HomeMy WebLinkAboutCity Council Committees - Operations Committee - 11/15/2016 (2)
Unless otherwise noted, the Operations Committee meets at 4 p.m. on the first and third
Tuesday of each month in Kent City Hall, Council Chambers East, 220 4th Ave S, Kent, 98032.
For additional information please contact Jennifer Hays at 253-856-5700.
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 1-800-833-6388.
Operations Committee Agenda
Councilmembers: Bill Boyce – Les Thomas – Dana Ralph, Chair
November 15, 2016
4 p.m.
Item Description Action Speaker Time Page
1. Call to order Chair Ralph 1
2. Roll Call Chair Ralph 1
3. Changes to the Agenda Chair Ralph 1
4. Approval of Check Summary Report
dated 10/16/2016 thru 10/31/2016
YES Chair Ralph 2
5. Approval of Meeting Minutes Dated
November 1, 2016
YES Chair Ralph 2 1
6. Centennial Center Garage Glazing
Project - Recommend
YES Alex Ackley 10 5
7. Ordinance Amending Ch. 7.12 KCC –
Cable Television Communications –
Recommend
YES Mike Carrington 15 41
8. Lodging Tax Committee Re-
Appointment of Tim Higgins -
Recommend
YES Ben Wolters 5 81
9. Lobbying Services Agreement with
Outcomes by Levy - Recommend
YES Michelle Wilmot 5 83
10. Multi-family Residential Tax Exemption
Resolution – Information Only
NO Matt Gilbert 10 101
11. Director’s Report – Information Only NO Aaron BeMiller 15 109
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OPERATIONS COMMITTEE MINUTES
November 1, 2016
Committee Members Present: Chair Dana Ralph, Bill Boyce, and Les Thomas.
1. The meeting was called to order by Dana Ralph at 4:03 p.m.
2. ROLL CALL.
3. CHANGES TO THE AGENDA.
There were no changes to the agenda.
4. APPROVAL OF THE CHECK SUMMARY REPORT DATED 10/01/2016 THRU
10/15/2016.
L. Thomas moved to approve the check summary report dated 10/01/2016 thru
10/15/2016. B. Boyce seconded the motion, which passed 3-0.
5. APPROVAL OF MINUTES DATED OCTOBER 18, 2016.
B. Boyce moved to approve the Operations Committee minutes dated October 18, 2016.
L. Thomas seconded the motion, which passed 3-0.
6. PUBLIC FACILITIES DISTRICT BOARD REAPPOINTMENT - RECOMMEND
Economic & Community Development Deputy Director Kurt Hanson made a request to
reappoint Jeff Piecewicz to the Board for an additional four-year term of September 1,
2016 – August 31, 2020. Mr. Piecewicz’s original appointment was a four-year term that
expired on August 31, 2016.
The Board has five members who meet quarterly and oversee the finances of the
ShoWare Center.
B. Boyce moved to recommend the City Council reappoint Jeff Piecewicz to Position No. 1
of the Public Facilities District Board for a four-year term of September 1, 2016 – August
31, 2020. L. Thomas seconded the motion, which passed 3-0.
7. ORDINANCE AMENDING KCC 5.01 GENERAL BUSINESS LICENSES AND KCC 5.14 –
RENTAL HOUSING SAFETY – RECOMMEND
Finance Deputy Director Barbara Lopez asked to move forward amendments to KCC 5.01
and 5.14 for annual business relicensing requirements and establish more effective
enforcement options. The proposed relicensing requirements clarify that: 1) a business
license expires at the end of the calendar year for which it was issued, and 2) ongoing
businesses are required to obtain a new business license by January 1 of each subsequent
calendar year.
The proposed amendment eliminates the current $50 penalty, which has not been
effective in ensuring compliance. The monetary penalty is being replaced by the following
enforcement options:
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Operations Committee Minutes
November 1, 2016
Page: 2
Civil Infraction – filed with the City’s municipal court, can carry a $250 fine plus an
additional $250 court cost.
Civil Code Enforcement - time intensive and most likely the last option to be used
Criminal Violation – repeat offenders could face jail
Injunction – request to stop the business by way of a court order
Collections – handed over to collection agency to collect unpaid fees and penalties
If a business is believed to not have a current license, Councilmembers are encouraged to
notify city staff.
L. Thomas moved to recommend Council adopt the ordinance amending Chapter 5.01
of the Kent City Code, entitled “General Business Licenses,” and Chapter 5.14 of the Kent
City Code, entitled “Rental Housing Safety,” to clarify annual business licensing
requirements and provide enforcement options to encourage compliance. B. Boyce
seconded the motion, which passed 3-0.
8. 3RD QUARTER SUPPLEMENT BUDGET ADJUSTMENT ORDINANCE - RECOMMEND.
Ms. Lopez asked members to authorize an overall budget increase of $77,763,280. Of that
amount, $76,888,060 was previously approved by Council and establishes the budget for
refunding the 2008 and Public Facilities District bonds and $854,295 represents various
grant rewards.
Not yet approved by Council is $20,925 to transfer funds from the new Solid Waste Utility
Fund to cover a deficit balance (matching grants) for prior year recycling program
activities.
L. Thomas moved to recommend Council approve the consolidating budget adjustment
ordinance for adjustments made between July 1, 2016 and September 30, 2016,
reflecting an overall budget increase of $77,763,280. B. Boyce seconded the motion,
which passed 3-0.
9. SEPTEMBER FINANCIAL REPORT – INFORMATION ONLY.
Finance Director Aaron BeMiller reported overall the City is in line with what was reported
in August. Analysis through September show both revenues and expenditures ending the
year favorable compared to budget, creating an overall positive variance amount of $3.5
million. The current estimated ending fund balance reserves for 2016 calculates to 16.1
percent of estimated 2016 expenses.
The following highlights were reported:
Revenues are estimated to end the year at nearly $4.3 million or 4.9 percent higher than
budgeted. Most of the City's major revenue sources show positive variances compared to
budget, including sales tax ($677,000), licenses and permits ($557,000),
intergovernmental revenue ($514,000) and B&O ($1.7 million). This is offset by
unfavorable variances compared to budget for other taxes ($150,000) and fines and
forfeitures ($50,000).
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Operations Committee Minutes
November 1, 2016
Page: 3
Through September, all departments are remaining fairly close to budget.
The meeting was adjourned at 4:32 p.m. by D. Ralph.
J. Hays
Jennifer Hays
Operations Committee Secretary
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Parks, Recreation and Community Services
Garin Lee and Merina Hanson, Interim Co-directors
Phone: 253-856-5100
Fax: 253-856-6050
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: November 15, 2016
TO: Operations Committee
FROM: Alex Ackley, Facilities Superintendent
SUBJECT: Public Works Agreement with Christensen Inc. General Contractor
for the Centennial Center Garage Glazing Project - Recommend
MOTION: Move to recommend Council authorize the Mayor to accept the bid
and enter into an agreement with Christensen Inc. General Contractor in the
amount of $118,506.38 including Washington State Sales Tax, to perform all
work necessary for the Centennial Center Garage Glazing Project, subject to
final terms and conditions acceptable to the Parks Interim Co-directors and
the City Attorney.
SUMMARY: The purpose of this project is to provide a ballistic barrier that will deter
an individual from shooting or throwing objects from the upper levels of the Centennial
Center parking garage. The laminate glass will disrupt and deflect bullets, as well as
impact the shooter with high velocity spalling glass and will degrade the shooter’s
ability to continue the attack.
This project consists of installation of an HSS fabricated and painted steel framework
on portions of the third floor of the Centennial Center parking garage, and installation
of a storefront glazing system on portions of the second and third floors of the parking
garage.
Council approved the expenditure of funds from the School Zone Traffic Safety Camera
fund to install ballistic barriers on portions of the Centennial Center Parking Garage in
the approximate amount of $115,000 at the July 19, 2016 Council meeting.
EXHIBITS: Draft Public Works Agreement and bid results
BUDGET IMPACT: School Zone Traffic Safety Camera Fund
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INFORMATION TECHNOLOGY DEPARTMENT
Mike Carrington, Director
Phone: 253-856-4607
Fax: 253-856-4700
Address: 400 West Gowe Street
Kent, WA 98032-5895
DATE: November 15, 2016
TO: Operations Committee
FROM: Mike Carrington, Director
SUBJECT: Ordinance Amending Ch. 7.12 KCC – Cable Television
Communications – Recommend
MOTION: Recommend Council adopt an ordinance that repeals and replaces
Chapter 7.12 of the Kent City Code, entitled “Cable Television Communications”.
SUMMARY: Two companies have franchises in the city of Kent (City) to provide cable
service—Comcast Cable Communications, LLC (Comcast) and Goldfinch Communications,
LLC. Comcast has been operating under a 15-year cable franchise, granted through
Ordinance No. 3108, which expired in May of 2008. Since the franchise’s expiration, the
parties have continued to operate under its terms, both agreeable to maintain the status
quo while they negotiate the terms of a new franchise agreement.
The first step in commencing franchise negotiations is to amend the City’s cable code,
codified at Chapter 7.12 of the Kent City Code (KCC), which was last updated at the time
Comcast’s franchise was granted—May 4, 1993. Chapter 7.12 KCC is greatly outdated,
and this ordinance seeks to update it to bring it more in line with changing technology and
to accommodate changes in federal law. Federal law changes include statutory changes
made by Congress and multiple regulatory changes adopted by the Federal
Communications Commission (FCC).
It is staff’s desire that this ordinance be adopted by year-end, so that they may begin the
real work of negotiating a new franchise agreement with Comcast. In preparing the
attached ordinance, staff provided Comcast and Goldfinch, as well as CenturyLink, with an
opportunity to review and provide comment. Only Comcast and CenturyLink provided
comments, many of which resulted in changes meeting their satisfaction.
The franchise agreement itself will provide the specifics as to how Comcast will supply
cable service in the City, including how the five percent franchise fee will be determined.
EXHIBITS: Ordinance; Memo.
BUDGET IMPACT: None.
P:\Civil\Motions-BlueSheets\7.12-CableTV-Repeal&Replace-11-15-16_OpsMotionSheet.docx
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Repeal and Replace KCC 7.12
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, repealing and replacing
Chapter 7.12 of the Kent City Code entitled, “Cable
Television Communications.”
