENT in the SERVICES to be performed. B.If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the SERVICES under this AGREEMENT, whether or not changed by the order, or otherwise affects any other terms and conditions of this AGREEMENT, the AGENCY shall make an equitable adjustment in the: (1) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify this AGREEMENT accordingly. C.The CONSULTANT must submit any “request for equitable adjustment,” hereafter referred to as “CLAIM,” under this clause within thirty (30) days from the date of receipt of the written order. However, if the AGENCY decides that the facts justify it, the AGENCY may receive and act upon a CLAIM submitted before final payment of this AGREEMENT. D.Failure to agree to any adjustment shall be a dispute under the section XI “Disputes” clause. However, nothing in this clause shall excuse the CONSULTANT from proceeding with the AGREEMENT as changed. E.Notwithstanding the terms and conditions of paragraphs (A.) and (B.) above, the maximum amount payable for this AGREEMENT, shall not be increased or considered to be increased except by specific written supplement to this AGREEMENT. XIV.Endorsement of Plans If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering data furnished by them. XV.Federal Review The Federal Highway Administration shall have the right to participate in the review or examination of the SERVICES in progress. XVI.Certification of the Consultant and the Agency Attached hereto as Exhibit “G-1(a and b)” are the Certifications of the CONSULTANT and the AGENCY, Exhibit “G-2” Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions, Exhibit “G-3” Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit “G-4” Certificate of Current Cost or Pricing Data. Exhibit “G-3” is required only in AGREEMENT’s over one hundred thousand dollars ($100,000.00) and Exhibit “G-4” is required only in AGREEMENT’s over five hundred thousand dollars ($500,000.00.) These Exhibits must be executed by the CONSULTANT, and submitted with the master AGREEMENT, and returned to the AGENCY at the address listed in section III “General Requirements” prior to its performance of any SERVICES under this AGREEMENT. XVII.Complete Agreement This document and referenced attachments contain all covenants, stipulations, and provisions agreed upon by the parties. No agent, or representative of either party has authority to make, and the parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein. No changes, amendments, or modifications of the terms hereof shall be valid unless reduced to writing and signed by the parties as a supplement to this AGREEMENT. XVIII.Execution and Acceptance This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. The CONSULTANT does hereby ratify and adopt all statements, representations, warranties, covenants, and AGREEMENT’s contained in the proposal, and the supporting material submitted by the CONSULTANT, and does hereby accept this AGREEMENT and agrees to all of the terms and conditions thereof. 7.a Packet Pg. 97 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 12 of 34 XIX.Protection of Confidential Information The CONSULTANT acknowledges that some of the material and information that may come into its possession or knowledge in connection with this AGREEMENT or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other local, state, or federal statutes (“State’s Confidential Information”). The “State’s Confidential Information” includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles credit card information, driver’s license numbers, medical data, law enforcement records (or any other information identifiable to an individual), STATE and AGENCY source code or object code, STATE and AGENCY security data, non-public Specifications, STATE and AGENCY non-publicly available data, proprietary software, STATE and AGENCY security data, or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State’s Confidential Information in strictest confidence and not to make use of the State’s Confidential Information for any purpose other than the performance of this AGREEMENT, to release it only to authorized employees, sub- consultants or subcontractors requiring such information for the purposes of carrying out this AGREEMENT, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make it known to any other party without the AGENCY’s express written consent or as provided by law. The CONSULTANT agrees to release such information or material only to employees, sub-consultants or subcontractors who have signed a nondisclosure AGREEMENT, the terms of which have been previously approved by the AGENCY. The CONSULTANT agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access to the State’s Confidential Information. Immediately upon expiration or termination of this AGREEMENT, the CONSULTANT shall, at the AGENCY’s option: (i) certify to the AGENCY that the CONSULTANT has destroyed all of the State’s Confidential Information; or (ii) returned all of the State’s Confidential Information to the AGENCY; or (iii) take whatever other steps the AGENCY requires of the CONSULTANT to protect the State’s Confidential Information. As required under Executive Order 00-03, the CONSULTANT shall maintain a log documenting the following: the State’s Confidential Information received in the performance of this AGREEMENT; the purpose(s) for which the State’s Confidential Information was received; who received, maintained, and used the State’s Confidential Information; and the final disposition of the State’s Confidential Information. The CONSULTANT’s records shall be subject to inspection, review, or audit upon reasonable notice from the AGENCY. The AGENCY reserves the right to monitor, audit, or investigate the use of the State’s Confidential Information collected, used, or acquired by the CONSULTANT through this AGREEMENT. The monitoring, auditing, or investigating may include, but is not limited to, salting databases. Violation of this section by the CONSULTANT or its sub-consultants or subcontractors may result in termination of this AGREEMENT and demand for return of all State’s Confidential Information, monetary damages, or penalties It is understood and acknowledged that the CONSULTANT may provide the AGENCY with information, which is proprietary and/or confidential during the term of this AGREEMENT. The parties agree to maintain the confidentiality of such information during the term of this AGREEMENT and afterwards. All materials containing such proprietary and/or confidential information shall be clearly identified and marked as “Confidential” and shall be returned to the disclosing party at the conclusion of the SERVICES under this AGREEMENT. 