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City Council Meeting - Council - Regular Agenda - 1/17/2023
^*4 KENT CITY COUNCIL AGENDA • Tuesday, January 17, 2023 KENT 7:00 PM WASH I NGTON Chambers A live broadcast is available on Kent TV21, www.facebook.com/CityofKent, and www.youtube.com/user/KentTV21 To listen to this meeting, call 1-888-475-4499 or 1-877-853-5257 and enter Meeting ID: 849 9555 2703, Passcode: 049482 Mayor Dana Ralph Council President Bill Boyce Councilmember Brenda Fincher Councilmember Zandria Michaud Councilmember Satwinder Kaur Councilmember Toni Troutner Councilmember Marli Larimer Councilmember Les Thomas ************************************************************** COUNCIL MEETING AGENDA - 7 P.M. 1. CALL TO ORDER/FLAG SALUTE 2. ROLL CALL 3. AGENDA APPROVAL Changes from Council, Administration, or Staff. 4. PUBLIC COMMUNICATIONS A. Public Recognition i. Employee of the Month ii. Appointment to the Arts Commission iii. Appointments to the Lodging Tax Advisory Committee iv. Recognition of Adopt-a-Street/Spot Volunteers V. Appointments to the Independent Salary Commission B. Community Events C. Public Safety Report 5. REPORTS FROM COUNCIL AND STAFF A. Mayor Ralph's Report City Council Meeting City Council Regular Meeting January 17, 2023 B. Chief Administrative Officer's Report C. Councilmembers' Reports 6. PUBLIC HEARING A. Public Hearing on a Resolution for the Surplus of The Bridges Wetlands Property - Adopt 7. PUBLIC COMMENT The Public Comment period is your opportunity to speak to the Council and Mayor on issues that relate to the business of the city of Kent or to agenda items Council will consider at this meeting. Comments that do not relate to the business of the city of Kent are not permitted. Additionally, the state of Washington prohibits people from using this Public Comment period to support or oppose a ballot measure or candidate for office. Public Comment may be provided orally at the meeting, or submitted in writing, either by emailing the City Clerk by 4 p.m. on the day of the meeting at CityClerk@kentwa.gov or delivering the writing to the City Clerk at the meeting. If you will have difficulty attending the meeting by reason of disability, limited mobility, or any other reason that makes physical attendance difficult, and need accommodation in order to provide oral comment remotely, please contact the City Clerk by 4 p.m. on the day of the meeting at 253-856-5725 or CityClerk@kentwa.gov. When called to speak during the meeting, please state your name and city of residence for the record. You will have up to three minutes to provide comment. Please address all comments to the Mayor and Council as a whole. The Mayor and Council may not be in a position to answer questions during the meeting. Alternatively, you may email the Mayor and Council at MayorCDKentWA.gov and CityCouncil@KentWA.gov. Emails are not read into the record. S. CONSENT CALENDAR A. Approval of Minutes 1. Council Workshop - Workshop Regular Meeting - Dec 13, 2022 5:00 PM 2. City Council Meeting - City Council Regular Meeting - Dec 13, 2022 7:00 PM B. Accept the 2022 Plastic Markings Project as Complete - Authorize C. Accept the East Tacoma Street - Kensington Avenue Drainage Improvements Project as Complete - Authorize D. Appointment to the Kent Arts Commission - Confirm E. LTAC Grant to Economic and Community Development Department to Support the Visit Kent Tourism Promotion Campaign - Authorize F. Agreement with Stewart, MacNichols, Harmell, Inc., P.S. for Indigent Defense Services - Authorize G. Agreement with Valley Defenders, PLLC, for Conflict Indigent Defense Services - Authorize City Council Meeting City Council Regular Meeting January 17, 2023 H. Agreement with Summit Food Services Management, LLC for Food Services at the Kent Correctional Facility - Authorize I. 2023 Railroad Quiet Zone - BNSF Railway Agreements - Authorize J. Meeker Street Bridge Consultant Agreement with TranTech Engineering, LLC - Authorize K. King County Waste Reduction & Recycling (WRR) Grant Agreement - Authorize L. Ordinance Clarifying Authority of Independent Salary Commission - Adopt M. Appointments to the Lodging Tax Advisory Committee - Appoint N. Appointments to the Independent Salary Commission - Confirm 9. OTHER BUSINESS A. Interlocal Agreement with the Puget Sound Regional Fire Authority for FD CARES Pilot Project - Authorize 10. BIDS A. 2023 Railroad Quiet Zone BNSF Railroad Trespass Fencing Bid - Award 11. EXECUTIVE SESSION AND ACTION AFTER EXECUTIVE SESSION 12. ADJOURNMENT NOTE:A copy of the full agenda is available in the City Clerk's Office and at KentWA.gov. Any person requiring a disability accommodation should contact the City Clerk's Office in advance at 253-856-5725. For TDD relay service, call the Washington Telecommunications Relay Service 7-1-1. 5.B ri departmentthe reKio CA P0 rt of highl . T' 0F we can to make the process on our end as co ADMINISTRATION reliable as we can. • At a recent Operations and Public Safety Administration Committee Meeting, I presented on the ; • The City's Race and Equity Manager o continues to work diligently on the City's issue of remote board and commission Umeetings. We should have some E Equity Strategic Plan. The draft plan was o co-designed with community stakeholders amendments to our code for Council y consideration on February 7. and an internal team. The community co- Clerk's Office ° design phase has been completed and the During the month of December, the City plan has been discussed on a number of Clerk's office processed 76 contracts, occasions by the Executive Leadership - closed out 666 requests for public records a Team. ELT will be performing a final vetting and processed 142 body worn camera of the plan later this month, and a draft of videos totaling 2,907 minutes of footage. ) the full plan will be presented to Council for Communications consideration on February 21. • Check out the Mayor's Progress Report • The City's HR Director, Teri Smith has o video for a recap of some of our biggest resigned and has taken a job with the > accomplishments of 2022. Puget Sound Regional Fire Authority. The • The City of Kent will be honoring Martin N City has retained a consultant to perform Luther King Jr's legacy of giving back by c the recruitment for Teri's replacement. We holding an Employee Day of Service Food E thank Teri for her years of service and the Drive. The items collected will be donated a work she has done over the past few years. to the Kent Food Bank and Emergency She came in just before COVID hit, the Services. There's a designated area in the world and expectations of HR shifted lobby of City Hall and in the mail room of c dramatically, and Teri was instrumental in Centennial Building where you can drop W guiding the City through that process. With cc Teri's resignation, Natalie Winecka will your items. Departments are encouraged r- serve as the Interim HR Director until a to create their own donation station in their work area so they can count their items E new director comes on board. G IT and multimedia have been working before bringing them over. The U • together and have developed a plan to Department who donates the most items, shore up the hardware used for our Council (per capita) wins, so keep track to report meetings. As a reminder, whenever out at the end. someone attends a meeting remotely, Save the Date: February 2 some of the glitches in their ability to o Thursday, participate in the remote meetings are on Mayor Ralph's Breakfast announcing the their end (e.g. it could be a home 2022 Employee of the Year bandwidth issue). We will be doingwhat 7 am at the Senior Center Celebrate all the 2022 monthly winners! Page 1 of 13 Packet Pg. 4 5.6 o Tuesday, February 14 The State Auditor's Office is in the planning Kent4Eva Valentine's Day Event phase of the 2021 Accountability Audit, 9-10 am - City Hall Lobby and which should be finalized after the last Chambers follow-up documents are received by the Grab a donut, coffee and spread end of January 2023. kindness! The Accounts Payable team is working to establish an Amazon Prime Business account for the City of Kent to provide free shipping on most orders, which will lower costs for all. Further communication regarding access to this account is Budget forthcoming. • The Budget group is working on the 2023- * Annual IRS Forms 1099 processing is in 2024 Adopted Biennial Budget book and is progress for the City's Vendors and are currently working with departments on expected to be complete on or before = performance measures, capital project January 31, 2023. highlights, and department information. . 2022 year-end processing is in progress. This book builds on the information that Departments should be sure to reference was included in the 2023-2024 Mayor's the Year End Procedures document and E Proposed Budget book, includes the reach out for any questions or support as ,° following additional sections such as debt needed. management overview, budgets by Payroll a department, and performance measures. The Payroll team is working to process Customer Service Annual IRS Forms W-2 for City Employees. • Customer Service was approved to receive This process is expected to be completed a funding from the Residential Customer on or before January 31, 2023. Please Utility Arrearages Grant Program from the note, if employees wish to receive their ) Department of Commerce. In December Form W-2 without waiting for the hardcopy U 2022, $17,061 was applied to the to come to them via USPS, they should log o remaining 36 water utility accounts on into Workday and select "W-2 Electronic a) long-term payment arrangements. These Only" for their delivery method. accounts had long-term payment Tax and Business Licensing arrangements set up to allow for additional . Andrea Madsen joined the Tax Division as time to pay charges incurred between Tax Auditor on January 3, 2023. E March 2020 - December 2021. • The 2023 business license renewal period a • Adriana Gonzales joined Customer Service began on December 1, 2022. The City has as an Account Representative on January received 2,557 applications to date 3, 2023. (FileLocal - 1,291; Paper applications - c • The utility billing system has been updated 1 266 . for the new 2023 rates. City rates will be ) U increasing by 9.5% and King County sewer rates will be increasing by 5.75%. E Accounting and Reporting • The General Ledger Team received the final audit reports from the State Auditor's Information Technology Projects Office for 2021 Financial and Single SCADA System Upgrade - Network (Grants) Audit on December 15, 2022 and Separation - to upgrade and replace the December 22, 2022 respectively. The 2021 current Supervisory Control and Data Financial Audit for the Public Facilities Acquisition (SCADA) system per a series District was completed on December 22, of program identified, outlined, and 2022 as well. approved projects in order to ensure that the SCADA Platform and Network optimize Page 2 of 13 Packet Pg. 5 5.6 and streamline workflow while maintaining the equivalent of nearly 24 days of work a dedicated independent City secure for a single full-time employee. network infrastructure equipped with During the December trial term, a single outage redundancies. case was tried to verdict for a charge of • End Point Privilege Management - to Theft in the Third Degree. The defendant remove excessive user privileges and was a contractor who was visiting the control end users' rights on specifically alleged victim's home to prepare a bid for called out applications and computer new flooring. The defendant was alleged to functions. For the City of Kent, most have stolen a ring off a bathroom counter importantly, it is to remove the while alone and while he was supposed to "Administrative Rights" on their be taking photos of the space. Leif workstations/computers. Drangsholt tried the case for the City, and Information Technology operational support the jury returned a verdict of not guilty. a for January 01, 2023 to January 10, 2023 There was no eyewitness to the alleged co • Number of tickets opened - 146 theft and the ring was never found in the • Number of tickets closed - 227 defendant's possession. With nothing more than a missing ring, the jury was not ; convinced beyond a reasonable doubt that 0 the defendant was responsible for its E • During the month of December, the Law o Department received a total of 179 cases disappearance. y Attorneys in both the civil and criminal from the Police Department to review and c prosecution divisions reviewed and a assess for the filing of criminal charges. Of provided comment on a number of those cases, 81 were for in-custody legislative bill proposals under V defendants which necessitated rush filing o consideration in the current session, a the next business day after arrest. including bills related to property • In December, prosecutors covered 68 court forfeitures when the owner participates in ) calendars which included 1,584 cases L scheduled for hearing, spread across 1,030 illegal conduct, illegal racing, post-B/ake defendants. Of those cases, 419 were for solutions, public records and body worn o camera videos and affordable housing d defendants who were held in-custody. Of initiatives. the 1,030 defendants required to appear in • Assisted the HR Department in a number of N court, 186 of them failed to appear (an sensitive employment and labor related c 18% FTA rate). matters. E • Not reflected in the 68 court calendars • Assisted City departments in reviewing and w noted above, prosecutors also covered one negotiating contract terms for a number of °' Community Court calendar, which included contracts related to construction, 27 cases across 18 defendants. There were technological, and development projects. c only 3 defendants who failed to appear for • Assisted outside counsel on a number of Community Court, which was down significantly from last month's 21 failures * cases currently in litigation. •� Worked with staff to acquire the property to appear. rights necessary to complete various E • In preparation for the December trial term, projects throughout the City. ci prosecution prepared 102 cases for jury trial. Preparing these cases for trial PARKS, RECREATION, required staff to contact witnesses for all of COMMUNITY those cases, conduct interviews, and review all evidence associated with each Recreation and Cultural Services case. As part of this process, prosecutors The Senior Center's Meals on Wheels reviewed body cam footage that totaled program served 36,079 home-delivered more than 190 hours in length, which is meals in 2022; this is 700 more meals than 2021. Kent host's the second largest Page 3 of 13 Packet Pg. 6 5.B program in King County (behind the City of families and friends, 41 elementary Seattle). basketball teams smiled for team and • The Kent Senior Activity Center served individual pictures and continued on to over 13,000 lunches in 2022. What some their first practice games of the season. people may not be aware of, is that you League play begins Saturday, January 14. don't need to be a senior to enjoy lunch at Additionally challenging in the coordination the center! At only $8, this lunch is of this program is recruiting, processing, available to everyone seeking a delicious training and scheduling referees and gym "home style" meal. Check out the menu supervisors for five or more game locations online and come by for lunch. each weekend. Over 21 youth basketball • During the recent inclement weather, officials and five gym supervisors are Senior Center staff used My Senior Center required to make this a successful software acquired in late 2021 to quickly program; they were all fine tuning their a notify hundreds of center participants via skills at the jamboree. Kindergarten co text message or email about changes to through second grade teams along with = building openings, closures and delays. middle and high school teams are currently .0 This streamlined process allows us to reach practicing and will begin their seasons in ; facility users before they leave home, the next two weeks. U enhancing safety and eliminating The Youth and Teen Division maxed out E confusion. Scheduling decisions for all of their annual Holiday Camp with 24 ° our facilities and programs begin at 5 am Kindergarten through sixth grade or earlier on inclement weather days so participants the week of December 19-23 a that participants and facility users can at Kent Commons. Staff and campers make plans for their kids and themselves weathered the snow and ice most days V_ before they leave home. with campers engaging in crafts, sports, a • The Senior Center recently was awarded an games, LU and group activities from 7:30 additional $6,466 to their existing King am-5:30 pm. ) L County VSHSL funding. These dedicated Jazz at Lincoln Center brings "Songs We U funds will help offset the cost of Love" to the Spotlight Series on Friday, o transportation for qualifying seniors to get January 20. The show features an all-star to doctor's appointments and related band and vocalists made up of New York's travel. rising stars playing and singing their way N • Senior Center staff impact the lives of through four decades of iconic singers and seniors on a routine basis but sometimes songs. The show will be at Kent-Meridian E those interactions are not so routine. One PAC at 7:30 pm. As of January 6, 178 w recent afternoon, staff noticed behavioral tickets have been sold. 2 changes in a regular senior client. They The 40th annual Christmas Rush 5K and U discussed their observations as a team and 10K runs took place on Saturday, c followed up the next morning with the December 10. Seven hundred and fifty-two m client. Receiving no response, they people registered to participate and 739 •2 requested a volunteer to go check on the crossed the finish line on the day of the client at her home. The client was found to event. COVID had a significant impact to c need medical attention and was brought to participation in this and other events and U the hospital, where she ended up receiving activities this year but numbers are emergency brain surgery. Thankfully, increasing. We expect this trend to Senior Center staff are familiar with clients, continue. very observant, and prepared to intervene A new show is up in the Centennial Center when necessary. Gallery for the months of January and • Basketball was the focus this past Saturday February. Artwork by Greta Barrier Burco as 410, third through sixth grade boys and and Bonnie Smerdon will be on display girls laced up their shoes and filled the from January 5 through February 23. The courts at Kent Commons. Cheered on by gallery is free and open to the public during Page 4 of 13 Packet Pg. 7 5.6 regular city business hours - 8 am to 5 • Contracted with DLR Group for court room pm, Monday through Friday. renovations and design is underway. Facilities. • Starting the contract process with Siemens • Solar grant process for Senior Center is for our HVAC control upgrades. underway. Timeline is 2023. The consultant, Sazan, is conducting a full ' microgrid study in addition to solar. • The gym partition wall at Commons has Staff Changes - Hiring/Retirement/ been removed and the new drop-down Recruitment/Leaves/Promotions curtain is scheduled to be installed at the Officer Ali DeMarinis separated November end of January or early February. 30. Justin Davis promoted to Sergeant • New wall padding for the Commons gym is installed. Punchlist items and fine tuning is December 1. in process. • Jason Bishop promoted to Commander co • Courthouse and Corrections generator December 1. project is going to be in a holding pattern • Officer Daniel Brom resigned December 1. for a while as the new generator is • Entry level Police Officer Aaron Rankin 3 expected to arrive in April 2023 at which started December 1. 0 time it will be installed and commissioned. Entry level Police Officer Andrew Robinson E • Police HQ Renovation punch list is nearly started December 1. o complete. The project will be closingsoon Officer Jon Johnson resigned December 15. y p . Recruit Anne Aspelund resigned January 4. c • Senior Center Roof project started 11/7/22 Significant crime activities/ arrests/ a and should be wrapping up this month. The atrium at the entrance will be completed investigations -- following this and additional repairs when On December 5, at 9:52 pm, officers were a the weather improves will be required as dispatched to a carjacking that occurred at � well. the Highland Green Apartments. The victim W • IT Annex remodel is almost complete. The had just parked her vehicle in the parking furniture was scheduled to be finalized lot when she noticed a vehicle parked nearby occupied by two males. One of the 1/11/23 and punch list items being completed this month. IT will be moving in males exited the vehicle, pointed a firearm soon. at her, and demanded her keys and stole 2 • Maintenance team has done a good job her vehicle. The victim's vehicle was with snow and ice response and we'll recovered the following night after crashing E continue to be prepared for the weather. into a business in Auburn. The driver who a • Contracting with Elevator Consulting fled the collision matched the description of Services (ECS) for elevator modernizations the suspect who carjacked the vehicle. U at Centennial Center. On December 7, at 7:30 pm, officers were ii • Anew commercial walk-in refrigerator for dispatched to a DV Order Violation where 2 Corrections is approved. We just received the suspect was armed with a knife. While an update that we're looking at a February arresting the subject, he assaulted two install timeline and working to coordinate Officers and later a third before being E this project. transported to jail. The subject also broke 0 • Driving Range smashed doors have arrived out a rear side window and dented the a little bit ahead of schedule. We're frame of a patrol vehicle. The subject was installing bollards in front of the doors to booked into jail. prevent this from happening again. On December 10, at 9:53 am, officers were • New fence and gates for the Commons dispatched to a shooting at Alvista Lake back parking lot is complete. Meridian Apartments. The shooting had • Contracted with Burgess Design for Kent occurred sometime overnight. No one was Commons renovations and design is injured, and the suspect(s) randomly fired underway. multiple rounds into the residence. Page 5 of 13 Packet Pg. 8 5.6 • On December 11, at 7:31 am, officers were and his father several times while holding dispatched to a residence on the east hill the knife. The 32-year-old arrested female after an elderly woman escaped her home was transported to King County Jail without and ran to a neighbor's house to call 911. incident. The woman had been assaulted by her On December 15, at 5:55 am, officers were husband. The husband had strangled the dispatched to a shooting at a residence woman on at least three separate located in the 20600 block of 101st Ave occasions, causing her to lose SE. The residents were not injured, but consciousness for a period of time, after an their residence had been struck by attempt to cut her throat with a kitchen gunfire. Video shows two suspects knife failed. The husband has a history of associated with a vehicle were seen mental illness which has been escalating. walking up to the residence and firing 12- Officers were able to talk the man out of 15 rounds at the victims. the house and arrest him without incident. On December 15, at 7:40 pm, officers were 0 Officers took great care in getting the wife dispatched to a robbery at the Bigfoot Java = to safety and services and securing the located at 23803 West Valley Hwy S. Two necessary evidence to charge the man. armed suspects associated with a vehicle ; • On December 12, at 8:10 pm, officers were came into the business and robbed L) dispatched to a robbery at a nail spa them. During the robbery, one of the E located at 10216 SE 256t'' St #101. The suspects demanded that an employee open 0 suspect fled in a vehicle. Nobody was the safe. When the employee said she injured, but the suspect stole some didn't have the code; the suspect fired a a personal items from a couple of customers round into the ceiling. The suspects took before fleeing. Video footage showed the the employees belongings and fled the suspect entered the nail spa and fired a scene. a handgun round into the ceiling. On On December 16, at 12:50 am, officers December 19, at 5:09 pm, detectives were dispatched to a robbery at the ) L observed a robbery suspect related to the Hampton Inn and Suites. The suspect listed case arrive at his home, Island Park committed a takeover style robbery. o Apartments. Patrol responded and took the Officers reviewed the video surveillance juvenile male subject into custody without and found that the suspects appeared to be incident. the same who committed the prior robbery N • On December 14, at 7:58 pm, officers at Big Foot Java. Officers were aware that c responded to a DV with a weapon in the the suspect's prior vehicle had been E 5800 block of S 231 St. Dispatch received located and recovered at an apartment w a 911 call from a juvenile stating mom and complex in Kent. Officers went to that °' dad were fighting and mom had a knife. same location and located the vehicle. U The female suspect was armed with a large On December 16, at 11:40 am, an officer c knife and the male victim and children had was dispatched to the Olympic Skylinecc barricaded themselves in a second story Apartments for the recovery of a stolen bedroom away from the female. Officers vehicle. While in route, the call was knocked and announced their presence updated to an assault with a weapon and E asking to have the door opened, but after the vehicle was taken again. The victim's U they received no response, they attempted vehicle had originally been taken from to use a ram to make entry. After the initial Federal Way. They eventually tracked the strike to the door, the female suspect vehicle to Kent and called 911. While became compliant and started shouting to waiting for the police to arrive, the wait and she started to open the garage suspects were still in the vehicle, assaulted door. Female suspect was taken into the victim and hit her with the vehicle custody without further incident and when they fled the scene. The victim was charged with Felony Harassment as she taken to the hospital for further medical had threatened to kill both her husband treatment. Page 6 of 13 Packet Pg. 9 5.B • On December 17, at 11:07 am, officers was recovered, but the suspects are still were dispatched to a shooting that outstanding. occurred in the Dollar Tree parking lot On December 22, at 6:55 pm, officers were located at 23406 Pacific Hwy S. Both the dispatched to a home invasion robbery that suspect and victims had fled the occurred at a residence in the 4000 block scene. Video surveillance was located of S 262"d St. Two suspects, armed with which captured the incident. The suspect firearms, entered the residence through exited a vehicle, engaged another vehicle, the back door and ransacked the residence and eventually fired at the occupants. taking money, pursues and jewelry. • On December 17, at 9:33 pm, officers were On December 22, at 11:35 pm, officers dispatched to the Country Glenn were dispatched to the 7-Eleven located at Apartments for a robbery. The victim, a 10255 E 240t" St regarding a robbery that delivery driver for Amazon, went to the just occurred. Four to five suspects entered a apartment complex to make a delivery the store, one pulled out a gun and pointed co when two suspects abruptly contacted her, it at the clerk. The suspects took money pointed guns, and robbed her of her cell from the till and cigars from behind the phone. The suspects were last seen on foot counter before fleeing. ; inside the Birchcreek Apartments complex. On December 25, at 1:00 am, officers were 0 • On December 19, at 4:31 am, officers were dispatched to a vehicle collision involving E dispatched to a robbery/carjacking that two vehicles at the intersection of Central ° occurred at the Valli Kee Apartments. The Ave N and E Smith St. Officers and Puget victim had abrasions to his face and Sound Regional Fire Authority arrived on a arms. The victim was warming up his scene and found a Toyota van in the vehicle, cleaning it at the same time, and seating area of the Jack in the Box made several trips to a dumpster. On one restaurant and a silver Ford Explorer in the Q. occasion the suspect was sitting in the oncoming lanes of Eastbound E Smith driver's seat of his vehicle. The victim St. The Ford Explorer was traveling at a ) L physically fought with the suspect and at high rate of speed South on Central Ave N, one point wrapped his arms around the the driver later admitted to driving around o suspect's head. The suspect put the vehicle 75 mph and ran the red light impacting the > in motion which drug the victim. The victim Toyota Van that was traveling West on E fell to the concrete after hitting a curb. Smith St. The van was carrying a family of N • On December 19, at 3:41 pm, a 31-year- six, the mother and her children ranging in c old female was struck by a vehicle as she age from about 1 year old to 17 years old. E was walking in the crosswalk at 109t" Ave The driver of the Ford Explorer was taken w SE and SE 248th St. She was transported to into custody for investigation of DUI. The 2 Harbor View with serious injuries. The family was transported to Harborview driver of the vehicle that struck the female Medical Center for a varying range of c was cooperative with the investigation and injuries. cc stayed on scene. On December 25, at 8:50 pm, officers were •2 • On December 19, at 8:02 pm, officers were dispatched to a shooting that occurred dispatched to a robbery that occurred at within the Arbor Chase Apartments. A c the T-Mobile Store located at 25246 Pacific group of subjects had been in a dispute U Hwy S. Two armed suspects entered the and someone had discharged a firearm. No store and committed a takeover style one was injured. robbery. The suspects stole several cell On December 26, at 12:42 am, officers phones and demanded car keys from one were dispatched to a shooting that of the employees. The suspects fled in the occurred at the Groves Apartments. There employee's vehicle which had an air tag on also was a hit and run collision and vehicles the key chain. Tukwila and Renton assisted speeding through the complex. There were in trying to locate the vehicle which was multiple parked vehicles that had been hit found unoccupied in Renton. The vehicle or displaced in their parking stalls and at Page 7 of 13 Packet Pg. 10 5.6 least one vehicle struck with gun located him at Jiffy Lube and decided to fire. During the investigation, officers run him over with his vehicle. The victim determined the shooting occurred from or was taken to Harborview due to his injuries during a domestic situation and one subject and the suspect was booked into jail after was arrested for Assault DV. Officers were being interviewed by detectives. able to take the suspect into custody. On January 7, at 1:18 pm a single engine • On December 27, at 1:21 am, officers were plane with two occupants crashed into the dispatched to an illegal discharge in the roof of one of the storage buildings of 11500 block of SE 264th Pl. Officers located Affordable Self Storage, 1721 Central Ave. a victim residence where a single round S. The two occupants, both conscious but had entered their home. Three more injured, were trapped inside the plane rounds had struck their fence. which had crashed through the roof at the • On December 30, at 8:10 pm, officers were west edge of the D building with the a dispatched to an assault within the Circle K passenger compartment partially inside the Mobile Park. The victim exited his residence crawl space area of that building. Puget and walked over to his vehicle to grab Sound Regional Fire Authority was able to something. When he was bent down inside, dismantle the building around the ; he heard an object hit his window. He passenger compartment to gain access to L) stood up, turned around and saw a subject the patients and carry them to ground E standing next to him who struck the victim level. Both were transported to Harborview 0 in the face with an unknown liquid that with what appeared to be non-life- smelled like bleach. The suspect fled on threatening injuries. FAA and NTSB were a foot after the assault. The victim later went notified but declined to respond to the to Valley Medical for further treatment. scene. • On January 2, at 12:49 am, officers were On January 8, at 12:26 am, officers a dispatched to a robbery that occurred in were dispatched to a DV with a gun in the the intersection of 106th Ave SE and SE 900 block of 4th Ave N. Officers arrived and !� L 235th St. The victims were walking to a set up a perimeter and started making PA friend's residence when they came upon announcements. After a few minutes a o the suspect who was walking in their male and two females exited the residence. > direction. The suspect asked for a There were elderly people and children still cigarette, and when the victims said they inside the residence. After clearing the N didn't have one; the suspect pulled a house and confirming they had already 'c handgun and robbed them of their wallets, detained the suspect, officers learned the E credit cards and money. suspect and the victim were boyfriend/ a w • On January 5, at 7:00 pm, an officer was girlfriend. They had been at the home ° dispatched to a theft at the Goodwill celebrating the Vietnamese New Year U located at 315 Washington Ave S. Two during which they were consuming alcohol. c suspects had been inside the store and lit An argument started after some of the W some clothes on fire in one of the isles. attendees wanted to go to bed, while When employees directed their attention to others were not ready. The suspect and the ' E put the fire out, the suspects ran out of the victim were in an upstairs bedroom E store with two carts of stolen items. arguing, during which the suspect pulled U • On January 6, at 1:15 pm, officers were out a handgun. The suspect was arrested dispatched to a vehicle versus pedestrian and booked into Kent City Jail for accident at the Jiffy Lube located at 10312 Harassment. SE 256th St. The "accident" was actually On January 8, at 1:15 am, officers were intentional as the victim had been at the dispatched to a vehicle versus pedestrian suspect's residence repairing the suspect's accident that occurred within the Chevron vehicle. The victim allegedly stole the parking lot located at 18015 East Valley suspect's tools and left the residence. The Hwy. Someone had shot at the driver of suspect began searching for the victim, the vehicle who hit the pedestrians. Upon Page 8 of 13 Packet Pg. 11 5.6 arrival officers found the individuals on On January 9, at 10:57 am Officers were location were attending the street dispatched to a DV with sounds of someone races. The suspect vehicle apparently breaking items at Birch Creek Apartments. started to drift in the parking lot and hit The suspect had fled prior to the officer's two people. One of the people ended up arrival and upon investigation had PC for pinned underneath another vehicle. Felony DV. The suspect also had a DV Someone ended up shooting at the at fault Assault 2 warrant out of KCSO. Officers driver. Officers located casings at the saw the suspect enter a vacant abandoned scene, but the driver of the vehicle and trailer on the north side of the Birch Creek others involved fled the scene. fence. The suspect refused to exit and due • On January 8, 4:06 am, officers were to her history and seriousness of the crime, dispatched to a DV with a gun in the 25400 on Duty SWAT and negotiators were block of 110t" Ave SE. The male suspect requested with Port of Seattle on duty and was outside of the victim's apartment Auburn negotiators responding. A search co pointing a handgun at the victim who was warrant was eventually approved and after = standing behind a window recording him. assorted less lethal munitions were used on The suspect and the victim have two no the trailer, the suspect was taken into ; contact orders in place and multiple custody without injury. L) warrants. The suspect fled the scene and Major emphasis patrol E was not located. On December 9, a shoplifting emphasis ,° • On January 8, at 4:16 pm, officers was conducted at Target. There were eight responded to a recent vehicle theft where a arrests made with a total value of a 2-year-old was inside when it was taken. recovered merchandise at $3,825.15. This occurred within the 7-Eleven parking Events and awards lot at 511 Central Ave S. The victim was Letter of Commendation: 0 a getting gas and stepped away to pay. She o Officer Campbell was commended for did not want to awaken her child who was identifying a crime problem in his patrol N L asleep. When she returned to the vehicle, sector and proactively working on a it was gone. Officers began to search for solution to begin to address it. His work o the vehicle and located it at the Red Lion at demonstrates a commitment to the d 74t" Ave S and Willis St. The child was department's mission of protecting and unharmed, returned to the mother, and the caring for our community by providing N suspect fled the scene. quality police service and being c • On January 8, at 4:58 pm, patrol was adaptable to the needs of our diverse E dispatched to Birch Creek Apartments for a city. His organization of this emphasis w brother threatening his family with a demonstrates our values of service and °' machete. The suspect was upset about a professionalism. U missing cat and was threatening to kill his o Officer Bertolacci's investigation and c family if not returned. Patrol located the report writing in a case where a victim suspect near the outdoor back patio and had been assaulted are exemplary and •2 immediately tried to de-escalate him. he was commended for demonstrating When the suspect was asked to walk back our mission of providing quality police c to the officers with his hands up, he fled service and our values of service and U into the residence where his family was. professionalism. Fearing he was going to arm himself again o Officers Cody Blowers, Casey Clark, Ali a less lethal was deployed but was DeMarinis, Sean Goforth, Lisa Hartley, unsuccessful. After a short foot pursuit, a Isaac Hegamin, Roland Heyne, Derek less lethal was deployed again and was Lind, Beau Mattheis, Andrehas successful. The machete was Rodriguez, Jace Sloan and Ethan Tudor recovered, and the suspect was booked were commended for demonstrating our into King County jail for felony mission of providing quality police harassment. service and our values of service and Page 9 of 13 Packet Pg. 12 5.6 professionalism while providing was received by staff. Staff has not emergency aid in an incident where received any communication from multiple subjects had been shot. property owner. Update was provided to Rob and Dee. Next steps unknown at PUBLIC WORKS this time. Survey: o Staff continues to work with PD and • Land Survey field staff provided staking for PWO in identifying encampments and the boundary at Clark Springs and for the updating the SeeClickFix system. retaining walls on the 76t" Ave project. Adopt-A-Street/Spot: Staff completed mapping sites along the o Final 4 quarter numbers: total BNSF railway for the Railroad Quiet Zone. volunteers: 213; total bags of trash Office staff are preparing legal descriptions removed: 237, total volunteer hours: for multiple projects including the Railroad o January 17t" council meeting - Quiet Zone, King County Water Franchise recognition for adopt a street volunteers = renewal, West Hill Reservoir and the right M of way boundaries for the 224t" Corridor. and provide an update on 2022 final U numbers. Volunteers have been invited , • Public Works GIS staff continue updating to come prior to the meeting for light the storm vault & sewer assets, entering refreshments at 6:15 pm. E as-builts and fulfilling public records o Final end of year Adopter numbers for ,° requests for multiple private developers. Staff have been completing multiple 2022: total volunteers: 1,148 (all-time c record!); total bags of trash removed: a impervious surface drainage charge 1,140 (all-time record!); total volunteer calculations for Utility Billing customers. hours: 1,696 hours PW GIS Supervisor is screening multiple • NPDES Inspections: a applicants for the open Analyst II position. o Staff will conduct five stormwater Environmental: system inspections, including at Kent � parks and facilities, multifamily • Staffing: Environmental Compliance residential, and commercial