RECITALS
A.City Right-of-Way is critical for personal travel and the
transport of goods. The use of this Right-of-Way area is also imperative
to the provision of critical utility services to Kent citizens, including
electric, water, and sewer. Federal law requires Cable Operators to obtain
non-exclusive franchises before providing Cable Services, and the City is
permitted to manage the installation, maintenance, and operation of cable
systems through franchises and through the City’s police powers to ensure
cable operators and their facilities do not interfere with the primary
purpose of City Right-of-Way, which is for safe and efficient movement of
vehicular and pedestrian traffic.
B.City Right-of-Way is a valuable and scarce community
resource physically limited in dimension, which requires the City to
manage the Right-of-Way for the most efficient and best use, to plan for
future needed transportation improvements and maintenance, to minimize
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costs to taxpayers, to protect against foreclosure of future economic
expansion in City Right-of-Way because of premature exhaustion, and to
minimize the inconvenience to and negative effects upon the public from
such facilities’ construction, emplacement, relocation, and maintenance in
City Right-of-Way.
C.The use of City Right-of-Way for purposes unrelated to public
travel, such as cable facilities, is secondary and subordinate to the primary
use for travel. Secondary uses are permissible only when they are not
inconsistent with the primary purpose of the establishment of such City
Right-of-Way, and such uses by private businesses is a mere privilege
granted under state law. Except in limited circumstances as set forth in
Applicable Law, there is no inherent right in a private individual or entity
to conduct private business in the City’s public streets. The granting of a
cable Franchise, and the authorization pursuant to such Franchise to utilize
City rights-of-way for the placement, maintenance, and operation of a
cable system, does not directly or indirectly grant any other rights to use
the rights-of-way or any of the improvements the City has constructed in
its rights-of-way.
D.The City has the inherent authority, through its general police
powers and under state and federal law, to develop and implement
policies, management principals, standards, and regulatory ordinances in
order to balance the interests of both secondary and primary uses of City
Right-of-Way, to meet the obligations of local government to manage and
maintain City Right-of-Way, to ensure the efficient use of City Right-of-
Way, and to protect the public health, safety, and welfare.
E.Cable Systems have the potential to benefit and impact Kent
residents, and because of the complex and rapidly changing technology
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Repeal and Replace KCC 7.12
associated with cable television, the public convenience, safety, and
general welfare can best be served by establishing regulatory powers
vested in the City and consistent with the federal Cable Communications
Policy Act of 1984 (“Cable Act”), as amended, Ch. 35.99 RCW, and RCW
35A.47.040. Further, due to changes in federal law and the information
local franchising authorities may obtain from both new and incumbent
Cable Operators, it is appropriate to repeal the City’s existing code
provisions pertaining to Cable Operators and Cable Service and enact a
new Chapter 7.12 of the Kent City Code to address these changes and
make other updates to the Cable Service regulations applicable in the City
of Kent.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1.– Repealer – Chapter 7.12 KCC, “Cable Television
Communications”.Title 7 of the Kent City Code is amended to repeal in its
entirety Chapter 7.12, entitled “Cable Television Communications.”
SECTION 2.– Adoption – Chapter 7.12 KCC, “Cable Systems –
Franchise and Administration”.Title 7 of the Kent City Code is amended to
adopt a new chapter, Chapter 7.12, entitled “Cable Systems – Franchise
and Administration,” as follows:
CHAPTER 7.12
CABLE SYSTEMS – FRANCHISE AND ADMINISTRATION
PART I. GENERAL PROVISIONS
Sec. 7.12.010. Purpose.The purpose of this chapter is to
regulate in the public interest the operation of Cable Systems and Cable
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Operators and their use of City Right-of-Way by establishing procedures
for the application and granting of Franchises, by prescribing rights and
duties of Cable Operators, and by providing generally for Cable Service to
the citizens of Kent.
Sec. 7.12.020. Conflicting provisions.In the event of a conflict
between the provisions of this chapter 7.12 KCC, the terms of any issued
Franchise, or any federal law or federal regulation, it is intended that the
stricter standard shall apply unless the context clearly evidences a
contrary intent, or unless the City is preempted on the issue by Applicable
Law. Should any Franchise or other Applicable Law be silent on the issue
of conflict, KCC 7.12.020 shall control.
Sec. 7.12.030. Definitions.In construing the provisions of this
chapter, the following definitions shall be applied, unless the context or
subject matter clearly requires otherwise. If specific provisions of law are
referred to in this chapter, those references shall apply to any subsequent
amendments or recodifications of those cited provisions of law.
A. “Affiliate” means a Person that directly or indirectly owns or
controls, is owned or controlled by, or is under common ownership or
control with another Person.
B. “Applicable Law” means any statute, ordinance, judicial decision,
executive order, or regulation having the force and effect of law, that
determines the legal standing of a case or issue.
C.“Applicant”means a Person who applies for a Cable Franchise with
the City of Kent, or submits a request to modify or renew an existing
Cable Franchise in the City.
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D. “Application Fee” means the charge specified in KCC 7.12.150 and
designed to recover the City’s actual costs in processing applications for
initial Franchises, or modification requests to existing Franchises, including
applications for the Transfer of a Franchise, as authorized under Applicable
Law.
E. “Basic Cable Service” means any Service Tier that includes the
retransmission of local television broadcast signals.
F.“Business Days”means a working day for the Cable Operator which
day is included within the definition of Normal Business Hours provided for
in KCC 7.12.030(V).
G. “Cable Act” means the Cable Communications Policy Act of 1984, 47
U.S.C. §§ 521 et seq.; as amended by the Cable Television Consumer
Protection and Competition Act of 1992; as further amended by the
Telecommunications Act of 1996; and as may be further amended from
time to time.
H. “Cable Operator” means any Person or group of Persons who: (1)
provides Cable Service in the City over a Cable System and directly or
through one or more Affiliates owns a significant interest in such Cable
System; or (2) otherwise controls or is responsible for, through any
arrangement, the management and operation of such a Cable System in
the City.
I. “Cable Service” means:
1.The one-way transmission to Subscribers of (a) video
programming, or (b) other programming service; and
2.Subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
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J. “Cable System” means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and
control equipment that is designed to provide Cable Service, which
includes video programming and which is provided to multiple Subscribers
within a community; but such term does not include:
1.A facility that serves only to retransmit the television signals
of one or more television broadcast stations; or
2.A facility that serves Subscribers without using any City
Right-of-Way; or
3.A facility of a common carrier that is subject, in whole or in
part, to the provisions of Title II (Common Carriers) of the
Communications Act of 1934, as amended, except that such facility shall
be considered a Cable System (other than for purposes of 47 U.S.C. §
541(c)) to the extent such facility is used in the transmission of video
programming directly to Subscribers, unless the extent of such use is
solely to provide interactive on-demand services; or
4.An Open Video System that complies with 47 U.S.C. § 573;
or
5.Any facilities of any electric utility used solely for operating its
electric utility systems.
K. “City” means the City of Kent, Washington.
L. “City Rights-of-Way” and “City Right-of-Way” mean the surface of,
and the space above and below, any City street, highway, freeway, bridge,
alley, court, boulevard, sidewalk, way, lane, drive, circle, conduit,
manhole, or utility easement that, by its terms, permits location of Cable
System facilities within the corporate boundaries of the City as now or
hereafter constituted for the purpose of public travel. Excluded from this
definition are railroad right-of-way, airports, harbor areas, buildings,
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parks, open spaces, nature trails, poles, dedicated but un-opened Right-
of-Way, environmentally sensitive areas, and such similar facilities or
property owned, maintained, or leased by the City and which the City
determines based upon the property’s characteristics is not conducive for
Cable Operator’s facilities. For purposes of this definition, the phrase
“dedicated but un-opened Right-of-Way” shall mean Right-of-Way that has
been dedicated to the City for Right-of-Way purposes, but not yet put to
that use by the City.
M. “Complaint” means any issue raised by a Subscriber that is a
violation of the minimum Customer Service Performance Standards
provided for in KCC 7.12.210.
N. “Customer Service Representative” or “CSR” means any person
employed or retained by the Cable Operator, or with whom Cable Operator
may contract with, to assist or provide service to Subscribers, whether by
answering telephone lines, writing service or installation orders, answering
Subscribers’ questions, receiving and processing payments, performing
installation or interacting with Subscribers in the field, or performing other
Subscriber service-related tasks.
O. “Franchise” refers to the authorization granted by the City to a
Cable Operator for the non-exclusive right to occupy City Rights-of-Way to
provide Cable Service within a designated Franchise Area. A Franchise
shall be authorized by ordinance, and must be accepted by the Cable
Operator to become effective. A Cable Franchise shall not include or be a
substitute for:
1. Any other permit or authorization required for the privilege of
transacting and carrying on business within the City, including without
limitation a business license; or
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2. Any permit, agreement, or authorization required in
connection with operations on or in public streets or property, including
without limitation, a street cut permit, a street use permit, or other
construction permit or approval; or
3. Any permits or agreements for occupying any other property
in the City for which access is not specifically granted by the Franchise,
including without limitation, permits and agreements for placing devices
on or in poles, conduits, other structures, or railroad easements, whether
owned by the City or any other public or private entity, or for providing
any service other than Cable Service.
P. “Franchise Area” means the geographical area of the City that a
Cable Operator is authorized to serve by the terms of its Franchise or by
operation of law.
Q. “FCC” means the Federal Communications Commission or its
successor.
R.“Interactive voice response”or “IVR”means a technology that
allows a computer to interact with humans through the use of voice and
dual-tone multi-frequency signaling tones input via keypad.
S. “Necessary” means required or indispensable.
T. “Non-Standard Installation” means any installation of Cable Service
that requires the installation of plant facilities from a point more than 125
feet from the Subscriber’s property line to one of the following locations:
(1) for a dwelling unit, the “demarcation point” as that term is defined in
47 C.F.R. § 76.5; or (2) any underground installation in an area where
plant facilities are not underground; or (3) a commercial installation.
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U. “Normal Business Hours” means those hours during which most
similar businesses in the community are open to serve Subscribers. In all
cases, "normal business hours" must include some evening hours at least
one night per week and/or some weekend hours.