7.a Packet Pg. 98 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 13 of 34 The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers confidential and/or proprietary in nature: (a) at the commencement of the term of this AGREEMENT, or (b) as soon as such confidential or proprietary material is developed. “Proprietary and/or confidential information” is not meant to include any information which, at the time of its disclosure: (i) is already known to the other party; (ii) is rightfully disclosed to one of the parties by a third party that is not acting as an agent or representative for the other party; (iii) is independently developed by or for the other party; (iv) is publicly known; or (v) is generally utilized by unaffiliated third parties engaged in the same business or businesses as the CONSULTANT. The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure laws. As such, the AGENCY shall maintain the confidentiality of all such information marked proprietary and or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a public disclosure request is made to view materials identified as “Proprietary and/or confidential information” or otherwise exempt information, the AGENCY will notify the CONSULTANT of the request and of the date that such records will be released to the requester unless the CONSULTANT obtains a court order from a court of competent jurisdiction enjoining that disclosure. If the CONSULTANT fails to obtain the court order enjoining disclosure, the AGENCY will release the requested information on the date specified. The CONSULTANT agrees to notify the sub-consultant of any AGENCY communication regarding disclosure that may include a sub-consultant’s proprietary and/or confidential information. The CONSULTANT notification to the sub-consultant will include the date that such records will be released by the AGENCY to the requester and state that unless the sub-consultant obtains a court order from a court of competent jurisdiction enjoining that disclosure the AGENCY will release the requested information. If the CONSULTANT and/or sub-consultant fail to obtain a court order or other judicial relief enjoining the AGENCY by the release date, the CONSULTANT shall waive and release and shall hold harmless and indemnify the AGENCY from all claims of actual or alleged damages, liabilities, or costs associated with the AGENCY’s said disclosure of sub- consultants’ information. XX.Records Maintenance During the progress of the Work and SERVICES provided hereunder and for a period of not less than six (6) years from the date of final payment to the CONSULTANT, the CONSULTANT shall keep, retain, and maintain all “documents” pertaining to the SERVICES provided pursuant to this AGREEMENT. Copies of all “documents” pertaining to the SERVICES provided hereunder shall be made available for review at the CONSULTANT’s place of business during normal working hours. If any litigation, claim, or audit is commenced, the CONSULTANT shall cooperate with AGENCY and assist in the production of all such documents. “Documents” shall be retained until all litigation, claims or audit findings have been resolved even though such litigation, claim, or audit continues past the six (6) year retention period. For purposes of this AGREEMENT, “documents” means every writing or record of every type and description, including electronically stored information (“ESI”), that is in the possession, control, or custody of the CONSULTANT, including, without limitation, any and all correspondences, contracts, AGREEMENTs, appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten notes, reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets, charts, notes, drafts, scribblings, recordings, visual displays, photographs, minutes of meetings, tabulations, computations, summaries, inventories, and writings regarding conferences, conversations or telephone conversations, and any and all other taped, recorded, written, printed or typed matters of any kind or description; every copy of the foregoing whether or not the original is in the possession, custody, or control of the CONSULTANT, and every copy of any of the foregoing, whether or not such copy is a copy identical to an original, or whether or not such copy contains any commentary or notation whatsoever that does not appear on the original. 7.a Packet Pg. 99 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 14 of 34 For purposes of this AGREEMENT, “ESI” means any and all computer data or electronic recorded media of any kind, including “Native Files”, that are stored in any medium from which it can be retrieved and examined, either directly or after translation into a reasonably useable form. ESI may include information and/or documentation stored in various software programs such as Email, Outlook, Word, Excel, Access, Publisher, PowerPoint, Adobe Acrobat, SQL databases, or any other software or electronic communication programs or databases that the CONSULTANT may use in the performance of its operations. ESI may be located on network servers, backup tapes, smart phones, thumb drives, CDs, DVDs, floppy disks, work computers, cell phones, laptops, or any other electronic device that CONSULTANT uses in the performance of its Work or SERVICES hereunder, including any personal devices used by the CONSULTANT or any sub-consultant at home. “Native files” are a subset of ESI and refer to the electronic format of the application in which such ESI is normally created, viewed, and /or modified The CONSULTANT shall include this section XX “Records Maintenance” in every subcontract it enters into in relation to this AGREEMENT and bind the sub-consultant to its terms, unless expressly agreed to otherwise in writing by the AGENCY prior to the execution of such subcontract. In witness whereof, the parties hereto have executed this AGREEMENT as of the day and year shown in the “Execution Date” box on page one (1) of this AGREEMENT. Signature Date Signature Date Any modification, change, or reformation of this AGREEMENT shall require approval as to form by the Office of the Attorney General. KBA, Inc. Kristen Overleese, President City of Kent Dana Ralph, Mayor 7.a Packet Pg. 100 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 15 of 34 Exhibit A Scope of Work Project No. 7.a Packet Pg. 101 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 17 of 34 Exhibit C Preparation and Delivery of Electronic Engineering and Other Data In this Exhibit the agency, as applicable, is to provide a description of the format and standards the consultant is to use in preparing electronic files for transmission to the agency. The format and standards to be provided may include, but are not limited to, the following: I.Surveying, Roadway Design & Plans Preparation Section A.Survey Data B. Roadway Design Files C. Computer Aided Drafting Files 7.a Packet Pg. 102 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 18 of 34 D. Specify the Agency’s Right to Review Product with the Consultant E. Specify the Electronic Deliverables to Be Provided to the Agency F. Specify What Agency Furnished Services and Information Is to Be Provided 7.a Packet Pg. 103 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 19 of 34 II. Any Other Electronic Files to Be Provided III. Methods to Electronically Exchange Data 7.a Packet Pg. 104 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 20 of 34 A. Agency Software Suite B. Electronic Messaging System C. File Transfers Format 7.a Packet Pg. 105 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 21 of 34 Exhibit D Prime Consultant Cost Computations 7.a Packet Pg. 106 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 22 of 34 Exhibit E Sub-consultant Cost Computations There is not any sub-consultant participation at this time. The CONSULTANT shall not sub-contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY. Refer to section VI “Sub-Contracting” of this AGREEMENT. 7.a Packet Pg. 107 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 23 of 34 Exhibit F Title VI Assurances During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, and successors in interest agrees as follows: 1. Compliance with Regulations: The CONSULTANT shall comply with the Regulations relative to non- discrimination in federally assisted programs of the AGENCY, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as the “REGULATIONS”), which are herein incorporated by reference and made a part of this AGREEMENT. 2. Non-discrimination: The CONSULTANT, with regard to the work performed during this AGREEMENT, shall not discriminate on the grounds of race, color, sex, or national origin in the selection and retention of sub-consultants, including procurement of materials and leases of equipment. The CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment practices when this AGREEMENT covers a program set forth in Appendix B of the REGULATIONS. 