properties. o Inspector position is out for recruitment These inspections include post until January 16 construction walkthroughs, • Mayor's Homeless Task force/On-Call reinspections, complaint response, and N Garbage Contract: onsite meetings with property c o Updated junk hauler RFP to be readvertised in 2023. Requested new managers. o Staff contract, insurance requirements, and will perform inspections at 10 prevailing wages from Nancy. Will work development projects to ensure proper with RVG to have legal review the RFP construction site pollution prevention practices including erosion and c prior to advertising. Budget is set with sediment control. These include money to be used from the utility drainage account, capital project technical assistance, follow up •� accounts, and LSWFA grant. inspections, and enforcement as E o A subgroup from the Task Force met to needed. c discuss collecting data through GIS. Cross Connection Control Program: permit US o The UPLIFT team was out of Kent this and plan reviews. Backflow assembly test last week but resumes cleaning up in entries, notifications. Backflow billing the valley this week. updates. Cross Connection Control staff o Tony will team with PWO to give a solid continue to participate in the waste update at the February 21 implementation of a new PRISM database Council Workshop. successor. Water use surveys. Working 0 25t" Ave Shortening: certified letter was with billing as needed for backflow account sent to 2nd property owner and receipt updates Page 10 of 13 Packet Pg. 13 5.B Construction: bases on Military Rd S, 951" Ave S and on • West Hill Reservoir: painting crews 156t" Ave SE, set bases and replaced signs continue stripe coating interior and for retro-reflectivity on Riverview Blvd, preparing for final coat. Stripe coating repaired an exit sign at the off ramp on S anticipated to be complete this week with 277t" St, inspected thermoplastic and final coat starting. Removing blasting raised pavement markers (RPM's) for media from tank floor so blasting of floor replacement throughout the City, organized and coating can begin also. Interior and maintained the traffic control signs at plumbing work and mechanical work within the shops, took inventory of signs on 80t" the control building ongoing. Working on PI S and at various Scenic Hill locations and site Iandsca ing. performed sign maintenance at various locations Citywide. • Solid Waste cleaned up debris in several a locations including along SE 256t" St, 25t" co Ave S and on 88t" Ave S. Water Vegetation mowed and line trimmed ' multiple locations such as at Clark Springs, ; the 108t" well, the O'Brien well, the Blue 0 Boy tank, the Seven Oaks well, Kent E Springs upper, KEHOC, the 208t" Ave SE ,° water main easement, Clark Springs upper and water main easement, the West Hill a • 2021 Asphalt Overlays: installation of the sites, pumpstation #5, the East Hill well, revised island at 96t" and 228t" was the road shoulders at Kent Springs, the installed last week, painting will be Scenic Hill sites, the 212t" treatment plant, Q. completed as weather permits. Walk-thru's the 2081" well and at Webster Park. W received 12/20. Street Vegetation staff cleaned up leaves ) • 76t" Avenue South - North Segment: and debris along Canyon Dr, S 228t" St, SE watermain installation complete last week, 256t" St, SE 208t" St, E James St, 132nd o testing and purities underway this week. Ave SE, Rieth Rd, 1081" Ave SE and along S Northbound lane pavement rubblizing 208t" St, cleaned up litter along the traffic scheduled this week, with fill wall beds on Pacific Hwy S and from the planted N construction on East side also scheduled to beds on the James St hill, blew leaves c begin. along 64t" Ave S and along S 218t" and E Streets: tested backflow devices at various water a • Street Maintenance performed hot patch facilities. repairs on Riverview Blvd S and on 148t" The Sidearm crews removed and planted U Ave SE, swept shoulders with the power new trees at the Blue Boy pumpstation, ii c broom on Military Rd S and at various removed tree snags on 137t" Ave SE, CU Scenic Hill locations, performed asphalt assisted the Street Maintenance crews with •2 coring for Engineering on 108t" Ave SE, the construction of the Salt Dome at worked on the installation of a Salt Dome KEHOC and assisted the Water Vegetation c at the Kent East Hill Operations Center crews with debris cleaning at various water US (KEHOC), plowed, sanded and applied sites. deicer to roadways, cleaned and unloaded Wetland Mitigation crews prepared a bare the plowing and sanding equipment and root plant order, provided a site tour and filled potholes for several roadways that planted at the Downey site. were damaged due to the storm events at Water: various locations Citywide. Water staff have continued water system • Signs and Markings installed bases and maintenance with dead end main flushing signs on Veterans Dr, performed sidewalk and fire hydrant exercising. Several water coring and sign repair on S 272"d St, set Page 11 of 13 Packet Pg. 14 5.B main shutdowns are scheduled for new logger and reviewed the results, tested the water main tie-ins for developer projects. analog signals of the Auma valves and • Sewer staff have continued line cleaning on control at the 212t" treatment plant, Kent's East Hill on SE 264t" PI, SE 260t" PI discussed and performed SCADA and on Carnaby Way. Sewer line video programming for remote control of the Mill inspections are underway on 111t" PI SE Creek Dam outlet and then contacted the and on SE 267t" PI. contractor once SCADA work was Source, Supply and Pumpstations: completed, followed up on the new SCADA • Source and Supply staff followed up on the servers and contractor remote access to electrical improvements for the 6GM#1 them, worked on the annual Department of tank, resealed the Clark Springs surge Ecology (DOE) Meter, Lost Water and tank, performed a drone flyover at various Habitat Conservation Plan (HCP) reporting watersheds citywide, performed fence and finalized the monthly reports. a repairs at Clark Springs and at the 208t" Water Quality staff worked on the wellhead 0 well, ordered and replaced the booster data collection for December, compiled the = pump at Kent Springs, installed a new December water treatment reports and generator battery charger at pumpstation submitted it to the Department of Health, ; #5, checked on the contractor demolition delivered chemicals to pumpstation #5, L) of the McElderry property located east of Kent Springs and the 212t" treatment plant E Clark Springs, sealed the roof of the surge and performed online treatment and offline 0 room at Clark Springs, cleaned the gutters site and reservoir checks. at the Guiberson reservoir, pumped out the Pumpstation crews repaired a conduit and a pressure reducing valve stations and backfilled around the wet well after performed generator and fuel checks at replacing the lid at the Frage pumpstation, V_ various locations citywide, tested backflow cleaned and picked up the site at Lindental, a prevention devices, assisted Cummins with pumped out ground water from around the the installation of a new automatic transfer wet well pit due to vault flooding, installed N L switch board at the East Hill well, worked a sump pump and prepared the electrical on motor bearing analysis and emergency work for the Muffin Monster install at the o fence repair contracts, removed a tree Frager pumpstation, worked on the > from the flume at Clark Springs and contracts for the shock pulse metering checked the eastern properties and fence testing for the pumps and the load bank N lines for any maintenance needs. testing for the generators, checked the • SCADA staff researched new and/or inventory for the warehouse and performed E reprogrammed the level sensors for the station checks for any maintenance needs w 212t" Hypochlorite tanks, installed the at various pumpstations citywide. caustic valve controller and reviewed/ Storm/Sewer/Drainage Vegetation: modified the programming for it at the East Storm crews cleaned storm line on S 218t" c Hill well, worked on troubleshooting the St, SE 217t" St, SE 222"d St and on SE James St Wonderware programming, 223rd Dr, replaced casting on 68t" Ave S, followed up with RH2 Engineering removed leaves with Snuffy (the leaf regarding the requested contract changes, vacuum) on Reiten Rd and on SE 240t" St, c traced multiple power sources, measured inspected control structures and permeable 60 the current used on H (1, 2 and 3) circuits pavement at various locations citywide, and reviewed the wiring of the performed pond maintenance at 25219 uninterrupted power supply (UPS) at the 113t" Ave SE, repaired a ditch on 81St Ave 212t" treatment plant, wired the portable S, removed cottonwood rounds from the generator at Victoria Ridge to a transfer outfall at 12206 SE 2215t St and performed switch, downloaded the James St changes electrical repairs at the Vactor site. Crews and changed the valve position, reviewed also performed National Pollutant the programming for lag pump operations Discharge Elimination System (NPDES) on pumpstation 3, removed the power assessing on 94t" Ave S, 100t" Ave SE, 88t" Page 12 of 13 Packet Pg. 15 5.6 Ave S and on Reiten Rd, pumping on 104t" Fleet/Warehouse: Ave SE and on 84t" Ave S and repairs at The Warehouse crew prepared the various locations citywide. inventory storage areas for the annual • Wetland Maintenance worked on split rail inventory count, performed an inventory fence removal, installation and repairs for count for the Water, Storm and Sewer Swan Court on 112t" Ave SE, Cherrywood sections, inventoried the small attractive on SE 264t" St, South Bend and Sunpreet assets for Public Works Operations, on 116t" Ave SE, Ridge at Garrison on 110t" continued to assist with CDL training, Ave SE and for Kennebeck on Kennebeck maintained the shops yard, keeping it clean Ave N, removed trees and line trimmed at and free of litter and debris, cleaned and Cantera on SE 2801" St and at Gwen's maintained the wash rack, washed and Wetland on 115t" Ave SE and inspected vacuumed motor pool vehicles, issued wetlands for transient activity and removed personal protection equipment (PPS's) and a litter as necessary at Birk on S 260t" St, motor pool vehicles to staff and hydrant co Maplewood Grove on 108t" Ave SE, meters and public notice boards to Redondo on 27t" Ave S, Signal Electric on contractors, repaired small equipment as 3rd Ave S, 72nd Ave Diversion Channel on needed, received parts and inventory ; 72nd Ave S, Horseshoe Bend on 80t" Ave S, orders, hauled spoils as time and 0 the 196t" Corridor wetland on S 196t" St, equipment were available and continued E Swan Court on 112t" Ave SE, ShoWare lock and unlock the gates in the employee ,° Center on W James St and at the GRNRA south parking lot at the beginning and bike path and south tower. close of the work day. a • Holding Pond crews mowed and line Fleet staff worked on ordering and trimmed at Panther Lake Terrace #3 on SE receiving new vehicles, worked on new 204t" St, Shadow Run on 126t" Ave SE, vehicle builds, sent out multiple vehicles a Freshy's Pond on SE 209t" Ct, (including a Vactor) to body shops or the Meadowgreen Estates on 122nd Ave SE, the dealer for repairs and recalls, performed ) L 240t" St Holding Pond on SE 238t" PI, monthly air brake inspections, prepared U Matheson Park on SE 222nd PI, Ferncrest items for auction, performed an end of o West A on 128t" PI SE, Fern Crest Division year inventory count and worked on > 1 on 132nd PI SE, removed and pruned scheduled and non-scheduled maintenance trees at Panther Lake Terrace #3 on SE and repairs. N 204t" St, Twin Creeks wetland on SE 236t" c PI, Kangley Grove on SE 274t" St, SR 516 ### E #2 on SE 272nd St and at the 277t" a Bioswale on 108t" Ave SE and pruned a shrubs and cleared leaves and debris at the U Frager Pumpstation and Kentview Estates c pumpstation on Frager Rd, Linda Heights pumpstation on S 248t" St, Skyline pumpstation on 35t" PI S, Victoria Ridge pumpstation on S 272nd St, 64t" Ave c pumpstation on S 240t" St, James St U pumpstation on E James St, Washington Ave pumpstation on Washington Ave S, 3rd Ave pumpstation on 3rd Ave S, Upper Mill Storm Pumpstation and Upper Mill Sewer pumpstation on 104t" Ave SE, Foster pumpstation on 74t" Ave S, Horseshoe Storm pumpstation on S Central Ave and at the Union Pacific pumpstation on S 260t" St. Page 13 of 13 Packet Pg. 16 6.A y KENT DATE: January 17, 2023 TO: Kent City Council SUBJECT: Public Hearing on a Resolution for the Surplus of The Bridges Wetlands Property — Adopt MOTION: I move to adopt Resolution No. 2053, that declares Sensitive Area Tracts B, I, Y, and TT of the Bridges plat/PUD as surplus. SUMMARY: The Bridges neighborhood is a 155-acre non-contiguous part of Kent located in the Lea Hill neighborhood of Auburn. This neighborhood was created as a plat/Planned Unit Development (PUD) that was approved by the City of Kent and recorded with King County in 2007. It is currently developed with 386 homes and four parcels for future development that are located in the southern portion of the site. Sensitive Area Tracts B, I, Y, and TT of the Bridges plat/PUD were created and dedicated to the City of Kent through recording of the Bridges plat/PUD. Together, the four Sensitive Area Tracts are approximately 59.25 acres. The Sensitive Area Tracts were established to protect wetlands and associated buffers in accordance with Kent's Critical Areas Ordinance that was effective when the Bridges plat and PUD were submitted to the City in 2004. The "Sensitive Areas Tract Easement" recorded on the face of the Bridges plat/PUD contains broad limitations against future development or disturbance of vegetation within these tracts. The Sensitive Area Tracts are no longer needed for City purposes, and declaring the tracts surplus may facilitate potential de-annexation of the Bridges neighborhood by the City of Kent and its annexation to the City of Auburn. While annexations typically transfer ownership of publicly-owned tracts to the receiving city, Auburn does not wish to take ownership of these tracts. The required wetland protection measures and maintenance responsibilities that apply to the tracts will not change if the property is transferred to another entity in the future. Instead, the protections run with the land and will be the obligation of any future owner. At this time, Oakpointe has indicated a willingness to take possession of the Sensitive Area Tracts, if the tracts are declared surplus and the City elects to proceed with a property transfer in the future. BUDGET IMPACT: None. Packet Pg. 17 6.A SUPPORTS STRATEGIC PLAN GOAL: Innovative Government - Delivering outstanding customer service, developing leaders, and fostering innovation. Evolving Infrastructure - Connecting people and places through strategic investments in physical and technological infrastructure. Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. Inclusive Community - Embracing our diversity and advancing equity through genuine community engagement. ATTACHMENTS: 1. Bridges Wetland Surplus (PDF) Packet Pg. 18 6.A.a 0 0 M L 0 Z Z L m RESOLUTION NO. 2053 c r 0 L A RESOLUTION of the City Council of the City of Kent, Washington, declaring approximately 59.25 acres of land within The Bridges Planned Unit Development surplus to the City's needs. L 0 U_ RECITALS 0 A. The Bridges neighborhood is a 155-acre non-contiguous part of 3 U) Kent located in the Lea Hill neighborhood of Auburn. It is generally bound to 1 the east by 124th Ave SE, on the west by 118th Ave SE, on the north by SE a 0 288th Street and on the south by SE 304th Street. a a� r c B. This neighborhood was created as a plat/Planned Unit 0 a� Development ("PUD") that was approved by the City of Kent and recorded a� in 2007 under King County Recording Number 20071220000095. It is currently developed with 386 homes and four parcels for future development a that are located in the southern portion of the site. N M C. Sensitive Area Tracts B, I, Y, and TT of the Bridges plat/PUD were created and dedicated to the City of Kent through recording of the Bridges plat/PUD ("the Property"). The Property to be declared surplus is cc depicted in the attached and incorporated Exhibit A. a� L m 1 a�i The Bridges Wetlands Surplus - E Resolution r r Q Packet Pg. 19 6.A.a 0 D. Together, the four tracts that make up the Property total about L 0 59.25 acres. E. The Sensitive Area Tracts were established to protect wetlands and associated buffers in accordance with the City of Kent's Critical Areas L Ordinance that was effective when the Bridges plat and PUD were submitted m to the City in 2004. The "Sensitive Areas Tract Easement" recorded on the 0 L face of the Bridges plat/PUD contains broad limitations against future a� development or disturbance of vegetation within these tracts. 3 0 F. The Sensitive Area Tracts are no longer needed for city U L purposes in their entirety. Declaring the property surplus may facilitate �0 potential de-annexation of the Bridges neighborhood by the City of Kent to 0 the City of Auburn. While annexations typically transfer ownership of publicly a L owned tracts to the receiving city, Auburn does not wish to take ownership N of these tracts. a� 0 a G. The required wetland protection measures and maintenance responsibilities will not change if the property is transferred to either a public c or private entity, but such limitations will run with the land and be the L obligation of any future owner. At this time, Oakpointe has indicated a = willingness to take possession of the Sensitive Area Tracts, if the Property is 0 declared surplus and the City later elects to transfer the Property to facilitate a ti annexation. N M N H. Chapter 3.12 of the Kent City Code requires that the City hold a L a public meeting and receive public comment when property is considered cn for surplus. Declaring the Property surplus, however, does not transfer or otherwise authorize the Property's transfer. Instead, it is the first step toward the City further evaluating options available to facilitate annexation. L m 2 m The Bridges Wetlands Surplus - E Resolution r r Q Packet Pg. 20 6.A.a 0 0 M I. After giving timely notice, the City Council held a public hearing 0 on January 17, 2023, at a regularly scheduled City Council meeting and 01 z invited comments regarding the City's intention to surplus the Property. a� •L J. Staff consulted with the City's State Environmental Policy Act m c (SEPA) Responsible Official who issued a Determination of Nonsignificance r for this action on November 4, 2022. No appeals to this decision were filed. a� c K. Having complied with the applicable procedural requirements 0 to declare the Property surplus, the City Council has determined that it is r U appropriate and timely to surplus the Property. c U- 4- 0 NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: a L 3 U) RESOLUTION c SECTION 1. - Recitals Incorporated. The foregoing recitals are o a incorporated into the body of this resolution and constitute the findings of r the Kent City Council on this matter. 0 a� •L SECTION 2. - Public's Best Interest. It is in the public's best interest x that the City declare the property surplus, which is the first step needed 2 before the Property can be considered for possible transfer to another entity, a including Oakpointe, to facilitate annexation. If the City were to transfer the N Property in the future, it would remain subject to the limitations and N protections secured by the plat/PUD's Sensitive Areas Tract Easement. a L U) SECTION 3. - Surplus Declaration. After giving timely notice as required by KCC 3.12.050, a public hearing was held on January 17, 2023, at a regular meeting of the Kent City Council to evaluate whether the Property depicted in the attached and incorporated Exhibit A should be m 3 The Bridges Wetlands Surplus - E Resolution r r Q Packet Pg. 21 6.A.a 0 declared surplus. Having given due consideration, the City Council declares 0 L 0 as surplus the Property, depicted in Exhibit A, totaling approximately 59.25 0 acres in size. z as SECTION 4. - Corrections by City Clerk. Upon approval of the city L attorney, the city clerk is authorized to make necessary corrections to this m resolution, including the correction of clerical errors; resolution, section, or L subsection numbering; or references to other local, state, or federal laws, a� codes, rules, or regulations. 3 0 SECTION 5. - Effective Date. This resolution shall take effect and be U L in force immediately upon its passage. �0 0 a L January 17, 2023 N DANA RALPH, MAYOR Date Approved as r 0 a ATTEST: c 0 January 17, 2023 i KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted x 0 a APPROVED AS TO FORM: N M N 7 TAMMY WHITE, CITY ATTORNEY c �a a� as L m 4 The Bridges Wetlands Surplus - E Resolution r r Q Packet Pg. 22 6.A.a Exhibit A O O L O SE 284th St t Z SE 286rh St SE'266th �L 286th PI r, C SF 288th St to r SE 288th PI v r.i R 'h SC w i - H N CX ,90th PI s>r a 9oth PI 3 �Il 'ti 2�3td W V 4�1 3E 294th St ti Jacobsen o u, Tree 3 ^ SF 295th St Farm M L 3E 297th,,cr, Auburndale SE 296th Way Two Park c � e o SF i 98 PI ti a a� W .� U C 1 Q Auburn �, —,T-- sF = `2p1 St PI SE se- 00th Way SE 301st St R v fa, �" SE 301st PI N � _ a CS N V D 7 IL SE 304th St ~ SE 304tti St ti N M W f/l _) 7 � 7 e N U) _I§E 307th PI SE 30'0'%St L � S 308th o i d _ ;'i r rn m Figure 1: Approximate location of Bridges Sensitive Area Tracts Bj Y and TT -a �L m d E M V Q Packet Pg. 23 8.A.1 Pending Approval City Council Workshop • Workshop Regular Meeting KENT Minutes WAS M IN G 7 0 N December 13, 2022 Date: December 13, 2022 Time: 5:00 p.m. Place: Chambers I. CALL TO ORDER Attendee Name Title Status Arrived a� Bill Boyce Council President Present c Brenda Fincher Councilmember Present Satwinder Kaur Councilmember Present c Marli Larimer Councilmember Remote Zandria Michaud Councilmember Present 0 Toni Troutner Councilmember Present a Les Thomas Councilmember Present a Dana Ralph Mayor Present a 0 II. PRESENTATIONS LO 1 Lost Urban Creeks Youth Interns Mike Mactutis 30 MIN. N Anna Bachmann N Puget Soundkeeper Alliance o 0 Environmental Engineering Manager, Mike Mactutis introduced members from Unleash the Brilliance youth mentorship group that is working with the Puget Soundkeeper Alliance on the "Lost Urban Creeks Project." Anna Backmann, from the Puget Soundkeeper Alliance was present and oversees the internship program. a as Interns: Hannah Park, Emanuel Chavez, Dylan Dozier and Cole Dozier, with a Unleash the Brilliance, presented information to the Council on water quality and the streams in Kent. The interns provided an overview of the organization that was created to empower local youth and communities around Springbrook Creek to study, improve water quality and steward Springbrook Creek as well as other urban creeks of Puget Sound. Details were provided regarding the Springbrook Creek Watershed Final Water Quality Monitoring Report for 2019/2020 and 2020/2021 that included findings related to dissolved oxygen, temperature, turbidity and bacteria. Recommendations included: stream restoration, Green stormwater Packet Pg. 24 8.A.1 City Council Workshop Workshop Regular December 13, 2022 Meeting Kent, Washington Minutes ......................................................................................................................................................................................................................................................................................................._............................................................................................................................................................................................................... infrastructure, improvements to flows (i.e. culverts and channel improvements), bacterial source tracking and Springbrook Watershed Restoration Plan. Environmental Engineering Manager, Mike Mactutis provided details on the projects that Kent is working on related to the urban creeks. The Drainage District owns the system and the City works in cooperation with the District. a� r Mactutis advised in 2023 the City is starting the Source Control Inspection Program that is designed to intercept materials before they enter the creeks. — 2 Green River Update Mike Mactutis 30 MIN. 0 L Environmental Engineering Manager, Mike Mactutis provided the Council with Q an update on work related to the Green River. a Mactutis provided an overview of the Green River Watershed and advised the o City of Kent is mostly in the Lower Green River watershed. The lower Green N creek systems flow into the Black River pump station and then into the N Duwamish. M Mactutis reviewed the Clean Water - Stormwater Management and Pollutant o Control programs and provided an update on the Howard Hanson dam 0 projects. r The City is working work with the King County Flood Control District on _ capital projects. The next steps related to the Lower Green River Flood Hazard Management Plan include an alternative analysis on how to deal with levy projects along the river. Q Mactutis advised the City is working on the Signature Point Levee project and c are currently progressing designs, working on real estate acquisitions and are participating in the Habitat Work Group. The Milwaukee 2 Levee project work includes progressing real estate acquisitions and utility relocations. The City is working with the US Army Corps of Engineers and King County on flood damage repair to the McCoy and Desimone levees. Mactutis provided information on updates to the river monitoring gages through the USGS and provided on outlook from NOAA on the winter weather ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 2 of 3 Packet Pg. 25 8.A.1 City Council Workshop Workshop Regular December 13, 2022 Meeting Kent, Washington Minutes ......................................................................................................................................................................................................................................................................................................._............................................................................................................................................................................................................... forecast. Mactutis provided an update on the Downey Farmstead Restoration Project, with construction being nearly completed and the Lower Russell Habitat Area "A" project that has received some grant funds to start the project. Meeting ended at 6:00 p.m. K6mtx rley A. KoT o-to- a City Clerk O O L Q. CQ L a 0 0 LO N N O N M V d O N d 7 C N V C O r Q. d C� t� Q N O r 7 C ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 3 of 3 Packet Pg. 26 8.A.2 Pending Approval Kent City Council • City Council Regular Meeting KENT Minutes WAS M IN G 7 0 N December 13, 2022 Date: December 13, 2022 Time: 7:00 p.m. Place: Chambers 1. CALL TO ORDER/FLAG SALUTE Mayor Ralph called the meeting to order. c 2. ROLL CALL Attendee Name 1Title Status Arrived Dana Ralph Mayor Present > Bill Boyce Council President Present a Brenda Fincher Councilmember Present �- a Satwinder Kaur Councilmember Present Marli Larimer Councilmember Remote a Toni Troutner Councilmember Present 0 Les Thomas Councilmember Present Zandria Michaud Councilmember Excused c N 3. AGENDA APPROVAL Chief Administrative Officer, Pat Fitzpatrick removed item 6.A - Public o Hearing on the Potential Surplus of Four City-Owned Tracts in Bridges o Neighborhood from the agenda and advised it will be rescheduled to the a January 17, 2023, City Council meeting to provide an opportunity for proper notice. A. I move to approve the agenda as amended. RESULT: MOTION PASSES [UNANIMOUS] MOVER: Bill Boyce, Council President Q SECONDER: Les Thomas, Councilmember AYES: Boyce, Fincher, Kaur, Larimer, Troutner, Thomas c 4. PUBLIC COMMUNICATIONS A. Public Recognition L Employee of the Month Mayor Ralph recognized Mike Houlihan, Maintenance Worker in the Solid Waste Division of the Public Works Operations Department, as the December Employee of the Month. Bill Thomas expressed appreciation of all the work Mike does for his staff and the Public Works Department. Packet Pg. 27 8.A.2 Kent City Council City Council Regular Meeting December 13, 2022 Minutes Kent, Washington ii. Present Giving Campaign Proceeds to Eileen & Callie's Place Mayor Ralph presented proceeds from the City's Employee Giving Campaign to Dr. Natalie Ellington, Founder and Executive Director of Eileen & Callie's Place. Dr. Natalie Ellington expressed appreciation of the donation and advised that Eileen and Callie's Place supports girls that have aged out of foster care. The organization concentrates on building relationships with the girls. iii. Reappointments to the Human Services Commission Mayor Ralph requested the Council confirm her recommendations of Rickie r Robinson and Connie Stolpp to serve on Kent's Human Services Commission. iv. Appointments to the Kent Bicycle Advisory Board — Mayor Ralph requested the Council confirm her recommendations of Allison Hopstad and Tim Irwin to serve on Kent's Bicycle Advisory Board. Tim Irwin 0. indicated he would like to serve on the board and expressed that he is Q impressed with what cities are doing with active mobility and would like to see residents be comfortable going without their cars. a 0 B. Community Events o ti Council President Boyce announced upcoming events at the accesso ShoWare o Center. N M Councilmember Fincher announced upcoming Spotlight Series events and invited the public to visit Kentwa.gov for ticket information. 4- 0 C. Public Safety Report a r Chief Padilla presented the final Public Safety Report of the year. Chief Padilla provided a brief background on Officer Gregory Dale and Mayor Ralph performed the swearing in. a a� Chief Padilla announced the promotions of Justin Davis to Sergeant and Matt a Wheeler to Commander. Chief Padilla reviewed the 2022 Q3 King County Firearm Violence Report obtained from the King County Prosecuting Attorney's Office - Crime Strategies Unit. The 2022 total verified shootings to date were reviewed. The City is currently negotiating a contract with the Puget Sound Regional Fire Authority to provided services relating to the Co-responder Crisis Response Team. The contract should come before the Council on January 17, 2023. Chief provided a hiring update and advised the department is just one position shy of being fully-staffed. ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 2 of 8 Packet Pg. 28 8.A.2 Kent City Council City Council Regular Meeting December 13, 2022 Minutes Kent, Washington S. REPORTS FROM COUNCIL AND STAFF A. Mayor Ralph's Report Mayor Ralph serves Transportation Policy Board that is working through the Regional Transportation Plan and is receiving updates on climate, equity and safety. Mayor Ralph serves on the South King Area Transportation Board that recently discussed their legislative agenda that strives to ensure South County projects are priorities as funding becomes available. r Mayor Ralph serves as the vice chair of the South King Housing and Homeless Project and advised interviews were held today for an executive — manager. 0 L Mayor Ralph was appointed to the HOPELINK board. a Q Mayor Ralph expressed appreciation for the work of the Public Works crews a related to the recent snow response. o 0 ti Mayor Ralph expressed appreciation of the Puget Sound Regional Fire N Authority, Police and Public Works crews for their response to the fire at the N 105 building on Friday. cli B. Chief Administrative Officer's Report o Chief Administrative Officer, Pat Fitzpatrick advised of an executive session 0 tonight that is expected to last 15 min no action following. a Fitzpatrick announced staff have been participating in Effective Communication trainings that were coordinated by the City's Race and Equity manager. a aD Fitzpatrick advised the January 3, 2023, Operations and Public Safety, Workshop and City Council meetings will probably be canceled. N C. Councilmember's Reports Council President Boyce serves as the Chair of the Council Workshop and provided a recap of the two presentations from today's meeting. Boyce announced a Community Health Fair event on December 17, 2022 at the YMCA from 10 a.m. - 2 p.m. Councilmember Kaur serves as the chair of the Puget Sound Clean Air Agency Advisory Council that recently discussed strategic planning, the Legislative agenda and discussed the agency's vision and mission. ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 3 of 8 Packet Pg. 29 8.A.2 Kent City Council City Council Regular Meeting December 13, 2022 Minutes Kent, Washington Kaur serves on the AWC Federal Legislative Priorities Committee that recently approved the federal legislative agenda. Kaur serves as the chair of the Growth Management Planning Council that recently forwarded their recommendations to the Housing and Affordability Committee. Councilmember Larimer serves on the King County Ageing and Disability Advisory Board that recently received a presentation related to services related to those with dementia. Visit Demential legal planning.org, or call 425- 780-5589. c Councilmember Fincher serves on the Arts Commission that recently o welcomed new commissions. There was also a presentation from Parks Planning for the Mill Creek Park. o L Q Fincher serves as the chair of the City's Public Works Committee and g provided an overview of recent agenda items. a 0 Fincher serves as the chair of the King Conservation District that is working o on strategic planning. N 0 N Fincher serves on the Mental Illness and Drug Dependency Council that cli recently received a report on overdose prevention. 0 4- 6. PUBLIC HEARING 0 a� None. 7. PUBLIC COMMENT a� Laura Kitchen, a member of the Bridges Home Owner's Association, requested the wetlands located in the Bridges neighborhood remain as protected wetlands. a Perry Sobolik, a Kent resident, expressed appreciation of Kent Police Officer 2 Ward and also provided public comment related to the raises for City Council. 8. CONSENT CALENDAR RESULT: APPROVED [UNANIMOUS] MOVER: Bill Boyce, Council President SECONDER: Les Thomas, Councilmember AYES: Boyce, Fincher, Kaur, Larimer, Troutner, Thomas A. Approval of Minutes i. Council Workshop - Workshop Regular Meeting - Nov 15, 2022 5:00 PM ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 4 of 8 Packet Pg. 30 8.A.2 Kent City Council City Council Regular Meeting December 13, 2022 Minutes Kent, Washington ii. City Council Meeting - City Council Regular Meeting - Nov 15, 2022 7:00 PM B. Payment of Bills - Authorize MOTION: I move to authorize the payment of bills received through 11/15/22 and paid on 11/15/22; approve the checks issued for payroll 11/1/22-11/15/22 and paid on 11/18/22; approve the payment of bills received through 11/30/22 and paid on 11/30/22; and approve the checks issued for payroll 11/16/22 - 11/30/22 and paid on 12/5/22, all audited by the Operations and Public Safety Committee on 12/7/22. C. Excused Absence for Councilmember Michaud - Approve 4- 0 MOTION: I move to approve an excused absence for Councilmember Michaud for the December 13, 2022, City 0 Council meeting. a Q D. Accept the Kent Springs Well #3 Component Replacement and Installation Project as Complete - Authorize a 0 MOTION: I move to authorize the Mayor to accept the Kent Springs Well #3 Component Replacement and Installation N Project as complete and release retainage to Gary Harper N Construction, Inc. upon receipt of standard releases from the M State and the release of any liens. a� E. Accept the 2021 Watermain Replacement Project as Complete - Authorize ° a� MOTION: I move to authorize the Mayor to accept the 2021 Watermain Replacement Project as complete and release retainage to Northwest Cascade, Inc. upon receipt of standard releases from the State and the release of any liens. CU F. Second Amendment to Interlocal Agreement with Maple Valley for Municipal Court Services - Approve a MOTION: I move to authorize the Mayor to sign a contract a amendment that extends Kent's interlocal agreement with Maple Valley for municipal court services, for three years, with an option to renew for another three years thereafter, at a cost of $207,856.08 per year, which amount will be adjusted annually by CPI, up to a maximum increase of 5% per year, subject to final terms and conditions acceptable to the Court Administrator and City Attorney. G. Consultant Services Agreements with Protingent, Inc., TEKsystems, Inc., and Affirma, LLC - Authorize ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 5 of 8 Packet Pg. 31 8.A.2 Kent City Council City Council Regular Meeting December 13, 2022 Minutes Kent, Washington MOTION: I move to authorize the Mayor to sign Consultant Services Agreements with Protingent Inc., TEKsystems, Inc., and Affirma, LLC., in a collective amount not to exceed the $2.2 Million budget established for all Information Technology temporary service contracts through December 31, 2024, subject to final terms and conditions acceptable to the IT Director and City Attorney. H. Agreement with The Segal Group, Inc., for a Non-Represented Salary Survey - Authorize a� MOTION: I move to authorize the Mayor to sign a Consultant Services Agreement with The Segal Group, Inc. for a non- represented employee salary survey, in an amount not to - exceed $120,000, subject to final terms and conditions acceptable to the Human Resources Director and City Attorney. o I. Consolidating Budget Adjustment Ordinance for Adjustments Q between July 1, 2022 and September 30, 2022 - Adopt MOTION: I move to adopt Ordinance No. 4453, consolidating o budget adjustments made between July 1, 2022 and September o 30, 2022, reflecting an overall budget increase of $1,252,020. N 0 J. Grant Agreement with Department of Commerce for the City's N cli Periodic Update to its Comprehensive Plan - Authorize MOTION: I move to authorize the Mayor to accept the o Department of Commerce's grant in the amount of $325,000, o amend the budget and authorize expenditure of the grant funds, and authorize the Mayor to sign the grant agreement and all necessary documents, subject to the final terms and conditions acceptable to the City Attorney and Economic and Community Development Director. CU K. Amendment #4 to Consultant Services Agreement with Robert Half International, Inc., for IT Temporary Staff - Authorize a MOTION: I move to authorize the Mayor to sign Amendment No. 4 to the Consultant Services Agreement with Robert Half International, Inc., in an amount not to exceed the previously established budget of $740,000.00, through December 31, 2023, subject to final terms and conditions acceptable to the IT Director and City Attorney. L. Consolidating Budget Adjustment Ordinance for Adjustments between October 1, 2022, and November 30, 2022 - Adopt MOTION: I move to adopt Ordinance No. 4455, consolidating budget adjustments made between October 1, 2022, and November 30, 2022, reflecting an overall budget increase of $12,942,540. ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 6 of 8 Packet Pg. 32 8.A.2 Kent City Council City Council Regular Meeting December 13, 2022 Minutes Kent, Washington M. Ordinance - Annual Housekeeping Amendments to Zoning Code and Development Regulations - Adopt MOTION: I move to adopt Ordinance No. 4456, amending various provisions within the Kent City Code to correct errors and provide clarity in the City's zoning code and development regulations. N. Resolution Establishing Fee Rates for 2023 - Adopt MOTION: I move to repeal Resolution No. 2022 and adopt Resolution No. 2052, implementing new fees to be effective 2 January 01, 2023. O. Agreement with EuroStage Mobile Stages - Authorize - MOTION: I move to authorize the Mayor to sign a Goods and Services Agreement with EuroStage Mobile Stages, in the Q amount of $115,935 for the purchase of a new mobile stage, Q subject to final terms and conditions acceptable to the Parks Director and City Attorney. a 0 P. Agreement with West Coast Concrete Restoration, LLC - o ti Authorize N N MOTION: I move to authorize the Mayor to sign a Public Workscli N Agreement with West Coast Concrete Restoration, LLC for the pressure washing, tuckpointing, caulking, and clear sealing of the Centennial Center in an amount not to exceed $101,305.32, o subject to final terms and conditions acceptable to the Parks Director and City Attorney. c Q. Department of Commerce Grant Agreement for Quiet Zone Improvements - Authorize MOTION: I move to authorize the Mayor to accept grant funds from the state Department of Commerce in the amount of $2,950,000 for railroad quiet zone improvements, sign the Q grant agreement, amend the budget, and authorize expenditure of the funds, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. R. Reappointments to the Human Services Commission - Confirm MOTION: I move to confirm the Mayor's reappointments of Rickie Robinson and Connie Stolpp to 4-year terms on the Human Services Commission that will begin on January 1, 2023 and end on December 31, 2026. S. Appointments to the Kent Bicycle Advisory Board - Confirm ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 7 of 8 Packet Pg. 33 8.A.2 Kent City Council City Council Regular Meeting December 13, 2022 Minutes Kent, Washington MOTION: I move to confirm appointments of Allison Hopstad and Tim Irwin to inaugural terms on the Kent Bicycle Advisory Board that will begin January 1, 2023 and end March 31, 2024. 