V. “Normal Operating Conditions” means those service conditions that
are within the control of the Cable Operator. Those conditions that are
ordinarily within the control of the Cable Operator include without
limitation special promotions, pay-per-view events, rate increases, regular
peak or seasonal demand periods, maintenance or upgrade of the Cable
Systems. Those conditions that are not within the control of the Cable
Operator include but are not limited to natural disasters, civil disturbances
other than labor strikes by Cable Operator’s employees or agents, power
outages, telephone network outages, and severe or unusual weather
conditions.
W. “Other Service” means any wire or radio communication service,
provided through the use of any of the facilities of a Cable Operator that
are used in the provision of a Cable Service.
X. “Person” includes any individual, corporation, partnership,
association, joint stock company, trust, or any other legal entity, but not
the City.
Y. “Service Tier” means a group of channels for which a single periodic
subscription fee is charged.
Z. “Standard Installation” means an installation of Cable Service to the
Subscriber’s dwelling unit that is located up to 125 feet from the existing
distribution system, plus additional inside wire and at least one (1) outlet
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sufficient to receive Cable Service; or as otherwise defined in a Cable
Franchise if necessary to address a Cable Operator’s specific technology.
AA. “Subscriber” means the City, any government entity, or any Person
who legally receives any Cable Service from a Cable Operator delivered
over that Cable Operator’s Cable System.
Sec. 7.12.040. Franchise required.
A.Franchise required. An Operator of a Cable System must obtain a
non-exclusive Franchise prior to providing Cable Service in the City. No
Franchise shall become effective without the Cable Operator’s written
acknowledgement of its unconditional acceptance of the Franchise.
B.Authorization granted by Franchise. A Franchise shall not convey
title, equitable or legal, in City Right-of-Way. The right granted is only the
right to occupy those portions of City Right-of-Way to which the City has
the right to grant access, for the purposes and for the period stated in the
Franchise, and, subject to the limitations in this chapter, the right may not
be subdivided or subleased by Cable Operator.
C.No guarantee of rights conferred. No reference herein, nor in any
Franchise, to City Right-of-Way shall be deemed to be a representation or
guarantee by the City that the City’s interest or other right to control the
use of such property is sufficient to permit the property’s use for such
purposes, and a Franchise shall be deemed to grant no more than those
rights that the City may have the undisputed right and power to give.
Sec. 7.12.050. General conditions upon use of City Right-of-
Way.In addition to the provisions of this Chapter 7.12 KCC and any
Franchise, a Cable Operator shall comply with all Applicable Law that
applies to Cable Operator, its business operation within the City of Kent,
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or its installation and operation of its Cable System within the City Right-
of-Way, including City Construction Standards, the Kent Special
Provisions, and any necessary permit application, review, and City or other
government agency approval.
Sec. 7.12.060. Protection of the City and residents.No
Franchise shall issue unless it includes adequate indemnity, insurance, and
security from the Cable Operator to protect the City and its residents.
Sec. 7.12.070. Transfers.
A.Transfer/Change of Control Requests. A Cable Operator shall be
required to make written request and obtain City approval of any actual or
proposed change in, or transfer of, or acquisition by any other party of
control of the Cable Operator or the Cable Franchise. The word "control"
as used herein is not limited to majority stockholders but includes actual
working control in whatever manner exercised. Every change, transfer, or
acquisition of control of the Cable Operator shall make a Cable Franchise
subject to cancellation unless and until the City shall have consented in
writing thereto.No consent shall be required, however, for (i) a transfer in
trust, by mortgage, hypothecation, or by assignment of any rights, title, or
interest of the Cable Operator in the Franchise or in the Cable System in
order to secure indebtedness, or (ii) a transfer to an entity directly or
indirectly owned or controlled by the Cable Operator; provided, however,
the new cable operator under subsections (i) or (ii) must have the
financial and technical capabilities to comply with the terms of the
Franchise.
B.Costs. As part of its application for approval, and as authorized
under Applicable Law, the Cable Operator and transferee shall be
responsible to reimburse the City for all costs reasonably incurred in
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connection with the City’s evaluation of whether to grant the request,
which shall include, without limitation, reasonable attorney and consultant
fees.
C.Criteria. In deciding whether to approval a request for transfer or
change in control, the City may consider any criteria permitted by
Applicable Law, and may impose conditions of approval consistent with
Applicable Law.
Sec. 7.12.080. Books and records.
A.City access to books and records. Each Cable Operator shall
provide the City reasonable access to all books and records related to the
City’s oversight and enforcement authority pursuant to its Cable
Franchise, this chapter, or any other Applicable Law. To the extent that
books and records related to the City’s oversight and enforcement
authority are confidential, the information may be provided to the City or
its duly authorized agent(s) pursuant to a non-disclosure agreement
whereby the City and/or its duly authorized agent agrees not to make
such information public, to the extent such nondisclosure compiles with
the state Public Records Act, Chapter 42.56 of the Revised Code of
Washington (“RCW”). If the requested books and records are too
voluminous, or for security reasons cannot be copied or removed, then
within 10 days of its receipt of the City’s request, the Cable Operator may
request that the City inspect Operator’s books and records at the Cable
Operator’s local offices or at one of Cable Operator’s offices more
convenient to the City or its duly authorized agent. In such event,
however, all reasonable travel expenses incurred in making such
examination shall be paid by the Cable Operator.
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B.Open records and confidentiality. Unless otherwise provided by law,
information and records received by the City from the Cable Operator are
generally open to public inspection and subject to the State of Washington
Public Records Act, Ch. 42.56 RCW. It is the responsibility of the Operator
to be familiar with the Washington Public Records Act.
Sec. 7.12.090. Discrimination prohibited by Operator.
A.Retaliation for exercising rights. A Cable Operator shall not
discriminate among persons, or take any retaliatory action against a
person or the City because of that entity’s exercise of any right it may
have under Applicable Law, nor may the Operator require a person or the
City to waive such rights as a condition of receiving Cable Service.
B.Employment discrimination. A Cable Operator shall not refuse to
employ, discharge from employment, or discriminate against any person
in compensation or in terms, conditions, or privileges of employment
because of race, religion, color, sex, age, sexual orientation, national
origin, or the presence of any sensory, mental, or physical disability. A
Cable Operator shall comply with all Applicable Law governing equal
employment opportunities, as the same may be from time to time
amended.
Sec. 7.12.100. Redlining prohibited.A Cable Operator shall not
deny access or charge different rates to any group of Subscribers because
of the income of the residents of the local area in which such group
resides.
Sec. 7.12.110. Delegation of authority—Chief administrative
officer.The City’s Chief Administrative Officer or designee is authorized
to perform the following:
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A. To enforce and administer this chapter and any Franchise granted
by the City Council; and
B. To give any notice required by law or under any Franchise, including
by way of example and not limitation, a notice required under 47 U.S.C. §
546 to review the performance of the Cable Operator and identify the
community’s future cable-related needs and interests; and
C. To seek information from any Cable Operator; and
D. To establish forms for submission of applications and other
information; and
E. To make a staff recommendation to the hearing examiner following
any hearing held in accordance with 47 USC § 541, 47 USC § 546, and Ch.
7.12 KCC; and
F. To make all decisions or take all other actions required under this
chapter or in any Franchise on behalf of the City; and
G. To take all other actions necessary or appropriate on behalf of the
City in the administration of this chapter or any Franchise.
Notwithstanding the foregoing, however, a Franchise may only be granted
by formal action of the City Council.
Sec. 7.12.120. Delegation of authority—Hearing examiner.
The City’s hearing examiner is authorized to conduct any hearing required
under 47 USC § 541(a)(1), 47 USC § 545, 47 USC § 546, or other
provision of Applicable Law in accordance with the provisions required
therein, and prepare a recommendation to the City Council for final action.
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Sec. 7.12.130. Calculation of time.Unless otherwise indicated,
when the performance or doing of any act, duty, matter, or payment is
required under this chapter or any Franchise, and a relevant period of time
or duration is prescribed in this chapter or any Franchise, the time shall be
computed so as to exclude the first and include the last day of the
prescribed or fixed period of duration time. In the event the last day of
the period so computed shall fall on a Saturday, Sunday, or legal holiday,
the period runs until the end of the next day which is neither a Saturday,
Sunday, nor legal holiday. Unless otherwise indicated, when the period of
time prescribed or allowed is less than seven days, intermediate
Saturdays, Sundays, and legal holidays shall be excluded in the
computation.
PART II. FRANCHISE APPLICATION AND REVIEW
Sec. 7.12.140. Franchise application.All requests for an initial
Franchise, to renew an existing Franchise, or to modify an existing
Franchise shall be submitted in accordance with this KCC 7.12.140.
A.Initial Franchise. All requests for an initial or new Franchise must
be made by application to the City.
1.Written application. Each entity required to hold a Franchise
under this chapter, who has not already been granted an initial Franchise
by the City, must submit a complete written application for an initial
Franchise. To be accepted for filing, an Applicant must file an original and
six copies of a complete application for an initial Franchise. An application
may be filed by any Person on that Person’s own initiative or in response
to a request for Franchise proposals, which may be authorized by the City
from time to time.
a.Complete application. An application is deemed
complete for purposes of KCC 7.12.140(A), 47 U.S.C. § 541(a), and 47
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C.F.R. § 76.41(d) when the application includes a complete response to
every requirement of the application, this chapter, and includes payment
of the full Application Fee required by KCC 7.12.150(A). Submission of an
application that does not meet these requirements will not commence the
running of the time period for granting or denying any application
governed by 47 U.S.C. § 541(a) and 47 C.F.R. §76.41(d). The Applicant
shall submit additional or updated information as necessary to ensure the
requisite information provided is complete and accurate throughout the
City’s review of the application.