3. Solicitations for Sub-consultants, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by the CONSULTANT for work to be performed under a sub-contract, including procurement of materials or leases of equipment, each potential sub- consultant or supplier shall be notified by the CONSULTANT of the CONSULTANT’s obligations under this AGREEMENT and the REGULATIONS relative to non-discrimination on the grounds of race, color, sex, or national origin. 4. Information and Reports: The CONSULTANT shall provide all information and reports required by the REGULATIONS or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the AGENCY, the STATE, or the Federal Highway Administration (FHWA) to be pertinent to ascertain compliance with such REGULATIONS, orders and instructions. Where any information required of a CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, the CONSULTANT shall so certify to the AGENCY, the STATE, or the FHWA as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Non-compliance: In the event of the CONSULTANT’s non-compliance with the non- discrimination provisions of this AGREEMENT, the AGENCY shall impose such AGREEMENT sanctions as it, the STATE, or the FHWA may determine to be appropriate, including, but not limited to: •Withholding of payments to the CONSULTANT under this AGREEMENT until the CONSULTANT complies, and/or; •Cancellation, termination, or suspension of this AGREEMENT, in whole or in part. 6. Incorporation of Provisions: The CONSULTANT shall include the provisions of paragraphs (1) through (5) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. The CONSULTANT shall take such action with respect to any sub-consultant or procurement as the STATE, the AGENCY, or FHWA may direct as a means of enforcing such provisions including sanctions for non-compliance. Provided, however, that in the event a CONSULTANT becomes involved in, or is threatened with, litigation with a sub-consultant or supplier as a result of such direction, the CONSULTANT may request the AGENCY enter into such litigation to protect the interests of the STATE and/or the AGENCY and, in addition, the CONSULTANT may request the United States enter into such litigation to protect the interests of the United States. 7.a Packet Pg. 108 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 24 of 34 Exhibit G Certification Document Exhibit G-1(a) Certification of Consultant Exhibit G-1(b) Certification of Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions Exhibit G-3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying Exhibit G-4 Certificate of Current Cost or Pricing Data 7.a Packet Pg. 109 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 25 of 34 Exhibit G-1(a) Certification of Consultant I hereby certify that I am the and duly authorized representative of the firm of ______________________________________________________________________________________ whose address is ______________________________________________________________________________________ and that neither the above firm nor I have a)Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above CONSULTANT) to solicit or secure this AGREEMENT; b)Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out this AGREEMENT; or c)Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above CONSULTANT) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this AGREEMENT; except as hereby expressly stated (if any); I acknowledge that this certificate is to be furnished to the _________________________________________ and the Federal Highway Administration, U.S. Department of Transportation in connection with this AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil. Consultant (Firm Name) Signature (Authorized Official of Consultant) Date 7.a Packet Pg. 110 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 26 of 34 Exhibit G-1(b) Certification of ________________________________________ I hereby certify that I am the: Other of the _______________________________________, and ________________________________________ or its representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this AGREEMENT to: a)Employ or retain, or agree to employ to retain, any firm or person; or b)Pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or consideration of any kind; except as hereby expressly stated (if any): I acknowledge that this certificate is to be furnished to the ___________________________________________ and the Federal Highway Administration, U.S. Department of Transportation, in connection with this AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil. Signature Date City of Kent Dana Ralph, Mayor 7.a Packet Pg. 111 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 27 of 34 Exhibit G-2 Certification Regarding Debarment Suspension and Other Responsibility Matters - Primary Covered Transactions I.The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: A.Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; B.Have not within a three (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State anti-trust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; C.Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and D.Have not within a three (3) year period preceding this application / proposal had one or more public transactions (Federal, State and local) terminated for cause or default. II.Where the prospective primary participant is unable to certify to any of the statements in this certification such prospective participant shall attach an explanation to this proposal. Consultant (Firm Name) Signature (Authorized Official of Consultant) Date 7.a Packet Pg. 112 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 28 of 34 Exhibit G-3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: 1.No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or any 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 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 Federal 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, the undersigned shall complete and submit Standard Form - LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. 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 require certification shall be subject to a civil penalty of not less than $10,000.00, and not more than $100,000.00 for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier sub-contracts, which exceed $100,000 and that all such sub-recipients shall certify and disclose accordingly. Consultant (Firm Name) Signature (Authorized Official of Consultant) Date 7.a Packet Pg. 113 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 33 of 34 Exhibit J Consultant Claim Procedures The purpose of this exhibit is to describe a procedure regarding claim(s) on a consultant agreement. The following procedures should only be utilized on consultant claims greater than $1,000. If the consultant’s claim(s) total a $1,000 or less, it would not be cost effective to proceed through the outlined steps. It is suggested that the Director of Public Works or Agency Engineer negotiate a fair and reasonable price for the consultant’s claim(s) that total $1,000 or less. This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential claim by the consultant. Step 1 Consultant Files a Claim with the Agency Project Manager If the consultant determines that they were requested to perform additional services that were outside of the agreement’s scope of work, they may be entitled to a claim. The first step that must be completed is the request for consideration of the claim to the Agency’s project manager. The consultant’s claim must outline the following: •Summation of hours by classification for each firm that is included in the claim •Any correspondence that directed the consultant to perform the additional work; •Timeframe of the additional work that was outside of the project scope; •Summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the additional work; and •Explanation as to why the consultant believes