9. OTHER BUSINESS None. 10. BIDS A. South 240th Street and Russell Road Transportation Improvement Board Sidewalk Improvements Bid - Award Public Works Director, Chad Bieren presented information on the South 240th Street and Russell Road Transportation Improvement Board Sidewalk o Improvements Bid and recommended awarding to Active Construction Inc. 0 MOTION: I move to award the South 240th Street and Russell 0. CL Road Transportation Improvement Board Sidewalk Q Improvements Project to Active Construction Inc. in the amount of $1,943,943 and authorize the Mayor to sign all a 0 necessary documents, subject to final terms and conditions o acceptable to the City Attorney and Public Works Director. N N O RESULT: MOTION PASSES [UNANIMOUS] M MOVER: Brenda Fincher, Councilmember SECONDER: Satwinder Kaur, Councilmember o AYES: Boyce, Fincher, Kaur, Larimer, Troutner, Thomas o m r 11. EXECUTIVE SESSION AND ACTION AFTER EXECUTIVE SESSION A. Collective Bargaining, as per RCW 42.30.140(4)(a)12 M a� At 8:10 p.m., the Council went into executive session. At 8:25, executive session was extended for an additional 5 minutes. At 8:31 p.m., the Council reconvened into regular session. Q 12. ADJOURNMENT a With no action following executive session, Mayor Ralph provided closing comments and adjourned the meeting. Meeting ended at 8:33 p.m. Kt*n e ley A. Ko wwta- City Clerk ......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... Page 8 of 8 Packet Pg. 34 8.B KENT WASH IN G T O N DATE: January 17, 2023 TO: Kent City Council SUBJECT: Accept the 2022 Plastic Markings Project as Complete - Authorize MOTION: I move to authorize the Mayor to accept the 2022 Plastic Markings Project as complete and release retainage to Apply-A-Line, LLC upon receipt of standard releases from the State and the release of any liens. SUMMARY: This project included replacing thermoplastic pavement markings and limited installation of other pavement markings at various locations Citywide. These new markings more clearly direct traffic, thus increasing safety and efficiency of travel throughout the City. The final contract total paid was $136,106.25 which is $9,281.75 under the original contract amount of $145,388.00. BUDGET IMPACT: The project was paid for using B&O Funds. SUPPORTS STRATEGIC PLAN GOAL: Evolving Infrastructure - Connecting people and places through strategic investments in physical and technological infrastructure. Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. Packet Pg. 35 8.0 y KENT DATE: January 17, 2023 TO: Kent City Council SUBJECT: Accept the East Tacoma Street - Kensington Avenue Drainage Improvements Project as Complete - Authorize MOTION: I move to authorize the Mayor to accept the E. Tacoma Street - Kensington Avenue Drainage Improvements Project as complete and release retainage to Olson Brothers Excavating, Inc. upon receipt of standard releases from the State and the release of any liens. SUMMARY: This project consisted of the construction of an open channel drainage swale with large rock to provide energy dissipation and minimize downstream maintenance for city staff. The final contract total paid was $315,623.99 which is $91,782.01 under the original contract amount of $407,406.00. BUDGET IMPACT: The project was funded by the Drainage Utility fund. SUPPORTS STRATEGIC PLAN GOAL: Evolving Infrastructure - Connecting people and places through strategic investments in physical and technological infrastructure. Packet Pg. 36 8.D y KENT DATE: January 17, 2023 TO: Kent City Council SUBJECT: Appointment to the Kent Arts Commission - Confirm MOTION: I move to confirm the Mayor's appointment of Karen (Renee) Hazen to fill the vacant alternate position on the Arts Commission to serve from January 17, 2023 to September 5, 2026. SUMMARY: Founded by City Ordinance in 1975, the Kent Arts Commission promotes cultural programs and provides citizen input to the planning of arts and cultural activities. The mission of the Arts Commission is to provide leadership in establishing cultural opportunities and arts education, to improve the quality of life and enhance the aesthetic environment, and to promote Kent as a center for great arts. Kent Parks, Recreation and Community Services staff provides all staff support to this group. Major programs include: An extensive public art program, an active performing arts program, two grant programs, and several community events and festivals. The Commission also offers free or low-cost community workshops and school residencies in conjunction with many performances and visual arts programs. An extensive recruitment process included promotion on the City's webpage, social media posts, and inclusion in the Parks Department's and Mayor's newsletters. Staff also sent notification of commissioner openings directly to existing board commission members, the full database of recent applicants, Cultural Community board members, the Kent Chamber of Commerce, and the Kent Downtown Partnership. For this vacancy, staff received three applicants. Renee Hazen was selected to be appointed. Renee Hazen is a self-employed artist, having worked previously in the corporate world. She has been active as a participant in Kent Arts Commission programs, including submitting artwork to the online platform, KentCreates.com and showing her work in the annual Summer Art Exhibit. In 2022, Renee was the recipient of a Summer Arts Exhibit Purchase Award, adding her first piece to the City's portable art collection. I am pleased to recommend appointment of Renee Hazen to the Kent Arts Commission to complete the vacant term ending on September 5, 2026. Packet Pg. 37 8.D BUDGET IMPACT: SUPPORTS STRATEGIC PLAN GOAL: Inclusive Community - Embracing our diversity and advancing equity through genuine community engagement. Packet Pg. 38 8.E y KENT DATE: January 17, 2023 TO: Kent City Council SUBJECT: LTAC Grant to Economic and Community Development Department to Support the Visit Kent Tourism Promotion Campaign - Authorize MOTION: I move to approve a Lodging Tax Advisory Committee grant to the City and its Economic and Community Development Department in the amount of $133,500 to maintain the "Visit Kent" tourism promotion program and web/media presence; and authorize the mayor to execute a contract with JayRay, subject to final terms and conditions acceptable to the City Attorney and Economic and Community Development Director. SUMMARY: The Lodging Tax and Advisory Committee has recommended a grant award in the amount of $133,500 to the City of Kent to support the "Visit Kent" tourism promotion program through a contract with JayRay Ads and PR, Inc. This promotional contract is administered by the City's Economic and Community Development Department. Washington State collects a lodging tax for each hotel/motel stay in our state that is less than 30 days in duration. A portion of this revenue is returned to the city or other jurisdiction in which the stay took place and this is to be used to promote attractions and events likely to bring visitors to that city to stay overnight, dine and shop. A local committee, comprised 50% of representatives from the hospitality industry and 50% from local organization who may stage or sponsor events, make recommendations as to how these funds should be utilized by recommending grants to support events and programs which may draw visitors for extended stays. Kent's Economic development team has worked with Jay Ray since 2017 when the Visit Kent Tourism Promotion campaign was established. This program includes a website dedicated to highlighting Kent's unique destinations, diverse food scene and recreational opportunities, pitches to local print media and increasingly, establishing a robust social media presence across multiple platforms to engage potential travelers from all over and generate traffic to VisitKent.com. 2022 introduced a new advertising approach using geolocation technology to identify markets uniquely receptive to marketing of Kent attractions, efforts which earned an estimated 2.8 million dollars in revenue from lodging, dining and events in our city. Packet Pg. 39 8.E The 2023 Program proposes to refresh the website design, increase the number of social media posts on the most effective platforms, and fund additional geolocation campaigns to capitalize on the renewed interest and enthusiasm for travel and tourism further away from home. BUDGET IMPACT: $133,500.00 of Lodging Tax Revenue returned from the Sate to support tourism promotion efforts. SUPPORTS STRATEGIC PLAN GOAL: Thrivinci City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. Inclusive Community - Embracing our diversity and advancing equity through genuine community engagement. ATTACHMENTS: 1. JayRay Ads & PR ConsultantServicesAgreement 2023 Draft (PDF) 01/09/23 Economic and Community Development Committee RECOMMENDED TO COUNCIL RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 1/17/2023 7:00 PM MOVER: Zandria Michaud, Councilmember SECONDER: Marli Larimer, Councilmember AYES: Bill Boyce, Marli Larimer, Zandria Michaud ABSENT: Toni Troutner Packet Pg. 40 8.E.a • KENT CONSULTANT SERVICES AGREEMENT E between the City of Kent and 0 JayRay Ads & PR, Inc. Y THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation (hereinafter j the "City"), and JayRay Ads & PR, Inc. organized under the laws of the State of Washington, located and doing business at 535 Dock Street, Suite 205, Tacoma Washington 98402 (253) 627-9128 (hereinafter the "Consultant"). 0 Q. I. DESCRIPTION OF WORK. in 0 The Consultant shall perform the following services for the City in accordance with the following v described plans and/or specifications: w 0 r c Website design update, Social Media Outreach, Marketing Services, Project Management related to subconsultant development of additional geolocation targeted marketing v campaigns. J N r M The Consultant further represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices within the Puget Sound region in effect at the o time those services are performed. N 0 N 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. The Consultant shall complete the work described in Section I by December 31, 2023. a L III. COMPENSATION. Q N N 0 A. The City shall pay the Consultant, based on time and materials, an amount not to exceed $133,500.00, for the services described in this Agreement. This is the maximum amount to be paid under this Agreement for the work described in Section I above, and shall not be q exceeded without the prior written authorization of the City in the form of a negotiated and executed amendment to this agreement. The Consultant agrees that the hourly or flat rate charged by it for its services contracted for herein shall remain locked at the negotiated rate(s) 0 for a period of one (1) year from the effective date of this Agreement. The Consultant's billing W rates shall be as delineated in Exhibit Exhibit A. a B. The Consultant shall submit monthly payment invoices to the City for work performed, and a a final bill upon completion of all services described in this Agreement. The City shall provide payment within forty-five (45) days of receipt of an invoice. If the City objects to all or any portion of an invoice, it shall notify the Consultant and reserves the option to only pay that portion of the invoice not in dispute. In that event, the parties will immediately make every effort to settle the disputed portion. m E C. Card Payment Program. The Consultant may elect to participate in automated credit card 5 payments provided for by the City and its financial institution. This Program is provided as an a alternative to payment by check and is available for the convenience of the Consultant. If the Consultant voluntarily participates in this Program, the Consultant will be solely responsible CONSULTANT SERVICES AGREEMENT - 1 (Over$20,000) Packet Pg. 41 8.E.a for any fees imposed by financial institutions or credit card companies. The Consultant shall not charge those fees back to the City. IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor- Employer Relationship will be created by this Agreement. By their execution of this Agreement, and in N accordance with Ch. 51.08 RCW, the parties make the following representations: 0 H A. The Consultant has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. Y B. The Consultant maintains and pays for its own place of business from which the Consultant's services under this Agreement will be performed. C. The Consultant has an established and independent business that is eligible for a o business deduction for federal income tax purposes that existed before the City 0 retained the Consultant's services, or the Consultant is engaged in an independently cn established trade, occupation, profession, or business of the same nature as that ° involved under this Agreement. o t� w D. The Consultant is responsible for filing as they become due all necessary tax documents with appropriate federal and state agencies, including the Internal Revenue Service and the state Department of Revenue. c.� E. The Consultant has registered its business and established an account with the state Department of Revenue and other state agencies as may be required by the Consultant's business, and has obtained a Unified Business Identifier (UBI) number c•, from the State of Washington. M F. The Consultant maintains a set of books dedicated to the expenses and earnings of its business. o M N V. TERMINATION. Either party may terminate this Agreement, with or without cause, upon N 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 the Consultant's records or data is not related to this project, it shall be without liability or legal Q exposure to the Consultant. w m VI. FORCE MA)EURE. Neither party shall be liable to the other for breach due to delay or failure in performance resulting from acts of God, acts of war or of the public enemy, riots, pandemic, fire, flood, 65 or other natural disaster or acts of government ('force majeure event"). Performance that is prevented or delayed due to a force majeure event shall not result in liability to the delayed party. Both parties represent to the other that at the time of signing this Agreement, they are able to perform as required and their performance will not be prevented, hindered, or delayed by the current COVID-19 pandemic, any existing 0 state or national declarations of emergency, or any current social distancing restrictions or personal W protective equipment requirements that may be required under federal, state, or local law in response to a the current pandemic. 06 a If any future performance is prevented or delayed by a force majeure event, the party whose performance is prevented or delayed shall promptly notify the other party of the existence and nature of W, the force majeure event causing the prevention or delay in performance. Any excuse from liability shall be effective only to the extent and duration of the force majeure event causing the prevention or delay in performance and, provided, that the party prevented or delayed has not caused such event to occur and continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation. E c� Notwithstanding other provisions of this section, the Consultant shall not be entitled to, and the City a shall not be liable for, the payment of any part of the contract price during a force majeure event, or any costs, losses, expenses, damages, or delay costs incurred by the Consultant due to a force majeure event. CONSULTANT SERVICES AGREEMENT - 2 (Over$20,000) Packet Pg. 42 8.E.a Performance that is more costly due to a force majeure event is not included within the scope of this Force Majeure provision. If a force majeure event occurs, the City may direct the Consultant to restart any work or performance that may have ceased, to change the work, or to take other action to secure the work or the N project site during the force majeure event. The cost to restart, change, or secure the work or project site 5 arising from a direction by the City under this clause will be dealt with as a change order, except to the 1�0 extent that the loss or damage has been caused or exacerbated by the failure of the Consultant to fulfill its obligations under this Agreement. Except as expressly contemplated by this section, all other costs will be Y borne by the Consultant. N VII. 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 o 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. The Consultant shall execute cn the attached City of Kent Non-Discrimination Policy Declaration and comply with City Administrative ° Policy 1.2. o t� w VIII. INDEMNIFICATION. The 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 v negligence. J The City's inspection or acceptance of any of the Consultant's work when completed shall not be c•, grounds to avoid any of these covenants of indemnification. M 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 o caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, N employees, agents and volunteers, the Consultant's duty to defend, indemnify, and hold the City harmless, N and the Consultant's liability accruing from that obligation shall be only to the extent of the Consultant's c negligence. E aD m IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION `n PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL w INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES V FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. m In the event the Consultant refuses tender of defense in any suit or any claim, if that tender was made pursuant to this indemnification clause, and if that refusal is subsequently determined by a court having jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the Consultant's part, then the Consultant shall pay all the City's costs for defense, including all reasonable expert witness fees and v reasonable attorneys'fees, plus the City's legal costs and fees incurred because there was a wrongful refusal W on the Consultant's part. a The provisions of this section shall survive the expiration or termination of this Agreement. a IX. INSURANCE. The Consultant shall procure and maintain for the duration of the Agreement, WM insurance of the types and in the amounts described in Exhibit B attached and incorporated by this reference. X. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide reasonable accuracy of any information supplied by it to the Consultant for the purpose of completion of the work under E this Agreement. XI. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents, drawings, a designs, reports, or any other records developed or created under this Agreement shall belong to and CONSULTANT SERVICES AGREEMENT - 3 (Over$20,000) Packet Pg. 43 8.E.a become the property of the City. All records submitted by the City to the Consultant will be safeguarded by the Consultant. The Consultant shall make such data, documents, and files available to the City upon the City's request. The Consultant acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington. As such, the Consultant agrees to E cooperate fully with the City in satisfying the City's duties and obligations under the Public Records Act. The ,n City's use or reuse of any of the documents, data, and files created by the Consultant for this project by 5 anyone other than the Consultant on any other project shall be without liability or legal exposure to the 1�0 Consultant. c as Y XII. CITY'S RIGHT OF INSPECTION. Even though the 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. 0 XIII. WORK PERFORMED AT CONSULTANT'S RISK. The Consultant shall take all necessary 0 precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the cn performance of the contract work and shall utilize all protection necessary for that purpose. All work shall ° be done at the Consultant's own risk, and the Consultant shall be responsible for any loss of or damage to v materials, tools, or other articles used or held for use in connection with the work. w 0 r XIV. MISCELLANEOUS PROVISIONS. c L A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its v contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. N B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the M 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. o M N C. Resolution of Disputes and Governing_Law. This Agreement shall be governed by and N 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 c writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the w parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred CU in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's u) right to indemnification under Section VIII of this Agreement. D. Written Notice. All communications regarding this Agreement shall be sent to the parties at c the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written 0 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 Ca Agreement or such other address as may be hereafter specified in writing. U) a 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, W, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. c m F. Modification. No waiver, alteration, or modification of any of the provisions of this Agreement E shall be binding unless in writing and signed by a duly authorized representative of the City and the Consultant. a CONSULTANT SERVICES AGREEMENT - 4 (Over$20,000) Packet Pg. 44 8.E.a 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 E 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. O H 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 the Consultant's Y business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. > a� z I. Public Records Act. The Consultant acknowledges that the City is a public agency subject the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, o emails, and other records prepared or gathered by the Consultant in its performance of this Agreement may o be subject to public review and disclosure, even if those records are not produced to or possessed by the u) City of Kent. As such, the Consultant agrees to cooperate fully with the City in satisfying the City's duties ° and obligations under the Public Records Act. o t� w J. City Business License Required. Prior to commencing the tasks described in Section I, Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. c.� Q J N r M r R L M N O N C N E N N L Q N N V d co C R 7 N C O V d N Q O cC C d E t v cC a-. a-. Q CONSULTANT SERVICES AGREEMENT — 5 (Over$20,000) Packet Pg. 45 8.E.a K. Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page E to the other by fax or email and that signature shall have the same force and effect as if the Agreement ,n bearing the original signature was received in person. 0 H IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior Y to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed to have applied. > a� z CONSULTANT: CITY OF KENT: 0 Q. 0 By: By: 0 c Print Name: Print Name: Dana Ralph w 0 r Its Its Mayor ,L^ V DATE: DATE: v Q J NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: N r M CONSULTANT: CITY OF KENT: r 0 L Bridget Baeth Michelle Wilmot o JayRay Ads & PR, Inc. City of Kent N 535 Dock Street, Suite 205 220 Fourth Avenue South N Tacoma, WA 98042 Kent, WA 98032 E (253) 627-9128 (telephone) (253) 852-5709 (telephone) L (253) 627-6548 (facsimile) (253) 856-6454 (facsimile) Q N N V APPROVED AS TO FORM: m c c� Kent Law Department c v ATTEST: W IL 06 Q Kent City Clerk 0 [In this field,you may enter the electronic filepath where the contract has been saved] 7 C d E t V fC a+ a+ Q CONSULTANT SERVICES AGREEMENT - 6 (Over$20,000) Packet Pg. 46 8.E.a DECLARATION CITY OF KENT NON-DISCRIMINATION POLICY E •L 0 The City of Kent (City) is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors, consultants, vendors, and suppliers who Y perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. > a� The City of Kent and its contractors are subject to and will comply with the following: 0 a • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); c c • 49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs w Of The Department Of Transportation-Effectuation Of Title VI Of The Civil r Rights Act Of 1964); ,L^ V • 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964). J • Ch. 49.60 RCW (Washington Law Against Discrimination) r M r The preceding statutory and regulatory cites hereinafter are referred to as "the Acts and o Regulations". M N O N The following statements specifically identify the requirements the City deems necessary for any c contractor, subcontractor, or supplier on this specific Agreement to adhere to. An affirmation of E all of the following is required for this Agreement to be valid and binding. If any contractor, a subcontractor, or supplier willfully misrepresents themselves with regard to the directives outlined Q below, it will be considered a breach of contract and it will be at the City's sole determination CD regarding suspension or termination for all or part of the Agreement. a� The statements are as follows: c 1. I have read the attached City of Kent administrative policy number 1.2. 0 U 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. a 3. During the time of this Agreement I, the prime contractor, will provide a written statement a 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 a promotion of women and minorities. E 5. During the performance of this contract, the contractor, for itself, its assignees, and a successors in interest (hereinafter referred to as the "contractor") agrees as follows: EEO COMPLIANCE DOCUMENTS - 1 Packet Pg. 47 8.E.a A. Compliance with Regulations: The contractor, subcontractor, consultant, vendor, and supplier (hereinafter "Contractor") will comply with all Acts and the Regulations relative to non-discrimination, including those applicable to Federally- assisted programs of the U.S. Department of Transportation, State-assisted E programs through the Washington State Department of Transportation, and T generally under Washington's Law Against Discrimination, Ch. 49.60 RCW, as they E may be amended from time to time, which are herein incorporated by reference and made a part of this contract. Y B. Non-discrimination: The contractor, with regard to the work performed by it > during the contract, will not discriminate on the grounds of race, color, or nationalCD origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or a indirectly in the discrimination prohibited by the Acts and the Regulations, including N employment practices when the contract covers any activity, project, or program G set forth in Appendix B of 49 CFR Part 21. c c.� w C. Solicitations for Subcontracts, Including Procurements of Materials and 2 Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or a supplier will be notified by the contractor of the contractor's obligations under this J contract and the Acts and the Regulations relative to non-discrimination on the grounds of race, color, or national origin. M D. Information and Reports: The contractor will provide all information and reports required by the Acts and Regulations and directives issued pursuant thereto and will o permit access to its books, records, accounts, other sources of information, and its N facilities as may be determined applicable to contractor's contract by the City or the N Washington State Department of Transportation to be pertinent to ascertain compliance with such Acts and Regulations and instructions. Where any information E required of a contractor is in the exclusive possession of another who fails or ai refuses to furnish the information, the contractor will so certify to the City or the Washington State Department of Transportation, as appropriate, and will set forth what efforts it has made to obtain the information. a� E. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the non-discrimination provisions of this contract, the City will impose such contract y sanctions as it or the Washington State Department of Transportation may c determine to be appropriate, including, but not limited to: U a a. withholding payments to the contractor under the contract until the 06 contractor complies; and/or a b. cancelling, terminating, or suspending a contract, in whole or in part. F. Incorporation of Provisions: The contractor will include the provisions of paragraphs (A) through (F) above in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts and Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the City or the Washington State Department of Transportation may direct as a means of enforcing such provisions including a sanctions for noncompliance. Provided, that if the contractor becomes involved in, EEO COMPLIANCE DOCUMENTS - 2 Packet Pg. 48 8.E.a or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. E L 6. During the performance of this contract, the contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Y r .y Pertinent Non-Discrimination Authorities: (D L i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), 0 (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. 0 ii. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose o property has been acquired because of Federal or Federal-aid programs and projects); iii. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination v on the basis of sex); J iv. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, N (prohibits discrimination on the basis of disability); and 49 CFR Part 27; M V. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); o vi. Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as N amended, (prohibits discrimination based on race, creed, color, national origin, or N sex); _ vii. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, E coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the .2 programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); CU viii. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination 5 on the basis of disability in the operation of public entities, public and private WC 0 transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation 06 regulations at 49 C.F.R. parts 37 and 38; ix. The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) Q (prohibits discrimination on the basis of race, color, national origin, and sex); X. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures Non-discrimination against minority populations by discouraging programs, policies, and activities with E disproportionately high and adverse human health or environmental effects on minority and low-income populations; a EEO COMPLIANCE DOCUMENTS - 3 Packet Pg. 49 8.E.a xi. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons E have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); o xii. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et Y seq). xiii. Washington Law Against Discrimination (Ch. 49.60 RCW) '> a� 8. The submission of the final invoice for this contract will constitute a reaffirmation that the preceding statements were complied with during the course of the contract's performance. a Q. By signing below, I agree to fulfill the five requirements referenced above. c c w By: 2 For: ;a c.� Title: J Date: N r M r R L M N O N C N E N N L Q N N V d C R 7 N C O V d N Q O cC C d E t v cC Q EEO COMPLIANCE DOCUMENTS - 4 Packet Pg. 50 8.E.a CITY OF KENT ADMINISTRATIVE POLICY E L NUMBER: 1.2 EFFECTIVE DATE: October 20, 2022 t° r c as Y .y SUBJECT: INCLUSIVE CONTRACTING SUPERSEDES: January 1, 1998 APPROVED BY Dana Ralph, Mayor a Q. POLICY: c 0 Equal employment opportunity and non-discrimination in contracting requirements for the City of w 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: a 1. Provide a written statement to all new employees and subcontractors indicating J commitment as an equal opportunity employer. M 2. Actively consider for promotion and advancement available minorities and women. L Further, all contractors, subcontractors, consultants, suppliers, grantees, or subgrantees of the N City, regardless of the value of the Agreement, are required to sign the City's Non-Discrimination N Policy Declaration, prior to commencing performance. E Any contractor, subcontractor, consultant or supplier who willfully disregards the City's L nondiscrimination and equal opportunity requirements shall be considered in breach of contract Q 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 coordinate with the City's Title VI coordinator, and perform the following duties for their respective departments. N C 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these U regulations are familiar with the regulations and the City's equal employment opportunity a policy. 06 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. a c a� E a EEO COMPLIANCE DOCUMENTS - 5 Packet Pg. 51 8.E.a VVat JAYRAY A PLACE TO THINK Kent Branding I Advertising strategic 535 DOCK ST iEDlions 535 DOCK STREET SUITE 205 W A S H I N G T O N TACOMA,WA 984D2 253.627-9128 Visit Kent fez 2S3.627.6548 = 2023 TOURISM PROGRAM PROPOSAL C November 5,2022 O E WEBSITE SERVICES(Hosting,Maintenance&Content) Budget • •7xx O Perform website maintenance and content updates to include events calendar,hotel/business listings,homepage dbanners,packages and deals. x NWrite one blog per quarter(4).Includes up to one round of revision. x Annual hosting,domain,software and plug-in subscriptions*These are third-party costs not controlled b a Ra . O P g P P Y Y� Y Y ~x x x x Budget reflects current pricing C Annual technical support plan includes resolution of bugs/errors,uptime monitoring,fast website restore(when d down),necessary theme and plug-in updates. x x x x �1 SUBTOTAL $ 15,038 1 2 N SOCIAL77 • • • - t Write social media content and post 3 times per week on Instagram and Facebook;leverage hotels packages and x x x x O deals content. a- Community management and engagement on Instagram and Facebook(schedule/post content,grow followers, j x x x x respond to posts and proactively engage,upload events,curate photos from followers). Social media giveaway(shoulder-season campaign)to promote events and grow page followers. x O Ad allowance($200/month)for boosted posts/page ads on social media to drive visits to hotels and basecamp a U webpages on VisitKent.com. $2,400 x x x x W SUBTOTAL $ 24,450 r .+ MARKETING SERVICES Budget C 77 • • • - i Geolocation data subscription (12 months)with Datafy to track visitors from 50+miles away.Includes 5 clusters, U dozens of geofenced points of interests(hotels,sports,outdoor recreation,shopping,downtown)and monthly x x x x Q measurement dashboard from Datafy. $ 15,192 J Continue Visit Kent geolocation campaign(using creative from 2022)to promote overnight stays in Kent(update x x . landing page and photography seasonally). Ad allowance for geolocation marketing campaigns(using geolocation data)to target past/look-alike audiences. $ 24,000 x x M Geolocation data analysis,coordination and reporting(ongoing) x x x x cC SUBTOTAL $ 50,552 M PROJECT • • • • - C N Develop project work plans,track goals and provide quarterly reports(4)of services provided and annual report C Quarterly project status calls(4)with client x x x x G) SUBTOTAL $ 12,320 E N N L RELATIONSMEDIA • •7xx Craft media pitches(2)for shoulder season and send story ideas to targeted media.Includes development of Nmedia list and media-follow-up.Leverage past story pitches and recent attendance/media contacts made at Travel x V &Words Media Show to send stories to those who are now familiar with Kent as a travel destination. Cision media database subscription (media lists,coverage monitoring) $ 1,000 x r Media hosting allowance(to cover PR/travel writers overnight stays in hotels) $ 1,200 1x x x x O SUBTOTALI $ 8,640 7 TOTAL BUDGET: $ 111,000 ul C O tU w IL Ga w v a c� c m E c� r a Packet Pg. 52 8.E.a vwt JAYRAY A PLACE TO THINK Branding I Advertising I Strategic Communications SUITE 205 Kent 535 DOCK STREET TACOMA,WA 98402 W A S H I N G T O N 253.627627.919128 � Visit Kent fax 253.627.6548 0 2023 WEBSITE UPDATE 0 E November 5, 2022 0 a OVERVIEW vEi L Conduct website audit and test site for user experience and accessibility to meet Web Content Accessibility 0 0 Guidelines. Update site based on findings,including refreshed design and a mobile-first strategy. .r PHASE I c m DISCOVERY: Y 2 Develop project workplan and milestones(send via email). Includes project management during phase 1. > Conduct website audit across mobile and desktop.Includes summary of findings and recommendations. s r Check for and fix all broken links across site. Run color/text contrast test across site. a a Review images for alt text and add where missing OayRay to write and add alt text for the top 20 visited pages, M excluding blog) 0 SUBTOTAL $ 6,915 0 U W Budget0 Refresh homepage layout and navigation to streamline primary user pathways.Includes two homepage design mockups and one round of revision to refine chosen design. Refresh events calendar design and functionality. Includes two events calendar design mockups and one round of U Q revision to chosen design. F_ J Refine and modernize design aesthetics by updating global styles(fonts,type size,colors) to meet accessibility N guidelines. Review homepage design mockups and global style recommendations virtual meeting).Includes project g P g Y ( g)• P 1 management support during design phase. L Standardize design elements(icons,buttons,tiles and carousels) across site to improve user experience. Includes suite of updated elements and one round of revision. c Update banner/header design across site to meet contrast and accessibility guidelines. r c Redesign up to two page templates(i.e.Things to Do- side bar; Campaign page). Includes up to one round of m E revision. a� a� Adapt designs(homepage and two page templates) for mobile. Includes one round of revision. Q Review design elements,banner updates,two page templates and mobile design mockups (virtual meeting). SUBTOTAL $ 9,685 2 PHASE 3 m DEVELOPMENTr c 0 Update global styles(fonts,type size,colors) across site. w Update site with refreshed homepage design and navigation. 0 tU Update site with standardized design elements(see above). W IL Update banner style across site(OPVB to supply photos). Ga w Update two page template designs.OPVB to supply content (photos and copy). Q Add new events calendar plug-in following approved design. 0 Test all updates on mobile and desktop. 