2.Application contents. Except as expressly modified by the
City for good cause, any application submitted pursuant to this chapter
shall contain, at a minimum, all information that may be required by 47
C.F.R. § 76.41 and the following additional information:
a.Applicant Information. Identity of the Applicant,
including the name, address, telephone number, and web site (if
applicable); the name, address, telephone number, and e-mail address of
all individual(s) authorized to represent the Applicant before the City
during its consideration of the Franchise(s) requested; and
management/organizational information, showing the management
structure of the Applicant. In addition, an Applicant must provide a chart,
or other similar document, that identifies the relationship of the Applicant
to all general partners, parent corporations, subsidiaries, Affiliates, and all
other subsidiaries of parent corporations or other entities with any
ownership share or control, direct or indirect of the Applicant, including a
brief description of each entity’s relationship to the Applicant.
b.Other Cable Systems. A list of all Cable Systems in
which the Applicant or any of its Affiliates owns more than five percent of
the System.For each Cable System, the Applicant shall include the name
of the community served, number of subscribers, number of homes
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passed, date of system award, duration (start and end date) of franchise,
status of construction, and percent of penetration of homes passed as of
most recently available date (indicate date).
c.Potential Franchises. An Applicant shall list
communities where it or any Affiliate currently has a formal or informal
request pending for an initial Franchise or the approval of a transfer of
ownership. The Applicant shall include the name of the communities, date
of application, and date of expected action.
d.Applicant’s technical qualifications to provide Cable
Service. The application shall describe the Applicant’s planned initial and
proposed Cable Services geographic area, including a map of all areas
proposed to be served and proposed dates for offering Cable Service to
each area. The application shall additionally state a proposed timetable
for providing Cable Service to the entire proposed Franchise Area. The
Applicant shall additionally describe with particularity:
(1) its planned system technical design, upstream
and downstream capacity and speed, provision for digital services or
packages, distribution of fiber, planned count of households per residential
node, and any other information necessary to demonstrate that the
Applicant’s technology will be deployed so as to be able to successfully
offer Cable Services in the proposed locations; and
(2) A description of the size of equipment cabinets,
shielding, and electronics that will be installed along the plant route; and
(3) The power sources that will be used and a
description of the noise, exhaust, and pollutants, if any, that will be
generated by the operation of the same.
Notwithstanding these requirements, if some of the descriptive data
is not available at the time of application, a Franchise may be granted
subject to conditions that the data be filed and approved by the City
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before construction begins and that the Franchise will be deemed to be
forfeited if the data is not supplied and approved.
e.Existing authority for Right-of-Way access. If the
Applicant has or asserts existing authority to access City Right-of-Way in
any of the service areas proposed by Applicant in accordance with this
section, the Applicant shall state the basis for such authority or asserted
authority and attach the relevant agreements or other documentation of
such authority.
f.Description of planned residential Cable Services. The
Applicant shall describe with particularity its planned residential Cable
Services, including Basic Cable Services; other cable programming Service
Tiers; and any additional pay-per-view, on-demand, or digital services.
g.Description of planned non-residential Cable Service.
The Applicant shall describe with particularity its planned non-residential
Cable Services.
h.Description of intended construction. The Applicant
shall describe any planned construction and extension or phase schedule,
as applicable. In providing the necessary description under this section,
the following minimum information must be included:
(1) system extension plans or policy, describing
when and where construction will begin, how it will proceed, and when it
will be completed;
(2) a description of the current status of the
Applicant’s existing or proposed arrangements, with area utilities,
including pole attachments, vault, or conduit sharing agreements as
applicable. Information sufficient under this section must include:
(a) A designation of the portions of the
system that will be placed above ground, the portions that will be placed
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underground, and the construction techniques that the Applicant proposes
to use in installing the system above ground and underground; and
(b) The expected effect on City Right-of-Way
usage, including information on the ability of City Right-of-Way to
accommodate the proposed system, including, as appropriate given the
system proposed, an estimate of the availability of space in conduits and
an estimate of the cost of any necessary rearrangement of existing
facilities; and
(c) A description, where appropriate, of how
services will be converted from existing facilities to new facilities, and
what will be done with existing facilities.
i.Description of protective measures to be taken.
Applicant shall provide a description of the various protective measures it
will take in carrying out any Franchise it may be granted. At a minimum,
the following specific areas must be addressed:
(1)Protection of persons and property. The
Applicant shall describe its plan to ensure that the safety, function,
appearance of property, and the convenience and safety of other persons
are not adversely affected by the installation or construction of the
Applicant’s facilities, and that property owners are justly compensated for
any damages caused by the installation, construction, operation, or
removal of the facilities as set forth in this chapter.
(2)Protection of privacy. The Applicant shall
describe its plan to comply with the Subscriber privacy protections set
forth in 47 U.S.C. §551, and the privacy protections of any Applicable Law,
including those contained in this chapter.
j.Ability to meet future needs. An Applicant must
demonstrate how it will reasonably meet the future cable-related needs
and interests of the Kent community.
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k.Financially qualified. An Applicant must demonstrate
that it is financially qualified, including at a minimum, a statement
certified by the Applicant’s chief financial officer regarding the Applicant’s
financial ability to complete construction to meet the proposed time frame
and to operate the proposed Cable System. In addition:
(1) Unless SEC Forms 10K and 10Q are available on
the EDGAR database, Applicants with existing operations shall provide
audited financial statements, including statements of income, balance
sheets and cash flow statements, together with any notes necessary to the
understanding of the financial statements for the last three fiscal years for
the Applicant and any Parent Corporation.
(2) Applicants that are new (start-up) entities shall
provide pro forma projections for the next five fiscal years, if available, but
at a minimum the next three fiscal years from the date of the application.
l.Legally qualified. An Applicant must demonstrate that
it is legally qualified, which demonstration must include a statement from
the Applicant that includes the following minimum information:
(1) Whether it has received, or is in a position to
receive, necessary authorizations from state and federal authorities;
(2) Whether it has engaged in fraud or racketeering
or violated antitrust laws, consumer protection laws, or similar laws;
(3) Whether it or any Affiliate has been found in
violation by a regulatory authority or franchising authority of any
Franchise ordinance or agreement, contract or regulation governing a
Cable System. If so, the Applicant shall identify the judicial or
administrative proceeding, giving the date, name of tribunal, case number
(if applicable), and result or disposition of that proceeding;
(4) Whether it has been found in violation by a
regulatory authority of any other type (e.g. utility) of Franchise,
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ordinance, agreement, permit, contract, or regulation. If so, the Applicant
shall identify the judicial or administrative proceeding, giving the date,
name of tribunal, case number (if applicable), and result or disposition of
that proceeding; and
m.Declaration of Applicant. Each application shall be
accompanied by a declaration substantially in the form set forth below:
This application is submitted by the undersigned who has been
duly authorized to make the representations within on behalf of
the Applicant and certifies the representations are true and
correct.
The Applicant recognizes that all representations are binding on
it, that all application commitments are enforceable, and that
material misrepresentations or omissions, or failure to adhere to
any such representation, may result in a denial of an application
by the City.
The Applicant shall comply with all applicable local laws.
Consent is hereby given to the City and its representatives to
make inquiry into the legal, character, technical, financial, and
other qualifications of the Applicant by contacting any persons or
organizations named herein as references, or by any other
appropriate means.
I certify (or declare) under penalty of perjury under the laws of
the state of Washington that the foregoing is true and correct.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Date and Place) (Signature)
3.Application review and negotiation. Once a complete
application is received by the City for an initial Franchise, the City and
Applicant will meet informally, discuss Applicant’s initial Franchise request,
and negotiate an initial Franchise, if appropriate. Once those efforts are
complete, and within the time period required by 47 CFR § 76.41, or such
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other time period as the parties may mutually agree, City staff will present
its recommendation to the City Council on the Applicant’s application for
an initial Franchise. Prior to the City Council taking action to grant or deny
a proposed initial Franchise, the public will be provided adequate notice
and an opportunity for comment.
B.Renewal of existing Franchise. Requests for cable Franchise
renewal under the Cable Act will be received and reviewed in a manner
consistent with Section 626 of the Cable Act (47 U.S.C. § 546) and in
accordance with the provisions of this chapter.
1.Formal applications for renewal. Either a Cable Operator or
the City may, in accordance with the time limitations provided for in 47
U.S.C. § 546(a)(1), commence a formal proceeding for Franchise renewal.
To seek formal renewal of a Franchise, the Cable Operator must timely
submit to the City a written renewal request as provided for in 47 U.S.C. §
546(a). The Cable Operator’s renewal request must clearly indicate the
Cable Operator seeks formal renewal under the process provided for in 47
U.S.C. § 546(a) and KCC 7.12.170.
2.Informal applications for renewal. Concurrently or as an
alternative to the formal process provided for in KCC 7.12.140(B)(1) and
47 U.S.C. § 546(a), a Cable Operator may submit an informal proposal for
renewal of a Franchise pursuant to 47 U.S.C. § 546(h). To seek informal
renewal of a Franchise, the Cable Operator must submit a written renewal
request to the City clearly indicating the Cable Operator seeks an informal
renewal under the alternative process provided for in 47 U.S.C. § 546(h).
Such a proposal may be submitted at any time and the City may, after
affording the public adequate notice and opportunity for comment, grant
or deny such proposal at any time, including after formal proceedings
have been commenced in accordance with 47 U.S.C. § 546(a). The City
and Applicant will then meet informally and attempt to resolve Franchise
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issues through negotiation. If negotiations are successful and all issues
are resolved, a renewal Franchise may be adopted after the public is
provided an opportunity for comment. An informal application for renewal
may be denied for any reason.
C.Modification of existing Franchise. An existing Franchise may be
modified in accordance with 47 U.S.C. § 545 and this chapter.
1.Application for modification. An application for modification
of a Franchise shall include, at a minimum, the following information:
a. The specific modification requested;
b. The justification for the requested modification;
c. An explanation as to how the requested modification
will impact others, including Subscribers and the City;
d. An explanation of the financial impact to Applicant if
the modification is approved or disapproved, which impacts must be
demonstrated through submission of pro forma financial statements or
similar financial documentation, or other documents that sufficiently
evidence the financial impacts;
e. A statement indicating whether the modification is
sought pursuant to Section 625 of the Cable Act (47 U.S.C. § 545), and if
so, the Applicant must additionally demonstrate that the requested
modification meets the standards set forth in 47 U.S.C. § 545;
f. Any other information that the Applicant believes is
necessary for the City to consider in making an informed determination on
the application for modification; and
g. A declaration of the Applicant’s authorized officer,
substantially similar to that provided in KCC 7.12.140(A)(2)(m), certifying
the truth and accuracy of the information in the modification application,
and certifying that the application is consistent with the requirements of
Applicable Law.
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2.City response to modification. Upon receipt of a complete
application for modification, the City may request additional information
that it deems reasonably necessary to address the request, and may enter
into informal negotiations with the Cable Operator regarding the terms of
the proposed modifications. The City shall approve or deny the request,
or approve a further modification as may be agreed to by the Cable
Operator, consistent with 47 U.S.C. § 545.
Sec. 7.12.150. Application fee and Franchise fee.