the additional work was outside of the agreement scope of work. Step 2 Review by Agency Personnel Regarding the Consultant’s Claim for Additional Compensation After the consultant has completed step 1, the next step in the process is to forward the request to the Agency’s project manager. The project manager will review the consultant’s claim and will met with the Director of Public Works or Agency Engineer to determine if the Agency agrees with the claim. If the FHWA is participating in the project’s funding, forward a copy of the consultant’s claim and the Agency’s recommendation for federal participation in the claim to the WSDOT Local Programs through the Region Local Programs Engineer. If the claim is not eligible for federal participation, payment will need to be from agency funds. If the Agency project manager, Director of Public Works or Agency Engineer, WSDOT Local Programs (if applicable), and FHWA (if applicable) agree with the consultant’s claim, send a request memo, including backup documentation to the consultant to either supplement the agreement, or create a new agreement for the claim. After the request has been approved, the Agency shall write the supplement and/or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. No further action in needed regarding the claim procedures. If the Agency does not agree with the consultant’s claim, proceed to step 3 of the procedures. 7.a Packet Pg. 114 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R Local Agency A&E Professional Services Agreement Number ____________ Negotiated Hourly Rate Consultant Agreement Revised 02/28/2018 Page 34 of 34 Step 3 Preparation of Support Documentation Regarding Consultant’s Claim(s) If the Agency does not agree with the consultant’s claim, the project manager shall prepare a summary for the Director of Public Works or Agency Engineer that included the following: •Copy of information supplied by the consultant regarding the claim; •Agency’s summation of hours by classification for each firm that should be included in the claim •Any correspondence that directed the consultant to perform the additional work; •Agency’s summary of direct labor dollars, overhead costs, profit and reimbursable costs associate with the additional work; •Explanation regarding those areas in which the Agency does/does not agree with the consultant’s claim(s); •Explanation to describe what has been instituted to preclude future consultant claim(s); and •Recommendations to resolve the claim. Step 4 Director of Public Works or Agency Engineer Reviews Consultant Claim and Agency Documentation The Director of Public Works or Agency Engineer shall review and administratively approve or disapprove the claim, or portions thereof, which may include getting Agency Council or Commission approval (as appropriate to agency dispute resolution procedures). If the project involves federal participation, obtain concurrence from WSDOT Local Programs and FHWA regarding final settlement of the claim. If the claim is not eligible for federal participation, payment will need to be from agency funds. Step 5 Informing Consultant of Decision Regarding the Claim The Director of Public Works or Agency Engineer shall notify (in writing) the consultant of their final decision regarding the consultant’s claim(s). Include the final dollar amount of the accepted claim(s) and rationale utilized for the decision. Step 6 Preparation of Supplement or New Agreement for the Consultant’s Claim(s) The agency shall write the supplement and/or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit 7.a Packet Pg. 115 At t a c h m e n t : 7 - E x h i b i t K B A S 2 2 8 t h S t U P R R G r a d e S e p a r a t i o n - L P _ A E P S - N e g o t i a t e d H o u r l y R a t e ( 1 4 9 4 : C o n t r a c t w i t h K B A , I n c . S . 2 2 8 t h U P R PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee SUBJECT: Parking Ordinance for West Smith St. MOTION: Move to recommend Council Adopt an Ordinance Amending Chapter 9.38 of the Kent City Code to restrict parking on West Smith Street between 64th Avenue South and Washington Avenue North to a four-hour time limit. SUMMARY: West Smith Street has experienced an increase in the number of vehicles parking on the street for extended periods of time. Enforcement efforts of the existing 24-hour state parking law have had improved parking availability but there are still several vehicles that move within the block. This proposal would create a four-hour parking zone which would allow parking for commercial needs and would also allow enforcement of an existing code 9.38.095 which prohibits “re- parking” on the same block within a time-limited parking zone. BUDGET IMPACT: The estimated cost to procure and install signs as proposed on W. Smith St is estimated at $10,000 for approximately 20 parking signs. SUPPORTS STRATEGIC PLAN GOAL: Inclusive Community, Thriving City RECOMMENDED BY: Tim LaPorte ATTACHMENTS: 1. 8 - Exhibit Parking Ord (PDF) 8 Packet Pg. 116 1 Amend KCC 9.38.065- Re: Four-Hour Parking Zones ORDINANCE NO. AN ORDINANCE of the City Council of the City of Kent, Washington, amending Chapter 9.38.065 of the Kent City Code, entitled “Four-Hour Parking Zones,” to add a subsection establishing a new four-hour parking zone to be in effect at all times RECITALS A. Section 9.38.065 of the Kent City Code sets forth areas within the City of Kent where parking is limited to four hours from 9:00 a.m. to 6:00 p.m. (during business hours). B. Recently, West Smith Street has experienced an increase in the number of vehicles parking on the street for extended periods of time at all hours of the day. C. To address this issue and ensure there is adequate parking for commercial needs, this ordinance amends portions of Chapter 9.38.065 KCC to create a four-hour parking zone that is in effect twenty-four hours per day, seven days per week. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: 8.a Packet Pg. 117 At t a c h m e n t : 8 - E x h i b i t P a r k i n g O r d ( 1 4 9 5 : P a r k i n g O r d i n a n c e f o r W e s t S m i t h S t . ) 2 Amend KCC 9.38.065- Re: Four-Hour Parking Zones ORDINANCE SECTION 1. - Amendment. Chapter 9.38.065 of the Kent City Code, entitled “Four-Hour Parking Zones,” as follows: Sec. 9.38.065 Four-hour parking zones. A. Four-hour parking limit during business hours. Except as provided for under KCC 9.38.070 and 9.38.170, at such times as the director of public works or designee shall place the appropriate sign, it shall be illegal to park any motor or other vehicle for an uninterrupted period in excess of four hours between the hours of 9:00 a.m. and 6:00 p.m. on either side of, unless otherwise indicated, the following streets, public parking lots, public parking garages, or portions thereof: 1. Railroad Avenue North and Railroad Avenue South: from East Smith Street to East Gowe Street. Provided, that this section shall not apply on Sundays or holidays. B. Four-hour parking limit. Except as provided for under KCC 9.38.070 and 9.38.170, at such times as the director of public works or designee shall place the appropriate sign, it shall be illegal to park any motor or other vehicle for an uninterrupted period in excess of four hours at any time on either side of, unless otherwise indicated, the following streets, public parking lots, public parking garages, or portions thereof: 1. West Smith Street: from 64th Avenue South to Washington Avenue. BC. Penalty. Any violation of the provisions of this section shall be an infraction punishable by a monetary penalty of $30. Vehicles parked in violation of this section may be towed or impounded as provided by law. 8.a Packet Pg. 118 At t a c h m e n t : 8 - E x h i b i t P a r k i n g O r d ( 1 4 9 5 : P a r k i n g O r d i n a n c e f o r W e s t S m i t h S t . ) 3 Amend KCC 9.38.065- Re: Four-Hour Parking