0 Publish updates to site.Send out press release announcing refreshed site to local media outlets. c m Includes project management support during development phase. E SUBTOTAL $ 5,900 r TOTAL BUDGET:1 $ 22,500 Q Packet Pg. 53 8.F y KENT DATE: January 17, 2023 TO: Kent City Council SUBJECT: Agreement with Stewart, MacNichols, Harmell, Inc., P.S. for Indigent Defense Services - Authorize MOTION: I move to authorize the Mayor to sign a two-year agreement with Stewart, MacNichols, Harmell, Inc., P.S. for indigent defense services in the amount of $1,246,920 per year, subject to final terms and conditions acceptable to the Parks Director and City Attorney. SUMMARY: The City currently contracts with Stewart MacNichols Harmell, Inc., P.S. ("SMH") to provide indigent defense services. This contract is managed by the Human Services Division of the City's Parks, Recreation, and Community Services Department and it expires at the end of January 2023. In July 2022, staff conducted an evaluation of public defense services and determined that the courts were still recovering from the significant COVID-19 pandemic impacts. Because of this, staff concluded that changing public defense providers would present additional challenges and would not be in the City's best interest. KCC 3.70.110(A) allows the Mayor to waive the bidding requirements for the purchase of goods, materials, equipment, or services that are not part of a public work, upon a finding that the bidding requirements would otherwise not be practicable or in the City's best interests under the circumstances. The Mayor granted this waiver, allowing the City to contract with SMH for continued indigent defense services. This new Agreement begins on February 1, 2023, and expires on December 31, 2024. Its material terms remain the same. One change is to the compensation, which increases the annual compensation paid to SMH to $1,246,920.00, representing a 2% increase. This compensation is paid to SMH on a pro rata monthly basis. BUDGET IMPACT: The funds were approved in the 2023-2024 budget. SUPPORTS STRATEGIC PLAN GOAL: Packet Pg. 54 8.F Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. ATTACHMENTS: 1. Mayoral Waiver (PDF) 2. Agreement for Services (DOCX) 01/05/23 Parks and Human Services Committee RECOMMENDED TO COUNCIL RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 1/17/2023 7:00 PM MOVER: Satwinder Kaur, Councilmember SECONDER: Zandria Michaud, Chair AYES: Zandria Michaud, Satwinder Kaur Packet Pg. 55 8.F.a CITY OF KENT PARKS, RECREATION &COMMUNITY SERVICES Julie Parascondola, Director E l�l 0 ,r, 220 41h Avenue South Kent, WA 98032 WASHINGTON Fax: 253-856-6050 PHONE: 253-856-5100 Memo To: Dana Ralph, Mayor From: Merina Hanson CC: Pat Fitzpatrick, Lori Guilfoyle Date: November 3, 2022 Re: Request for Waiver of Bidding Requirements Pursuant to KCC 3.7.110 for Indigent Defense Services 0 as c The City's Parks, Recreation, and Community Services (PRCS) request an exception to the competitive bidding requirements under KCC 3.7.110 (A)(2) to provide Indigent Defense c Services. The COVID-19 pandemic significantly altered the court process and while pandemic recovery efforts are underway, it would be a challenge to alter/change public defense providers a� at this time. The current contract ends December 31, 2022 and we wish to enter into negotiations c with the current provider for continued public defense services. to 0 KCC 3.70.110(A) allows the Mayor to waive the bidding requirements for the purchase of goods, M materials, equipment, or services that are not part of a public work upon a finding that the bidding requirements would otherwise not be practicable or in the City's best interests under the circumstances. �a Therefore, as managers of the Indigent Defense contract, human services staff believe it is in the City's best interest to directly negotiate a services agreement with Stewart MacNichols Harmell, INC., P.S. and request that you authorize the waiver of the competitive bidding requirements. c as Thank you for your consideration. E APPROVED: r Q O L`Id I Z. __ Mayor Dana Ralph Date Packet Pg. 56 8.F.b AGREEMENT FOR INDIGENT DEFENSE SERVICES This Agreement is between the City of Kent, A Washington municipal Corporation, ("City") and Stewart MacNichols Harmell, Inc. P.S., a Washington professional services corporation, ("Contractor"). 1. DEFINITIONS Attorney(s). Attorney(s) shall mean attorneys working for the law firm of Stewart MacNichols Harmell, Inc. P.S., and where appropriate, shall include Rule 9 interns. Case. The term "case" shall be defined as provided in Standard 3 of the Standards for Indigent Defense established by the Washington Supreme Court. i Contractor. Contractor shall mean the law firm of Stewart MacNichols Harmell, Inc. U P.S., and shall mean each attorney and Rule 9 intern working for the Contractor. a� Defendant. Defendant shall mean a person charged with a misdemeanor or gross o misdemeanor offense that is filed into the Kent Municipal Court as well as suspects for whom the Contractor must provide services pursuant to Section 3 of this Agreement. Full-Time Attorney Equivalent Position. Full-time attorney equivalent position shall M mean at least 40 hours of attorney services provided pursuant to this Agreement. N N V 2. DURATION OF AGREEMENT as The term of this Agreement will be from February 1, 2023, through December 31, .° 2024, unless extended or terminated earlier in a manner permitted by this Agreement. The parties may, by mutual assent, agree to two one-year extensions E of this Agreement under the same terms, with approval to negotiate adjustments based on Cost of Living increases, increases in the individual salaries of attorneys a based upon experience, or substantial increases in caseloads. a� 3. SCOPE OF WORK AND DUTIES OF CONTRACTOR r 3.1. Criminal Defense Representation - To Whom Provided. Except in cases in Q which a conflict of interest exists, the Contractor shall provide criminal defense representation to the following: a. All defendants who are charged with a criminal offense which falls within the jurisdiction of the Kent Municipal Court, and for which the Contractor has been appointed by the Kent Municipal Court as attorney of record pursuant to the Court's determination of indigence of the defendant. b. All suspects who are permitted access to a public defender while detained pursuant to an investigation for the offenses of driving under the influence Agreement for Indigent Defense Services Page 1 of 26 Packet Pg. 57 8.F.b (RCW 46.61.502), driving under twenty-one consuming alcohol or cannabis (RCW 46.61.503) or physical control of a vehicle under the influence (RCW 46.61.504) for the purposes of consulting with the Contractor prior to deciding whether to provide a sample of breath or blood. C. All defendants who are not represented by private counsel and who appear for arraignment in the Kent Municipal Court. d. All defendants who, while in the custody of the Kent Corrections Facility, are not represented by private or conflict counsel, who accept representation by the Contractor, and who appear before the court. 3.2. Provisional and Temporary Appointments. The Contractor shall provide representation of defendants at arraignment and during in-custody hearings despite the fact that the Contractor may only be provisionally or temporarily appointed to U represent the defendants at arraignment and during the in-custody hearings. N a� 3.3. Representation Provided to Defendants Investigated for Driving Under the o Influence (RCW 46.61.502), Driving Under Twenty-One Consuming Alcohol or Cannabis (RCW 46.61.503), Physical Control of a Vehicle Under the Influence (RCW a� 46.61.504) or Another Misdemeanor or Gross Misdemeanor. The Contractor shall be available 24 hours per day, seven days per week, by telephone for the purposes of providing representation to suspects or defendants who are in custody and under investigation for driving under the influence (RCW 46.61.502), driving under twenty- one consuming alcohol or cannabis (RCW 46.61.503), physical control of a vehicle under the influence (RCW 46.61.504) or any other misdemeanor or gross misdemeanor. The Contractor shall provide the Kent Corrections Facility with telephone numbers of its attorneys that provide direct access to the attorneys, and o shall keep such telephone numbers up to date. The Contractor may designate times in which specific attorneys may be reached, and shall provide the numbers of E alternate attorneys if the designated attorney cannot be reached. L 3.4. Duration of Representation of Defendant. In cases in which the Contractor is a appointed as attorney of record, and unless the Contractor is permitted by the court to withdraw at an earlier time, the Contractor shall represent the defendant at all E stages of the criminal process, from the time of appointment by the court as attorney of record through the appeals process (provided that funding for appeals beyond Q superior court shall be pursuant to the terms of Title 15 of the Rules of Appellate Procedure), as well as during any period in which the court retains jurisdiction over the terms and conditions of any sentence or deferral. 4. APPEARANCE AT HEARINGS The Contractor shall appear at all hearings scheduled by the Kent Municipal Court in which it represents defendants, as well as all arraignment calendars and all in- custody calendars. The Contractor shall provide a sufficient number of attorneys at Agreement for Indigent Defense Services Page 2 of 26 Packet Pg. 58 8.F.b the various court calendars to ensure that the court calendars are not delayed due to insufficient staffing of the Contractor's attorneys at the calendars. S. REPRESENTATION OF DEFENDANTS WHILE ON THE RECORD The Contractor shall be with and actively represent each defendant at all times while a defendant's case is considered on the court record, and shall adequately inform the defendant of the developments in their case such that the defendant proceeds during any court hearing in a knowing, intelligent, and voluntary manner. The Contractor will coordinate with the City to ensure that adequate confidential meeting space is available at the Kent Municipal Court and Kent Corrections Facility for client communications. 6. DEFENDANT ACCESS TO CONTRACTOR 0 U 6.1. Contact Prior to Court Hearings. The Contractor shall be available to N defendants to ensure that defendants are provided with effective assistance of counsel. Defendant access to the Contractor prior to court hearings is paramount. o At a minimum, the Contractor shall endeavor to confer with all defendants about their cases as soon as practical from the time of appointment and again prior to court a� hearings. To that end and without limitation, the Contractor will seek timely and confidential information from each defendant regarding possible defenses, the need for investigation, mental and physical health issues, immigration status, and client goals. N N 6.2. Toll Free Calls. Defendants shall be provided access to the Contractor by means of a toll-free local call from a Kent telephone number made available by the Cn Contractor. 0 6.3. Timely Response. The Contractor shall respond to defendant inquiries within a reasonable time to ensure the effective assistance of counsel, whether such inquiries are received by letter, telephone, email, or otherwise. The Contractor shall keep appropriate written records to demonstrate timely response. a a� 6.4. Local Office Required. At all times during the term of this Agreement, the E Contractor shall maintain an office either within the city limits of the City, or within one mile of the city limits of the City. The office of the Contractor shall accommodate Q confidential meetings with defendants, shall be equipped with telephone, facsimile, and internet services, shall receive adequate cellular telephone service, and shall be the location at which mail and service of process is received. 6.5. Availability for and Contact with In-Custody Defendants. The Contractor shall evaluate the cases of all defendants in the custody of the Kent Corrections Facility, and shall meet with in-custody defendants as the Contractor deems appropriate for providing effective assistance of counsel. At a minimum, the Contractor shall meet with all misdemeanant defendants who are in-custody and appointed to the Contractor within two court days of the defendant being taken into custody. In addition, the Contractor shall have an attorney available to defendants who are in Agreement for Indigent Defense Services Page 3 of 26 Packet Pg. 59 8.F.b the custody of the Kent Corrections Facility on a daily basis. The Contractor will coordinate with the City to ensure that confidential meeting space is available in the Kent Corrections Facility. The attorney will respond to inmate requests, respond to letters and telephone calls, meet with clients and prepare for the defense of the defendant. These daily meetings shall be separate from court hearings held by video at the Kent Corrections Facility. 7. QUALITY OF REPRESENTATION The Contractor shall provide services in a professional and skilled manner consistent with Washington's Rules of Professional Conduct, applicable case law, including but not limited to Wilbur v. Mt. Vernon 989 F. Supp. 2d 1122 (2013) (hereinafter the "Decision"), Washington State Supreme Court Standards for Indigent Defense, the Constitutions of the United States and Washington, the court rules that define the duties of counsel and the rights of defendants, and the Resolution regarding indigent U defense services adopted by the City. The Contractor shall be familiar with and to the N extent required by law abide by the "Decision" and the Washington State Supreme Court Standards for Indigent Defense. At all times during the representation of a o defendant, the Contractor's primary and most fundamental responsibility shall be to promote and protect the interests of the defendant. 8. QUALIFICATIONS OF CONTRACTOR ATTORNEYS - TRAINING 0 v 8.1. Qualifications. All attorneys employed by the Contractor for the purposes of providing the services called for in this Agreement shall, at a minimum, satisfy the minimum qualifications to practice law as established by the Washington Supreme Court; be familiar with and follow the statutes, court rules, case law and constitutional Cn law applicable to misdemeanor criminal defense work in the state of Washington; be o familiar with and abide by Washington's Rules of Professional Conduct; be familiar with the Decision and the Washington State Supreme Court Standards for Indigent E Defense including amendments; be familiar with the consequences to each particular a, defendant of any conviction or adjudication including but not limited to jail time, financial penalties, restitution, mental health or drug and alcohol treatment a obligations, license suspensions, and immigration or civil commitment implications; be familiar with mental health and substance abuse issues applicable to each E defendant; be able to recognize the need for expert services including but not limited to investigators; and be able to satisfy the terms and conditions of this Agreement. Q 8.2. Training. For each attorney of the Contractor, a minimum of 21 of the reportable continuing legal education credits per reporting period shall be in the areas of criminal defense law, criminal process, trial advocacy, legal writing, appellate work, law practice management, or any other subject that, in the opinion of the Contractor, is applicable to providing criminal defense services. 9. USE OF RULE 9 INTERNS 9.1. Workload of Rule 9 Interns. The Contractor may employ interns qualified under Admission to Practice Rule 9 who perform work pursuant to this Agreement. Agreement for Indigent Defense Services Page 4 of 26 Packet Pg. 60 8.F.b Rule 9 interns shall remain under the supervision of the Contractor, and an attorney for the Contractor shall remain responsible for the cases for which the Rule 9 intern provides services. 9.2. Qualifications of Rule 9 Interns. Rule 9 interns shall be required to abide by Sections 7 and 8 except that Rule 9 interns shall not be required to complete the training requirements of Section 8, and in place of the requirement to satisfy the minimum qualifications to practice law as established by the Washington Supreme Court, the Rule 9 intern must comply with the provisions of APR 9. Rule 9 interns shall be closely monitored by the more senior attorneys of the Contractor. 10. DISCOVERY TO BE PROVIDED r The City shall provide the Contractor one copy of all discoverable material concerning each assigned case, pursuant to a filed Notice of Appearance and Demand for U Discovery. N c a� 11. NUMBER OF ATTORNEYS EMPLOYED o r c The Contractor shall provide the number of attorneys sufficient to meet case load a+ limits as provided for in the Agreement. The Contractor shall provide to the Human Services Division an up-to-date list of the names of attorneys and Rule 9 interns providing services under this Agreement, along with the experience of each attorney and intern. a� 12. CASELOAD LIMITS PER FULLTIME EQUIVALENT POSITION a� Cn The Contractor shall maintain a caseload such that it can provide each and every o defendant effective assistance of counsel as required by this Agreement. Subject to the remaining subsections of this section, a fulltime equivalent attorney position shall E be appointed to no more than 400 cases per year. 13. SCOPE OF SERVICES, STANDARDS, AND WARRANTIES a r c a� 13.1. The Contractor, and every attorney and intern performing services under this E Agreement shall certify compliance with Supreme Court Rule and governing case load quarterly with the Kent Municipal Court on the form established for that purpose by Q court rule. At a minimum, the Contractor will file a Certification of Compliance as required by CrRLJ 3.1. The quarterly reports will be based on a calendar year and each report will be due no later than 30 days after the end of each quarter. A copy of each and every such certification shall be provided to the City with each court filing. The Contractor and every attorney and/or intern warrants that they shall conform to the case load limitations not only with respect to services under this Agreement for Indigent Defense Services Page 5 of 26 Packet Pg. 61 8.F.b Agreement but also with respect to their practice as a whole, including other contracts public defense and/or private practice. 13.2. The Contractor will develop a system that properly records interactions and work performed on behalf of public defense clients to include: a. Attempts and actual contact with clients within the time period required by Section 6.1. and in a manner developed by the Contractor to protect client confidentiality; b. Responses to jail kites (requests for assistance from inmates incarcerated in the Kent Corrections Facility); L C. Documentation of the following topics that shall be discussed with clients c to include but not be limited to: a� • Possible defenses a� • Need for independent investigation a� • Existing physical or mental health issues • Immigration status and consequences 0 • Client goals M • Possible dispositions • Need for additional discovery Cn • Possible case disposition in the manner developed by the .° Contractor to protect client confidentiality; and a� E a� d. In the event a defendant who has been assigned a public defender a wishes to enter a plea of guilty at their first meeting with the Contractor, documentation demonstrating the Contractor's information and statement to the defendant about the risks associated with a plea at that time. This information will only be turned over to the City under a circumstances that do not violate the Washington Rules of Professional Conduct (RPC) (i.e., pursuant to court order). 13.3. The Contractor will maintain and provide to the City a quarterly report detailing: a. The number of cases assigned during the period; b. The number of cases where review of body worn camera video is provided; Agreement for Indigent Defense Services Page 6 of 26 Packet Pg. 62 8.F.b C. The number of cases in which an investigator was utilized; d. The number of cases that were set for jury call including cases in which the defendant failed to appear; e. The number and type of criminal cases handled outside of this Agreement, including cases assigned by another public entity to the attorneys assigned to this Agreement; and f. The percentage of the Contractor's practice spent in private defense representation, civil or other non-criminal matters by the attorneys assigned to this Agreement. 13.4. The Contractor promises that it will promptly notify the City if any circumstance, including change in rule or law, renders it difficult or impossible to provide public defense services in compliance with the Decision and/or Standards. 0 a� 13.5. The City may retain a consultant at some point in the future to monitor the Contractor's compliance with the Standards and other legal authority. The Contractor o agrees to negotiate in good faith with the City should the consultant seek additional information beyond that already contemplated by this agreement. The Contractor shall not be required to compromise any attorney-client privilege when providing these reports. 0 14. REFUSING APPOINTMENTS M N 14.1. Caseload Monitoring. The Contractor shall continually monitor its caseload and performance both as a whole and for each attorney providing services pursuant to this Agreement. The Contractor shall provide quarterly projections at least three `2 months in advance regarding the caseload limits based upon the number of attorneys ° employed by the Contractor and trends in case filings. E a� 14.2. Caseload Level Shifting. In the event an attorney is handling a caseload such that the attorney is unable to provide effective assistance of counsel to each and a every defendant, the Contractor shall reduce the caseload of that attorney, and shift the reduced portion of the caseload to another attorney employed by the Contractor. E 14.3. Refusal of Appointments. The Contractor shall monitor the total number of Q cases handled by the Contractor pursuant to this Agreement. In the event the Contractor is handling an excessive number of cases such that the Contractor is unable to provide each and every defendant with effective assistance of counsel, then the Contractor shall refuse further appointment of cases until such time as the Contractor employs additional attorneys or the number of cases per attorney is reduced. Work performed pursuant to this Agreement shall be the Contractor's priority, and prior to refusing further appointments, the Contractor shall, to the extent such action will not compromise the rights of the client, attempt to withdraw from cases that the Contractor handles that are not within the scope of this Agreement and shall refuse to accept cases from clients outside of the scope of the work called for in this Agreement. Agreement for Indigent Defense Services Page 7 of 26 Packet Pg. 63 8.F.b 15. COSTS OF TRANSCRIPTION The City agrees to reimburse the Contractor for all reasonable costs associated with obtaining and transcribing trial court records for appeal purposes if such costs have not been waived. 16. CONFLICTS OF INTEREST The Contractor shall maintain a database of client information sufficient for the Contractor to determine the existence of any conflicts of interest. In the event representation of a defendant would constitute a conflict of interest, the Contractor shall take such action as is appropriate pursuant to the Rules of Professional Conduct. In the event the Contractor is disqualified or excused as counsel of record due to a conflict of interest, the Contractor shall not be required to pay any compensation to another attorney assigned to represent the defendant. U a� 17. PERFORMANCE MONITORING AND ATTORNEY SUPERVISION a a� 0 17.1. Performance Monitoring In General. The Contractor shall establish a program for monitoring the performance of attorneys who provide the services called for in a� this Agreement. The performance monitoring program shall have the purpose of ensuring that each defendant receives effective assistance of counsel, and the terms and conditions of this Agreement are met. The performance monitoring program shall be developed and administered by the Contractor, and shall: N N a. Be actively performed and managed by a partner-level attorney of the Contractor; Cn L b. Be continual in nature. Monitoring shall occur no less than quarterly; ,0 provided, caseload monitoring shall occur no less than monthly; C. Monitor the caseload of the Contractor and each attorney providing services pursuant to this Agreement; a d. Monitor the performance of each employee who provides services pursuant to this Agreement; e. Hold employees accountable for deficient performance of the services called for in this Agreement; Q f. Have measures to correct the deficient performance of employees performing under this Agreement; and g. Contain measures to develop and improve the performance of each employee providing services pursuant to this Agreement. 17.2. Performance Monitoring Program - Scope of Review. The performance monitoring program shall, at a minimum, be designed to review the following of each attorney or Rule 9 intern: a. Knowledge of the law and expectations of criminal defense counsel Agreement for Indigent Defense Services Page 8 of 26 Packet Pg. 64 8.F.b b. Preparation of cases C. Responsiveness to clients d. Effectiveness of in-court interactions with clients e. Effectiveness in the courtroom f. Negotiation skills and strategy g. Attorney or Rule 9 intern caseload 17.3. Program Certification. The performance monitoring program shall be submitted to the Human Services Division within 30 days of the execution of this Agreement. The Contractor shall certify no less than annually that monitoring has occurred in conformity with this Agreement. i 18. REMOVAL OF ATTORNEY U as 18.1. Removal by Contractor. In the event the Contractor determines, through its performance monitoring and attorney supervision program that an attorney or Rule o 9 intern working for the Contractor fails to comply with the terms of this Agreement, then the Contractor shall immediately take action to prevent that attorney or Rule 9 intern from providing the services called for in this Agreement. 18.2. Recommendation of Removal by City. In the event the City determines that M an attorney working for the Contractor has breached this Agreement, the Human Services Division may, at its sole discretion and as an alternative to termination of this Agreement, require the Contractor to take action to prevent that attorney from providing the services called for in this Agreement. L O 19. CITY CONTRACT ADMINISTRATOR — AGREEMENT OVERSIGHT as E 19.1. This Agreement shall be managed and monitored by the Human Services Division of the City's Parks Department or by such other division of the City as a determined by the City's Chief Administrative Officer. All reports or certifications required by this Agreement shall be delivered to the Human Services Division. 19.2. The Human Services Division shall monitor the Contractor regularly to assure that the Contractor files the reports and certifications required in Section 13 above. Q 19.3. The Human Services Division may retain an outside expert to perform random reviews of the Contractor cases on an annual basis. The Contractor will make information available, without disclosing client names or identifying information, to the City through the Human Services Division, and will cooperate fully with the expert to the extent that the cooperation does not violate client confidences. Agreement for Indigent Defense Services Page 9 of 26 Packet Pg. 65 8.F.b 20. COMPLAINTS AND CORRECTIVE ACTION 20.1. Investigation by the Contractor. In the event a complaint is received by the Contractor or by the Human Services Division, a partner level attorney (excluding the attorney for whom the compliant is regarding) will investigate the complaint. The reviewing attorney should review the entire file on the matter, court records, documents, dockets and any other information necessary to investigate the complaint. The reviewing attorney will inform the complainant of the results of their internal investigation, and if the complainant is still unsatisfied, will inform the complainant that the matter will be forwarded to the Human Services Division. In the event the complaint is referred to the Human Services Division, the reviewing attorney will forward the complaint and the results of its investigation to the Human Services Division. The Contractor shall not be required to compromise any attorney client privilege when providing the results of the internal investigation. 0 U 20.2. Investigation by the City. In the event a complaint is received by or directed N to the Human Services Division and is not timely resolved by a partner level attorney of the Contractor to the satisfaction of the complainant, the Human Services Division o will investigate the complaint by reviewing the complaint, discussing the matter with the complaining party, discussing the matter with the Contractor, and determining whether a violation of this Agreement has occurred. The Human Services Division may consult with legal counsel other than the City Attorney's Office, or another expert as deemed necessary, in order to resolve the complaint. In addition, the Human Services Division may consult with the Washington State Bar Association when appropriate. The Contractor shall fully cooperate in the City's investigation process. 20.3. Corrective Action Plan or Termination. In the event the Human Services Division determines that a violation has occurred, the Human Services Division may o develop a corrective action plan or terminate this Agreement if it is determined that termination is appropriate. The Contractor shall cooperate in any investigation of a a complaint, and any corrective action plan developed by the Human Services Division to the extent that to do so will not compromise the attorney/client relationship. a 21. REVIEW AND RENEGOTIATIONS c as E 21.1. Increases or Decreases in Case Load, The City and the Contractor shall, at the option of either party, renegotiate this Agreement if there is a significant increase or a decrease in the number of cases assigned. At the request of either party, the City and the Contractor will periodically review case assignment trends and any other matters needed to determine Agreement compliance or necessary Agreement modifications. The Contractor shall promptly notify the City when quarterly caseloads can reasonably be anticipated to require use of overflow or conflict counsel to assure that cases assigned to the Contractor remain within the limits adopted in this Agreement and comply with state and local standards. 21.2. Renegotiation Due to Change in Rule or Standard. This Agreement may be renegotiated at the option of either party if the Washington State Supreme Court, the Washington State Bar or the City significantly modifies the Standards for Indigent Agreement for Indigent Defense Services Page 10 of 26 Packet Pg. 66 8.F.b Defense adopted pursuant to the Court rule or City Ordinance/Resolution. 22. TERMINATION 22.1. For Cause. The City or the Contractor may terminate this Agreement immediately in the event the other party breaches the Agreement and such breach is not corrected to the reasonable satisfaction of the injured party in a timely manner after notice of breach has been provided to the other party. Each and every term of this Agreement is material. Without limiting the foregoing, the Contractor's failure to render adequate representation to its clients, its willful disregard of the rights and best interests of its clients, or the willful disregard of the Decision or court rule standards will constitute good cause for termination. The failure of any party to comply with any term of this Agreement shall constitute a breach of this Agreement. L 22.2. For Reasons Beyond Control of Parties. Either party may terminate this ° U Agreement without recourse by the other where performance is rendered impossible N or impracticable for reasons beyond such party's reasonable control such as, but not limited to, acts of nature; war or warlike operations; civil commotion; riot; labor o dispute including strike, walkout, or lockout; sabotage; or superior governmental regulation or control. 22.3. Without Cause. Either party may terminate this Agreement at any time without cause upon giving the non-terminating party not less than 180 days prior written notice. N N 23. CONTINUATION OF REPRESENTATION AFTER TERMINATION as In the event of termination of this Agreement and to the extent the client can be o adequately represented, all cases assigned prior to the Agreement term expiration, including those which have not reached resolution, initial or otherwise, shall be E transferred to the new service provider as efficiently and practicably as possible, and within the guidelines and restrictions of the Rules of Professional Conduct. Cases in progress at the Agreement expiration or termination that cannot be lawfully a transferred at the time of expiration or termination will be compensated at one hundred-forty dollars ($140.00) per hour until completed or transferred to the new E service provider. a 24. NON-DISCRIMINATION In the hiring of employees for the performance of work under this Agreement or any subcontract, the Contractor, its subcontractors, or any person acting on behalf of the Contractor 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. The Contractor shall execute the attached Agreement for Indigent Defense Services Page 11 of 26 Packet Pg. 67 8.F.b City of Kent Non-Discrimination Policy Declaration and comply with City Administrative Policy 1.2. 25. PROOF OF LIABILITY INSURANCE The Contractor 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. 26. INDEMNIFICATION The Contractor shall indemnify, defend, and hold the City, its elected officials, officers, and employees harmless from any and all claims whatsoever related to or i arising from the performance of the Contractor's obligations pursuant to this Agreement, including but not limited to claims arising out of the errors and omissions U of the Contractor relating to the representation or lack of representation of clients, N and/or by reason of accident, injury, or death caused to any persons or property of any kind occurring during the performance or lack thereof of the work required by o this Agreement, or traveling to or from any place to perform the work required by this Agreement, except to the extent they are caused by the sole negligence of the a� City. The failure of the Contractor to carry insurance in a quantity sufficient to defend a claim or lawsuit or cover any judgment that results shall not operate to limit the Contractor's indemnification or defense of the City. This indemnification section shall survive the expiration or termination of this Agreement. N N 27. COMPENSATION as Cn 27.1. Payment for Services. The City shall provide to the Contractor for services o rendered under this Agreement the sum of ONE MILLION TWO HUNDRED FORTY SIX THOUSAND NINE HUNDRED TWENTY DOLLARS ($1,246,920) per year, payable on a E pro rats basis through equal monthly payments of $103,910 per month from February 1 2023, through December 31, 2024. a If this Agreement is terminated pursuant to the provisions set forth in Section 22, the Contractor's compensation shall be prorated based upon the number of months E and portions of months which have elapsed between the commencement of the year and the effective date of termination. Q 27.2. Billing. The Contractor shall bill the City each month for services rendered herein. These shall be sent in care of the City's Human Services Division, by the 1011 day of the month for the monthly installment set forth in subsection 27.1, and any transcription costs as permitted by this Agreement. 27.3. Payment. The City shall make payments within 30 days of receipt of the Contractors bill. Except as provided elsewhere in this Agreement, the payment set forth in this section shall be inclusive of administrative costs, support costs, and all costs associated with the conduct of the Contractor's business. Agreement for Indigent Defense Services Page 12 of 26 Packet Pg. 68 8.F.b 27.4. Sufficient Compensation. The Contractor further warrants that the compensation provided under this Agreement is sufficient to provide all support, training, administrative and staff services, routine investigations, and all other systems, staffing, or infrastructure necessary to comply with the Decision and Standards, except as provided in Subsection 27.5. By way of example, and except as provided in Section 27.5, this includes costs related to travel, telephones, law library including electronic research, financial accounting, case management systems, computers and software, office space and supplies, training, meeting the requirements imposed by the Washington Supreme Court Standards for Indigent Defense, and other costs incurred in the day-to-day management of the services called for by this Agreement. 27.5. Non-routine Case Expenses. The City may pay for non-routine case expenses when reasonably incurred and preauthorized by the Court or the City from funds available for that purpose, unless the services are performed by the Contractor's staff U or subcontractors. Examples of potential non-routine, preauthorized expenses that N might be subject to additional reimbursement include, but are not limited to: a� 0 a. Investigation expenses a� b. Medical and psychiatric evaluations C. Expert witness fees and expenses d. Interpreters M e. Polygraph, forensic, and other scientific tests ,n a� f. Medical records a� g. Any other non-routine expenses the Court finds necessary and proper L for the investigation preparation, and presentation of a case. ,° a� 28. SUBCONTRACTING PROHIBITED E as L Except in extraordinary circumstances, the Contractor shall not subcontract with a another attorney or law firm to provide the services required herein. The Contractor shall remain directly involved in and responsible for the representation of all assigned E defendants. 29. ASSIGNMENT PROHIBITED a No assignment or transfer of this Agreement or of any interest in this Agreement shall be made by either of the parties, without prior written consent of the non- assigning party. 30. AGREEMENT APPLICABLE TO ALL EMPLOYEES AND VOLUNTEERS The terms of this Agreement shall apply to all persons who are employed by, or who volunteer for, the Contractor, including but not limited to attorneys, interns, paralegals, office assistants, secretaries, and investigators. Agreement for Indigent Defense Services Page 13 of 26 Packet Pg. 69 8.F.b 31. STATUS OF CONTRACTOR AS INDEPENDENT CONTRACTOR AND NOT EMPLOYEE This Agreement calls for the performance of the services of the Contractor as an independent contractor and the Contractor will not be considered an employee of the City for any purpose. The Contractor shall secure at its own expense and be responsible for any and all payment of income tax, social security, state disability insurance compensation, unemployment compensation, worker's compensation, and all other payroll deductions for the Contractor and its officers, agents, and employees and the costs of all professional or business licenses in connection with the services to be performed hereunder. The Contractor shall be solely responsible for any and all claims or lawsuits filed against the Contractor by personnel employed by the Attorney related to the conditions or terms of employment by the Contractor, and the Contractor shall defend, indemnify, and hold harmless the City and its employees and officers from any such claims or lawsuits. The Contractor further agrees that its U employees are not considered employees of the City for the purposes of participating N in any state or federal program, including but not limited to the retirement program provided by the Washington Department of Retirement Services, and in the event o that a claim is made to the contrary by any employee or volunteer of the Contractor, the Contractor shall defend, indemnify, and hold harmless the City and its employees and officers from any such claims or lawsuits and shall pay all awards ordered against the City for such claims or lawsuits. 0 v 32. ADDITIONAL SERVICES N N The Contractor may be requested to perform additional services beyond the original scope of services as defined in Section 1 of this Agreement. Such work will be Cn undertaken only upon written authorization of the City based upon an agreed amount of compensation. '0 a� 33. NOTICES m as L All notices and other written documentation shall be sent to the parties at the a following addresses unless otherwise requested in writing: E City of Kent: Contractor: Mayor N. Scott Stewart a City of Kent Stewart MacNichols 220 Fourth Ave. S. Harmell, Inc. P.S., Kent, WA 98032 655 W. Smith Street, Suite 210 Kent, WA 98032 34. ENTIRE AGREEMENT — AMENDMENTS This instrument contains the entire Agreement between the parties for the contemplated work and services to commence February 1, 2023, and it may not be Agreement for Indigent Defense Services Page 14 of 26 Packet Pg. 70 8.F.b enlarged, modified, altered, or amended except in writing signed and endorsed by the parties. 35. DUPLICATE ORIGINALS This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. 36. SUPERSEDES. r This Agreement supersedes and replaces in its entirety any prior agreements and amendments. ° U m N 37. EFFECTIVE DATE a a� 0 The terms of this Agreement shall take effect on February 1, 2023. a� a� CITY: ATTORNEY: c City of Kent Stewart MacNichols o Harmell Inc., P.S. M aD a� Print Name: Dana Ralph Print Name: Cn L Title: Mayor Title: .