A.Application fee.Every Cable Operator must pay an Application Fee
for the consideration of an application for an initial Franchise, or an
application to modify, or transfer an existing Franchise. The Application
Fee shall be in an amount to cover the actual costs incurred by the City in
connection with the processing of the application, which shall be
considered incidental to the award of a franchise, unless otherwise
categorized under Applicable Law. This Application Fee shall cover all
reasonable costs incurred by the City to process the application and, to the
extent consistent with Applicable Law, shall be excluded from any
Franchise Fee assessed and collected under a Cable Franchise. As
provided for in KCC 7.12.140(A)(1), an application will not be deemed
complete until sufficient funds to cover the application fee are received by
the City. The City may, at any time, require that the Applicant deposit
additional sums if it appears that the initial deposit made in accordance
with this section or subsequent deposits will be exhausted prior to final
action by the City on the Franchise application. The Applicant will not be
entitled to further consideration by the City of the Applicant’s Franchise
application until the additional deposit has been received by the City, and
in accordance with KCC 7.12.150(A)(2), no Franchise shall be effective
until all required fees and costs are paid. In the event the amount of an
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Applicant’s deposit is in excess of the amount of the administrative
expenses of the City related to the action requested, then the Applicant
shall be entitled to a return of any such excess amount.
1.Minimum deposit. Every application for an initial Franchise
shall be accompanied by an initial minimum deposit in the amount of
$5,000 or such higher amount as may be necessary to cover the City’s
anticipated costs in processing the application. Every application for a
franchise transfer or modification shall be accompanied by an initial
minimum deposit in the amount of $3,500 or such higher amount as may
be necessary to cover the City’s anticipated costs in processing the
application, including the City’s reasonable attorney and consultant fees as
may be authorized by Applicable Law.
2.Failure to remit fees. No Franchise shall become effective
until all required fees and costs are paid. These fees shall not be credited
from future Franchise fees owed. Notwithstanding the foregoing, the City
may collect any unpaid fees in any lawful manner, including without
limitation, under Chapter 3.10 KCC.
B.Franchise fee. Every Operator of a Cable System shall pay to the
City a Franchise fee in an amount equal to five percent of gross revenues
to compensate the City for Operator’s use of City Right-of-Way. However,
this Franchise fee need not be paid if Applicable Law requires otherwise.
An Operator who is engaged in one line of business that is subject to this
exception shall not be excused from paying the Franchise fee for its other
lines of business for which a Franchise and Franchise fee are required,
including those provided over a Franchised Cable System. The Franchise
fee specifically excludes the Application Fee to the extent the Application
Fee is deemed to be incidental to the awarding of the Franchise, and any
requirements or charges incidental to the awarding or enforcing of the
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Franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages.
Sec. 7.12.160. Franchise application—Determination of
completeness.
A.Application review.
1.Determination of completeness.Within 20 calendar days of
receipt of an application under the formal process for an initial Franchise
or a Franchise renewal or modification, the City will review the application
for completeness as provided for in KCC 7.12.140(A)(1). If the application
is not complete, the City will notify the Applicant in writing, listing the
requisite information that is required to complete the application. This
notification will also inform the Applicant that the time period set forth in
47 C.F.R. § 76.41(d) for granting or denying the application, if applicable,
will not begin to run until the required information is received. If the City’s
review determines the application is complete, the City will notify the
Applicant in writing that all requisite information has been received and
the application is complete as provided for in KCC 7.12.140(A)(1).
2.Additional information necessary. If any time during the
Franchise review process, and after a determination of completeness has
been made, the City reasonably requires additional information from the
Applicant to evaluate Applicant’s Franchise request and ability to perform
the proposed Franchise’s requirements, the City will promptly request the
information from the Applicant. This request will additionally notify the
Applicant that the time period set forth in 47 C.F.R. § 76.41(d) for
granting or denying the application will be tolled until the requested
information is received by the City.
Sec. 7.12.170. Public notice concerning Franchise
applications—Hearing on renewals under formal process.No
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Franchise will be granted, renewed, or modified except by action of the
City Council conducted at a public meeting for which notice has been given
in accordance with the Open Public Meetings Act, Chapter 42.30 RCW.
Neither the Cable Act nor the Open Public Meetings Act requires the City to
provide individualized notice to Cable Operators concerning another Cable
Operator’s Franchise and Council’s consideration of that Franchise.
However, if the City has agreed in a Franchise to provide a Cable Operator
individualized advance notice of anticipated Council action concerning
another Cable Operator’s Franchise, the City will provide all Cable
Operators with that same advance notice. Notwithstanding the foregoing,
a failure to provide notification shall have no effect on any application to
grant, renew, or modify an existing Franchise.
In the event a Cable Operator submits a formal application to renew
a Franchise, or the City notifies a Cable Operator that its Franchise
renewal shall be considered under the procedures provided in 47 U.S.C. §
546(b)-(g), the City shall hold a public hearing before acting on an
application, affording participants the right to introduce evidence, to
require the production of evidence, and to question witnesses, and
creating a transcript of the proceedings. This public hearing shall be held
before the City’s hearing examiner who, after completion of the
proceeding, shall prepare and issue a decision containing the hearing
examiner’s recommendation to the City Council regarding the application
to renew an existing Franchise.
Sec. 7.12.180. Grant or denial of application.If the City finds
that it is in the public interest to issue, modify, or renew a Franchise, the
City may adopt a Franchise ordinance setting forth the terms and
conditions of the Franchise, which Franchise shall become effective upon
satisfaction of any conditions precedent to effectiveness and once signed
and accepted by the Applicant. If the City denies a Franchise application
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for an initial franchise or a request to modify or renew an existing
Franchise, the City will explain the reasons for the denial in writing, which
may be in any form deemed appropriate by the City. Without limiting its
authority to deny an application for an initial Franchise or a request to
modify or renew an existing application, the City specifically reserves the
right to reject any application or request that is incomplete or fails to
respond to a request for Franchise proposals. Nothing in this chapter shall
be construed in any way to limit the discretion and legislative authority of
the City Council to make a decision to grant or deny a Franchise or any
request to modify or renew an existing Franchise.
PART III. FRANCHISE PROVISIONS
Sec. 7.12.190. Construction provisions and technical
standards.The following construction provisions and technical standards
apply to every Franchise for Cable Service awarded in the City, except as
may be specifically and subsequently modified by any awarded Franchise.
If the Franchise is silent on the issue, the provisions set forth in this
Chapter 7.12 KCC shall apply.
A.Provision of quality cable service. In addition to satisfying any
requirement established in a Franchise, every Cable Operator shall ensure
the policies and practices stated below are adhered to during the operation
of any Cable System within the City, unless any stated policy or practice is
expressly prohibited by Applicable Law. The City retains the discretion to
evaluate any Franchise proposal, and impose construction and service
availability requirements in a Franchise in order to meet the needs of the
community:
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1.Availability of Cable Service to Subscribers.
a.Cable plant facilities within 125 feet of structure to be
served. A Cable Operator must extend Cable Service as a Standard
Installation to any Person or to any government building that requests
Cable Service within the City or, if smaller, its Franchise Area within seven
business days of the request, where service can be provided by activating
or installing a drop within 125 feet of the structure to receive service.
b.Cable plant facilities beyond 125 feet of structure to be
served. In cases where a potential Subscriber’s structure is more than
125 feet from Cable Operator’s existing cable plant, an Operator must still
provide service as a Non-Standard Installation, so long as the potential
Subscriber agrees to bear a share of extension or installation costs equal
to the Cable Operator’s incremental cost of that portion of the extension
that exceeds the 125-foot limit required to be provided under KCC
7.12.190(A)(1)(a). A Cable Operator that requires a potential Subscriber
to bear a portion of installation or extension costs must prepare and
provide the potential Subscriber a written estimate of the extension costs
within seven business days of a request for an installation. Any estimate
shall indicate the portion of costs attributable to both the Cable Operator
and the Subscriber.
c.Other Technologies. Notwithstanding subsections a
and b above, if a Cable Operator’s Cable System is not constructed in a
manner that is technologically compatible with cable plant availability
requirements set forth above, the parties shall negotiate provisions in the
Cable Franchise that address service availability standards in a manner
that is compatible with the Cable Operator’s technology and mirrors the
obligations in subsections a and b as closely as reasonably possible.
2.Extension of distribution line—Charges. Unless otherwise
provided for in a Franchise, cable service shall be available to all residents
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within the City, provided there are at least 35 dwelling units per street
mile. In the event a request is made for service by a resident living in an
area not meeting such criteria, the Cable Operator shall enter into a
contractual agreement with the resident requesting service wherein the
Operator shall be reimbursed for its construction costs. Whenever any
subsequent Subscriber who did not contribute to the original cost of the
extension connects to the extended distribution service line, that
Subscriber shall pay his or her pro-rata share directly to the Operator prior
to obtaining cable service. The Cable Operator shall then promptly tender
such payment to the original Subscriber so long as the agreement remains
in force. Reimbursement shall be calculated on a front foot basis as a
percentage of the total cost of the service line extension. Reimbursements
shall be made to the original Subscriber for a period of up to five years or
to the point when the original Subscriber has recovered its incremental
costs for construction of the distribution service line. The Operator shall
record its contractual agreement with the original Subscriber in the King
County Recorder’s Office before any subsequent Subscriber may connect
to the extended service line.
B.System maintenance and technical quality. A Cable Operator shall
maintain all transmission equipment as necessary to carry a quality signal
to Subscribers from the access facilities provided under this chapter or any
Franchise.
C.Cable Operator facilities in the community. Cable Operator will
properly maintain and promptly repair all Cable Operator-owned
equipment (boxes, connectors, etc.) on private, public, or City Right-of-
Way property to avoid the creation or maintenance of a public nuisance in
violation of Chapter 8.01 of the Kent City Code.
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D.Emergency alert capability. A Cable Operator shall provide an
Emergency Alert System (“EAS”) and comply with all Applicable Law and
Franchise provisions.
Sec. 7.12.200. Operator-provided public, education, and
government access channels.A Cable Operator must provide public,
education, and government (PEG) access channels and capital support to
meet community needs. The Operator-provided PEG channels made
available must be of comparable quality and functionality as the other
channels the Cable Operator makes available to Subscribers on the Cable
System. A Cable Operator shall maintain all interconnects, and return lines
at the same or better level of technical quality and reliability required by a
Franchise and Applicable Law for other services, and interconnects.