Zones SECTION 2. – Severability. If any one or more section, subsection, or sentence of this ordinance is held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 3. – Corrections by City Clerk or Code Reviser. Upon approval of the city attorney, the city clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; ordinance, section, or subsection numbering; or references to other local, state, or federal laws, codes, rules, or regulations. SECTION 4. – Effective Date. This ordinance shall take effect and be in force thirty days from and after its passage, as provided by law. DANA RALPH, MAYOR Date Approved ATTEST: KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted Date Published APPROVED AS TO FORM: ______ ARTHUR “PAT” FITZPATRICK, CITY ATTORNEY 8.a Packet Pg. 119 At t a c h m e n t : 8 - E x h i b i t P a r k i n g O r d ( 1 4 9 5 : P a r k i n g O r d i n a n c e f o r W e s t S m i t h S t . ) PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee FROM: Tim LaPorte SUBJECT: Information Only/Mill Creek Rehabilitation Project - Update SUMMARY: The Public Works Department has been working on this project for several years. The project limits extend from Earthworks Canyon downstream (northerly) to the vicinity of South 212th Street. The project is very important to the city because over the decades the creek has silted in and severely limited capacity along many of the reaches. One of the worst areas is the Kennebeck and Woodford areas. Even a minor rainstorm will cause the creek to overtop in these areas. To complete the creek rehabilitation, it must be dredged and restored with creek side planting to enable a better survival rate for fish species in the creek. The creek also needs settling pools to allow for maintenance and reduce silting of the creek again. In addition to the creek resource, wetlands exist along the edges. These have been delineated with prior work efforts. The actual work of dredging, restoring, mitigating the wetlands, installing areas for sediment removal and replanting the creek is a major endeavor and will require a federal Corps of Engineers Individual permit as well as State permits including Fisheries. Staff held three significant ”application meetings” with the permit agencies over the last three years. The meetings alone can take up to 6 months to schedule. In the last meeting, which was held onsite in November, the State and Federal regulatory agencies asked that the scope of the project be broadened to include culvert replacement work on 76th Avenue north of 228th St. and all the pedestrian or service bridges that cross (or will cross) the creek such as the pedestrian bridge in the vicinity of East Temperance Street. This is a significant change which requires the city to utilize geotechnical and structural consultants to prepare preliminary designs for the bridges and culverts to enable the permit process to continue. This is now on the critical path to get the federal/state permits to do the dredging and rehabilitation work. 9 Packet Pg. 120 As a matter of efficiency and to keep the permit process active, staff intend to select and utilize consultants to begin and conclude the conceptual design work. This contracting will be with Director or Mayoral approval. When the selected concepts for the culverts and small bridges are picked, larger, final design contracts will follow. These contracts will require Council approval. We expect to report back to Council at a later meeting for these approvals. RECOMMENDED BY: Tim LaPorte 9 Packet Pg. 121 PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee SUBJECT: King County Solid Waste Division/Waste Reduction and Recycling Grant (WRR) - Recommend MOTION: Move to recommend Council authorize the Mayor to accept the Waste Reduction and Recycling Grant in the amount for $178,192.00 for 2019/2020, establish a budget and authorize expenditure of the grant funds accordingly, and authorize the Mayor to sign all necessary documents, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. SUMMARY: The King County Waste Reduction and Recycling grant is used to fund three Special Recycling and Collection Events for residents for the collection of hard-to-recycle materials, including appliances, electronic equipment, mattresses, Styrofoam, bulky yard debris, concrete, and tires. The grant also funds activities and events associated with the Multi-Family Recycling Program, and the purchase, distribution and promotion of products made from recycled materials, including reusable shopping bags. BUDGET IMPACT: The City will receive $178,192.00 in 2019/2020. No match is required. RECOMMENDED BY: Tim LaPorte ATTACHMENTS: 1. 10 - Exhibit WRR Grant 2019-20 IAA TDonati (DOCX) 10 Packet Pg. 122 1 CPA # Draft INTERAGENCY AGREEMENT FOR 2019 and 2020 Between KING COUNTY and the CITY OF KENT This two-year Interagency Agreement “Agreement” is executed between King County, a Charter County and political subdivision of the State of Washington, and the City of Kent, a municipal corporation of the State of Washington, hereinafter referred to as "County" and "City" respectively. Collectively, the County and City will be referred to as “Party” or “Parties.” PREAMBLE King County and the City of Kent adopted the 2001 King County Comprehensive Solid Waste Management Plan, which includes waste reduction and recycling goals. In order to help meet these goals, the King County Solid Waste Division has established a waste reduction and recycling grant program for the cities that operate under the King County Comprehensive Solid Waste Management Plan. This program provides funding to further the development and/or enhancement of local waste reduction and recycling projects and for broader resource conservation projects that integrate with waste reduction and recycling programs and services. This grant program does not fund household hazardous waste collection activities. Program eligibility and grant administration terms are discussed in the Grant Guidelines, attached to this Agreement as Exhibit B and incorporated herein by reference. Grant funding for this program is subject to the budget approval process of the King County Council. Grant funding approved by the King County Council is available to all King County cities that operate under the King County Comprehensive Solid Waste Management Plan. The City will spend its grant funds to fulfill the terms and conditions set forth in the scope of work, which is attached hereto as Exhibit A and incorporated herein by reference. The County expects that any information and/or experience gained through the grant program by the City will be shared with the County and other King County cities. I. PURPOSE The purpose of this Agreement is to define the terms and conditions for funding to be provided to the City by the County for waste reduction and recycling programs and/or services as outlined in the scope of work and budget attached as Exhibit A. 10.a Packet Pg. 123 At t a c h m e n t : 1 0 - E x h i b i t W R R G r a n t 2 0 1 9 - 2 0 I A A T D o n a t i ( 1 4 9 7 : K i n g C o u n t y S o l i d W a s t e D i v i s i o n / W a s t e R e d u c t i o n a n d R e c y c l i n g G r a n t 2 II. RESPONSIBILITIES OF THE PARTIES The responsibilities of the Parties to this Agreement shall be as follows: A. The City 1. Funds provided to the City by the County pursuant to this Agreement shall be used to provide waste reduction and recycling programs and/or services as outlined in Exhibit A. The total amount of funds available from this grant in 2019 and 2020 shall not exceed $178,192. 2. This Agreement provides for distribution of 2019 and 2020 grant funds to the City. However, grant funds are not available until January 1, 2019. 