° Dated: Dated: E a� a r Human Services Manager, City of Kent APPROVED AS TO FORM: r Q Kent Law Department ATTEST: Kent City Clerk Agreement for Indigent Defense Services Page 15 of 26 Packet Pg. 71 8.F.b c� L O U m c m m r c m :a c 0 v M N N V d L O Y E L a r V r a Agreement for Indigent Defense Services Page 16 of 26 Packet Pg. 72 8.F.b DECLARATION CITY OF KENT NON-DISCRIMINATION POLICY The City of Kent (City) is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors, consultants, vendors, and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. The City of Kent and its contractors are subject to and will comply with the following: U a� • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis o of race, color, national origin); a� • 49 C.F.R. Part 21 (entitled Non-discrimination In Federally- Assisted Programs Of The Department Of Transportation- Effectuation Of Title VI Of The Civil Rights Act Of 1964); M • 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964). L O Y • Ch. 49.60 RCW (Washington Law Against Discrimination) E a� L The preceding statutory and regulatory cites hereinafter are referred to as "the a Acts and Regulations". r a� The following statements specifically identify the requirements the City deems necessary for any contractor, subcontractor, or supplier on this specific Agreement to adhere to. An affirmation of all of the following is required for Q this Agreement to be valid and binding. If any contractor, subcontractor, or supplier willfully misrepresents themselves with regard to the directives outlined below, 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 statements are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. Packet Pg. 73 8.F.b 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 I, 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. During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 0 U m A. Compliance with Regulations: The contractor, subcontractor, consultant, vendor, and supplier (hereinafter "Contractor") will comply with all Acts and the Regulations relative to non- discrimination, including those applicable to Federally-assisted programs of the U.S. Department of Transportation, State- assisted programs through the Washington State Department of Transportation, and generally under Washington's Law Against o Discrimination, Ch. 49.60 RCW, as they may be amended from M time to time, which are herein incorporated by reference and made a part of this contract. a� Cn B. Non-discrimination: The contractor, with regard to the work .0 performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and E retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate a directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. r a C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to non-discrimination on the grounds of race, color, or national origin. Packet Pg. 74 8.F.b D. Information and Reports: The contractor will provide all information and reports required by the Acts and Regulations and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined applicable to contractor's contract by the City or the Washington State Department of Transportation to be pertinent to ascertain compliance with such Acts and Regulations and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the City or the Washington State Department of Transportation, as appropriate, and will set forth what efforts it has made to obtain the information. L O E. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the non-discrimination provisions of this contract, the City will impose such contract sanctions as it or the Washington State Department of Transportation may determine to be appropriate, including, but not limited to: a. withholding payments to the contractor under the contract until the contractor complies; and/or M b. cancelling, terminating, or suspending a contract, in whole or in part. a) F. Incorporation of Provisions: The contractor will include the o provisions of paragraphs (A) through (F) above in every subcontract, including procurements of materials and leases of E equipment, unless exempt by the Acts and Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the City or the a Washington State Department of Transportation may direct as a means of enforcing such provisions including sanctions for E noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier Q because of such direction, the contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. 6. During the performance of this contract, the contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Packet Pg. 75 8.F.b Pertinent Non-Discrimination Authorities: i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. ii. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); iii. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); iv. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of 0 disability); and 49 CFR Part 27; as V. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); vi. Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); vii. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the o Civil Rights Act of 1964, The Age Discrimination Act of 1975 and M Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub- recipients and contractors, whether such programs or activities T L are Federally funded or not); ,0 viii. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation E of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 a U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; ix. The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, 2 color, national origin, and sex); Q X. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures Non-discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; xi. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English proficiency (LEP). To ensure compliance with Title Packet Pg. 76 8.F.b VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); xii. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). xiii. Washington Law Against Discrimination (Ch. 49.60 RCW) 7. The submission of the final invoice for this contract will constitute a reaffirmation that the preceding statements were complied with during the course of the contract's performance. By signing below, I agree to fulfill the five requirements referenced above. L O By: For: a� 0 r Title: a =a Date: ` cfl 0 v M N N V d Cn L O Y E L Q r E V r a Packet Pg. 77 8.F.b CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: October 20, 2022 SUBJECT: INCLUSIVE CONTRACTING SUPERSEDES: January 1, 1998 L APPROVED BY Dana Ralph, U Mayor N c as POLICY: o r c Equal employment opportunity and non-discrimination in contracting 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 Cn indicating commitment as an equal opportunity employer. o 0 2. Actively consider for promotion and advancement available minorities and women. L Further, all contractors, subcontractors, consultants, suppliers, grantees, or a subgrantees of the City, regardless of the value of the Agreement, are required to sign the City's Non-Discrimination Policy Declaration, prior to commencing E performance. Any contractor, subcontractor, consultant or supplier who willfully disregards Q 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 coordinate with the City's Title VI coordinator, and perform the following duties for their respective departments. Packet Pg. 78 8.F.b 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. L O U m c m m r c m :a c 0 v M N N V d Cn L O Y E L Q r E V r a Packet Pg. 79 8.F.b c� L O U m c m m r c m :a c 0 v M N N V d L O Y E L a r V r a Packet Pg. 80 8.F.b EXHIBIT A INSURANCE REQUIREMENTS FOR CONSULTANT SERVICES AGREEMENTS Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. r A. Minimum Scope of Insurance L 0 Contractor shall obtain insurance of the types described below: a� a� aD 1. Professional Liability insurance appropriate to the r Consultant's profession. a� B. Minimum Amounts of Insurance �o Contractor shall maintain the following insurance limits: M a� 1. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy cn aggregate limit. ,0 C. Other Insurance Provisions E a� The insurance policies are to contain, or be endorsed to contain, the following a provisions for Automobile Liability and Commercial General Liability insurance: a� 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage r maintained by the City shall be excess of the Contractor's insurance and Q shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. Packet Pg. 81 8.F.b EXHIBIT A (Continued) 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Contractor's Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. 0 U m D. Acceptability of Insurers a� Insurance is to be placed with insurers with a current A.M. Best rating of not 0 less than ANII. =a c E. Verification of Coverage M Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Cn Contractor before commencement of the work. 0 c m F. Subcontractors L Contractor shall include all subcontractors as insureds under its policies or shall a furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance E requirements as stated herein for the Contractor. a Packet Pg. 82 8.G y KENT DATE: January 17, 2023 TO: Kent City Council SUBJECT: Agreement with Valley Defenders, PLLC, for Conflict Indigent Defense Services - Authorize MOTION: I move to authorize the Mayor to sign a two-year agreement for conflict indigent defense services with Valley Defenders, PLLC, Inc., in an amount not to exceed $200,000 subject to final terms and conditions acceptable to the Parks Director and City Attorney. SUMMARY: The O'Brien Law Firm has provided conflict indigent defense services to the City since March 2015. Jamie O'Brien has been the attorney providing services under this contract and will be leaving the O'Brien Law Firm and joining Valley Defenders in January 2023. Accordingly, the City will terminate its existing agreement with the O'Brien Law Firm. The term of the new agreement with Valley Defenders is from February 1, 2023 - December 31, 2024. The City will pay Valley Defenders a flat rate of $5000 for the first 10 cases assigned per month and then $400 for each additional case assigned per month. The total fees and costs paid under this agreement shall not exceed $200,000. BUDGET IMPACT: The funds were approved in the 2023-2024 budget. SUPPORTS STRATEGIC PLAN GOAL: Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. ATTACHMENTS: 1. Agreement for Services (DOCX) 01/05/23 Parks and Human Services Committee RECOMMENDED TO COUNCIL Packet Pg. 83 8.G RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 1/17/2023 7:00 PM MOVER: Satwinder Kaur, Councilmember SECONDER: Zandria Michaud, Chair AYES: Zandria Michaud, Satwinder Kaur Packet Pg. 84 8.G.a AGREEMENT FOR CONFLICT INDIGENT DEFENSE SERVICES This Agreement is entered into between the City of Kent, a Washington municipal Corporation ("City") and Valley Defenders PLLC ("Contractor"). 1. DEFINITIONS Attorney(s). Attorney(s) shall mean attorneys working for the law firm of Valley Defenders PLLC, and where appropriate, shall include Rule 9 interns. L Case. The term "case" shall have the same meaning as provided in Standard 3 of 0 the Standards for Indigent Defense established by the Washington Supreme Court. N C N Contractor. Contractor shall mean the law firm of Valley Defenders PLLC and shall o mean each attorney and Rule 9 Intern working for the Contractor. a� T Defendant. Defendant shall mean a person charged with a misdemeanor or gross D misdemeanor offense that is filed into the Kent Municipal Court for whom the Contractor must provide services pursuant to Section 2 of this Agreement. c 0 2. SCOPE OF WORK AND DUTIES OF CONTRACTOR ti 0 2.1. Criminal Defense Representation - To Whom Provided. Except in cases in FIL � which a conflict of interest exists, the Contractor shall provide criminal defense representation to all defendants who are charged with a criminal offense which falls within the jurisdiction of the Kent Municipal Court, and for which the Contractor has been appointed by the Kent Municipal Court as attorney of record pursuant to the Court's determination of indigence of the defendant and a determination that a '0 conflict of interest exists with the law firm of Stewart MacNichols Harmell, Inc. P.S. E a� 2.2. Duration of Representation of Defendant. In cases in which the Contractor is appointed as attorney of record, the Contractor shall represent the defendant at all a stages of the criminal process, from the time of appointment by the court as attorney of record through the appeals process, as well as during any period in which the court E retains jurisdiction over the terms and conditions of any sentence or deferral. 3. ATTORNEY DEFENDANT INTERACTIONS a 3.1. Contact Prior to Court Hearings. The Contractor shall be available to defendants to ensure that defendants are provided with effective assistance of counsel. Defendant access to the Contractor prior to court hearings is paramount. The Contractor will seek timely and confidential information from each defendant regarding possible defenses, the need for investigation, mental and physical health issues, immigration status, client goals, and the advisability of additional discovery. Defendants shall be provided access to the Contractor by means of a toll-free call. Agreement for Indigent Defense Services Page 1 of 15 Packet Pg. 85 8.G.a 3.2. Interactions on the Record. The Contractor shall appear at all hearings, shall actively represent each defendant while the defendant's case is considered on the court record, and shall keep the defendant adequately informed such that the defendant proceeds in a knowing, intelligent, and voluntary manner. 3.3. Office or Meeting Space and Equipment Required. At all times during the term of this Agreement, the Contractor shall maintain an office or meeting space to accommodate confidential meetings. The Contractor shall also maintain telephone, facsimile, and internet services, cellular telephone service, and a location at which mail and service of process is received. 3.4. Case Management System. The Contractor shall maintain a process for recording defendant interactions and work performed on behalf of defendants. o U 4. QUALITY OF REPRESENTATION — QUALIFICATIONS - TRAINING as as 4.1. Qualifications. The Contractor shall, at a minimum, satisfy the minimum qualifications to practice law as established by the Washington Supreme Court, and shall provide services in a professional and skilled manner consistent with :T Washington's Rules of Professional Conduct, applicable case law, including but not limited to Wilbur v. Mt. Vernon 989 F. Supp. 2d 1122 (2013) (hereinafter the 2 "Decision"), Washington State Supreme Court Standards for Indigent Defense, the o Constitutions of the United States and Washington, the court rules that define the U duties of counsel and the rights of defendants, and the City Resolution regarding o indigent defense services. The Contractor's primary and fundamental responsibility M shall be to promote and protect the interests of the defendant. a� 4.2. Training. Each attorney of the Contractor shall complete a minimum of 21 of the reportable continuing legal education credits per reporting period in the areas of L criminal defense law or any other subject that, in the opinion of the Contractor, is 0 applicable to providing criminal defense services. E S. CASELOAD LIMITS a� a 5.1. Caseload Limits in General. The Contractor shall maintain a caseload of no more than 400 cases per year as provided in Standard 3 of the Standards for Indigent Defense established by the Washington Supreme Court. In the event the Contractor is handling an excessive number of cases, the Contractor shall refuse further appointment of cases until such time as the Contractor's caseload is appropriately a reduced. 5.2. Court Certification. The Contractor shall certify compliance with the caseload limits with the Kent Municipal Court as required by court rule and shall provide a copy of the certification to the Human Services Division. 6. CONFLICTS OF INTEREST Agreement for Indigent Defense Services Page 2 of 15 Packet Pg. 86 8.G.a In the event the Contractor is disqualified or excused as counsel of record due to a conflict of interest, the Contractor shall not be required to pay any compensation to another attorney assigned to represent the defendant. 7. PERFORMANCE MONITORING AND ATTORNEY SUPERVISION The Contractor shall establish a program for managing and monitoring the performance of attorneys who provide services called for in this Agreement. The performance monitoring program shall have the purpose of ensuring that each defendant receives effective assistance of counsel, and the terms and conditions of this Agreement are met. L 8. CITY CONTRACT ADMINISTRATOR — CONTRACT OVERSIGHT o U 8.1. Human Services Division. This Agreement shall be managed and monitored by the Human Services Division of the City's Parks Department or by such other division of the City as determined by the City's Chief Administrative Officer. All reports or certifications required by this Agreement shall be delivered to the Human Services Division. �' �a c r 8.2. City Consultant. The City may retain a consultant to monitor the Contractor's .2 compliance with this Agreement. The Contractor agrees to participate and comply in o good faith with the City's monitoring efforts. The Contractor shall not be required to L) compromise any attorney-client privilege during monitoring. o 1* M 9. COMPLAINTS AND CORRECTIVE ACTION as 9.1. Investigation by the Contractor. In the event a complaint is received by the Contractor or by the Human Services Division, the Contractor shall investigate the L complaint. The Contractor shall inform the complainant and the Human Services .° Division of the results of the investigation. E a� 9.2. Investigation by the City. In the event a complaint is received by or directed to the Human Services Division and is not timely resolved by the Contractor, the a Human Services Division may investigate the complaint. The Human Services Division may consult with legal counsel other than the City Attorney's Office, or another expert, in order to resolve the complaint. In addition, the Human Services Division may consult with the Washington State Bar Association when appropriate. .2 Agreement for Indigent Defense Services Page 3 of 15 Packet Pg. 87 8.G.a 10. DURATION AND TERMINATION 10.1. Term of Agreement. The term of this Agreement will be from February 1, 2023 through December 31, 2024, unless extended or terminated in accordance with this Agreement. 10.2. Termination. This Agreement may be terminated such that the Contractor shall not accept appointment to additional cases from the Court upon written notice of breach of this Agreement, or absent breach, upon 14 days written notice by either party. Each and every term of this Agreement is material, and the failure of any party to comply with any term of this Agreement shall constitute a breach of this Agreement. c 0 10.3. Continuation of Representation. The continued representation of defendants L) by the Contractor after termination shall be governed by the interests of the defendants, the Rules of Professional Conduct, the Supreme Court's Standards for Indigent Defense, and the issues addressed in the Decision. o a� 11. COMPENSATION AND EXPENSES :T c 11.1. Case Fees. The City shall pay the Contractor for services rendered under this 2 Agreement the sum of FIVE THOUSAND DOLLARS ($5,000.00) for the first ten (10) o cases assigned in the Kent Municipal Court per month ("Monthly Flat Fee"), and FOUR L) HUNDRED DOLLARS ($400.00) for each additional case per month; SEVEN HUNDRED o FIFTY DOLLARS ($750.00) per case appealed to the Superior Court; and ONE M THOUSAND DOLLARS ($1,000.00) per case appealed to the Court of Appeals or Washington Supreme Court. The Contractor shall bill for and be paid the above fees one time per case. If the Contractor withdraws from a case and then is reassigned to the case, the Contractor shall not bill for or be paid for the case upon reassignment. in The total fees and costs paid to the Contractor under this Agreement and throughout ,0 its term shall not exceed $200,000, unless any such additional fees and costs are authorized through an amendment to this Agreement signed by both the City and the E Contractor. L Q In the event that Kent Municipal Court significantly reduces the number of cases assigned, and the Contractor is assigned less than five (5) cases per month for at least three (3) consecutive months, the City shall not be required to pay the Monthly Flat Fee and will only pay the Contractor FOUR HUNDRED DOLLARS ($400.00) for each case assigned. Alternatively, the City may terminate the Agreement in a accordance with Section 10.2. 11.2. Review Hearing Fees. After the Kent Municipal Court's entry of a judgment and sentence, a deferral of sentence, or entry of a deferred prosecution or stipulated order of continuance, in the event the Contractor is required to appear with the Defendant at review hearings in the case, the Contractor shall be paid FIFTY DOLLARS ($50.00) per review hearing for up to five (5) review hearings. The Contractor shall appear at any review hearings beyond five (5) hearings for no additional fee. The Agreement for Indigent Defense Services Page 4 of 15 Packet Pg. 88 8.G.a term "case" shall have the same meaning as provided in Standard 3 of the Standards for Indigent Defense established by the Supreme Court. 11.3. Billinci. The Contractor shall bill the City, in care of the City's Human Services Division, by the 10t" day of the month following an appointment. The Contractor shall also bill for any review hearing fees as well as expenses permitted in Sections 11.6 and 11.7 of this Agreement by the 101" day following the month of the accrual of the allowable fees or expenses. 11.4. Payment. The City shall make payments within 30 days of receipt of the Contractors bill. L 11.5. Compensation Sufficient. Except as provided in Subsections 11.6 and 11.7, o the Contractor warrants that the compensation provided under this Agreement L) a� includes and is sufficient to provide for all costs related to travel, telephones, law library including electronic research, financial accounting, case management systems, computers and software, office space and supplies, administrative and staff services, training, licensing, meeting the requirements imposed by the Washington Supreme Court Standards for Indigent Defense, and other costs incurred in the day- :T to-day conduct of legal services and the management of the services called for by this Agreement. 2 c 0 11.6. Non-Routine Expenses. The City will pay for non-routine case expenses when L) reasonably incurred and preauthorized by the Court or the City from funds available o for that purpose, unless the services are performed by the Contractor's staff or M subcontractors. Examples of potential non-routine, preauthorized expenses that might be subject to additional reimbursement include, but are not limited to: a. Investigation expenses L b. Medical and psychiatric evaluations ,0 C. Expert witness fees and expenses d. Interpreters E e. Polygraph, forensic and other scientific tests f. Medical records a g. Any other non-routine expenses the Court finds necessary and proper for the investigation preparation, and presentation of a case. 11.7. Transcription Expenses. The City agrees to reimburse the Contractor for all a reasonable costs associated with obtaining and transcribing trial court records for appeal purposes if such costs have not been waived. 12. DISCRIMINATION In the hiring of employees for the performance of work under this Agreement or any subcontract, the Contractor, its subcontractors, or any person acting on behalf of the Contractor 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 Agreement for Indigent Defense Services Page 5 of 15 Packet Pg. 89 8.G.a disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. The Contractor shall execute the attached City of Kent Non-Discrimination Policy Declaration and comply with City Administrative Policy 1.2. 13. PROOF OF LIABILITY INSURANCE The Contractor 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. r 14. INDEMNIFICATION r c 0 The Contractor shall indemnify, defend, and hold the City, its elected officials, U officers, and employees harmless from any and all claims whatsoever related to or arising from the performance of the Contractor's obligations pursuant to this Agreement, including but not limited to claims arising out of the errors and omissions of the Contractor relating to the representation or lack of representation of clients, (D and/or by reason of accident, injury, or death caused to any persons or property of :T any kind occurring during the performance or lack thereof of the work required by r this Agreement, or traveling to or from any place to perform the work required by 2 this Agreement, except to the extent they are caused by the sole negligence of the o City. The failure of the Contractor to carry insurance in a quantity sufficient to defend L) a claim or lawsuit or cover any judgment that results shall not operate to limit the o Contractor's indemnification or defense of the City. This indemnification section shall M survive the expiration or termination of this Agreement. a� 15. SUBCONTRACTING AND REASSIGNMENT PROHIBITED it a� L The Contractor shall not subcontract with another attorney or law firm to provide the ,0 services required herein. The Contractor shall remain directly involved in and responsible for the representation of all assigned defendants. No assignment or E transfer of this Agreement or of any interest in this Agreement shall be made by L either of the parties without prior written consent of the non-assigning party. a w c 16. STATUS OF CONTRACTOR AS INDEPENDENT CONTRACTOR AND NOT EMPLOYEE r This Agreement calls for the performance of the services of the Contractor as an a independent contractor and the Contractor will not be considered an employee of the City for any purpose. The Contractor shall secure at its own expense and be responsible for any and all payment of income tax, social security, state disability insurance compensation, unemployment compensation, worker's compensation, and all other payroll deductions for the Contractor and its officers, agents, and employees and the costs of all professional or business licenses in connection with the services to be performed hereunder. The Contractor shall be solely responsible for any and all claims or lawsuits filed against the Contractor by personnel employed by the Attorney related to the conditions or terms of employment by the Contractor, and the Agreement for Indigent Defense Services Page 6 of 15 Packet Pg. 90 8.G.a Contractor shall defend, indemnify, and hold harmless the City and its employees and officers from any such claims or lawsuits. The Contractor further agrees that its employees are not considered employees of the City for the purposes of participating in any state or federal program, including but not limited to the retirement program provided by the Washington Department of Retirement Services, and in the event that a claim is made to the contrary by any employee or volunteer of the Contractor, the Contractor shall defend, indemnify, and hold harmless the City and its employees and officers from any such claims or lawsuits and shall pay all awards ordered against the City for such claims or lawsuits. 17. NOTICES r L All notices and other written documentation shall be sent to the parties at the 0 following addresses unless otherwise requested in writing: L) aD c City of Kent: Contractor: Human Services Division Valley Defenders PLLC City of Kent 2700 Richards Rd. Suite-202 a 220 Fourth Ave. S. Bellevue, WA 98005 :T Kent, WA 98032 r 4- c 0 18. SERVICES NOT EXCLUSIVE r� 0 The Contractor agrees that the City may contract with other attorneys for the services M called for in this Agreement, and the Contractor shall not be the exclusive contractor utilized by the City for the services called for in this Agreement. a� 19. ENTIRE AGREEMENT — AMENDMENTS N L 0 This instrument contains the entire Agreement between the parties for the work and services called for herein, and it may not be enlarged, modified, altered, or amended E except in writing signed by the parties. L a� Q 20. DUPLICATE ORIGINALS a� E This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. r Further, upon executing this Agreement, either party may deliver the signature page a Agreement for Indigent Defense Services Page 7 of 15 Packet Pg. 91 8.G.a to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. 21. EFFECTIVE DATE The terms of this Agreement shall take effect on the last day signed below. CITY: ATTORNEY: City of Kent Valley Defenders PLLC L Print Name: Dana Ralph Print Name: Jamie O'Brien Title: Mayor Title: Attorney y Dated: Dated: a� 0 ATTEST: a� T �a c Kent City Clerk c 0 U ti 0 1* M N d V N L 0 E L Q E V Q Agreement for Indigent Defense Services Page 8 of 15 Packet Pg. 92 8.G.a DECLARATION CITY OF KENT NON-DISCRIMINATION POLICY The City of Kent (City) is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors, consultants, vendors, and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. The City of Kent and its contractors are subject to and will comply with the following: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); c 0 49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs • Of The Department Of Transportation-Effectuation Of Title VI Of The Civil Rights Act Of 1964); 0 • 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964). • Ch. 49.60 RCW (Washington Law Against Discrimination) 2 c 0 The preceding statutory and regulatory cites hereinafter are referred to as "the Acts and L) Regulations". o 1* M The following statements specifically identify the requirements the City deems necessary for any contractor, subcontractor, or supplier on this specific Agreement to adhere to. An affirmation of all of the following is required for this Agreement to be valid and binding. If any contractor, subcontractor, or supplier willfully misrepresents themselves with regard to the directives outlined L below, 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. E The statements are as follows: a 1. I have read the attached City of Kent administrative policy number 1.2. E 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. a 3. During the time of this Agreement I, 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. During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: EEO COMPLIANCE DOCUMENTS - 1 Packet Pg. 93 8.G.a A. Compliance with Regulations: The contractor, subcontractor, consultant, vendor, and supplier (hereinafter "Contractor") will comply with all Acts and the Regulations relative to non-discrimination, including those applicable to Federally- assisted programs of the U.S. Department of Transportation, State-assisted programs through the Washington State Department of Transportation, and generally under Washington's Law Against Discrimination, Ch. 49.60 RCW, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. B. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. 0 as C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or aD supplier will be notified by the contractor of the contractor's obligations under this ia contract and the Acts and the Regulations relative to non-discrimination on the r grounds of race, color, or national origin. 2 c 0 D. Information and Reports: The contractor will provide all information and reports L) required by the Acts and Regulations and directives issued pursuant thereto and will o permit access to its books, records, accounts, other sources of information, and its facilities as may be determined applicable to contractor's contract by the City or the Washington State Department of Transportation to be pertinent to ascertain compliance with such Acts and Regulations and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or N L refuses to furnish the information, the contractor will so certify to the City or the 0 Washington State Department of Transportation, as appropriate, and will set forth what efforts it has made to obtain the information. E a� a� L E. Sanctions for Noncompliance: In the event of a contractor's noncompliance with a the non-discrimination provisions of this contract, the City will impose such contract sanctions as it or the Washington State Department of Transportation may determine to be appropriate, including, but not limited to: a. withholding payments to the contractor under the contract until the a contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. F. Incorporation of Provisions: The contractor will include the provisions of paragraphs (A) through (F) above in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts and Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the City or the Washington State Department of Transportation may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such EEO COMPLIANCE DOCUMENTS - 2 Packet Pg. 94 8.G.a direction, the contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. 6. During the performance of this contract, the contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities: i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. >4 ii. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, o (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose L) property has been acquired because of Federal or Federal-aid programs and projects); iii. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination o on the basis of sex); iv. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, :a (prohibits discrimination on the basis of disability); and 49 CFR Part 27; V. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), 2 (prohibits discrimination on the basis of age); c vi. Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as US amended, (prohibits discrimination based on race, creed, color, national origin, or ti sex); M vii. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, N coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the in programs or activities of the Federal-aid recipients, sub-recipients and contractors, ,o whether such programs or activities are Federally funded or not); viii. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private i transportation systems, places of public accommodation, and certain testing entities a (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; ix. The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); X. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority a Populations and Low-Income Populations, which ensures Non-discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; xi. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); EEO COMPLIANCE DOCUMENTS - 3 Packet Pg. 95 8.G.a xii. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). xiii. Washington Law Against Discrimination (Ch. 49.60 RCW) 7. The submission of the final invoice for this contract will constitute a reaffirmation that the preceding statements were complied with during the course of the contract's performance. By signing below, I agree to fulfill the five requirements referenced above. By: For: L Title: 0 0 U Date: y c as as 0 as LM c r c 0 U ti 0 1* M N d V N L 0 E L Q yr E V Q EEO COMPLIANCE DOCUMENTS - 4 Packet Pg. 96 8.G.a CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: October 20, 2022 SUBJECT: INCLUSIVE CONTRACTING SUPERSEDES: January 1, 1998 APPROVED BY Dana Ralph, Mayor r POLICY: c 0 U Equal employment opportunity and non-discrimination in contracting requirements for the City of y Kent will conform to federal and state laws. All contractors, subcontractors, consultants, and a suppliers of the City must guarantee equal employment opportunity within their organization and, a 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. 0 U Further, all contractors, subcontractors, consultants, suppliers, grantees, or subgrantees of the o City, regardless of the value of the Agreement, are required to sign the City's Non-Discrimination Policy Declaration, prior to commencing performance. 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. 0 c Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public E Works Departments to coordinate with the City's Title VI coordinator, and perform the following duties for their respective departments. a c 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these E regulations are familiar with the regulations and the City's equal employment opportunity r policy. .2 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. EEO COMPLIANCE DOCUMENTS - 5 Packet Pg. 97 8.G.a EXHIBIT A INSURANCE REQUIREMENTS FOR CONSULTANT SERVICES AGREEMENTS Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance L c 0 Contractor shall obtain insurance of the types described below: U a� N C 1. Professional Liability insurance appropriate to the Consultant's profession. o a� B. Minimum Amounts of Insurance T c Contractor shall maintain the following insurance limits: 2 c 2. Professional Liability insurance shall be written with limits no less c°� than $1,000,000 per claim and $1,000,000 policy aggregate limit. ti 0 1* M C. Other Insurance Provisions a� The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: in L 0 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. a 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has a been given to the City. a 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Contractor's Packet Pg. 98 8.G.a Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANII. E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the L amendatory endorsements, including but not necessarily limited to the o additional insured endorsement, evidencing the insurance requirements of the L) Contractor before commencement of the work. a� F. Subcontractors o as Contractor shall include all subcontractors as insureds under its policies or shall T furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance 2 requirements as stated herein for the Contractor. o U ti 0 1* M N d V N L 0 E L Q yr E V Q Packet Pg. 99 8.H KENT WASH IN G T O N DATE: January 17, 2023 TO: Kent City Council SUBJECT: Agreement with Summit Food Services Management, LLC for Food Services at the Kent Correctional Facility - Authorize MOTION: I move to authorize the Mayor to sign a 5-year contract with Summit Food Services Management, LLC for food services at the Kent Corrections Facility at an estimated 2023 cost of $233,688, subject to final contract terms and conditions acceptable to the Police Chief and City Attorney. SUMMARY: The City currently contracts with Summit Food Services for food services at the jail. Summit previously notified the City that in order to continue providing their services, they would need to increase the City's cost by 30%, as well as reduce the current food menu. The City and Summit had agreed to a temporary extension of services, at increased prices, to give the City an opportunity to seek other proposals. After reviewing proposals from other potential service providers, the City began negotiations with Aramark. However, the City and Aramark could not agree to terms. The City then began negotiations with the City's current food service provider, Summit, for a new, 5-year contract. While the cost of Summit's services have increased significantly due to market conditions, the ultimate terms of the contract and the cost of services are acceptable to the City. In October of each year, the cost of services will increase by the greater of the percentage change in the Consumer Price Index-Food Away from Home (FAH) index, or the Market Baskets of Products index. For 2023, the Market Baskets of Products index was 14.1%, while the CPI-FAH index was 8.5%. BUDGET IMPACT: No budget increase. Annual budget is $491,520. SUPPORTS STRATEGIC PLAN GOAL: Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. Packet Pg. 100 8.H ATTACHMENTS: 1. Summit Food Services Agreement (PDF) Packet Pg. 101 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a 0 KENT a� t GOODS & SERVICES AGREEMENT between the City of Kent and Summit Food Services Management, LLC N 0 0 THIS AGREEMENT is made by and between the City of Kent, a Washington municipal corporation ul: (hereinafter the "City"), and Summit Food Services Management, LLC organized under the laws of the State ° of New Mexico, located and doing business at 500 East 52nd Street North, Sioux Falls, South Dakota 57104 � (hereinafter the "Vendor"). J r c m AGREEMENT E 0 a� I. DESCRIPTION OF WORK. c The Vendor shall provide the following goods and materials and/or perform the following services for the City: a� Vendor shall provide food and food preparation services to the City of Kent Corrections Facility 0 ("CKCF") in order to feed inmates and corrections staff, each day of the week for the term of U- this Agreement. Inmates shall be served no less than three meals per day, which shall contain 3000 total calories per day. The following shall apply to Vendor's services: E Locations and Hours: Vendor shall provide food service to inmates, staff and others as designated by City on the premises, on such days and such times as City shall prescribe. 