Sec. 7.12.210. Customer Service Standards.[RESERVED]
PART IV. ENFORCEMENT AND PENALTIES
Sec. 7.12.220. Performance Bonds/Security Fund. A Cable
Operator shall comply with any Franchise regarding the agreed upon
Performance Bond or Security Fund.. If a Franchise is silent on the
provision of a Performance Bond or Security Fund, the following shall
apply:
A. Within 30 calendar days of the written notification to a Cable
Operator by the City that an alleged violation exists, a Cable Operator
shall deposit with an escrow agent approved by the City $50,000 or, in the
sole discretion of the City, such lesser amount as the City deems
reasonable to protect Subscribers within its jurisdiction. Alternatively, at
the Cable Operator’s discretion, the Operator may provide to the City
security, in the form of a Performance Bond, irrevocable Letter of Credit,
or other Security mutually agreeable to the City, in the same amount.
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32 Cable Chapter Ordinance
Repeal and Replace KCC 7.12
The escrowed funds, Performance Bond, Letter of Credit, or other agreed
Security shall constitute the "Security Fund" for ensuring compliance with
this chapter and the Franchise for the benefit of the City. The Security
Fund shall be maintained by a Cable Operator at the amount initially
required, even if amounts are withdrawn pursuant to any provision of the
Franchise, until any claims related to the alleged Franchise violation are
paid in full.
B. The City may require the Cable Operator to increase the amount of
the Security Fund if it finds that new risk factors exist that necessitate
such an increase.
C. The Security Fund shall serve as security for the payment of any
penalties, fees, charges, or credits as provided for herein or under the
Franchise and for the performance by a Cable Operator of all its
obligations.
D. The rights reserved to the City with respect to the Security Fund are
in addition to all other rights of the City, whether reserved by any
applicable Franchise agreement or authorized by law, and no action,
proceeding or exercise of a right with respect to same shall in any way
affect, or diminish, any other right the City may otherwise have.
Sec. 7.12.230. Procedure for remedying violation.
A.Violations of Ch. 7.12 KCC, Customer Services Standards, or
Franchise Provisions—Unlawful. It is unlawful for a Cable Operator to
violate any provision of this chapter, any of the City’s lawfully adopted
Customer Service Standards, or any negotiated Franchise provision. If the
City has reason to believe that a violation has occurred, the City may
pursue the contractual remedies provided for in its Franchise, including
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33 Cable Chapter Ordinance
Repeal and Replace KCC 7.12
monetary damages; a civil infraction as provided for in this section; or any
other remedy that may be provided for by Applicable Law. .
B.Civil infractions—Kent Municipal Court. Any Operator who violates
KCC 7.12.230(A) may be issued a civil infraction in the amount of $1,000,
plus court costs and assessments, which infraction shall be filed in the
Kent Municipal Court and processed in the same manner as other civil
infractions and subject to the Infraction Rules for Courts of Limited
Jurisdiction (IRLJ), and all local rules and policies as promulgated by the
Kent Municipal Court shall govern the infraction proceedings and appeals.
Each separate date, or portion thereof, during which any violation occurs
shall constitute a separate violation.
Sec. 7.12.240. Remedies cumulative.All remedies provided for
in this chapter, within any Franchise, or under Applicable Law are
cumulative unless otherwise expressly stated. The exercise of one remedy
shall not foreclose use of another, nor shall the exercise of a remedy or
the payment of penalties relieve a Cable Operator of its obligations to
comply with its Franchise. Remedies may be used singly or in
combination, and the City may exercise any rights it has at law or equity.
Recovery by the City of any amounts under insurance, a performance
bond, a Security Fund, or Letter of Credit, or otherwise, does not limit a
Cable Operator’s duty to indemnify the City in any way; nor shall such
recovery relieve a Cable Operator of its obligations under a Franchise, limit
the amounts owed to the City, or in any respect prevent the City from
exercising any other right or remedy it may have.
SECTION 3.– Savings.The existing Chapter 7.12 of the Kent City
Code, which is repealed and replaced by this ordinance, shall remain in full
force and effect until the effective date of this ordinance.
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34 Cable Chapter Ordinance
Repeal and Replace KCC 7.12
SECTION 4.– Severability.If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, that
decision shall not affect the validity of the remaining portion of this
ordinance and the same shall maintain its full force and effect.
SECTION 5.– 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 6.– Effective Date.This ordinance shall take effect and
be in force thirty (30) days from and after its passage as provided by law.
However, the version of Chapter 7.12 KCC that existed immediately before
passage of this ordinance shall continue to apply to a Cable Operator until
any Franchise now existing with that Operator is modified or renewed, at
which time the terms of this ordinance will apply to that modified or
renewed Franchise.
SUZETTE COOKE, MAYOR
ATTEST:
KIMBERLY A. KOMOTO, CITY CLERK
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35 Cable Chapter Ordinance
Repeal and Replace KCC 7.12
APPROVED AS TO FORM:
TOM BRUBAKER, CITY ATTORNEY
PASSED:day of , 2016.
APPROVED: day of , 2016.
PUBLISHED: day of , 2016.
I hereby certify that this is a true copy of Ordinance No.
passed by the City Council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indicated.
(SEAL)
KIMBERLEY A. KOMOTO, CITY CLERK
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76
INFORMATION TECHNOLOGY DEPARTMENT
MIKE CARRINGTON, DIRECTOR
220 4th Avenue South
Kent, WA 98032
Fax: 253-856-4700
PHONE: 253-856-4607
Memo
To: Operations Committee
From: Mike Carrington, Information Technology Director
Date: November 15, 2016
Re: Ordinance Amending Ch. 7.12 KCC – Cable Television Communications
The ordinance presented to the Operations Committee tonight is the first step in the City and
Comcast commencing their franchise negotiations. The City’s cable code, codified at Chapter
7.12 of the Kent City Code (KCC), was last updated at the time Comcast’s latest franchise was
granted—May 4, 1993.
A cable franchise is a contract between the cable operator and the city that the cable operator
serves. To provide cable services to subscribers, cable companies must locate facilities within
public rights-of-way, either on utility poles or underground. In consideration for a cable
operator’s right to utilize the City’s rights-of-way, the City requires the cable operator to enter
into a franchise agreement. Federal law governs what issues can be addressed in that
contract.
Franchise agreements cover a wide range of topics including: categories of programming that
must be offered to subscribers; compensation paid to the City by the cable company (the
franchise fee); requirements for provision of public, educational, and government access
channels (commonly referred to as PEG channels) and financial support for capital expenditures
related to PEG channels; requirements of compliance with conditions under which work in the
rights-of-way can be conducted; recognition of the City’s authority to adopt and enforce cable
customer service standards; the variety of cable services provided; compliance with federal
technical standards; insurance and indemnification; procedures for addressing franchise
transfers; procedures for remedying franchise violations; and franchise termination. By law,
franchise agreements are non-exclusive, but to date, cities have seen very little wireline-based
competition.
There are specific limitations imposed by federal law. The City may require an upgrade of the
cable system to provide a level and quality of cable services and can require that the cable
operator meet the technical standards that have been promulgated by the FCC, but cannot
require specific transmission technologies (e.g., fiber to the home). The City may not use the
franchise to negotiate terms regulating communications services that are not considered cable
services under federal law, such as telephone or Internet services, nor can the City charge
franchise fees on non-cable service revenues. The City may not require a cable operator to
offer particular channels (e.g., ESPN or CNN), but may require a cable operator to offer
particular programming categories (e.g., sports channels or news channels). Federal law does
allow the City to adopt customer service standards that may be more stringent than the federal
standards, without a cable operator’s consent. Because the City has more authority with
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Operations Committee
November 15, 2016
Page 2
respect to customer service standards, these standards should be referenced in the franchise
agreement but adopted separate from the adoption of the franchise agreement and codified
into City code.
The City may require financial consideration, which is usually called a franchise fee. Franchise
fees are considered to be rent for the use of the public rights-of-way. Most cities (including
Kent) impose a franchise fee of 5% of the gross revenues received by the cable operator from
the operation of the cable system and provision of cable services in the community. The
negotiated franchise agreement will define what is and is not considered part of the cable
operator’s “gross revenues.” While some cities use these revenues for a variety of cable-
related support, most franchise fees end up as general fund revenue – again, based upon the
understanding this this is a rental fee for the use of public property. In addition, federal law
allows local governments to require additional consideration for PEG channels (over and above
the franchise fee), but limits the use of these PEG funds for capital (and not for operational)
expenses.
Many of the terms of a franchise need to be individually negotiated with cable operators, which
will occur through franchise negotiations. The purpose of Ch. 7.12 KCC is to expressly state
the matters that fall within the City’s police powers and apply to all cable operators who may
wish to provide cable service in Kent, including:
How to apply and request an initial franchise, or a request to renew, modify, or
transfer an existing franchise;
The amounts a cable operator must pay to the City to cover the City’s costs in
considering and processing a franchise application, recognizing that federal law
places limitations and exceptions to those recoverable costs.1
The franchise fees a cable operator will be assessed for the right to access the City’s
right-of-way, within federal law limitations that the franchise fee is capped at 5% of
the operator’s gross receipts and includes in-kind, non-cash payments;
The process through which the cable operator may obtain access to the City’s right-
of-way (permitting, construction standards, etc.);
The ability of the City to inspect a cable operator’s books in the City’s oversight and
enforcement of the cable operator’s franchise and City code;
To provide that cable operators must provide public, education, and government
(PEG) access channels and capital support to meet the City’s needs; and
How violations of the City code, the franchise, or the later-adopted customer service
standards will be enforced.
1 The federal Cable Act places limits on the costs the City can recover from a cable operator. If the costs are
not incidental to the City’s award or enforcement of a franchise, the costs have to be assessed as a credit
against the franchise fee and deducted from the amount of franchise fees owed to the City.
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Operations Committee
November 15, 2016
Page 3
If this ordinance is adopted by year-end, staff hopes to begin franchise negotiations with
Comcast early next year. The franchise agreement itself will provide the specifics as to how
Comcast will supply cable service in the City, how cable gross revenues will be defined, a
contractual avenue through which disputes may be resolved, Comcast obligations for insurance
and indemnification of the City from damages caused by their cable system operations, and
similar matters that staff feel are more appropriate for mutual negotiation.