3. During this two-year grant program, the City will submit a minimum of two (2), but no more than eight (8), progress reports to the County in a form approved by the County. Reports must be signed by a City official. These reports will include: a. a description of each activity accomplished pertaining to the scope of work; and b. reimbursement requests with both a Budget Summary Report Form, which is attached hereto as Exhibit D and incorporated herein by reference, and an Expense Summary Form, which is attached hereto as Exhibit E and incorporated herein by reference, unless the City has a spreadsheet similar to the Expense Summary Form already in use, in which case the City is free to use that spreadsheet instead of the Expense Summary Form. The City will submit the form or similar spreadsheet and not submit backup documentation for grant expenses. If backup documentation is submitted, SWD will not retain it. The City shall maintain this documentation in its records. If the City chooses to submit up to the maximum of eight (8) progress reports and requests for reimbursement during the two-year grant program, they shall be due to the County on the last day of the month following the end of each quarter (April 30, July 30, October 31, January 31) except for the final progress report and request for reimbursement, which shall be due by March 31, 2021. If the City chooses to submit the minimum of two progress reports and requests for reimbursement during the two-year grant program, they shall be due to the County by January 31, 2020 and March 31, 2021. Regardless of the number of progress reports the City chooses to submit, in order to secure reimbursement, the City must provide in writing to the County by the 5th working day of January 2020 and January 2021, the dollar amount of outstanding expenditures for which the City has not yet submitted a reimbursement request. 4. The City shall submit a final report to the County which summarizes the work completed under the grant program and evaluates the effectiveness of the projects for which grant funds were utilized, according to the evaluation methods specified in the scope of work. The final report is due within six (6) months of completion of the project(s) outlined in the scope of work, but no later than June 30, 2021. 10.a Packet Pg. 124 At t a c h m e n t : 1 0 - E x h i b i t W R R G r a n t 2 0 1 9 - 2 0 I A A T D o n a t i ( 1 4 9 7 : K i n g C o u n t y S o l i d W a s t e D i v i s i o n / W a s t e R e d u c t i o n a n d R e c y c l i n g G r a n t 3 5. If the City accepts funding through this grant program for the provision of waste reduction and recycling programs and projects for other incorporated areas of King County, the City shall explain the relationship with the affected adjacent city or cities that allows for acceptance of this funding and the specifics of the proposed programs and projects within the scope of work document related thereto. 6. The City shall be responsible for following all applicable Federal, state, and local laws, ordinances, rules, and regulations in the performance of work described herein. The City assures that its procedures are consistent with laws relating to public contract bidding procedures, and the County neither incurs nor assumes any responsibility for the City’s bid, award, or contracting process. 7. During the performance of this Agreement, neither the City nor any Party subcontracting under the authority of this Agreement shall discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation, age, or presence of any sensory, mental, or physical handicap in the employment or application for employment or in the administration or delivery of or access to services or any other benefits under this Agreement as defined by King County Code, Chapter 12.16. 8. During the performance of this Agreement, neither the City nor any Party subcontracting under the authority of this Agreement shall engage in unfair employment practices as defined by King County Code, Chapter 12.18. The City shall comply fully with all applicable federal, state, and local laws, ordinances, executive orders and regulations that prohibit such discrimination. These laws include, but are not limited to, RCW Chapter 49.60 and Titles VI and VII of the Civil Rights Act of 1964. 9. The City shall use recycled paper for the production of all printed and photocopied documents related to the fulfillment of this Agreement. The City shall use both sides of paper sheets for copying and printing and shall use recycled/recyclable products wherever practical. 10. The City shall maintain accounts and records, including personnel, financial, and programmatic records, and other such records as may be deemed necessary by the County, to ensure proper accounting for all project funds and compliance with this Agreement. All such records shall sufficiently and properly reflect all direct and indirect costs of any nature expended and service provided in the performance of this Agreement. These records shall be maintained for a period of six (6) years after termination hereof unless permission to destroy them is granted by the Office of the State Archivist in accordance with RCW Chapter 40.14. These accounts shall be subject to inspection, review, or audit by the County and/or by federal or state officials as so authorized by law. 11. The City shall maintain a record of the use of any equipment that costs more than $1,000 and is purchased with grant funds from King County for a total period of three (3) years. The records shall be compiled into a yearly evaluation report, a copy of which shall be submitted to King County by March 31 of each year through the year 2021. 10.a Packet Pg. 125 At t a c h m e n t : 1 0 - E x h i b i t W R R G r a n t 2 0 1 9 - 2 0 I A A T D o n a t i ( 1 4 9 7 : K i n g C o u n t y S o l i d W a s t e D i v i s i o n / W a s t e R e d u c t i o n a n d R e c y c l i n g G r a n t 4 12. The City agrees to credit King County on all printed materials provided by the County, which the City is duplicating, for distribution. Either King County’s name and logo must appear on King County materials (including fact sheets, case studies, etc.), or, at a minimum, the City will credit King County for artwork or text provided by the County as follows: “artwork provided courtesy of King County Solid Waste Division” and/or “text provided courtesy of King County Solid Waste Division.” 13. The City agrees to submit to the County copies of all written materials which it produces and/or duplicates for local waste reduction and recycling projects which have been funded through the waste reduction and recycling grant program. Upon request, the City agrees to provide the County with a reproducible copy of any such written materials and authorizes the County to duplicate and distribute any written materials so produced, provided that the County credits the City for the materials. 14. The City will provide the King County Project Manager with the date and location of each Recycling Collection Event provided by the City, as well as copies of any printed materials used to publicize each event, as soon as they are available but no later than thirty (30) days prior to the event. If there is any change in the date or the location of an event, the City will notify the County a minimum of thirty (30) days prior to the event. If the event brochure is required for admission to the City’s event, the City is exempt from having to provide the brochure to King County. 15. If the City accepts funding through this grant program for the provision of recycling collection events for adjacent areas of unincorporated King County, the City shall send announcements of the events to all residences listed in the agreed upon areas listed in Exhibit A. The announcements and all other printed materials related to these events shall acknowledge King County as the funding source. 