3 Vendor shall not use the CKCF for preparation of food that is to be served at any location c other than CKCF, unless CKCF gives written permission to do so. E m as Menu: The menu and menu cycle to be provided by Vendor is attached as Exhibit A, and is t incorporated herein by this reference. The menu may be changed, with prior written notification, approved by Vendor's nutritionist, comparable or higher in monetary value and °; by agreement of all the parties. Vendor shall serve to inmates a cold breakfast. The cold M breakfast shall be trayed or bagged the night before by Vendor staff and shall be served by City staff the following morning. E (D Staff Meals: Vendor shall provide staff meals as requested at the same rate as inmate meals. ;v Staff meals will be prepared by Vendor employees, not inmate labor. A staff menu will be Q posted for each meal daily. City will note staff meal requests on meal count sheets. Vendor will only charge City for staff meals if the staff member(s) eating initial the meal count sheet for the day/meal they chose to eat. If no verification is present, City will not be charged for staff meals. Vendor will provide coffee for staff, to include all supplies, grounds/beans, filters, U) sugar, liquid creamer and disposable cups. o U- Vendor Labor: Vendor shall have the exclusive right to hire employees to provide the services called for in this Agreement, subject to the terms of a background check performed on by E employees who must enter the CKCF. Upon City's request, Vendor shall remove any work site in employee who has engaged in inappropriate conduct or has violated one of the rules and r regulations established by City to maintain the good order and operations of the CKCF. E Inmate Labor: Vendor shall utilize inmate workers provided by City. City shall provide a minimum of two (2) inmates and a maximum of six 6 inmates for labor each meal period. Q GOODS & SERVICES AGREEMENT - 1 (Over$20,000, including WSST) Packet Pg. 102 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a Bagged Meals: Vendor shall provide bagged meals as requested by the City. c Medical Meals and Religious Meals: Vendor shall provide meals to accommodate medical and Y religious needs as provided for by Exhibit B and as requested by City. r Products: Vendor shall purchase food, products and supplies necessary to comply with v0, Vendor's obligations as set forth in this Agreement. Vendor shall purchase all food products from USDA inspected plants that are currently certified as strictly complying with all applicable food safety standards. (n 0 Compliance with Food Safety Laws: Vendor shall comply with all federal, state and local �0 regulations governing the preparation, handling and serving of food, and Vendor shall post all o permits or licenses as required by law. Vendor shall immediately notify City in the event it v determines that it is not in compliance with any state or federal law or regulation. If at any J J time Vendor is notified by an authorized government agency that CKCF premises or equipment are not in compliance with any law, ordinance, rule, or regulation, Vendor shall immediately inform City of such notification. City shall cooperate with Vendor to accomplish the foregoing. E a� 0 Cleaning: Vendor shall perform routine cleaning and housekeeping in the food preparation and service areas to include: cleaning walls, floors, freezer, fridge and fixtures. City shall perform major cleaning including, without limitation, stripping and waxing floors, electric light fixtures, grease traps, hoods and vents, duct work, plenum chambers and roof fans throughout the CKCF as deemed necessary by the City. in Right to Review: It is understood that City reserves the right to review and inspect the food °o service program performed by Vendor with respect to the quality and quantity of food served, U_ and the sanitation of equipment and facilities, at any time. E E Emergency Plan and Supply: In the event of an emergency, City shall assist Vendor by in permitting reasonable variations in Vendor's menu cycle and service methods. However, Vendor shall not be relieved of its responsibility to provide meal service under the terms of 3 r this Agreement. The term "emergency,"as used in this section, means dire circumstances not m within the control of the party whose performance is interfered with, and which by reasonable E diligence such party is unable to prevent or mitigate, such as: pandemic, war, riot or other disaster, strike or other work stoppage, act of terrorism, fire, flood or volcanic eruption. By a the completion of the first quarter of 2023, Vendor shall submit a contingency emergency plan to provide for meal service in the event of an emergency. Vendor shall be responsible N for maintaining at the CKCF a minimum of seven (7) days non-perishable food stocks, to be used in case of an emergency. These stocks must meet the requirements of food services and emergency menu substitutions. 0 E a� Additional Services: Food, beverage and other services required or desired by the CKCF outside the scope of this Agreement shall be provided by Vendor upon written authorization Q by City administration through a mutually agreed upon process and at mutually agreed upon prices for such services. a� U) 0 0 The Vendor acknowledges and understands that it is not the City's exclusive provider of these goods, r materials, or services and that the City maintains its unqualified right to obtain these goods, materials, and services through other sources. E II. TIME OF COMPLETION. Upon the effective date of this Agreement, the Vendor shall complete the work and provide all goods, materials, and services during the Term of this agreement. This agreement shall be effective February 1, 2023 and shall expire on February 1, 2028 (the "Term"). Vendor may continue to provide the goods and services called for in this Agreement after the Term of this a GOODS & SERVICES AGREEMENT - 2 (Over$20,000, including WSST) Packet Pg. 103 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a Agreement, and if Vendor does, such goods and services shall be provided pursuant to an amendment to this Agreement on terms and at prices to be mutually agreed upon by the City and Vendor. c III. COMPENSATION. The City shall pay the Vendor an amount not to exceed an agreed per- Y meal amount as set forth in Exhibit C which is inclusive of sales tax. The cost of each meal is dependent on the number of inmates served, as reflected in Exhibit C. The annual compensation for 2023 is estimated to be $233,688. This is only an estimate, as the actual amount will be dependent on the number of meals served at the rates set forth in Exhibit C. The Vendor shall submit a weekly invoice to the City, including U applicable Washington State Sales Tax, for the goods, materials, and services contemplated in this i-I Agreement. The City shall pay the Vendor the following amounts according to the following schedule: in 0 0 U_ The per meal prices stated in this Agreement are firm for the period beginning on the Effective o Date, February 1, 2023 and ending on February 1, 2028. Per meal prices for each subsequent v 12-month period shall be increased as further set forth below, by the greater of the (a) yearly J percentage change in the Consumer Price Index, All Urban Consumers, U.S. City Average, Food Away From Home Index ("CPI-FAH"), published by the U.S. Department of Labor and a (b) the yearly percentage change in the Market Basket of Products (as defined below) which E approximate the products served at the facilities covered by this Agreement (the "Client � 0 Menu"). The period for determining CPI-FAH and Market Basket of Products increases shall be October of the immediately preceding year to October of the then-current year (the "Base � Period"). It shall be the sole responsibility of the Vendor to notify the City of the new rate, prior to the new year or the rate will remain unchanged. a� As set forth on the sample client statement attached as Exhibit D, a copy of which shall be N provided prior to implementing any agreed upon price adjustments pursuant to this section, °o the "Market Basket of Products" represents categories or types of products that are generally U_ used in the Client Menu. Such products are classified into the following six categories of food E items (each, a "Menu Category"): beverage (composed of juice and non-alcoholic drinks E other than milk); baked goods; produce (composed of fruits and vegetables); dairy; meat; cn and grocery items (composed of the food items in the menu that are not otherwise included in one of the preceding categories). Each Menu Category will be ascribed a percentage (the 3 r "Category Weighting") representing the proportion of the Client Menu that such Menu Category approximately represents based on purchasing levels during the Base Period. Each E Category Weighting will then be multiplied by the percentage change in the corresponding Bureau of Labor Statistics ("BLS") category compiled by the U.S. Department of Labor and a published at www.bis.gov for the Base Period, and the results of each such calculation will be added together to arrive at the overall percentage change which will represent the Market N Basket of Products. For the avoidance of doubt, the BLS categories to be multiplied by the Category Weightings are (1) Beverage, All Urban Consumers, U.S. City Average; (2) Baked Goods, All Urban Consumers, U.S. City Average; (3) Produce, All Urban Consumers, U.S. City 0 Average; (4) Dairy, All Urban Consumers, U.S. City Average; (5) Meat, All Urban Consumers, U.S. City Average; and (6) Food, All Urban Consumers, U.S. City Average. In the event that there are any changes in the method in which the BLS reports its annual statistics, including Q any changes or modifications to any of the applicable BLS categories, the parties agree to negotiate a mutually agreeable modification to the appropriate Market Basket of Products category or categories or the methodology described above. If the parties do not agree on as such a modification, Vendor shall have the right to terminate the Agreement upon 90 days' 'a prior written notice. The Market Basket of Products is designed to approximate price o adjustments with product cost increases at the facility or facilities covered by this Agreement. '_ r The Market Basket of Products is an estimate of food costs only and actual costs may vary. E While the Menu Categories attempt to approximate the products served at the facility or E facilities covered by this Agreement, they may not precisely parallel actual usage or the BLS cn categories listed above. m Please refer to Exhibit E for an example of the Market Basket of Products calculation. 0 a GOODS & SERVICES AGREEMENT - 3 (Over$20,000, including WSST) Packet Pg. 104 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a Vendor shall submit a weekly invoice to City for payment. City shall provide payment within thirty days of receipt of an invoice. c If City objects to all or any portion of an invoice, it shall notify Vendor and reserves the option Y to only pay that portion of the invoice not in dispute. In that event, the parties will immediately make every effor to settle the disputed portion. as as Card Payment Program. The Vendor may elect to participate in automated credit card payments 0 provided for by the City and its financial institution. This Program is provided as an alternative to payment �0 by check and is available for the convenience of the Vendor. If the Vendor voluntarily participates in this o Program, the Vendor will be solely responsible for any fees imposed by financial institutions or credit card v companies. The Vendor shall not charge those fees back to the City. J r If the City objects to all or any portion of an invoice, it shall notify the Vendor and reserves the option to only pay that portion of the invoice not in dispute. In that event, the parties will immediately make every E effort to settle the disputed portion. c 0 A. Defective or Unauthorized Work. The City reserves its right to withhold payment from the a Vendor for any defective or unauthorized goods, materials or services. If the Vendor is a unable, for any reason, to complete any part of this Agreement, the City may obtain the •2 goods, materials or services from other sources, and the Vendor shall be liable to the City for a, any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Agreement °o price specified above. The City further reserves its right to deduct these additional costs U- incurred to complete this Agreement with other sources, from any and all amounts due or to become due the Vendor. E B. Final Payment: Waiver of Claims. VENDOR'S ACCEPTANCE OF FINAL PAYMENT SHALL _ CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND 3 IDENTIFIED BY VENDOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. E m as L IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor- a Employer Relationship will be created by this Agreement. By their execution of this Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following representations: N It M A. The Vendor has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. E a� B. The Vendor maintains and pays for its own place of business from which the Vendor's services under this Agreement will be performed. Q a� C. The Vendor has an established and independent business that is eligible for a business •2 deduction for federal income tax purposes that existed before the City retained the a) Vendor's services, or the Vendor is engaged in an independently established trade, U) occupation, profession, or business of the same nature as that involved under this o Agreement. U- r E D. The Vendor is responsible for filing as they become due all necessary tax documents E with appropriate federal and state agencies, including the Internal Revenue Service y and the state Department of Revenue. m E. The Vendor has registered its business and established an account with the state � Department of Revenue and other state agencies as may be required by the Vendor's a GOODS & SERVICES AGREEMENT - 4 (Over$20,000, including WSST) Packet Pg. 105 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a business, and has obtained a Unified Business Identifier (UBI) number from the State of Washington. c F. The Vendor maintains a set of books dedicated to the expenses and earnings of its Y business. r V. TERMINATION. Either party may terminate this Agreement, with or without cause, upon N providing the other party thirty (90) days written notice at its address set forth on the signature block of this Agreement. a� VI. CHANGES. The City may issue a written amendment for any change in the goods, materials o or services to be provided during the performance of this Agreement. If the Vendor determines, for any 0 reason, that an amendment is necessary, the Vendor must submit a written amendment request to the o person listed in the notice provision section of this Agreement, Section XV(D), within fourteen (14) calendar v days of the date the Vendor knew or should have known of the facts and events giving rise to the requested J change. If the City determines that the change increases or decreases the Vendor's costs or time for r performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach a agreement with the Vendor on all equitable adjustments. However, if the parties are unable to agree, the E City will determine the equitable adjustment as it deems appropriate. The Vendor shall proceed with the amended work upon receiving either a written amendment from the City or an oral order from the City before actually receiving the written amendment. If the Vendor fails to require an amendment within the time allowed, the Vendor waives its right to make any claim or submit subsequent amendment requests for that portion of the contract work. If the Vendor disagrees with the equitable adjustment, the Vendor must •2 complete the amended work; however, the Vendor may elect to protest the adjustment as provided in in subsections A through E of Section VIII, Claims, below. 0 0 The Vendor accepts all requirements of an amendment by: (1) endorsing it, (2) writing a separate U- acceptance, or (3) not protesting in the way this section provides. An amendment that is accepted by the Vendor as provided in this section shall constitute full payment and final settlement of all claims for contract E time and for direct, indirect and consequential costs, including costs of delays related to any work, either cn covered or affected by the change. 3 VII. FORCE MAJEURE. Neither party shall be liable to the other for breach due to delay or failure in performance resulting from acts of God, acts of war or of the public enemy, riots, pandemic, fire, flood, E or other natural disaster or acts of government ("force majeure event"). Performance that is prevented or a delayed due to a force majeure event shall not result in liability to the delayed party. Both parties represent a to the other that at the time of signing this Agreement, they are able to perform as required and their performance will not be prevented, hindered, or delayed by the current COVID-19 pandemic, any existing state or national declarations of emergency, or any current social distancing restrictions or personal protective equipment requirements that may be required under federal, state, or local law in response to the current pandemic. a)If any future performance is prevented or delayed by a force majeure event, the party whose a� performance is prevented or delayed shall promptly notify the other party of the existence and nature of Q the force majeure event causing the prevention or delay in performance. Any excuse from liability shall be a effective only to the extent and duration of the force majeure event causing the prevention or delay in •2 performance and, provided, that the party prevented or delayed has not caused such event to occur and rn continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation. 0 0 Notwithstanding other provisions of this section, the Vendor shall not be entitled to, and the City u- r shall not be liable for, the payment of any part of the contract price during a force majeure event, or any 'E costs, losses, expenses, damages, or delay costs incurred by the Vendor due to a force majeure event. E Performance that is more costly due to a force majeure event is not included within the scope of this Force cn Majeure provision. m If a force majeure event occurs, the City may direct the Vendor to restart any work or performance � that may have ceased, to change the work, or to take other action to secure the work or the project site during the force majeure event. The cost to restart, change, or secure the work or project site arising from Q GOODS & SERVICES AGREEMENT - 5 (Over$20,000, including WSST) Packet Pg. 106 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a a direction by the City under this clause will be dealt with as a change order, except to the extent that the loss or damage has been caused or exacerbated by the failure of the Vendor to fulfill its obligations under this Agreement. Except as expressly contemplated by this section, all other costs will be borne by the a Vendor. 1 as VIII. CLAIMS. If the Vendor disagrees with anything required by an amendment, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Vendor may file a claim as provided in this section. The Vendor shall give written notice to the City of all claims within fourteen (14) calendar days of the occurrence of the events giving rise to the � claims, or within fourteen (14) calendar days of the date the Vendor knew or should have known of the facts (n or events giving rise to the claim, whichever occurs first. Any claim for damages, additional payment for o any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed 0 to have been waived by the Vendor unless a timely written claim is made in strict accordance with the o applicable provisions of this Agreement. v J At a minimum, a Vendor's written claim shall include the information set forth in subsections A, items r 1 through 5 below. E a) FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. aNi A. Notice of Claim. Provide a signed written notice of claim that provides the following cn information: 0 0 1. The date of the Vendor's claim; U- 2. The nature and circumstances that caused the claim; E 3. The provisions in this Agreement that support the claim; E 4. The estimated dollar cost, if any, of the claimed work and how that estimate in was determined; and 5. An analysis of the progress schedule showing the schedule change or disruption 3 if the Vendor is asserting a schedule change or disruption. E B. Records. The Vendor shall keep complete records of extra costs and time incurred as a result a of the asserted events giving rise to the claim. The City shall have access to any of the Vendor's records needed for evaluating the protest. a rn N The City will evaluate all claims, provided the procedures in this section are followed. If the M City determines that a claim is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. a, C. Vendor's Duty to Complete Protested Work. In spite of any claim, the Vendor shall proceed aD promptly to provide the goods, materials and services required by the City under this Q Agreement. U D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Vendor 4) also waives any additional entitlement and accepts from the City any written or oral order U) (including directions, instructions, interpretations, and determination). 0 0 U- r E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this '! section, the Vendor completely waives any claims for protested work and accepts from the E City any written or oral order (including directions, instructions, interpretations, and in determination). r c m IX. LIMITATION OF ACTIONS. VENDOR MUST, IN ANY EVENT, FILE ANY LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM THE DATE THE CONTRACT WORK IS COMPLETE OR VENDOR'S ABILITY TO FILE THAT SUIT SHALL BE FOREVER BARRED. Q GOODS & SERVICES AGREEMENT - 6 (Over$20,000, including WSST) Packet Pg. 107 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY LIMITATIONS PERIOD. X. WARRANTY. The Vendor warrants that it will faithfully and satisfactorily perform all work a provided under this Agreement in accordance with the provisions of this Agreement. In addition to any 1 other warranty provided for at law or herein, this Agreement is additionally subject to all warranty provisions established under the Uniform Commercial Code, Title 62A, Revised Code of Washington. The Vendor warrants goods are merchantable, are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and the Vendor's representations to City. The Vendor shall promptly correct all defects in workmanship and materials: (1) when the Vendor knows or should have it known of the defect, or (2) upon the Vendor's receipt of notification from the City of the existence or in discovery of the defect. In the event any part of the goods are repaired, only original replacement parts o shall be used—rebuilt or used parts will not be acceptable. When defects are corrected, the warranty for 0 that portion of the work shall extend for an additional year beyond the original warranty period applicable o to the overall work. The Vendor shall begin to correct any defects within seven (7) calendar days of its v receipt of notice from the City of the defect. If the Vendor does not accomplish the corrections within a J reasonable time as determined by the City, the City may complete the corrections and the Vendor shall pay all costs incurred by the City in order to accomplish the correction. E a) XI. DISCRIMINATION. In the hiring of employees for the performance of work under this Agreement or any sub-contract, the Vendor, its sub-contractors, or any person acting on behalf of the Vendor or sub-contractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national M 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. The Vendor shall execute u- the attached City of Kent Non-Discrimination Policy Declaration and comply with City Administrative in Policy 1.2. 0 0 XII. INDEMNIFICATION. The Vendor shall defend, indemnify and hold the City, its officers, U- officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or E suits, including all legal costs and attorney fees, arising out of or in connection with the Vendor's E performance of this Agreement, except for that portion of the injuries and damages caused by the City's cn negligence. •3 The City's inspection or acceptance of any of the Vendor's work when completed shall not be grounds to avoid any of these covenants of indemnification. E as L IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION a PROVIDED HEREIN CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. In the event the Vendor refuses tender of defense in any suit or any claim, if that tender was made a pursuant to this indemnification clause, and if that refusal is subsequently determined by a court having jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the Vendor's part, then the Vendor shall pay all the City's costs for defense, including all reasonable expert witness fees and reasonable Q attorneys' fees, plus the City's legal costs and fees incurred because there was a wrongful refusal on the a Vendor's part. a� The provisions of this section shall survive the expiration or termination of this Agreement. U) 0 0 XIII. INSURANCE. The Vendor shall procure and maintain for the duration of the Agreement, U- r insurance of the types and in the amounts described in Exhibit F attached and incorporated by this reference. E E XIV. WORK PERFORMED AT VENDOR'S RISK. The Vendor shall take all necessary precautions in and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary for that purpose. All work shall be done at the Vendor's own risk, and the Vendor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. +c a GOODS & SERVICES AGREEMENT - 7 (Over$20,000, including WSST) Packet Pg. 108 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a XV. 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 1 preference may be available for any designated recycled product. r B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the N 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 it covenants, agreements or options, and the same shall be and remain in full force and effect. in 0 C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and 0 construed in accordance with the laws of the State of Washington. If the parties are unable to settle any o dispute, difference or claim arising from the parties' performance of this Agreement, the exclusive means v of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules J 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 E in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section XII of this Agreement. as 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 cn 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 00 Agreement or such other address as may be hereafter specified in writing. '_ E E. Assignment. Any assignment of this Agreement by either party without the written consent E of the non-assigning party shall be void. If the non-assigning party gives its consent to any assignment, in the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. 3 r c m F. Modification. No waiver, alteration, or modification of any of the provisions of this Agreement E shall be binding unless in writing and signed by a duly authorized representative of the City and the Vendor. a� G. Entire Agreement. The written provisions and terms of this Agreement, together with any a Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative N of the City, and such statements shall not be effective or be construed as entering into or forming a part of M 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 as language contained in this Agreement, the terms of this Agreement shall prevail. a� L H. Compliance with Laws. The Vendor agrees to comply with all federal, state, and municipal Q laws, rules, and regulations that are now effective or in the future become applicable to the Vendor's a business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of •2 the performance of those operations. I. Public Records Act. The Vendor acknowledges that the City is a public agency subject to the 0 0 Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, u- emails, and other records prepared or gathered by the Vendor in its performance of this Agreement may be 'tr subject to public review and disclosure, even if those records are not produced to or possessed by the City E of Kent. As such, the Vendor agrees to cooperate fully with the City in satisfying the City's duties and in obligations under the Public Records Act. as J. City Business License Required. Prior to commencing the tasks described in Section I, � Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the c Kent City Code. Q GOODS & SERVICES AGREEMENT - 8 (Over$20,000, including WSST) Packet Pg. 109 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a K. Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute a this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page 1 to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior 2-0 to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed in to have applied. o 0 u_ VENDOR: CITY OF KENT: o w Signed by: U LL —�c�ulcv By: By: B25DDB6CCA9F4F8._ � Brittany Mayer-Schuler Print Name: Print Name: Dana Ralph E a� Its President Its Mayor 12/29/2022 DATE: DATE: aNi U a� NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: 0 0 VENDOR: CITY OF KENT: U- E Tim Bucknell Diane McCuistion E 0 Summit Food Service Management, LLC City of Kent 500 East 52nd Street North 220 Fourth Avenue South Sioux Falls South Dakota 57104 Kent WA 98032 3 c m 971-218-3032 (telephone) (253) 856-5964 (telephone) E (facsimile) (253) 856-6961 (facsimile) 9), Q APPROVED AS TO FORM: rn N M a+ C Kent Law Department E a� ATTEST: Q rn a� U Kent City Clerk 0 0 u_ r A[In this field,you may enter the electronic filepath where the contract has been saved] E E 7 r C E L V a+ a+ a GOODS & SERVICES AGREEMENT - 9 (Over$20,000, including WSST) Packet Pg. 110 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a DECLARATION CITY OF KENT NON-DISCRIMINATION POLICY Y a� t r The City of Kent (City) is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors, consultants, vendors, and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. in 0 The City of Kent and its contractors are subject to and will comply with the following: U° L 12 • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. U 252), (prohibits discrimination on the basis of race, color, national origin); � • 49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs E Of The Department Of Transportation-Effectuation Of Title VI Of The Civil 0, Rights Act Of 1964); • 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964). a� • Ch. 49.60 RCW (Washington Law Against Discrimination) o 0 U_ The preceding statutory and regulatory cites hereinafter are referred to as "the Acts and E Regulations". The following statements specifically identify the requirements the City deems necessary for any '3 contractor, subcontractor, or supplier on this specific Agreement to adhere to. An affirmation of a all of the following is required for this Agreement to be valid and binding. If any contractor, E subcontractor, or supplier willfully misrepresents themselves with regard to the directives outlined below, it will be considered a breach of contract and it will be at the City's sole determination a regarding suspension or termination for all or part of the Agreement. N It The statements are as follows: c 1. I have read the attached City of Kent administrative policy number 1.2. E as L 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, Q race, color, national origin, age, or the presence of all sensory, mental or physical disability. 02 U 3. During the time of this Agreement I, the prime contractor, will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity o employer. �0 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and E promotion of women and minorities. in r 5. During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: a EEO COMPLIANCE DOCUMENTS - 1 of 5 Packet Pg. 111 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a A. Compliance with Regulations: The contractor, subcontractor, consultant, vendor, and supplier (hereinafter "Contractor") will comply with all Acts and the Regulations relative to non-discrimination, including those applicable to Federally- assisted programs of the U.S. Department of Transportation, State-assisted Y programs through the Washington State Department of Transportation, and generally under Washington's Law Against Discrimination, Ch. 49.60 RCW, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. a� B. Non-discrimination: The contractor, with regard to the work performed by it o during the contract, will not discriminate on the grounds of race, color, or national U° origin in the selection and retention of subcontractors, including procurements of w materials and leases of equipment. The contractor will not participate directly or J indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. E a� C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this in contract and the Acts and the Regulations relative to non-discrimination on the o grounds of race, color, or national origin. U° E D. Information and Reports: The contractor will provide all information and reports E required by the Acts and Regulations and directives issued pursuant thereto and will cn permit access to its books, records, accounts, other sources of information, and its facilities as may be determined applicable to contractor's contract by the City or the 3 Washington State Department of Transportation to be pertinent to ascertain a compliance with such Acts and Regulations and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the City or the a Washington State Department of Transportation, as appropriate, and will set forth N what efforts it has made to obtain the information. It c E. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the non-discrimination provisions of this contract, the City will impose such contract a sanctions as it or the Washington State Department of Transportation may Q determine to be appropriate, including, but not limited to: a� U a. withholding payments to the contractor under the contract until the contractor complies; and/or U) b. cancelling, terminating, or suspending a contract, in whole or in part. o U_ F. Incorporation of Provisions: The contractor will include the provisions of E paragraphs (A) through (F) above in every subcontract, including procurements of ; materials and leases of equipment, unless exempt by the Acts and Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the City or the Washington State Department of E Transportation may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, Q EEO COMPLIANCE DOCUMENTS - 2 of 5 Packet Pg. 112 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. 6. During the performance of this contract, the contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: a� 0 Pertinent Non-Discrimination Authorities: _ L i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), U (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part __JJ 21. ii. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, E tM (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); a iii. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination 2 on the basis of sex); in iv. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, o 0 (prohibits discrimination on the basis of disability); and 49 CFR Part 27; U_ V. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), E (prohibits discrimination on the basis of age); vi. Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or .3 sex); vii. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age a Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the C4 programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); viii. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination 4) on the basis of disability in the operation of public entities, public and private C transportation systems, places of public accommodation, and certain testing entities to (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation •2 regulations at 49 C.F.R. parts 37 and 38; ix. The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) o (prohibits discrimination on the basis of race, color, national origin, and sex); U° X. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority E Populations and Low-Income Populations, which ensures Non-discrimination against E minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; a EEO COMPLIANCE DOCUMENTS - 3 of 5 Packet Pg. 113 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a xi. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English proficiency (LEP). To ensure Y compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); xii. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et '2 seq). in xiii. Washington Law Against Discrimination (Ch. 49.60 RCW) o 0 U- 7. The submission of the final invoice for this contract will constitute a reaffirmation that the o w preceding statements were complied with during the course of the contract's performance. J J By signing below, I agree to fulfill the five requirements referenced above. a� DocuSigned by: !_ a� y: -F For: Summit Food Service, LLC Title: President y Date: lz/za/zozz 0 0 E E 0 3 r c m E m as L Q N It M a+ C N E N N L Q N V U) 0 0 U- E E r.+ c� E V a EEO COMPLIANCE DOCUMENTS - 4 of 5 Packet Pg. 114 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a CITY OF KENT ADMINISTRATIVE POLICY c as Y a� t r NUMBER: 1.2 EFFECTIVE DATE: October 20, 2022 as a� 0 SUBJECT: INCLUSIVE CONTRACTING SUPERSEDES: January 1, 1998 U- L W APPROVED BY Dana Ralph, Mayor J J POLICY: c as E Equal employment opportunity and non-discrimination in contracting 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 a take the following affirmative steps: a� 1. Provide a written statement to all new employees and subcontractors indicating o commitment as an equal opportunity employer. �0 2. Actively consider for promotion and advancement available minorities and women. E Further, all contractors, subcontractors, consultants, suppliers, grantees, or subgrantees of the City, regardless of the value of the Agreement, are required to sign the City's Non-Discrimination 3 Policy Declaration, prior to commencing performance. E a) Any contractor, subcontractor, consultant or supplier who willfully disregards the City's a� nondiscrimination and equal opportunity requirements shall be considered in breach of contract a and subject to suspension or termination for all or part of the Agreement. N It M Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to coordinate with the City's Title VI coordinator, and perform the following duties for their respective departments. E as L 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these Q regulations are familiar with the regulations and the City's equal employment opportunity 4 policy. a� U) 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. o 0 U- r E E 0 r c m E 0 a EEO COMPLIANCE DOCUMENTS - 5 of 5 Packet Pg. 115 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a c a� Y a� t r c� m v a� N 0 0 LL L O W V J J r C d E 0 R C N d V EXHIBIT A 0 0 U- E E 3 r c m E m as L Q N It M a+ C N E N 0 L Q N V U) 0 0 U- E E E V a Packet Pg. 116 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a r C L y L L G y y L u L L 3 L L u v 0 = = 0 v 0 A,W ` e-I ei e-I e-I •-I ei a-1 N e-I N e-I M m 1 1 N W C Y .. wm d w o d 9 d m am+ y LL O L C u — d y p d A V LL y .LL ` O y m N U d > C m y ' O y O C C m 9 y w u a > n d o C w a a m m m c w v ++ c Ptw 6 y > s y 0 @ !� n N c +• m v C v a o m fC U 36 m c c c x m U m L 2 x LY LL m m O ul 0 C lL lL C 7 C C C 7 u C u u u C u u u u u u u u I O I^ \ u d \ d \ N \ O W O N O O N W N N a-I 00 m M N .••I ei .Y .� m O r 9 9 LL en U O U C y iV U L w m a'1 m > d w m > d O (� — v y ' u — d LL emo m° C7 — d m m w m W y y cm O y 0 m ` LL Y O U C Y C C'401C 01 O Vf C O C C C 9 01 W J v u 9 w m m o m s - 'w o 0 o v m w v J c m c `m c ccm off° x c c`m c c m 3 y Z y m c Cm o a m um u x U C a-I F {A O G U LL U VI M O C LL LL L L U L C L L C U L 7 3 C U L L m m a m m m = m m u a m N m a u m a ° a o of fC � 'a c - m L m W U L w W U Vl w A V d m M G d d a m m m m LL 10 - l7 'O m y o c LL p u y N w m N 9 y m a0+ 01 "C W U L y O c O C N C O N W m L d V N +-. ++ m m m N Z N 01 m y Y m I�^ m m m d O N LL u x uo `'\i Y 2 mo do LL ° u0 v v3 uo ° 'a O CL C u u V C = u u u u u u }/ O O _ \ u W \ m \ O \ \ O N \ N N \ O N \ N ei .i a-I ei .••I ei ID M M N .•i .•i .•i .i M N a-I E 3 N i H � w m 1 = y O d O d ++ — v a d o a LL 01 w m LL LLm v y m a u o m m y d o a `m = ;v .o c s c w .o. w T c m m m w m c m m to w c c w o a c �° CO Y o c L m d m O m o m \ c m o LL 3 0 c m o LL y-. u u x u ., n vi 'c LL v 'c LL C Y Lu u u UL U o. y j j j j U c. u 0 u L L U u m N R m C m W U 01 W W W \ \ \ O W O l0 M m m M N � a M .a y m w m u m 'O" "O C > d w ` m > C Y _ .o d L f0 m m y u A r d m y C m m 0) V N O m li m 1' U Qf m LL m d in w v v w o m .o m Y w m E Y Y y+ m _ em+ y « m c c o c LL u x m C e-I CO x d J ImA U LL u m Vml V3f C LL LL L. J Q CL u j L u L C yCL u L 3 O L u L N w ami o = u 0 2 IL v o .\i v d V ` .•i a-I .••I ri .••I .••I -e N .••I 00 .••I .••I m M M N N .•i .