At the time the parties negotiate the franchise agreement, they will also discuss customer
service standards that Comcast must meet in providing cable service to Kent residents. The
FCC has adopted customer service standards, which the City may enforce. It has also
recognized that under the federal Cable Act, separate cable customer service standards may be
adopted and enforced by the City. Staff will propose that the City adopt its own customer
service standards at the time of franchise renewal, in large part because the federal standards
were adopted in 1993 and have not been updated to address new technology. For example,
the federal standards still refer to the percentage of time a customer calling a cable operator
may receive a busy signal. The federal standards also do not contain any provisions for
protection of a subscriber’s personally identifiable information.
In lieu of establishing these standards unilaterally, which the City believes is fully within its
police powers to do, the City has elected to discuss proposed standards with Comcast at the
negotiating table. Once the customer service standards are finalized and adopted by City
Council, they will be codified at KCC 7.12.210, and a placeholder has been set aside in the draft
ordinance for that purpose.
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ECONOMIC and COMMUNITY DEVELOPMENT
Ben Wolters, Director
Phone: 253-856-5454
Fax: 253-856-6454
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: November 15, 2016
TO: Operations Committee
FROM: Ben Wolters, Director and Lodging Tax Advisory Committee
SUBJECT: Lodging Tax Committee Re-Appointment of Tim Higgins -
Recommend
SUMMARY: The Lodging Tax Advisory Committee recommends Tim Higgins be re-
appointed to the Lodging Tax Advisory Committee for an additional four year term.
Tim Higgins has been the General Manager at the ShoWare Center in Kent for the past
eight years and an active member of the Lodging Tax Advisory Committee for the past
four years. The position he currently holds is to be filled by a representative whom
represents activities funded by lodging tax.
Mr. Higgins position would be a four year term, which would expire September 5,
2020.
If you have any questions prior to the meeting, please call Ben Wolters, 856-5703.
BUDGET IMPACT: None
MOTION: Recommend Council approve the re-appointment of Tim Higgins to
the Lodging Tax Advisory Committee for an additional 4 year term.
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82
OFFICE OF THE MAYOR
Suzette Cooke, Mayor
Phone: 253-856-5700
Fax: 253-856-6700
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: November 15, 2016
TO: Operations Committee
FROM: Michelle Wilmot, Communications and Public Affairs Manager
SUBJECT: Lobbying Services Agreement with Outcomes by Levy - Recommend
MOTION: Recommend Council authorize the Mayor to sign the government
relations consulting services agreement with Outcomes by Levy in the amount of
$69,600.00 for 2017 and $72,000.00 for 2018, plus expenses, subject to final
terms and conditions acceptable to the Chief Administrative Officer and City
Attorney.
SUMMARY: The city has contracted annually with Doug Levy of Outcomes by Levy to
provide services for the city of Kent. These services include the following activities:
Assist with issue identification and meetings with Kent legislators prior to the
Legislative Session.
Continue to monitor and identify problems and opportunities for Kent on
issues under consideration by various state legislative bodies including group
meetings on transportation, fiscal resources, endangered species listings, and
other state agency activities.
Monitor and report legislation of concern to Kent during the Legislative
Sessions(s), working with the Mayor’s Office to provide regular status reports
and to advocate for Kent on relevant issues.
Assist with issue identification, opportunities for Kent, and advocacy efforts
with Kent’s federal representatives.
Assist with pursuit of funding for Kent projects, particularly at the state and
federal levels
Assist Kent with regional issues as needed.
Assist Kent in working through issues and problems with state regulatory
issues, as needed and if such problems arise.
Mr. Levy has proven himself to be extremely effective in advancing Kent’s legislative
agenda and has accumulated a great deal of expertise and knowledge regarding the
issues of importance to Kent.
EXHIBITS: Consultant Services Agreement with Outcomes by Levy
BUDGET IMPACT: None
83
CONSULTANT SERVICES AGREEMENT
between the City of Kent and
Outcomes by Levy, LLC.
THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation
(hereinafter the "City"), and Outcomes by Levy, LLC, organized under the laws of the State of
Washington, located and doing business at 15619 62nd Place NE, Kenmore, WA 98028; 425-922-
3999 (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:
Scope of Work:
The following outlines the scope of work under this Agreement. Specific work plans shall
be developed mutually and reviewed on a regular basis.
Assist with issue identification, internal meetings with Department heads and
senior staff, and Kent-area legislative delegation contacts prior to each Legislative
Session.
Continue to monitor and identify problems and opportunities for Kent with issues
under consideration by the State Legislature and state agencies, including
transportation, fiscal resources, infrastructure needs, flood control and levee
issues, and environmental matters.
Monitor and report legislation of concern to Kent during Legislative Sessions,
working with the Mayor’s Office to provide regular status reports and to advocate
for Kent on relevant issues.
As needed at the federal level, assist with issue identification, opportunities for
Kent, and advocacy efforts with Kent’s federal representatives.
Assist with pursuit of funding for Kent projects, particularly at the state and
federal levels.
Assist Kent with regional issues as needed.
Assist Kent in working through issues and problems with state regulatory issues,
as needed and if such problems arise.
Reporting and Communication:
The Consultant shall communicate at least weekly with designated staff regarding work
under this Agreement. Monthly summaries of work completed shall be made available
upon request.
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Doug Levy / 11/09/2016 Page 2
Consultant further represents that the services furnished under this Agreement will be
performed in accordance with generally accepted professional practices 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. Upon the
effective date of this Agreement, Consultant shall complete the work described by
December 31, 2018.
III. COMPENSATION.
A. The City shall pay the Consultant, based on time and materials, an annual amount
not to exceed sixty nine thousand six hundred dollars ($69,600.00) in 2017 and
seventy two thousand dollars ($72,000.00) in 2018, not including approved and
agreed upon expenses for the services described in this Agreement.
In addition, the City shall reimburse the Consultant for expenses incurred while
doing business on the City’s behalf, which shall be limited to meals, parking,
lodging, mileage at the State of Washington’s standard reimbursement rate,
legislative session office space and expenses, and other travel and
conference/meeting expenses where such attendance is directed by the City.
Where such expenses are incurred in connection with work on legislative or
regulatory issues affecting the Contractor’s other relevant clients, these expenses
shall be pro-rated to the maximum extent practicable.
Except for the additional expense described above, 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 supplemental 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.
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 thirty (30) 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 and that 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.
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.
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Doug Levy / 11/09/2016 Page 3
VI. DISCRIMINATION. In the hiring of employees for the performance of work under
this Agreement or any subcontract, the Consultant, its subcontractors, or any person acting on
behalf of the Consultant or subcontractor shall not, by reason of race, religion, color, sex, age,
sexual orientation, national origin, or the presence of any sensory, mental, or physical disability,
discriminate against any person who is qualified and available to perform the work to which the
employment relates. Consultant shall execute the attached City of Kent Equal Employment
Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion
of the contract work, file the attached Compliance Statement.
VII. INDEMNIFICATION. Consultant shall defend, indemnify and hold the City, its
officers, officials, employees, agents and volunteers harmless from any and all claims, injuries,
damages, losses or suits, including all legal costs and attorney fees, arising out of or in
connection with the Consultant's performance of this Agreement, except for that portion of the
injuries and damages caused by the City's negligence.
The City's inspection or acceptance of any of Consultant's work when completed shall not
be grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Consultant
and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability
hereunder shall be only to the extent of the Consultant's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF
IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF
THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY
NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this
Agreement.
VIII. INSURANCE. The Consultant shall procure and maintain for the duration of the
Agreement, insurance of the types and in the amounts described in Exhibit A attached and
incorporated by this reference.
IX. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide
reasonable accuracy of any information supplied by it to Consultant for the purpose of
completion of the work under this Agreement.
X. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents,
drawings, designs, reports, or any other records developed or created under this Agreement
shall belong to and become the property of the City. All records submitted by the City to the
Consultant will be safeguarded by the Consultant. Consultant shall make such data, documents,
and files available to the City upon the City’s request. The city’s use or reuse of any of the
documents, data and files created by Consultant for this project by anyone other than
Consultant on any other project shall be without liability or legal exposure to Consultant.
XI. CITY'S RIGHT OF INSPECTION. Even though Consultant is an independent
contractor with the authority to control and direct the performance and details of the work
authorized under this Agreement, the work must meet the approval of the City and shall be
subject to the City's general right of inspection to secure satisfactory completion.
XII. WORK PERFORMED AT CONSULTANT'S RISK. Consultant shall take all
necessary precautions and shall be responsible for the safety of its employees, agents, and
subcontractors in the performance of the contract work and shall utilize all protection necessary
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Doug Levy / 11/09/2016 Page 4
for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be
responsible for any loss of or damage to materials, tools, or other articles used or held for use in
connection with the work.
XIII. MISCELLANEOUS PROVISIONS.
A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City
requires its contractors and consultants to use recycled and recyclable products whenever
practicable. A price preference may be available for any designated recycled product.
B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of
any of the covenants and agreements contained in this Agreement, or to exercise any option
conferred by this Agreement in one or more instances shall not be construed to be a waiver or
relinquishment of those covenants, agreements or options, and the same shall be and remain in
full force and effect.
C. Resolution of Disputes and Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. If the parties are unable
to settle any dispute, difference or claim arising from the parties’ performance of this
Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by
filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court,
King County, Washington, unless the parties agree in writing to an alternative dispute resolution
process. In any claim or lawsuit for damages arising from the parties' performance of this
Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or
bringing such claim or lawsuit, in addition to any other recovery or award provided by law;
provided, however, nothing in this paragraph shall be construed to limit the City's right to
indemnification under Section VII of this Agreement.
D. Written Notice. All communications regarding this Agreement shall be sent to the
parties at the addresses listed on the signature page of the Agreement, unless notified to the
contrary. Any written notice hereunder shall become effective three (3) business days after the
date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to
the addressee at the address stated in this Agreement or such other address as may be
hereafter specified in writing.
E. Assignment. Any assignment of this Agreement by either party without the written
consent of the non-assigning party shall be void. If the non-assigning party gives its consent to
any assignment, the terms of this Agreement shall continue in full force and effect and no
further assignment shall be made without additional written consent.
F. Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
the City and Consultant.