16. This project shall be administered by Tony Donati, Conservation Coordinator, or designee. B. The County: 1. The County shall administer funding for the waste reduction and recycling grant program. Funding is designated by the city and is subject to the King County Council’s budget approval process. Provided that the funds are allocated through the King County Council’s budget approval process, grant funding to the City will include a base allocation of $10,000 per year with the balance of funds to be allocated according to the City's percentage of King County's residential and employment population. However, if this population based allocation formula calculation would result in a city receiving less than $10,000 per year, that city shall receive an additional allocation that would raise their total grant funding to $10,000 per year. 10.a Packet Pg. 126 At t a c h m e n t : 1 0 - E x h i b i t W R R G r a n t 2 0 1 9 - 2 0 I A A T D o n a t i ( 1 4 9 7 : K i n g C o u n t y S o l i d W a s t e D i v i s i o n / W a s t e R e d u c t i o n a n d R e c y c l i n g G r a n t 5 2. Within forty-five (45) days of receiving a request for reimbursement from the City, the County shall either notify the City of any exceptions to the request which have been identified or shall process the request for payment. If any exceptions to the request are made, this shall be done by written notification to the City providing the reason for such exception. The County will not authorize payment for activities and/or expenditures which are not included in the scope of work and budget attached as Exhibit A, unless the scope has been amended according to Section V of this Agreement. King County retains the right to withhold all or partial payment if the City’s report(s) and reimbursement request(s) are incomplete (i.e., do not include proper documentation of expenditures and/or adequate description of each activity described in the scope of work for which reimbursement is being requested), and/or are not consistent with the scope of work and budget attached as Exhibit A. 3. The County agrees to credit the City on all printed materials provided by the City to the County, which the County duplicates, for distribution. Either the City’s name and logo will appear on such materials (including fact sheets, case studies, etc.), or, at a minimum, the County will credit the City for artwork or text provided by the City as follows: “artwork provided courtesy of the City of Kent” and/or “text provided courtesy of the City of Kent.” 4. The County retains the right to share the written material(s) produced by the City which have been funded through this program with other King County cities for them to duplicate and distribute. In so doing, the County will encourage other cities to credit the City on any pieces that were produced by the City. 5. The waste reduction and recycling grant program shall be administered by Lucy Auster, Project Manager, King County Solid Waste Division, or designee. III. DURATION OF AGREEMENT This Agreement shall become effective on either January 1, 2019 or the date of execution of the Agreement by both the County and the City, if executed after January 1, 2019, and shall terminate on June 30, 2021. The City shall not incur any new charges after December 31, 2020. However, if execution by either Party does not occur until after January 1, 2019, this Agreement allows for disbursement of grant funds to the City for County-approved programs initiated between January 1, 2019 and the later execution of the Agreement provided that the City complies with the reporting requirements of Section II.A of the Agreement. 10.a Packet Pg. 127 At t a c h m e n t : 1 0 - E x h i b i t W R R G r a n t 2 0 1 9 - 2 0 I A A T D o n a t i ( 1 4 9 7 : K i n g C o u n t y S o l i d W a s t e D i v i s i o n / W a s t e R e d u c t i o n a n d R e c y c l i n g G r a n t 6 IV. TERMINATION A. This Agreement may be terminated by King County, in whole or in part, for convenience without cause prior to the termination date specified in Section III, upon thirty (30) days advance written notice. B. This Agreement may be terminated by either Party, in whole or in part, for cause prior to the termination date specified in Section III, upon thirty (30) days advance written notice. Reasons for termination for cause may include but not be limited to: nonperformance; misuse of funds; and/or failure to provide grant related reports/invoices/statements as specified in Section II.A.3. and Section II.A.4. C. If the Agreement is terminated as provided in this section: (1) the County will be liable only for payment in accordance with the terms of this Agreement for services rendered prior to the effective date of termination; and (2) the City shall be released from any obligation to provide further services pursuant to this Agreement. D. Nothing herein shall limit, waive, or extinguish any right or remedy provided by this Agreement or law that either Party may have in the event that the obligations, terms and conditions set forth in this Agreement are breached by the other Party. V. AMENDMENTS This Agreement may be amended onl y by written agreement of both Parties. Amendments to scopes of work will only be approved if the proposed amendment is consistent with the most recently adopted King County Comprehensive Solid Waste Management Plan. Funds may be moved between tasks in the scope of work, attached as Exhibit A, only upon written request by the City and written approval by King County. Such requests will only be approved if the proposed change(s) is (are) consistent with and/or achieves the goals stated in the scope and falls within the activities described in the scope. VI. HOLD HARMLESS AND INDEMNIFICATION The City shall protect, indemnify, and hold harmless the County, its officers, agents, and employees from and against any and all claims, costs, and/or issues whatsoever occurring from actions by the City and/or its subcontractors pursuant to this Agreement. The City shall defend at its own expense any and all claims, demands, suits, penalties, losses, damages, or costs of any kind whatsoever (hereinafter "claims") brought against the County arising out of or incident to the City’s execution of, performance of, or failure to perform this Agreement. Claims shall include but not be limited to assertions that the use or transfer of any software, book, document, report, film, tape, or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, and/or otherwise results in unfair trade practice. 10.a Packet Pg. 128 At t a c h m e n t : 1 0 - E x h i b i t W R R G r a n t 2 0 1 9 - 2 0 I A A T D o n a t i ( 1 4 9 7 : K i n g C o u n t y S o l i d W a s t e D i v i s i o n / W a s t e R e d u c t i o n a n d R e c y c l i n g G r a n t 7 VII. INSURANCE A. The City, at its own cost, shall procure by the date of execution of this Agreement and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with performance of work pursuant to this Agreement by the City, its agents, representatives, employees, and/or subcontractors. The minimum limits of this insurance shall be $1,000,000 general liability insurance combined single limit per occurrence for bodily injury, personal injury, and property damage. If the policy has an aggregate limit, a $2,000,000 aggregate shall apply. Any deductible or self-insured retentions shall be the sole responsibility of the City. Such insurance shall cover the County, its officers, officials, employees, and agents as additional insureds against liability arising out of activities performed by or on behalf of the City pursuant to this Agreement. A valid Certificate of Insurance and additional insured endorsement is attached to this Agreement as Exhibit C, unless Section VII.B. applies. B. If the Agency is a Municipal Corporation or an agency of the State of Washington and is self -insured for any of the above insurance requirements, a written acknowledgement of self-insurance is attached to this Agreement as Exhibit C. C. If the Agency is a Municipal Corporation or an agency of the State of Washington and is a member of the Washington Cities Insurance Authority (WCIA), a written acknowledgement/certification of current membership is attached to this Agreement as Exhibit C. VIII. ENTIRE CONTRACT/WAIVER OF DEFAULT This Agreement is the complete expression of the agreement of the County and City hereto, and any oral or written representations or understandings not incorporated herein are excluded. Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of breach of any provision of this Agreement shall not be deemed to be waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless stated to be such through written approval by the County, which shall be attached to the original Agreement. IX. TIME IS OF THE ESSENCE The County and City recognize that time is of the essence in the performance of this Agreement. X. SEVERABILITY If any section, subsection, sentence, clause or phrase of this Agreement is, for any reason, found to be unconstitutional or otherwise invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions. 10.a Packet Pg. 129 At t a c h m e n t : 1 0 - E x h i b i t W R R G r a n t 2 0 1 9 - 2 0 I A A T D o n a t i ( 1 4 9 7 : K i n g C o u n t y S o l i d W a s t e D i v i s i o n / W a s t e R e d u c t i o n a n d R e c y c l i n g G r a n t 8 XI. NOTICE Any notice required or permitted under this Agreement shall be deemed sufficiently given or served if sent to the King County Solid Waste Division and the City at the addresses provided below: Lucy Auster, Project Manager, or a provided designee King County Solid Waste Division Department of Natural Resources and Parks 201 South Jackson Street, Suite 701 Seattle, WA 98104-3855 If to the City: Tony Donati, Conservation Coordinator, or a provided designee City of Kent 220 4th Avenue South Kent, WA 98032-5895 IN WITNESS WHEREOF this Agreement has been executed by each Party on the date set forth below: City of Kent King County ______________________________________ BY___________________________________ Dana Ralph, Mayor Pat D. McLaughlin, Director Solid Waste Division For Dow Constantine, King County Executive ______________________________________ _____________________________________ Date Date 10.a Packet Pg. 130 At t a c h m e n t : 1 0 - E x h i b i t W R R G r a n t 2 0 1 9 - 2 0 I A A T D o n a t i ( 1 4 9 7 : K i n g C o u n t y S o l i d W a s t e D i v i s i o n / W a s t e R e d u c t i o n a n d R e c y c l i n g G r a n t PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee SUBJECT: Info Only/King County Disposal Rate Increase SUMMARY: The King County Solid Division has confirmed a rate increase on disposal fees that will take effect on January 1, 2019. The new rate will be $140.82 per ton, up from $134.59 per ton. This rate will be passed on to residents and businesses as allowed in the City’s contract with Republic Services. The fee increase will primarily cover the rising costs of current services including recycling programs, waste transfer, and disposal while enhancing operations at the County’s solid waste facilities and the Cedar Hills Regional Landfill. The increased revenue will also help pay for a new facility in south King County to replace the 1960’s era Algona facility. SUPPORTS STRATEGIC PLAN GOAL: Innovative Community, Sustainable Services RECOMMENDED BY: Tim LaPorte 11 Packet Pg. 131 PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee SUBJECT: Information Only/Plastic Bags SUMMARY: A lot of momentum is building to ban plastic bags within municipalities throughout western Washington and the state. To date, approximately 25 cities have banned the use of single-use plastic bags. Plastic bags pose major problems to garbage haulers, wildlife, and our environment. Staff will give an informational presentation to inform the council on the problems of plastic bags, which cities have already implemented a bag ban, and discuss what a ban on plastic bags might look like in Kent. SUPPORTS STRATEGIC PLAN GOAL: Innovative Community, Sustainable Services RECOMMENDED BY: Tim LaPorte 12 Packet Pg. 132 PUBLIC WORKS COMMITTEE Tim LaPorte, PE 220 Fourth Ave S Kent, WA 98032 253-856-5500 DATE: December 10, 2018 TO: Public Works Committee SUBJECT: Information Only/Quiet Zone Update SUMMARY: The comment period for the city’s Notice of Intent (NOI) to establish a Railroad Quiet Zone (QZ) has closed for both the Union Pacific (UP) and Burlington Northern Santa Fe (BNSF) railroads. Comments on the NOI were received from BNSF, UP, the Washington State Utilities Commission (UTC), and the Washington State Department of Transportation (WSDOT). In general, the comments received are consistent with information that has been received through QZ Diagnostic Study field meetings and informal communication with representatives of the organizations providing NOI comments. Staff analysis of the comments indicates that the most significant requests for improvements prior to establishment of the QZ came from BNSF. City staff and the city’s consultant agree that BNSF’s request to intertie the city’s traffic signal system along Central Avenue S with BNSF’s railroad crossing signals is not necessary prior to establishment of the QZ. Similarly, replacement of existing incandescent signal heads with LED signal heads is not related to the QZ. There are also ancillary improvements to existing BNSF equipment, such as relocation of signal systems to meet updated BNSF standards that we do not agree should be tied to the QZ. Agreeing to these requests and moving forward with construction would likely cost between $1.5–million to $2.5-million, and require 9-12 months at a minimum to work through agreements with BNSF. The alternative is to meet Federal Railroad Administration guidelines and move forward with the QZ. A QZ on BNSF will include Supplemental Safety Measures (SSMs) and Alterative Safety Measures (ASMs). The use of ASMs require us to apply to the FRA to establish the QZ. The application to the FRA and Establishment of the QZ for BNSF would be by application to the FRA. After a 60-day comment period the FRA makes a judgement if the proposed crossing modifications have sufficient risk reduction to establish a QZ. BNSF would likely comment on the proposed QZ. Assuming the FRA approves the QZ, a petition to modify each grade crossing within the QZ would be submitted to the UTC. During the UTC process comments are solicited from the railroad. If the railroad does not agree to the proposed crossing modifications an administrative hearing is scheduled. BNSF would likely contest our crossing modifications leading to an administrative hearing. This process would take 12 to 15 months. Based on comments received from UP, completing a QZ at its crossings should be less challenging. Federal law allows the City to establish the QZ based on the risk 13 Packet Pg. 133 reduction with SSMs. Staff are working on responses to comments and we anticipate working through details with WSDOT, the owner of the crossing, in the first quarter of 2019. Following this, staff will work through the details with UP and the UTC in the 2nd and 3rd quarters. Provided this process goes smoothly, we plan to construct improvements in the 3rd/4th quarter, completing the QZ on the UP in early 20. An update on our safety grant from UTC, the grant will be used to install fencing on either side of the UP tracks south of Willis St and along the east side of the BNSF tracks north of James. A request to complete the work in this manner has been sent to UTC and a decision on approval by UTC is scheduled on December 13, 2018. Provided we are approved, the fencing will be installed by June 15, 2019, which is the deadline associated with the grant. 13 Packet Pg. 134