••I ` I^ emit m C d U •C C U0 ` L @ dvO aVy aO L d O e LL °y f° cO m v ow um w m ma >mmm m-o w o � m I° m ° m � o o ° °u - E O + 7 V CL N L L U L C L U L 7 L U L u CL C u u C u u C L N u W N11O O WID 00 m N .••I eY .•i M .•I M N .•i ei a-I W O ++ U C M 8 w y a L v ' m y o >W i CL n' > d x Z ou tw mO c Q M LL O U C y N W•.. LL wm N w 'W Q 01 p NN J ` Z C d' •C w m'n ; m 0 mm _u x u 2 N Packet Pg. 117 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a d C d u d d N u d r a L M .a r 3 r r 0 0 0 u w = w w 0 = af6i A,� ei ei e-I e-I •-I ei a-1 M N e-I M 00 W bA i V Y .= w >V V Y m o d x o d CC ° 'LLmLL C m CL 3 > > O 00 > m O Ol O d d 0/U .0 °m an O 0 e C r+N2 2 v 11 a Lum O m L ca+L d V a a d a s u d u " u 'C. u u u " u ° u u u u u N a _ 0 s w ; w ; 0 0 — w ; o ; w m w ; � s ; r s w cn M 00 .i .••I N ei .••1 N rl M M O y LL L 00 m L L N c u vm umw m Y m u> m Oi dUOa>l W w -0 12 .O W d O m m R@2LL 0 ° m v m 2 r m m V d O O 0) s >w ° ' ' I: smo o o o o °0 6 w ° cmm o LL L) u u c c Q. L; u IA _ C V7 U LL L L u L = L 7 t 7 L C L u L m O m V m °• N m u m V N m O u N tu0 C fu0 f�e� Ol U 01 Ol O Ol Ol O Ol N O a-I a-I a-I a-I a-I a-I R e-I M c-I M N a-I .••I M N .'-I 'i .i cC� d V d N OA C LL 0Ud z oa d w u ° — w c —0 m d m " 10 �i v 0) m " f0 .� CL v c w v lL m CO m° U is L L Lu V O u CL .r V L C u u L V L u CL C L u L LL d V y V FL d V G V O u G u }/ V Ol O) u Ol 0J O O Ol m .\•I .•i a-I .\•I .••I .\-I .ti M .\•I ei .\•I ei tp M M a\-I N .-I .\i .•i WO MO m L _ v d x o r d tLa Y > m 3 o m N _ a LL m U c m g u v 0) um : « m Y Z ' t m d m o m o m o w 3 f0 ° `o ° w J m c m e LL �+ u u x u ., U �n �n �i F H u, C �i d C Y L L L y L L L 7 7 t 3 3 L u s u d u u u C. u u u u u u u u u m m N m N m C m Ol U Ol O1 O1 O1 0 01 O O W 0) .. Qa-I a-I a-I a-I a-I a-I ei a-I M M N a-I m M M N .-I .•Y .••I N N C � m -a o4 m 2, u W m v j d ` m m A j d Y o d o m w u W — d L m v C �j •� v °1 c Ni "UO mp y •�m y. Qoa m wW o • co ° ? m Ww > > 0 c N m wLL mv O my NGG N O O O p O 7 m = cm pi L LL U x m C e-I U Y m U U LL F m Vml 0 C LL LL Q 3 u V u CL C y u 3 V u 3 3 u V u Ol O) O — O! O O) O O O1 ei a-I ei ri .••I ei M N rl M rl 00 00 M M V! I^ d m N 9 i = i 3 m m 'o oa c •_ °' oVa OO F— W 10 'O N M > Y O i m > r .= w Ol £ @ 0J imi 0 C l7 — d m Om0 w YO m m W C m m O W C O 0 i m IL o x u w U CO W `m „ > d $ O w W > Y C O C m G m w W > +' m o m o co Co m \ ° a! m o m m = m o O u u x u , 7 L wu w ; CL CL CL CL CL d \ ^ Cw u ;C ON w\ \ w u\ Or u i+ L, a-I a-I a-I a-I .-I a-I ei M M .•i eY .••I V N .•i M N .-I .••I e•I W V @ v C � C a a L a u d > u W V ut m > d = r+, m�• m - m 0 d Q GD m w x v C w v v o v LL m L LL i •O u C Y '� w 'O w m = Y o m 'O v z c LL o m m m m LL m A W Packet Pg. 118 ux u 2 � c m is LL DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a a C C M y C L y L L .a y y L y L u L L O O u w — w w \ NO — — \ NO \ A,W ` e-I ei e-I e-I •-I ei a-1 N e-I N e-I M m N 1 N M W bA O C Y v Y ,^ tLO •� L iV V V IT, i V v/ Y W m O C O y O d Ol d > 0! O N > E 9 LL fp V m 00 �y b0 Z d O — d A O LL ` U {% > O,m "O y OD N y m OC = m 9 m �+ W N = G N U m 9 an d d 9 O ° > O d 0>! d m O w a wl d - N cC mO m >, 7 L @ y M 0 a+ m Y U m m C_ t0 m ++ Co O c c c V u x m L ti H V m L d 2 LY LL H IOA L LY LL V C 7 C C C 3 u C u u u C u u u u u u u u a o I^ V 01 N O O w O N N O N N N a-I a-I a-I a-I rl a-I l0 M M N a-I N rl ei M N rl a-I a-I .� O L = LL U) W m m m mm O d O C L (� 9 a o d > 12 0 9 9 w m " y o � m s •_ m c m N c ern - = o>y0 J cmc `m c m o 0 3 m c c m ° t m m e c m o U U x U C N C7 m {A O G U 4L CL H 01 O C LL LL L L U L C L L O L 7 U L 3 3 L U L E u C u a u c u u u u u o u u u u o u 01 w u w w w w w w o o w w a-I a-I a-I a-I a-I a-I .-I ei M N M e-I ei m m M N a-I rl rl ^ (Q C 'a G L 04 W V W W U 0) LL 0V0 v m m dCO v , CL m., o .� v > H m = aov > 'rZ cm m o `m o CC m a v o v a m m `° 3 3 w c_ co 0 o TVt� CO lL U x U C ei Y x lL Y d' LY LL V COm Vf C lL LL V O 3 L V L C m L C V L ei rCVl eVOil ei rml ei V r. C LV u SV LL V V O i O O O 0 0 0O N N /E W = m m O d > ° m O d ++ -° a d o m a LL L m m a ` LL m y m t`m0 o d a) m V C Y m U 7 CL m m y m N m >, d m O Y 0 a > s m = m w d > C L) C C N w m ' m O •�- m W 3 N m C 0 m m C Y L L y L E L L L L L 3 C U L U s u a u u u C. u u u u a u u u u u u u m N m N O m C m W U 01 O1 W O1 O1 u w O W Qa-I a-I a-I a-I a-I a-I ei a-I a-I a-I a-I M a-I N a-I m M m rl eY ei ei > N C d m v � •° -a � c m 0 m w m Y y o m ° O a ° d r m -° Y L u ' I m 'c d _m m C v w c u m v� mm LL d v o E. N O Y v U C 'O y v m U v y u m _ w ar d c L v w > ;v = w w > m O ° " s o m ._ ;; mO a m +°�' as y a d 0 m d mm o m N cm O d N O O CO L 3 w >s Cm O p CO lL U x m C e-I m x J L m LL Y U LL u m H M C LL LL L Q O L u L = j L u L 3 L cOa L N C V C O O O N \ O \ O \ \ ° O \ O N \ \ O w N ; w u ei a-I ei ri .••I ei ei M N ei ei .ti rl M rl N .ti .ti .ti '` I^ L� W 'C O a L CD O G O O u _ d 1_>0 m A u=i _ G F O CL m 4 LLLL v iv o u s m a z 9 > c y p C ' a y > a+ N w m N m .° w Co 3 c m : Y m m O m O m \ L w = ° p L J N = Cm O p E O u u x u rl U VI C �i U IA C C 1i L L V L C = 3 u L L L 3 3 L u L N u C u u C u u u u u i+ L w u w ; v ; O � w C w w z 0 wow L a-I a-I a-I a-I rl a-I M M ei eY N ei ei N M M N ei ei ei W O ++ E U y C a w+ V a o ud O Y > E i o uu CL Q E m d .. m v x v C 3 m m = w LL 00 C s 2 o u w m m a E L .LL ;V •� �j c x ,� d y v 3 �O C .O t7 d°. m u m v `m ..I ^ c o m v d > Q a m c m v m > y v v h ° m `n s W m s c m m U 0m m � wZo3mSom � omwcm PacketPg. 119 �i u x u 2 ., u M u A 2 u LL m d 2 �n C E i LL DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a u a L y L L .a y L u L u L L O O i u w — w wO — N O N fV O N N A,� ei ei e-I e-I ei ei a-1 M N e-I M 00 .-I ri ri M N .-I .-I ei W w w c 0 w W LOY LLLO O. UL`m a ✓yc1 mami c`w wm` am iwlOv U) m a O > y im mmL °> .° .o 0 wu o o4) -o °m mc a v a Ya+VfC++l m m L LL LL V a o. o. a 3 L u L L L L u L u L O. u a u c u O u V u O u u w w w O \ \ \ O w O w N \ \ w w V) a-I a-I a-I a-I rl a-I ei N M M a-I N rl N a-I ei M rl rl a-I a-1 .� O L d U- U � U L W m U U w 'O C m 0 m w m 0 m O U) " — -° w m u m LL > w u w a m w w 4L w O m C Y 9 M bc C H w ° C N K w 3 C m V 5 9 N 901 U m w f0 — w O V f0 w d > T m ++ d w > J c ° -o w w T v o o ms m Y y '1 �n m J —° o c c c U U x u C N m H m J {A O C U 4L H U m C LL LL C L L u L C L L 7 u L L L 3 L O L u L 3 U m m O m m m u m a-I a-I a-I a-I a-I a-I ei a-I ei M c-I ei ei ei M rl M N ."I ei ei cC� m v w -° m O o. o. is O O. 3 w 0. U Y m m u O _ 0- i A w .�V v m c m a m m m LL r 3 y a .° ° w m LL O O. w N LL O. LL U 3 C L w > m L 3 C @ y > "O CC ++ CO L L+ C m C cc i+ m lL U x U C ei U Y m 0: lY LL lL H lL Y H G C lL lL V O V O. y O O u W N O m m O N O N O :� O N W E ei rl ei ei rl ei t0 N rl N rl a N In M N rl rl ei E w CD i w m i T C O V Y 0 4 U "° '° L c `m '° Q a > m i m ~ LL m v Y w w u ° w LL M 0. o. u ° w m LL m = r '0 U C Y ca w 'O w K C "O w M V� -O N K C m w w U m w m T C O C m w d > C w C m Yl > Z c �° Y t m m 0 Lu, c m m m c m ° w m m c m o C Y a a 5 a L L w L O y > > u L 3 L u L U m O. H U U U O m O N m O m O w w .. N U C i V oo. R oa vo o m m m w a w _ a t m w C w w m �° LL m -0 m o w m LL m N m v w w m c m v w m O1 Y ++ m u C m m d O d mm o 3 O O O L y LL U x m C e-I F CO 0. U LL LL UCL CL N 0 C LL LL L u L C L L L u L 3 3 L L N u W Om1 N N N O \ \ '0 N O O W O W u ei a-I ei ri .-I ei .ti ei ei ei M .-I ei ei G M M N rl N rl ` aT+ IIL7�^^ v! iUO _ L C CL r a+ W 1 V m 9 N L C m 1 > O L m m Y O w — LL O W w U N m W m 1i m W a C w m 11 O m 9 N r m N '6 -Ow 0 C w u m w `m w 3 a u c d =' > T c o c M v v > w m m > a ° ° m s °n Z °n c �° " m m M 0 N w m m t Y O m m 7 . a"-I ramil a-I o au-I °CD u c O. u uw uu w w w w o u M W O ++ U to u "m' w m Y .VJ Tox v m > wa `CL 2 O a w'r>'-' umw m L10 m — m ° -'oom > c o L Na "Z > o m m O'A O m m O w Packet Pg. 120 Ux C LL LL _ LL uc Q DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a a u a u'a w o 3 o L d 0 0 u w = w a10i A,� ei ei e-I e-I ei ei a-1 M N e-I M e-I m N rl M ,-1 M N .-I ei ei W tLO wI � WE U Y m o d x o d .LL W d £ N m N w LL — ILM mto w f0 a w m W. @ m N w m c 10 LL A -O w m m U Y >• C w G >• 3'O w j = O = bwa = U '6 m an d Y m ° 3 'O t' O aw+ w w N ° H w `O v :L w 9 m cm 1'+ m H O " m GCOi �o Z m > c_ cm p a+ m U U x m L ti H m L J VI x LY LL L N 1wA G C IL lL V d 7 °• 3 I d 3 •� uL u L y L O V L u w u L a U a V a p V V U C V U G V \ V w \ w \ — w \ ° \ O N \ \ w N a-I a-I a-I a-I ••I e•I N N a-I M m ,••I e•I e•1 M ,••I eY rl .� O O L LL L W N >m C m O d w O O d O w m > w W w d O Y w R w A L �i w m U C Y CO u m u v m 'm° (� 0. w w J w u m w e`mn — w v o L 'o °�� a> m o m °�� v J u m i cm O O u L) x U C aC•I F m C OC x LL 4L m m uwi LL LL m L L u L C 7 L L 3 L u L m 3 m V U a N 3 V N Imo N m O N Um U w u w w —N o u o w o w o w m .••� .••� .••� .••� .••� .••� m MLL N a-I N a-I ri M N a-I a-I e•I 0O w V v U o m d u o d d _ v w a 3 m u — w m w a — a A m C1 m w Y w w o w LL m d' o c w m LL m ' CO -O w = N w w > >. C m m •mow- > Y N N C m y ++ m Y U N = i+ m N y w fCC0 m C_ m O m C_ fcc0 p u U x U C ,••I H m %1 G L U LL H %1 C C lL lL V O CL 3 L V L C C V L V L C L V L LL d V V a a O V V d p V G V y V w w u m Zo N O u r= O N 11 m ei ••I ei ei ,••I ei .ti M ,•i a-I ei ei ei a ,••I N M N a-I ei a-I v/ w m ` V Y L N v V L t W m .° N m od x od d x a d > w m > w d > w ~ a 01 o c_ m " '��° d v o v m o c m •� ° w ° U Y m U om` wp m u .°. mn Uvw3 m °o :• y°i O Owp r C m .° ww an o m > om :°°.b u u c id+ C d Ya CL u a u u u C. a u u u a u o " u Q O N m N m N 3 C m w U w w O U O w O w O U \ \ \ w Q � a-I a-I a-I a-I a-I a-I lO a-I M N „-I N e•I lO rl M ,••I eY e•I N O c r_ m v a v v m`o c°N v oON c act0 o� wryw NeO om a d O1 m o — N wNu ° '� Z m mC7 O O W W O O wmw +CN, LLL U x m C e-I C7 ul N L U LL H m J 1% LL LL Q j a L u L G L L L L C d L J L u L N u W Owl N N N W u O Owl N O v W (� ei a-I ei ri ,-I ei .ti ei ei ei M ,••I ei N ,•i .ti M N a-I rl ••I •` N c fA m co u •g 9 w V u N Y LL z V _ m O w Y w d a d d m m m ° o w m LL m LL v iv ° u c Y 'o �° a -o '^ iu m v y N w z 5 m ° v _ O O w C c w w > _ 'O w > +' w m 0 u u° = u° °�� u = Y m° U° ° u 'c LL ° E I/7 V L L U L C 7 7 L L L � 7 L U L V+ u a u u a a o u u u a m ° m a m ° m m m m o m L w u w w u o w w w o u o a-I a-I a-I a-I ••I e•I ei a-I M ei N ,••I e•I e•I m ,••1 M N ,••I e•I e•I W V @ v > O'0 o Yww mO C mO`O i d Y mwL w C m -O m 'O @ 9 W 9 W w w m y Z - m m a m mm o LL a A Packet Pg. 121 u x u c c O 3m LA LL c Q+ + DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a c a� Y a� t r c� m v a� N 0 0 LL L O W V J J r C d E 0 R C N d V EXHIBIT B 0 0 U- E E 3 r c m E m as L Q N It M a+ C N E N 0 L Q N V U) 0 0 U- E E E V a Packet Pg. 122 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a a ' a a a r u a u u u u a m A .Ilem ti W m W W o W o W W o a a ++ ° _ ,� c V N O V N fA w A o °'m E n m « i di 4 a d a+ a v ,'°, '° L 3 u a+ o LL fC Vl ki cou m° a > > v a w m` « c y > Y, a i• a m Y v w mw V m u 3 � N u u u u u O (6 N LL rr u o « is w °08 on io « i °' m u m u — a 'LLLL = J U LL v N C 1 S K C v W y O W C K C O N J L u U. m A c �`-' m �' '°^ z° .°G to a+ Co Q a � a a a a s a M a W U W M W N W W M \ N W O \ \ \ \J O \ N rl rl rl N rl rl � '1 rl N e1 rl N M M L' bA C V LOG Oy W d 2 L1 a LL u E i '` ` �_ f0 C m N LL .0 N U, OJ •O N V C 'C Ol �/N� L w m a O m m y E m o A a ° o v o W o 0 0 o a w 3 m o u u x u 4 x n a u LL v n v u LL O O LL 0..0 .0 u L C 7 J .0 u a N U N E W � G) � W � dm N O � O N � W .•1 .-1 rl rl ti rl l0 N '1 rl 'i N rl rl m '1 .-I '1 M .i L W 'C y V 7 m 0 R o a L w A rv > m o a W a y 3 Y a u — '� F— a a 0 c t� o a° v o p V •� Y H 'O d C V W U m N m C Gl N N O C O.G C C ` � C 0`G C .�-„ m N c Y N N C 10 C u -0 m u d C N a a L Y L u u y u u u u > 3 u L Q � rl N rl '1 rl M N rl N tD N rl rl rl rl rl rl 04 N N It d a 0 m M c c m o W o m ` a a+ •� v w c u m a vi m � v v � 5 v y m m J �o n o — OCa O LL Li = m �.\i m x a v� V N v l7 m v�i v3i V LL L. t a L V L a U U u u u v V .0 u u n fA W u W N W N O v N O N O WW N T rl rl .+ .\i .ti N V rl ,+ R .\I ..+ m rl .-� r1 N r1 .•� V R •� 'O N v N m -0 cw u oG 5 o « a 7 w M o 3 .o LL a « w 01 v —Ow v c m O u Y " a W xw 0 w c l v LL co w to Q O v O LL ` o u0 i O W W O p W N N g \ \ 0 W W ei rl N M N ei N ♦•1 N rl r1 O +► M. O w O O N L N O W _ C v v c Lu m N d7 Y � QI N v°i C W1 C G a N O OG v°i C � C •� m v_ v ar V u ° c " o V LL = Packet Pg. 123 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a c a� Y a� t r c� m v a� N 0 0 LL L O W V J J r C d E 0 R C N d V EXHIBIT C 0 0 U- E E 3 r c m E m as L Q N It M a+ C N E N 0 L Q N V U) 0 0 U- E E E V a Packet Pg. 124 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a 50% TVP Menu Choice Y a� Population Current Price CPI% Amount New Price r Under25 TBN a 25-29 $5.0080 25.00% $1.2520 $6.2600 v 30-34 $4.3110 25.00% $1.0778 $5.3888 35-39 $3.8130 25.00% $0.9533 $4.7663 in 40-44 $3.4400 25.00% $0.8600 $4.3000 0 45-49 $3.1490 25.00% $0.7873 $3.9363 Li L 50-54 $2.9170 25.00% $0.7293 $3.6463 12 55-59 $2.7270 25.00% $0.6818 $3.4088 U 60-64 $2.5680 25.00% $0.6420 $3.2100 r 65-69 $2.4340 25.00% $0.6085 $3.0425 70-74 $2.3200 25.00% $0.5800 $2.9000 m 75-79 $2.2200 25.00% $0.5550 $2.7750 80-84 $2.1320 25.00% $0.5330 $2.6650 g 85-89 $2.0540 25.00% $0.5135 $2.5675 90-94 $1.9880 25.00% $0.4970 $2.4850 95-99 $1.9270 25.00% $0.4818 $2.4088 N 100-104 $1.8720 25.00% $0.4680 $2.3400 0 105-109 $1.8220 25.00% $0.4555 $2.2775 �° 110-114 $1.7770 25.00% $0.4443 $2.2213 115-119 $1.7360 25.00% $0.4340 $2.1700 E 120-124 $1.6980 25.00% $0.4245 $2.1225 125-129 $1.6330 25.00% $0.4083 $2.0413 130-134 $1.6310 25.00% $0.4078 $2.0388 3 c 135-139 $1.6030 25.00% $0.4008 $2.0038 140-144 $1.5740 25.00% $0.3935 $1.9675 L 145-149 $1.5480 25.00% $0.3870 $1.9350 Q 150-154 $1.5240 25.00% $0.3810 $1.9050 155-159 $1.5010 25.00% $0.3753 $1.8763 160+ $1.4800 25.00% $0.3700 $1.8500 .r Religious meal $2.2200 25.00% $0.5550 $2.7750 a� Staff Meals $2.2200 25.00% $0.5550 $2.7750 E a� d L Q N V U) 0 0 U- E E r.+ E V a Packet Pg. 125 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a c a� Y a� t r c� m v a� N 0 0 LL L O W V J J r C d E 0 R C N d V EXHIBIT D 0 0 U- E E 3 r c m E m as L Q N It M a+ C N E N 0 L Q N V U) 0 0 U- E E E V a Packet Pg. 126 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a c a� Y a� t r c� m v SUMMIT N 0 0 LL L O W V J Agreement of Meal Pricing Increases for C3308 Kent City Corrections Contract Beginning Feb. 12023 E, Oct. 1, 2023- CPI increase of up to 8% Oct. 1, 2024 and each year after on this calendar date- Increase according to 0 contract language in regard to CPI-FAH or market basket of Products. U- E E Client will be notified of both possible rates, CPI-FAH and Market Basket of ! Products 60 days prior to the October 1 rate change. E L Q N It M a+ C N E N N L Q N V U) 0 0 U- E E r.+ c� G V a Packet Pg. 127 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a c a� Y a� t r c� m v a� N 0 0 LL L O W V J J r C d E 0 R C N d V EXHIBIT E 0 0 U- E E 3 r c m E m as L Q N It M a+ C N E N 0 L Q N V U) 0 0 U- E E E V a Packet Pg. 128 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a c a� Client Name c3308 Kent City corrections Y a� Monthr Override 9 Date 9/30/2022 Number of Items having$0 cost(should be zero) 3 N 0 0 U- c3308 Kent City corrections w J J Market Basket Price Redetermination Statement r c As of9/30/2022 E m a� R c Menu Category Weighted f° Category Weighting CPI % CPI% Cereals/Bakery products 0.5% 16.2% 0.1% Meats, poultry, fish, and eggs 17.3% 9.0% 1.6% in Dairy and related products 0.3% 15.9% 0.0% °o LL Fruits and vegetables 7.2% 10.4% 0.7% Beverages 0.4% 12.9% 0.1% E Grocery/Other 74.3% 15.7% 11.7% in Total 100.0% 14.1% ! r c m CPI Food Away from Home Index 8.5% E m a� L Greater of Market Basket or FAFH Index 14.1% a rn N It M a+ C N E N N L Q N V U) 0 0 U- E E r.+ c� G V a Packet Pg. 129 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 8.H.a c a� Y a� t r c� m v a� N 0 0 LL L O W V J J r C d E 0 R C N d V EXHIBIT F 0 0 U- E E 3 r c m E m as L Q N It M a+ C N E N 0 L Q N V U) 0 0 U- E E E V a Packet Pg. 130 DocuSign Envelope ID:830BDF26-2DF7-4B67-A8D4-253AAFECE6C8 CERTIFICATE OF LIABILITY INSURANCE F08/31/2022 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THI; CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIE; BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZEI 4) REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. d IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must have ADDITIONAL INSURED provisions or be endorsee r If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement o this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). N PRODUCER 1-612-333-3323 CONTACT NAME: Dawn Heinemann or Angela Whirley a) Brown & Brown Inc. PHONE FAX 'j A/C No Ell: 612-333-3323 A/C No): 612-373-7270 L 80 South 8th Street ADDRESS: eliorcerts@bbrown.com Cl) Suite 700 INSURERS AFFORDING COVERAGE NAIC# '0 O Minneapolis, MN 55402 INSURERA: SENTRY INS CO 24988 O LL INSURED INSURERB: SENTRY CAS CO 28460 i Elior, Inc DBA Elior North America O INSURER C: � Summit Food Service, LLC V 300 S. Tryon Street, Suite 400 INSURERD: J J INSURER E: �.i Charlotte, NC 28202 INSURERF: COVERAGES CERTIFICATE NUMBER: 66463276 REVISION NUMBER: E THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOI O INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THI co CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERM: EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR I POLICY NUMBER MM/DD/YYY MM/DD/Y A X COMMERCIAL GENERAL LIABILITY 9018840005 09/01/22 09/01/23 EACH OCCURRENCE $ 2,000,000 V CLAIMS-MADE � OCCUR PREMISES Ea occurrence)DAMAGE TO RENTED $ 1,000,000 4) d MED EXP(Any one person) $ 10,000 PERSONAL&ADV INJURY $ 2,000,000 0 O GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 LL POLICYF—IJECT PRO- LOC PRODUCTS-COMP/OPAGG $ 4,000,000 OTHER: $ E A AUTOMOBILE LIABILITY 9018840004 (MA) 09/01/22 09/01/23 COMBINED SINGLE LIMIT $ 3,000,000 Ea accident A X ANY AUTO 9018840006 (VA) 09/01/22 09/01/23 BODILY INJURY(Per person) $ A OWNED SCHEDULED 9018840003 (AOS) 09/01/22 09/01/23 AUTOS ONLY AUTOS BODILY INJURY(Per accident) $ 3 HIRED NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY Per accident $ d UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ L iSl DED RETENTION$ $ Q PER A WORKERS COMPENSATION 9018840001 (AOS) 09/01/22 09/01/23 X ST TUTE I I EERH C1 AND EMPLOYERS'LIABILITY B ANYPROPRIETOR/PARTNER/EXECUTIVE YIN 9018840002 (OR, WI) 09/01/22 09/01/23 E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBEREXCLUDED? IN I NIA v (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under ++ DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 0) 0) L DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) N Certificate holder is additional insured as respects general liability policy where required by written contract O 0 subject to the policy terms and conditions. Summit Food Service, LLC operating at 500 E 52nd Street N., Sioux Falls, 'E 57104. 0) N O O ILL r CERTIFICATE HOLDER CANCELLATION E E SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFOR CO Kent Corrections THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED II +; ACCORDANCE WITH THE POLICY PROVISIONS. r_ 1230 Central Avenue South AUTHORIZED REPRESENTATIVE V Kent, WA 98031 ram+ USA Q ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016103) The ACORD name and logo are registered marks of ACORD Packet Pg. 131 ddebuhr 66463276 8.1 KENT WASH IN G T O N DATE: January 17, 2023 TO: Kent City Council SUBJECT: 2023 Railroad Quiet Zone - BNSF Railway Agreements - Authorize MOTION: I move to authorize the Mayor to sign all necessary agreements with Burlington Northern Santa Fe Railway related to the construction and maintenance of the 2023 Railroad Quiet Zone Project, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. SUMMARY: The 2023 Railroad Quiet Zone Project ("Project") includes work to support future railroad Quiet Zones and grade crossing safety improvements at up to 13 railroad crossings. Eight of these crossings are located across the Burlington Northern Santa Fe (BNSF) tracks. In addition, the Project will add security fencing at select locations along the BNSF tracks between S. 212th St. and S. 259th St. To complete the Project, the City must enter into agreements with the BNSF Railway for the construction and maintenance of the Project improvements. These agreements will include: a Grade Crossing Construction and Maintenance Agreement for all crossings and a separate lease agreement for the installation and maintenance of fencing along the tracks on BNSF property. The specific terms and conditions are still being negotiated, but will be substantially similar to the terms and conditions in the agreements attached. BUDGET IMPACT: Council has approved accepting a grant from the Washington State Department of Commerce for $2.95M for the work associated with this Project. Work completed prior to June 30, 2023 is eligible for reimbursement from the state, work completed starting July 1, 2023 will be funded by the City through budgeted project funding. SUPPORTS STRATEGIC PLAN GOAL: Evolving Infrastructure - Connecting people and places through strategic investments in physical and technological infrastructure. Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. Packet Pg. 132 8.1 Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. Inclusive Community - Embracing our diversity and advancing equity through genuine community engagement. ATTACHMENTS: 1. Draft BNSF Railway Grade Crossing Construction and Maintenance Agreement (PDF) 2. Draft Indefinite Term Lease for Land (PDF) 01/09/23 Public Works Committee MOTION PASSES RESULT: MOTION PASSES [UNANIMOUS]Next: 1/17/2023 7:00 PM MOVER: Satwinder Kaur, Councilmember SECONDER: Marli Larimer, Councilmember AYES: Brenda Fincher, Satwinder Kaur, Marli Larimer Packet Pg. 133 8.I.a "ffW—W >4 3 Contract Number: BF-20237650 v z m GRADE CROSSING CONSTRUCTION AND MAINTENANCE AGREEMENT N r 5 .3 BNSF File No.: BF-20237650 a a Mile Post 14.1X-17.1X CU o L Line Segment 51CU U.S. DOT Number 085642Y, 085640K, 085639R, 085637C, 085636V, 085633A, W 085629K, 085625H o Subdivision Seattle M _ a E This Agreement ("Agreement"), is executed to be effective as of ] ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware Q corporation ("BNSF") and the , a political subdivision of the State of ("Agency"). _ RECITALS r WHEREAS, BNSF owns and operates a line of railroad in and through the City of Kent, State of Washington; _ WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is undertaking a project to improve the existing 2591", Willis, Titus, Gowe, Meeker, Smith, L James, and 212th at-grade crossing, located at BNSF Line Segment and Milepost , and designated by D.O.T. No. 085642Y, 085640K, 085639R, 085637C, 085636V, 085633A, 085629K, 085625H, by within the existing roadway easement across the BNSF right-of- way as indicated on the Exhibit A, attached hereto and incorporated herein; and N o WHEREAS, the Agency desires to preempt the highway traffic control signals with the grade crossing warning devices shown on Exhibit A; and 2- c� WHEREAS, "BNSF" agrees to allow the Agency to preempt the highway traffic control signals with the grade crossing warning devices indicated on Exhibit A. • U_ WHEREAS, the parties agree that the RAILROAD will receive no ascertainable benefit U) z from the installation of advance warning signs, pavement marking stop bars or crossing m r signal equipment (hereinafter collectively called, "Crossing Signal Equipment"); and L 0 WHEREAS, the Agency is paying for the acquisition and installation of crossing signal equipment at 259t", Willis, Titus, Gowe, Meeker, Smith, James, and 212t".with State and Federal funds pursuant to 23 U.S.C. § 130" r r a 1 of 42 Packet Pg. 134 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� 0 WHEREAS, the BNSF agrees to purchase and install, at AGENCY'S sole expense, the N crossing signal equipment described in the scope of work herein, and upon the terms and conditions set forth below. CY 0 L NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: o M ARTICLE I — SCOPE OF WORK CD E 1) The term "Project" as used herein includes any and all work related to the L construction of the 259th, Willis, Titus, Gowe, Meeker, Smith, James, and 212th by Q Agency and installation of LED upgrades and crossing modifications at U.S. D.O.T No. 085642Y, 085640K, 085639R, 085637C, 085636V, 085633A, 085629K, 085625H, (hereinafter referred to as the "Crossing") by BNSF, more particularly a described on the Exhibit A, including, but not limited to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation. 0 U ARTICLE II — RAILROAD OBLIGATIONS In consideration of the covenants of Agency set forth herein and the faithful U performance thereof, BNSF agrees as follows: .y N 1) Upon Agency's payment to BNSF of an administrative fee in the sum of Two Thousand 0 Five Hundred and No/100 Dollars ($2,500), together with the Temporary Construction License Fee in the sum of$[ and No/100 Dollars ($ ), BNSF hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license 3 (hereinafter called, "Temporary Construction License") to enter upon and use the portion of BNSF's right-of-way as is necessary to and thereafter maintain, the U_ Crossing as described further on Exhibit A-1, excepting and reserving BNSF's rights, z and the rights of any others who have obtained, or may obtain, permission or authority 00 from BNSF, to do the following: o A. Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said right-of-way; Q 2 of 42 Packet Pg. 135 8.I.a RAID WAY 3 Contract Number: BF-20237650 v z m a� 0 B. Construct, operate, maintain, renew and/or relocate upon said right-of-way, N without limitation, such facilities as the BNSF may from time to time deem appropriate; 0 L C. Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate. 00 0 The term of the Temporary Construction License begins on the Effective Date and M ends on the earlier of (i) substantial completion of the Structure, or (ii) 24] months following the Effective Date. The Temporary Construction License and related rights E given by BNSF to Agency in this provision are without warranty of title of any kind, L express or implied, and no covenant of warranty of title will be implied from the use of Q any word or words herein contained. The Temporary Construction License is for construction of the Structure only and shall not be used by Agency for any other purpose. Agency acknowledges and agrees that Agency shall not have the right, under the Temporary Construction License, to use the Structure for any other purpose than construction. In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere ° with the rights granted to Agency herein. L 2) BNSF will furnish all labor, materials, tools, and equipment for railroad work required U for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event y construction on the Project has not commenced within six (6) months following the 0 Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may 3 be included as a part of this Agreement upon written approval of Agency, which approval will not be unreasonably withheld. Construction of the Project must include U- the following railroad work by BNSF: z m A. Procurement of materials, equipment and supplies necessary for the railroad 0 work; a B. Preliminary engineering, design, and contract preparation; E U Q 3 of 42 Packet Pg. 136 8.I.a RAID WAY 3 Contract Number: BF-20237650 v z m a� C. Furnishing of flagging services during construction of the Project as required and o set forth in further detail on Exhibit C, attached to this Agreement and made a part N hereof; CY D. Furnishing engineering and inspection as required in connection with the o construction of the Project; E. Installation of Crossing Signal Equipment as shown on Exhibit A o M F. Provide an interface box, with contact terminals, mounted on side of Crossing Signal Control House E a a� G. Make such changes in the alignment, location and elevation of its telephone, a telegraph, signal and/or wire lines and appurtenances along, over or under the CD tracks, both temporary and permanent, as may become necessary by reason of r_ the construction of the Project. c 3) BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable o collective bargaining agreements. L 4) Agency agrees to reimburse BNSF for work of an emergency nature caused by c Agency or Agency's contractor in connection with the Project which BNSF deems is U reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF c without prior approval of Agency and Agency agrees to fully reimburse BNSF for all U such emergency work. L 5) BNSF may charge Agency for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability (including, 3 without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual U_ cost of the Project, regardless of the nature or amount of ultimate liability for injury, z loss or death to BNSF's employees, if any. m L 6) During the construction of the Project, BNSF will send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. Agency must reimburse BNSF for completed force-account work within thirty(30) days of the date of the invoice for such work. Upon completion of the Project, BNSF will a 4 of 42 Packet Pg. 137 8.I.a RAID WAY 3 Contract Number: BF-20237650 v z m a� send Agency a detailed invoice of final costs, segregated as to labor and materials for o each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article N IV, Section 7 herein, Agency must pay the final invoice within ninety (90) days of the CY date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which 0 are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other o charges as of the end of the month and will be reduced by amounts in dispute and M any unposted payments received by the month's end. Finance charges will be noted on invoices sent to Agency under this section. E a a� ARTICLE III —AGENCY OBLIGATIONS a a� In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency agrees as follows: c 1) Agency must furnish to BNSF plans and specifications for the Project. Said plans (reduced size 11" x 17"), showing the plan and profile of the roadway work on BNSF right-of-way and marked as Exhibit A, attached hereto and made a part hereof, must o be submitted to BNSF for the development of railroad cost estimates. 2) Agency must make any required application and obtain all required permits and approvals for the construction of the Project. c U Im 3) Agency must acquire all rights of way necessary for the construction of the Project. S .y N O 4) Agency must make any and all arrangements, in compliance with BNSF's Utility U Accommodation Manual (http://www.bnsf.com/communities/fags/pdf/utility.pdf), for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project. 3 5) Agency must construct the Project as shown on the attached Exhibit A and do all work ("Agency's Work") provided for in the plans and specifications for the Project, except m railroad work that will be performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the performance of Agency's Work. The o principal elements of Agency's Work are as follows: a E U Q 5 of 42 Packet Pg. 138 8.I.a RAID WA Y 3 Contract Number: BF-20237650 v z m a� A. Design and Construction of 259t", Willis, Titus, Gowe, Meeker, Smith, James, o and 212t"; .3 B. Installation of a pavement marking stop bar in accordance with the Manual on CY Uniform Traffic Control Devices (hereinafter called, "MUTCD"); o C. Installation of advance warning signs in accordance with the MUTCD 00 0 D. Perform all necessary grading and paving, including backfill of excavations and M restoration of disturbed vegetation on BNSF's right-of-way; CD E E. Provide suitable drainage, both temporary and permanent; L F. Provide all barricades, lights, flagmen or traffic control devices necessary for CD preventing vehicular traffic from using a portion of the Crossing, during the installation of the concrete crossing surfaces, and also during the installation of the Crossing Signal Equipment. G. Construct concrete roadway surface on approaches to each track. c H. Provide and place six (6) to twelve (12) inch wide section of concrete between roadway concrete headers (and sidewalks) and the new concrete crossing L surfaces, including that portion of 259t", Willis, Titus, Gowe, Meeker, Smith, James, r_ and 212th located between the Main Tracks and siding track. I. Job site cleanup including removal of all construction materials, concrete debris, y surplus soil, refuse, contaminated soils, asphalt debris, litter and other waste 0 materials to the satisfaction of BNSF; L J. Provide BNSF in writing with the total time required from start of preempt cycle of highway traffic control signals until arrival of the train at the highway-rail crossing. 3 K. Connect the highway traffic control signals to the contact terminals in the interface U_ box including all necessary cable and conduit. U) z m r L. Install the new highway traffic control signals. 2 0 6) The Agency will approve the location of the signals and signal bungalow prior to the installation by BNSF. E U Q 6 of 42 Packet Pg. 139 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 (n z m a� 7) The Agency must have advanced railroad crossing signs and standard pavement N markings in place at the crossing shown on Exhibit A (if the same are required by the N MUTCD) prior to the acceptance of this Project by the Agency. CY 8) The Agency must give BNSF's Manager Public Projects written notice to proceed 0 ("Notice to Proceed") with the railroad portion of the work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written Notice to CD Proceed is received from Agency. CD 9) The Agency's Work must be performed by Agency or Agency's contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities. a CD 10) For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the Agency, Agency shall require the subcontractors to comply with the provisions of the attached Exhibit C and execute the agreement attached hereto as Exhibit C-1. Prior to performing any future maintenance with its own personnel, Agency shall: comply with all of BNSF's applicable safety rules and regulations; require any Agency employee performing maintenance to complete the o safety training program at the BNSF's Internet Website 3 "www.contractororientation.com"; notify BNSF when, pursuant to the requirements of N Exhibit C, a flagger is required to be present; procure, and have approved by BNSF's c Risk Management Department, Railroad Protective Liability insurance. .y 11) Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty o (30) calendar days prior to requesting a BNSF flagman in accordance with the U requirements of Exhibit C attached hereto. Additionally, Agency must require its contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks. 3 12) Agency must include the following provisions in any contract with its contractor(s) performing work on said Project: z m A. The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications o companies may be buried on BNSF's property or right-of-way. The locations of these Lines have been included on the plans based on information from the E telecommunications companies. The contractor will be responsible for contacting U Q 7 of 42 Packet Pg. 140 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� BNSF and the telecommunications companies and notifying them of any work that o may damage these Lines or facilities and/or interfere with their service. The N contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The contractor must also use all reasonable CY methods when working in the BNSF right-of-way or on BNSF property to determine o if any other Lines (fiber optic, cable, communication or otherwise) may exist. B. Failure to mark or identify these Lines will be sufficient cause for BNSF's o engineering representative Marshall Flores at (253) 591-3000 to stop construction M at no cost to the Agency or BNSF until these items are completed. CD E C. The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Contractor must cooperate fully Q with any telecommunications company(ies) in performing such rearrangements. c D. In addition to the liability terms contained elsewhere in this Agreement, the contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Contractor, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Contractor, and/or its subcontractors, agents L and/or employees, on BNSF's property or within BNSF's right-of-way, (2) any injury to or death of any person employed by or on behalf of any telecommunications U company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of action for alleged loss y of profits or revenue by, or loss of service by a customer or user of such ° telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR a� WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE 2- DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF 3 BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. z m 13)Agency must require compliance with the obligations set forth in this agreement, 2 including Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Article I I I and IV; and (ii) the provisions set forth in Exhibit C and Exhibit C-1, attached E hereto and by reference made a part hereof. U Q 8 of 42 Packet Pg. 141 8.I.a RAID WAY 3 Contract Number: BF-20237650 (n z m a� 0 14)Except as otherwise provided below in this Section 13, all construction work performed N hereunder by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such contracts must include the following: CY 0 L A. All work performed under such contract or contracts within the limits of BNSF's right-of-way must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; o M B. Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval; E a a� C. No work will be commenced within BNSF's right-of-way until each of the prime Q contractors employed in connection with said work must have (i) executed and CD delivered to BNSF an agreement in the form of Exhibit C-1, and (ii) delivered to and secured BNSF's approval of the required insurance; and c D. If it is in Agency's best interest, Agency may direct that the construction of the Project be done by day labor under the direction and control of Agency, or if at any time, in the opinion of Agency, the contractor has failed to prosecute with diligence the work specified in and by the terms of said contract, Agency may terminate its contract with the contractor and take control over the work and proceed to L complete the same by day labor or by employing another contractor(s) provided; however, that any contractor(s) replacing the original contractor(s) must comply U with the obligations in favor of BNSF set forth above and, provided further, that if such construction is performed by day labor, Agency will, at its expense, procure y and maintain on behalf of BNSF the insurance required by Exhibit C-1. 0 U a� E. To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's Roadmaster 90 days advance notice of the proposed times and dates for work windows. BNSF and Agency's contractor will establish mutually agreeable 3 work windows for the Project. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be U- responsible for any additional costs and expenses resulting from a change in work U) z windows. Additional costs and expenses resulting from a change in work windows m shall be accounted for in the contractor's expenses for the Project. i 0 15)Agency must advise the appropriate BNSF Manager Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion date. E Additionally, Agency must notify BNSF's Manager Public Projects, in writing, of the U Q 9 of 42 Packet Pg. 142 8.I.a "OW-W >4 3 Contract Number: BF-20237650 v z m (D date on which Agency and/or its Contractor will meet with BNSF for the purpose of o making final inspection of the Project. N 5 .3 16)TO THE FULLEST EXTENT PERMITTED BY THE LAWS OF THE STATE OF a a WASHINGTON, AGENCY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND CU o HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, CU SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND o AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, M DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE Q PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (1) THE USE, CU OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS, r SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE _ CONSTRUCTION SITE, (11) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR CU AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE c SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR L ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY N CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS ° AGREEMENT, (VI) AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT 2- MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII) AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES 3 OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL APPLY ONLY TO THE EXTENT OF z THE NEGLIGENCE OF AGENCY, ITS AGENTS OR EMPLOYEES, AND THIS WILL m r NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, L DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE r r a 10 of 42 Packet Pg. 143 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE o NEGLIGENCE OF BNSF. N a; .3 It is mutually negotiated between the parties that the indemnification obligation CY shall include all claims brought by Agency's employees against BNSF, its o agents, servants, employees or otherwise, and Agency expressly waives its immunity under the industrial insurance act (RCW Title 51) and assumes potential liability for all actions brought by its employees. o M ARTICLE IV — JOINT OBLIGATIONS a� E IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: L 1) All work contemplated in this Agreement must be performed in a good and CD workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to a conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications. 