G. Entire Agreement. The written provisions and terms of this Agreement, together
with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or
other representative of the City, and such statements shall not be effective or be construed as
entering into or forming a part of or altering in any manner this Agreement. All of the above
documents are hereby made a part of this Agreement. However, should any language in any of
the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms
of this Agreement shall prevail.
H. Compliance with Laws. The Consultant agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become applicable
to Consultant's business, equipment, and personnel engaged in operations covered by this
Agreement or accruing out of the performance of those operations.
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Doug Levy / 11/09/2016 Page 5
IN WITNESS, the parties below execute this Agreement, which shall become effective
on the last date entered below.
CONSULTANT:
By:
(signature)
Print Name:
Its
(Title)
DATE: January 01, 2016
CITY OF KENT:
By:
(signature)
Print Name: Suzette Cooke
Its Mayor
(Title)
DATE: January 01, 2016
NOTICES TO BE SENT TO:
CONSULTANT:
Doug Levy
Outcomes by Levy
15619 NE 62nd Place
Kenmore, WA 98028
(425) 922-3999 (telephone)
(425) 424-8921 (facsimile)
NOTICES TO BE SENT TO:
CITY OF KENT:
Chief Administrative Officer
City of Kent
220 Fourth Avenue South
Kent, WA 98032
(253) 856-5710 (telephone)
(253) 856-6700 (facsimile)
APPROVED AS TO FORM:
Kent Law Department
88
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.
Dated this day of ___ , 20__.
By: ______________________________________
For: ______________________________________
Title: _____________________________________
Date: ____________________________________
89
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.
90
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 The City of Kent , hereby
acknowledge and declare that the before-mentioned company was the prime contractor
for the Agreement known as Outcomes by Levy that was entered into on the
1st of January, 2017 , between the firm I represent and the City of Kent.
I declare that I complied fully with all of the requirements and obligations as outlined in
the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal
Employment Opportunity Policy that was part of the before-mentioned Agreement.
Dated this day of December , 2018.
By: ______________________________________
For: ______________________________________
Title: _____________________________________
Date: ____________________________________
91
EEO COMPLIANCE DOCUMENTS - 4
EXHIBIT A
PAYMENT SCHEDULE
Invoices shall be submitted monthly for 1/12 of the annual contract amount
and any relevant expenses as detailed in the contract.
EXHIBIT B
INSURANCE REQUIREMENTS
No insurance is required, however attached for the record.
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ECONOMIC and COMMUNITY DEVELOPMENT
Ben Wolters, Director
Phone: 253-856-5454
Fax: 253-856-6454
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: November 15, 2016
TO: Operations Committee
FROM: Matt Gilbert, Planning Manager
SUBJECT: Multi-family Residential Tax Exemption Resolution –
Information Only
MOTION: INFORMATION ONLY
SUMMARY: This resolution begins the process to grant certain property tax
exemptions to attract new multi-family housing within an area adjacent to Meeker
Street, west of Russell Road.
This resolution does three things: (1) it establishes an “urban area” under the
residential multi-family tax exemption laws; (2) it declares the council’s intent to
designate the Riverbend Gateway project area as a “residential targeted area”
under those laws, which makes only that specific area eligible to receive the tax
exemption; and, (3) it sets a public hearing for December 13 to allow the public to
comment on the council’s intent to designate this residential targeted area.
This resolution does not grant the exemption. It only makes the area eligible to
receive the tax exemption. The city code establishes a separate administrative
process to determine whether the exemption becomes finally available. This
application process is administered through the city’s Community and Economic
Development department. Part of that process requires a contract between the
developer and the city in order to qualify for the exemption, and that contract must
be approved by the city council. So, the council will make the final decision
whether the grant the tax exemption later in the process.
EXHIBITS: Resolution
BUDGET IMPACTS: None
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Multifamily Tax Exemption –
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1
RESOLUTION NO. ________
A RESOLUTION of the city council of the
city of Kent, Washington, establishing an Urban
Center as defined for multi-family residential tax
exemption purposes, setting a public hearing on
December 13, 2016, to consider designating the
proposed Riverbend Gateway project area as a
Residential Targeted Area within the Urban Center
for multi-family limited property tax exemptions,
and declaring the city council’s intent to designate
the Riverbend Gateway project area as a
Residential Targeted Area pursuant to Chapter
84.14, Revised Code of Washington.
RECITALS
A. Due to the mandates in Chapter 84.14 Revised Code of
Washington (RCW), the city council elects under Kent City Code
2.57.040(B) to consider this matter directly, rather than have efforts
duplicated by the Land Use and Planning Board.
B. Chapter 84.14 RCW provides for exemption from ad valorem
property taxation for qualifying multifamily housing located in Residential
Targeted Areas within Urban Centers as defined in that chapter and
authorizes cities to adopt necessary procedures to implement the state
legislation.
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C. Chapter 84.14 RCW requires that Residential Targeted Areas
be located within Urban Centers as established by the city Council. The
Urban Center designation required under this section is separate and
distinct from the urban center designation associated with the City’s
Comprehensive Plan.
D. The City of Kent is a designated “Urban Growth Area” under
the state’s Growth Management Act. The area shown on Exhibit A,
attached, is an area within the city appropriate for designation as an
urban center under Chapter 84.14 RCW.
E. The city has identified a specific area within this urban center
that would be appropriate for selection as a “Residential Targeted Area”
under that chapter because it appears to lack sufficient available,
desirable, and convenient residential housing to meet the needs of the
public who would likely live in this urban center, if affordable, desirable,
attractive, and livable places to live were available.
F. Chapter 84.14 RCW requires the city council hold a public
hearing to consider the designation of the Residential Targeted Areas
within the Urban Center.
G. The city proposes its intent, for public consideration, to
designate the Riverbend Gateway site, as a Residential Targeted Area
within the Urban Center. The Riverbend Gateway site is a portion of
parcel 2322049011 within the City’s Riverbend Golf complex that is
bordered approximately by Meeker Street to the north, the Green River to
the west and south, and the Colony Park Apartments to the east, as more
specifically shown in exhibit B.
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NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS:
RESOLUTION
SECTION 1. - Finding; Urban Center Designation. The area shown
on Exhibit A is, for the purposes of Chapter 84.14 RCW, appropriate for
designation as an Urban Center. This area provides a variety of products
and services including shops, offices, hotels, restaurants, as well as the
city’s miniature golf course, golf driving range, golf pro shop, and snack
bar. The area is served by adequate public streets, including Meeker
Street, Russell Road, and SR 516, has sufficient sidewalks, particularly
along Meeker Street, is generally well served by public street and
sidewalk lighting, provides access to transit by bus and is located within
reasonable proximity to the Sound Transit station and the proposed Kent
light rail station near Highline Communtiy College. The area is well served
with sufficient public water, sewer and storm systems. Finally, the area
connects to a network of urban recreational facilities, including trails along
the Green River, the interurban trail, and the city’s Riverbend Golf
Complex.
SECTION 2. - Residential Targeted Area Identified. The city council
will, after holding a public hearing, determine whether the Riverbend
Gateway project, identified on Exhibit B, should be designated a
“Residential Targeted Area” pursuant to the process and rules established
by Chapter 84.14 RCW. The city council will consider these and other
factors:
A. That the area has no available, desirable, affordable, and
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Multifamily Tax Exemption –
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4
convenient residential housing, and if housing were available, the public
would be likely to live in this area.
B. That the designation of this Residential Targeted Area would
encourage increased residential opportunities and stimulate construction
of new multifamily housing that will increase and improve residential
housing opportunities in the Urban Center.
SECTION 3. - Statement of Intent. At the conclusion of the public
hearing and after publishing statutory notice, the city council intends to
designate the Riverbend Gateway project area as a Residential Targeted
Area for purposes of Chapter 84.14 RCW.
SECTION 4. - Public Hearing Date Set. A public hearing to
consider designation of Residential Targeted Areas for exemption from ad
valorem property taxation for qualifying multifamily housing shall be held
at a regular meeting of the Kent City Council at 7:00 p.m., Tuesday,
December 13, 2016 in the Council Chambers of City Hall located at 220
4th Avenue South, Kent, Washington, 98032.
SECTION 5. - Notice. The city clerk will give proper notice of the
hearing and cause the notice to be posted as provided by state law,
Chapter 84.14 RCW.
SECTION 6. – Severability. If any one or more section,
subsection, or sentence of this resolution is held to be unconstitutional or
invalid, such decision shall not affect the validity of the remaining portion
of this resolution and the same shall remain in full force and effect.
SECTION 7. – Corrections by city clerk. Upon approval of the city
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Multifamily Tax Exemption –
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5
attorney, the city clerk is authorized to make necessary corrections to this
resolution, including the correction of clerical errors; resolution, section,
or subsection numbering; or references to other local, state, or federal
laws, codes, rules, or regulations.
SECTION 8. - Effective Date. This resolution shall take effect and be
in force immediately upon its passage.
PASSED at a regular open public meeting by the city council of the city
of Kent, Washington, this day of , 2016.
CONCURRED in by the Mayor of the city of Kent this day of
, 2016.
SUZETTE COOKE, MAYOR
ATTEST:
KIMBERLEY A. KOMOTO, CITY CLERK
APPROVED AS TO FORM:
TOM BRUBAKER, CITY ATTORNEY
I hereby certify that this is a true and correct copy of Resolution No.
______ passed by the City Council of the City of Kent, Washington, the
________ day of ____________________, 2016.
KIMBERLEY A. KOMOTO, CITY CLERK
P:\Civil\Resolution\Residential Urban Growth MF Tax Exemption Resolution.docx
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Exhibit A: Proposed Riverbend Gateway Urban Center 107
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Exhibit B: Residential Targeted Area 108
Kent Council Operations Committee Consolidating Budget Adjustment
FINANCE
Aaron BeMiller, Director
Phone: 253-856-5260
Fax: 253-856-6255
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: November 15, 2016
TO: Operations Committee
FROM: Aaron BeMiller, Finance Director
SUBJECT: Director’s Report – Information Only
MOTION: No motion: Non-action item
SUMMARY: The finance department has reported out on the coming professional service
agreement with PFM Asset Management in which PFM will actively manage the City’s
investment portfolio. I have invited Luke Schneider and Lauren Brant from PFM Asset
Management to present information on their organization including: how they benchmark
results, the transaction process, their process for ensuring safety, liquidity, and yield, and
general information about their operations.
BUDGET IMPACT:
BACKGROUND:
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