2) The work hereunder must be done in accordance with the Exhibit A and the detailed o plans and specifications approved by BNSF. U 3) Agency must require its contractor(s) to reasonably adhere to the Project's N construction schedule for all Project work. The parties hereto mutually agree that c BNSF's failure to complete the railroad work in accordance with the construction U schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any c liability. Regardless of the requirements of the construction schedule, BNSF reserves U the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses 3 resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct U- or indirect consequences or costs resulting from any such reallocation will not m constitute a breach of this Agreement by BNSF. L 4) BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF's opinion, prosecutes the Project work in a manner a 11 of 42 Packet Pg. 144 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� that is hazardous to BNSF property, facilities or the safe and expeditious movement o of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this CY Agreement. The work stoppage will continue until all necessary actions are taken by o Agency or its contractor to rectify the situation to the satisfaction of BNSF's Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction o License, or (iii) the Easement, BNSF may immediately terminate the Temporary M Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction Q work on the Project, BNSF agrees to immediately notify the following individual in writing: a� c c c 0 r U 5) Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper U supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or y adjacent to its operating right-of-way). Construction of the Project will not proceed ° until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately ;a notify [ for appropriate corrective action. 3 6) Pursuant to this section and Article II, Section 6 herein, Agency must, out of funds made available to it for the construction of the Project, reimburse BNSF in full for the U_ actual costs of all work performed by BNSF under this Agreement (including taxes, z such as applicable sales and use taxes, business and occupation taxes, and similar m taxes), less BNSF's Share as set forth in Article IV, Section 6 herein. o 7) All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 M Code of Federal Regulations, and the Federal-Aid Policy Guide, U.S. Department of Q 12 of 42 Packet Pg. 145 8.I.a RAID WAY 3 Contract Number: BF-20237650 (n z m a� Transportation, as amended from time to time, which manual is hereby incorporated 0 into and made a part of this Agreement by reference. The parties mutually agree that N BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work CY may have preceded the date of this Agreement. 0 8) The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The CD commencement notice will reference BNSF's file number and D.O.T. Crossing No. and must state the time that construction activities will begin. CD E 9) In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF L and the Agency agree to the following terms upon completion of construction of the a Project: CD A. Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of the 259t", Willis, Titus, Gowe, Meeker, Smith, James, and 212th roadway including the portion of roadway located between the tracks. c 0 B. will maintain the elevation of the 259t", Willis, Titus, Gowe, Meeker, Smith, U James, and 212th roadway approaches to match the elevation on the railroad track crossing surfaces and to be no more than three (3) inches above or six c (6) inches below top-of-rail elevation at a distance measured thirty (30) feet from the nearest rail. .y N C. Agency will maintain the advanced railroad crossing warning signs and g Y g g g ci pavement markings and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency's failure to maintain the advanced warning signs and markings or other requirements of the MUTCD. 3 D. Agency will do nothing and permit nothing to be done in the maintenance of the U- 259t", Willis, Titus, Gowe, Meeker, Smith, James, and 212th roadway, which z will interfere with or endanger facilities of BNSF. 00 0 L E. It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto. E U Q 13 of 42 Packet Pg. 146 8.I.a 17Af�WA Y 3 Contract Number: BF-20237650 (n z m a� F. BNSF will, at its sole cost and expense, operate and maintain the Crossing o Signal Equipment, Crossing Signal Control House, and the new crossing surfaces, from end-of-tie to end-of-tie, in proper condition. CY G. Notwithstanding the preceding provision, if any regulations, ordinances, acts, o rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency's portion of maintenance cost under this Agreement, BNSF will receive the benefit of any o such regulations, ordinances, acts, rules or other laws and the Agency's M increased portion of maintenance costs will be incorporated into and made a part of this Agreement. E a) a) H. If a railway or highway improvement project necessitates rearrangement, a relocation, or alteration of the Crossing Signal Equipment, Crossing Signal CD House, installed hereunder, the costs for such rearrangement, relocation or alteration will be the responsibility of the party requesting such changes. c I. If any of the Crossing Signal Equipment is partially or wholly destroyed, then such repair and/or replacement costs must be distributed among the parties as follows: 0 r i) In the event the BNSF's sole negligence destroys or damages the L Crossing Signal Equipment and/or the Crossing Signal House, BNSF must, at its sole cost and expense, replace or repair such Crossing Signal Equipment and/or Crossing Signal House. .y N ii) In the event the Crossing Signal Equipment is damaged or destroyed by ° any other cause, Agency must reimburse BNSF for the costs to replace or repair such Crossing Signal Equipment and/or Crossing Signal House. J. If the Crossing Signal Equipment and/or Crossing Signal House installed hereunder cannot, through age, be maintained, or by virtue of its • obsolescence, requires replacement, the cost of installation of the new U- crossing signal equipment and/or new crossing signal house will be U) z negotiated by the parties hereto on the basis of the current Federal Aid m Railroad Signal Program participation and applicable Agency. i 0 K. BNSF will operate and maintain, at its expense, the necessary relays and other materials required to preempt the highway traffic control signals with the E grade crossing warning devices. U Q 14 of 42 Packet Pg. 147 8.I.a RAID WA Y 3 Contract Number: BF-20237650 (n z m a� 0 L. BNSF will operate and maintain, at its expense, the railroad crossing warning N devices up to the contact terminals in the interface box. CY M. Agency will own, operate and maintain, at its expense, the highway traffic 0 control signals up to and including connection to the contact terminals in the interface box including all necessary cable and conduit. 00 0 10) Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance CD purposes and the BNSF Manager of Public Projects will determine if flagging is E required. If the construction work hereunder is contracted, Agency must require its L prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C- Q 1, as the same may be revised from time to time. Agency will be responsible for its CD contractor(s) compliance with such obligations. a� 11) Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of 0 Washington and the Federal Highway Administration, for a period of one (1) year from U the date of the final BNSF invoice under this Agreement. 0 12) The covenants and provisions of this Agreement are binding upon and inure to the U Im benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations c hereunder without the prior written consent of the other party. U a� 13) In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void. 3 U- U) z m r 0 L d E V Q 15 of 42 Packet Pg. 148 8.I.a RAID WAY 3 Contract Number: BF-20237650 (n z m 0 14) Neither termination nor expiration of this Agreement will release either party from N any liability or obligation under this Agreement, whether of indemnity or otherwise, CY resulting from any acts, omissions or events happening prior to the date of termination or expiration. o 15) To the maximum extent possible, each provision of this Agreement will be 00 interpreted in such a manner as to be effective and valid under applicable law. If anyCD provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or CD invalidity and the remainder of the provision will be enforceable. E a a� L 16) This Agreement (including exhibits and other documents, manuals, etc. a CD incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 17) Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: g U L N BNSF: BNSF's Manager Public Projects 0 U Alex Funderburg y 605 Puyallup Ave c Tacoma, WA, 98403 U a� ,L^ V Agency: 3 U- U) z m r L SIGNATURE PAGE FOLLOWS a E U Q 16 of 42 Packet Pg. 149 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 (n z m a� IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed o and attested by its duly qualified and authorized officials as of the day and year first above N written. a� cY 0 L BNSF RAILWAY COMPANY 00 0 By: M Printed Name: E a) a� Title: a CD WITNESS: a� c c AGENCY 0 r 0 L WITNESS: 0 U c .y N By: 0 U m Printed Name: ,L^ V Title: 3 U- z m r 0 L d E V Q 17 of 42 Packet Pg. 150 8.I.a AOrAMWwdWAF=' rVAI.1 WA Y 3 Contract Number: BF-20237650 v z m a� Exhibit A o N r [Insert plan and profile layout of the crossing improvements provided by Agency] CY [Insert BNSF signal sketch] o 00 0 M C N E d d L tM CD 0 r L N O U c .y N O L U d ,L^ V 3 U- z m r L d E M V Q 18 of 42 Packet Pg. 151 8.I.a 17414 WA r � 3 Contract Number: BF-20237650 U) z m a� Exhibit A-1 0 N r O [Insert cross-hatched drawing of the Temporary Construction License and Structure] a a CU O L NCU L7� [BARTLETT AND WEST TO PREPARE EXHIBIT A-1] o v M C O E (D d L Q V R r .C� C CU O V L O U c .N N O L U d O ,L^ V R 3 U_ U) z m r L d E V a Packet Pg. 152 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m EASEMENT AGREEMENT o FOR N r (C&M Agreement) THIS EASEMENT AGREEMENT FOR ("Easement o Agreement") is made and entered into as of the day of 20_ ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and o a ("Grantee"). M A. Grantor owns or controls certain real property situated at or near the vicinity E of County of , State of , at Mile Post [Project # 1, as described or depicted on Exhibit "A" attached hereto and made a part hereof (the "Premises"). c B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of concerning improvements on or near the Premises (the "C&M Agreement"). c C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below). L D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement and in the C&M Agreement incorporated herein U as if fully set forth in this instrument which terms shall be in full force and effect for purposes of this Easement even if the C&M Agreement is, for whatever reason, no longer y in effect. U a) NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: • Section 1 Granting of Easement. u_ U) 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the z C&M Agreement. Any improvements to be constructed in connection with the Easement 00 Purpose are referred to herein as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C&M Agreement. c m E 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the r Q Packet Pg. 153 8.I.a 17Af�WA Y 3 Contract Number: BF-20237650 v z m a� c Premises for the Easement Purpose and for no other purpose. The Easement is granted N subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the CY Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, o covenants and court or administrative decisions and orders, including Environmental Laws (defined below) and zoning laws (collectively, "Laws"). Grantee may not make any a alterations or improvements or perform any maintenance or repair activities within the co Premises except in accordance with the terms and conditions of the C&M Agreement. CD M 1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be CD exercised by Grantor and any other parties who may obtain written permission or authority E from Grantor: ;v a (a) to install,construct,maintain,renew,repair,replace,use,operate,change,modify and CD relocate any existing pipe,power,communication, cable,or utility lines and appurtenances and other facilities or structures of like character(collectively, "Lines") upon,over,under or across the Premises; (b) to install construct maintain renew,repair,replace,use operate,change,modify d p p � p e g , Y an � relocate any tracks or additional facilities or structures upon,over,under or across the c� Premises; and 0 r (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference N with the use of the Premises by Grantee for the Easement Purpose. r- 0 U Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. [*If this is a temporary c easement, replace the precedin_q sentence with the followin_g: The term of this U Easement, unless sooner terminated under provisions of this Easement Agreement, shall expire on the date that is after the Effective Date.] 3 Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation U- whatsoever to Grantee concerning the state or condition of the Premises, or any z personal property located thereon, or the nature or extent of Grantor's ownership m interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR Q Packet Pg. 154 8.I.a "ffW—W >4 .4.4fLYY.4r � 3 Contract Number: BF-20237650 U) z m a� CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY o PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP r OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE a OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO CU o THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS CU FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY o TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER M THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and Q property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement CU Agreement does not contain any implied warranties that Grantee or Grantee's r Contractors (as hereinafter defined) can successfully construct or operate the = Improvements. CU Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT c WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE r IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET L ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to ofund Grantee any compensation paid hereunder. 1 N 0 Section 5Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, c� approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, CU excavations or embankments necessary in the construction, maintenance, or future alteration of 3 the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and U_ wherever any such fill or embankment shall or may obstruct the natural and pre-existing z drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain m such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and E workmanship equally as good as those now existing. In the event any construction, repair, r r a Packet Pg. 155 8.I.a 17Af�WA Y 3 Contract Number: BF-20237650 v z m maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, o buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be r responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of CY any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements CD (fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the above-described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, E said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire. CD Q Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the c Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against 2 Grantor, including all of Grantor's legal fees and expenses. L Section 7 Environmental. v a� 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all y federal, state and local environmental Laws in its use of the Premises, including, but not limited c to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the U Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are 3 defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. z m 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or o from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the U r r Q Packet Pg. 156 8.I.a RAID WAY 3 Contract Number: BF-20237650 v z m Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf o of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. "� r as .3 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or CY otherwise of a release or violation of Environmental Laws which occurred or may occur during the a term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance 00 of the Improvements, soils or other materials considered to be environmentally contaminated are CD exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency CD having the capacity and authority to make such a determination. E a� as L 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any Q conditions or activities upon the Premises known to Grantee which create a risk of harm to CD persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. c 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof o satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above-stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination, U Grantee shall remove the Improvements and restore the Premises as provided in Section 9. .y Section 8 Default and Termination. o U d 8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, 0 Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed 3 obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work — as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone n or anything present on the rail corridor or property with the authority or permission of m Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform o any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. E M U Q Packet Pg. 157 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� 8.2 Abandonment. Grantor may, at its option, terminate this Easement o Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this CY Easement Agreement for any subsequent default or defaults, nor shall any such waiver o in any way affect Grantor's ability to enforce any section of this Easement Agreement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will o release Grantee from any liability or obligation under this Easement, whether of indemnity M or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by E Section 9. L 8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the C&M Agreement, at law or in equity. c Section 9 Surrender of Premises. c 9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of ° Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, L immediately perform the following: 0 U (a) remove all or such portion of Grantee's Improvements and all y 0 L (b) appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; 2 (c) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the • Premises; U_ U) (d) remedy any unsafe conditions on the Premises created or m aggravated by Grantee; and 0 (e) leave the Premises in the condition which existed as of the Effective Date. E M U Q Packet Pg. 158 8.I.a 17Af�WA Y 3 Contract Number: BF-20237650 v z m a� 9.2 Limited License for Entry. If this Easement Agreement is terminated, o Grantor may direct Grantee to undertake one or more of the actions set forth above, at N Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms CY of this limited license include all of Grantee's obligations under this Easement Agreement. o Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's o Improvements are removed and the Premises are restored to the condition that existed M as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. L Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement ° U Agreement. 3 Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations) 0 under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal y Revenue Code. In such event, Grantor shall provide Grantee with a Notice of ° Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of receipt of such notice. 2 Section 12 Notices. Any notice required or permitted to be given hereunder 3 by one party to the other shall be delivered in the manner set forth in the C&M Agreement. Notices to Grantor under this Easement shall be delivered to the following U- address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. z Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time m direct by notice to Grantee. i 0 Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and E any such recording shall be a breach of this Easement Agreement. Grantor and Grantee U Q Packet Pg. 159 8.I.a RAID WAY 3 Contract Number: BF-20237650 v z m a� shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B" o (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. [*IF LEGAL DESCRIPTION IS NOT AVAILABLE USE THE FOLLOWING IN PLACE OF THE PRIOR SENTENCE: As of the Effective CY Date, a legal description of the Premises is not available. Grantee and Grantor shall work o together in good faith to establish the legal description for the Premises. Once Grantor and Grantee have approved the legal description, Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B" (the o "Memorandum of Easement').] The Memorandum of Easement shall be M recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described E above within days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee. a a� Section 14 Miscellaneous. a� 14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of [Texas] without regard to conflicts of law provisions. c 14.2 In the event that Grantee consists of two or more parties, all the covenants 2 and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties U hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. y 0 L 14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable 2 attorneys'fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 3 14.4 If any provision of this Easement Agreement is held to be illegal, invalid or U- unenforceable under present or future Laws, such provision will be fully severable and z this Easement Agreement will be construed and enforced as if such illegal, invalid or m unenforceable provision is not a part hereof, and the remaining provisions hereof will 2- remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision 0 herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may E be possible and be legal, valid and enforceable. U Q Packet Pg. 160 8.I.a 17Af�WA Y 3 Contract Number: BF-20237650 v z m a� 0 14.5 This Easement Agreement and the C&M Agreement, which is incorporated herein, r is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between CY the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing a herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. 00 14.6 Time is of the essence for the performance of this Easement Agreement. CD M Section 15. Administrative Fee. Grantee acknowledges that a material consideration for this CD agreement, without which it would not be made, is the agreement between Grantee and Grantor, E that the Grantee shall pay upon return of this Easement Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of $ over and above the agreed Q upon acquisition price. Said fee shall be made payable to BNSF Railway Company by a separate check. �a c as Witness the execution of this Easement Agreement as of the date first set forth above. c c 0 r GRANTOR: ; L N BNSF RAILWAY COMPANY, a Delaware 0 corporation .y N O �L♦ V d By: Name: Title: 3 U- GRANTEE: m L a E E U a Packet Pg. 161 8.I.a 17A f�W,4 r 3 Contract Number: BF-20237650 (n z m a� c O N r N By: CY Name: 0 0 L Title: 00 0 M 9 c Easement Agreement Form 704CM; Rev. 03/23/2019 CD E CD m L a 0 r U L N O U c .y N O �L♦ V d ,L^ V 3 LL U) z m r L d E M V Q Packet Pg. 162 8.I.a "ffW—W >% Contract Number: BF-20237650 y z m EXHIBIT "A" o N r Premises c� 0 L .N� L7� 00 0 M C N E CD d L a 0 r U 0 L N O U IM c .y N O L U d CU ,L^ V 3 U- z m r 0 L Easement Exhibit-A Form 704CM; Rev. 03/23/2019 c m E M U r r Q Packet Pg. 163 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m EXHIBIT "B" o N r MEMORANDUM OF EASEMENT CJ THIS MEMORANDUM OF EASEMENT is hereby executed this day o of 201_, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and o a M ("Grantee"), whose address for purposes of this instrument is which terms "Grantor" and "Grantee" shall E include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: a CD WITNESSETH: a� WHEREAS, Grantor owns or controls certain real property situated in County, as described on Exhibit"A" attached hereto and incorporated herein by reference (the "Premises'); c WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated 201_(the "Easement Agreement")which set forth, L among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and U WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions y of the Easement Agreement of record. o U a� For valuable consideration the receipt and sufficiency of which are hereby 2 acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. 3 The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. z m All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement E is not intended to amend, U Q Packet Pg. 164 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� modify, supplement, or supersede any of the provisions of the Easement Agreement and, N to the extent there may be any conflict or inconsistency between the Easement N Agreement or this Memorandum of Easement, the Easement Agreement shall control. CY END OF PAGE — SIGNATURE PAGE FOLLOWS o L .N� L7� 00 0 M C N E CD d L a 0 r U L N O U c .y N O UL d ,L^ V 3 U- z m r L 2 Easement- Exhibit B Form 704CM; Rev. 03/23/2019 E t U r r Q Packet Pg. 165 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of o Easement to as of the date and year first above written. N a� .3 cY 0 L GRANTOR: 00 0 BNSF RAILWAY COMPANY, a Delaware M corporation a� E a a� L a By: Name: Title: c c 0 r U 0 L STATE OF TEXAS § § U COUNTY OF TARRANT § .y N This instrument was acknowledged before me on the day of 0 20_, by (name) as (title) of BNSF RAILWAY COMPANY, a 2- Delaware corporation. 3 Notary Public U- U) z m r My appointment expires: 2- (Seal) E U Q Packet Pg. 166 8.I.a -2W >% Contract Number: BF-20237650 v z m 3 0 GRANTEE: N a; c� �a O L .N� L7� 00 0 M By: E Name: Title: CD a STATE OF § c § COUNTY OF § c This instrument was acknowledged before me on the day of g 20_, by L (name) as (title) of , a 0 .y N O �L♦ V d ,L^ V Notary Public 3 My appointment expires: v z m (Seal) L d E V Q Packet Pg. 167 8.I.a "ffW—W >4 3 Contract Number: BF-20237650 U) z m a� EXHIBIT C1 0 EXHIBIT "C-1" r a� .3 Agreement Between a CU 0 BNSF RAILWAY COMPANY CU and the o v M_ CONTRACTOR _ aD E aD a� Railway File: BF-20237650 Q a� Agency Project: CU r a/an (hereinafter called "Contractor"), has entered into an agreement (hereinafter called "Agreement") dated , 20_, with the City of Kent for the performance CU of certain work in connection with the following project: c Performance of such work will necessarily require Contractor to enter BNSF RAILWAY ° COMPANY (hereinafter called "Railway") right of way and property (hereinafter called L "Railway Property"). The Agreement provides that no work will be commenced within U) Railway Property until the Contractor employed in connection with said work for City of Kent (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section N 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, 0 President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of 2- Contractor. CU Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date U- of the Agreement, has agreed and does hereby agree with Railway as follows: z m r 1) RELEASE OF LIABILITY AND INDEMNITY L 0 A. Contractor hereby waives, releases, indemnifies, defends and holds harmless 0 Railway for all judgments, awards, claims, demands, and expenses (including E attorneys' fees), for injury or death to all persons, including Railway's and r r a Packet Pg. 168 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 u z m a� Contractor's officers and employees, and for loss and damage to property o belonging to any person, arising in any manner from Contractor's or any of N Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right-of-way. This obligation shall not include CY such claims, costs, damages, or expenses which may be caused by the o sole negligence of Railway or its contractors, agents or employees; Provided, that if the claims or damages are caused by or result from the concurrent negligence or other acts or omissions of (a) Railway, its o contractors, agents or employees and (b) Contractor, its subcontractors, M agents or employees, this provision shall be valid and enforceable only to the extent of the negligence of the Contractor, its subcontractors, agents or E employees. L B. It is mutually negotiated between the parties that the indemnification CD obligation shall include all claims brought by Contractor's employees against Railway, its agents, servants, employees or otherwise, and Contractor expressly waives its immunity under the industrial insurance act (RCW Title 51) and assumes potential liability for all actions brought by its employees. c C. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST L RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY U APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED. y 0 L D. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's 2 discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this • Agreement for which Railway is liable or is alleged to be liable. Railway will give U- notice to Contractor, in writing, of the receipt or dependency of such claims and z thereupon Contractor must proceed to adjust and handle to a conclusion such m claims, and in the event of a suit being brought against Railway, Railway may 2 forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against E U Q Packet Pg. 169 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� ail damages, judgments, decrees, attorney's fees, costs, and expenses growing o out of or resulting from or incident to any such claims or suits. N .3 E. In addition to any other provision of this Agreement, in the event that all or any CY portion of this Article shall be deemed to be inapplicable for any reason, including o without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railway to the fullest extent o permitted by applicable law. M F. It is mutually understood and agreed that the assumption of liabilities and E indemnification provided for in this Agreement survive any termination of this Agreement. CD 2) TERM a� A. This Agreement is effective from the date of the Agreement until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. c 3) INSURANCE U L Contractor shall, at its sole cost and expense, procure and maintain during the life of this c Agreement the following insurance coverage: 4) SALES AND OTHER TAXES c �L♦ V A. In the event applicable sales taxes of a state or political subdivision of a state of the United States are levied or assessed in connection with and directly related to any amounts invoiced by Contractor to Railway ("Sales Taxes"), Railway shall be responsible for paying only the Sales Taxes that Contractor separately states 3 on the invoice or other billing documents provided to Railway; provided, however, that (i) nothing herein shall preclude Railway from claiming whatever Sales Tax U- exemptions are applicable to amounts Contractor bills Railway, (ii) Contractor m shall be responsible for all sales, use, excise, consumption, services and other taxes which may accrue on all services, materials, equipment, supplies or o fixtures that Contractor and its subcontractors use or consume in the performance of this Agreement, (iii) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) that Contractor fails M to separately state on the invoice or other billing documents provided to Railway Q Packet Pg. 170 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� or fails to collect at the time of payment by Railway of invoiced amounts (except o where Railway claims a Sales Tax exemption), and (iv) Contractor shall be N responsible for Sales Taxes (together with any penalties, fines or interest thereon) if Contractor fails to issue separate invoices for each state in which CY Contractor delivers goods, provides services or, if applicable, transfers intangible o rights to Railway. B. Upon request, Contractor shall provide Railway satisfactory evidence that all o taxes (together with any penalties, fines or interest thereon) that Contractor is M responsible to pay under this Agreement have been paid. If a written claim is made against Contractor for Sales Taxes with respect to which Railway may be E liable for under this Agreement, Contractor shall promptly notify Railway of such claim and provide Railway copies of all correspondence received from the taxing a authority. Railway shall have the right to contest, protest, or claim a refund, in CD Railway's own name, any Sales Taxes paid by Railway to Contractor or for which Railway might otherwise be responsible for under this Agreement; provided, however, that if Railway is not permitted by law to contest any such Sales Tax in its own name, Contractor shall, if requested by Railway at Railway's sole cost and expense, contest in Contractor's own name the validity, applicability or amount of such Sales Tax and allow Railway to control and conduct such contest. 2 U L C. Railway retains the right to withhold from payments made under this Agreement amounts required to be withheld under tax laws of any jurisdiction. If Contractor U is claiming a withholding exemption or a reduction in the withholding rate of any jurisdiction on any payments under this Agreement, before any payments are y made (and in each succeeding period or year as required by law), Contractor 0 agrees to furnish to Railway a properly completed exemption form prescribed by such jurisdiction. Contractor shall be responsible for any taxes, interest or 2 penalties assessed against Railway with respect to withholding taxes that Railway does not withhold from payments to Contractor. 3 5) EXHIBIT "C" CONTRACTOR REQUIREMENTS U- z A. The Contractor must observe and comply with all provisions, obligations, 00 requirements and limitations contained in the Agreement, and the Contractor 2 Requirements set forth on Exhibit "C" attached to the Agreement and this Agreement, including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting E from use, occupancy, or presence of its employees, representatives, or agents or U Q Packet Pg. 171 8.I.a 17Af�WA Y 3 Contract Number: BF-20237650 u z m a� subcontractors on or about the construction site. Contractor shall execute a o Temporary Construction Crossing Agreement or Private Crossing Agreement N (http://www.bnsf.com/communities/fags/permits-real-estate/), for any temporary crossing requested to aid in the construction of this Project, if approved by BNSF. 0 L 6) TRAIN DELAY A. Contractor is responsible for and hereby indemnifies and holds harmless Railway CD (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train CD which affects Railway's ability to fully utilize its equipment and to meet customer E service and contract obligations. Contractor will be billed, as further provided L below, for the economic losses arising from loss of use of equipment, contractual Q loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform a any act to unnecessarily cause train delay. B. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train o traffic may cause delays to multiple trains at the same time for the same period. 0 L C. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss y of performance or incentive pay and/or be subject to penalty payments. 0 Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. 3 D. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, U- Railway will share information relevant to any train delay to the extent consistent Z with Railway confidentiality obligations. The rate then in effect at the time of 00 performance by the Contractor hereunder will be used to calculate the actual 2 costs of train delay pursuant to this agreement. E. Contractor and its subcontractors must give Railway's representative E ( ) (2) weeks advance notice of the times and dates for Q Packet Pg. 172 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 v z m a� proposed work windows. Railway and Contractor will establish mutually o agreeable work windows for the project. Railway has the right at any time to N revise or change the work windows due to train operations or service obligations. CY Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a o change in work windows shall be accounted for in Contractor's expenses for the project. 00 0 F. Contractor and subcontractors must plan, schedule, coordinate and conduct all M Contractor's work so as to not cause any delays to any trains. CD E SIGNATURE PAGE FOLLOWS CD a 0 r L N O U IM c .y N O UL d ,L^ V 3 U- z m r L d E M V Q Packet Pg. 173 8.I.a 17Af�WAY 3 Contract Number: BF-20237650 (n z m a� 0 IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be N executed by its duly authorized officer the day and year first above written. CY BNSF RAILWAY COMPANY 00 Signature: Signature: CD Printed Name: Printed Name: CD E a) Title: Manager Public Projects Title: a Date: Date: c a� c Accepted and effective this day of 20_. c c 0 r U Contact Person: L Address: City: y N O L State: Zip: U a� Fax: Phone: 3 E-mail: LL U) z m r 0 L d E V Q Packet Pg. 174 8.I.a 17A I�WA Y � 3 Contract Number: BF-20237650 U) z m EXHIBIT D o N r [Insert Cost Estimate(s) for Railroad Work here] CU 0 L NCU L7� 00 0 M C O E (D d L Q V R r .C� C CU O V L O U c .N N O L U d O ,L^ V R 3 U- U) z m r L d E V a Packet Pg. 175 8.I.b INDEFINITE TERM LEASE LAND THIS INDEFINITE TERM LEASE FOR LAND ("Lease") is made and entered into to be effective as of the day of ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Lessor") and a(n) corporation ("Lessee"). c RECITALS as as A. Lessor is in the railroad transportation business and owns or controls a system of rail tracks `n ("Lessor's Track(s)") and various real properties associated therewith, including certain Premises as described below which Lessee desires to lease from Lessor. 3 B. Lessor has agreed to lease to Lessee the Premises, subject to the terms, conditions and limitations provided herein. z m AGREEMENTS c 0 In consideration of the mutual covenants herein, Lessor and Lessee hereby agree as follows: N as .3 Section 1. Premises and Term. CY c� A. Lessor leases to Lessee and Lessee leases from Lessor, subject to the covenants, agreements, terms, provisions and conditions of this Lease, that certain parcel of real property, situated in the City of County of State of along Line Segment Mile Post and constituting the shaded area shown upon Print No. dated a copy of (20 which is attached hereto as Exhibit "A" and made a part hereof("Premises"). B. Lessee leases the Premises from Lessor beginning ("Commencement Date"), J and shall continue until terminated by either party as provided in this Section 1(B). This Lease may be terminated o by either party, at any time, without cause, for convenience, by serving upon the other party written notice of a termination at least thirty (30) days in advance. Upon the expiration of the time specified in such notice, this Lease and all rights of Lessee shall absolutely cease. _J E L C. Upon termination, either (i) Lessor may retain from prepaid rent, as an additional charge for use of the Premises, a sum equal to three (3) months Base Rent (as defined below), and any unearned portion of the annual Base Rent, in excess of such retainage, paid in advance shall be refunded to Lessee or (ii) if Lessor has not been paid sufficient Base Rent to satisfy the above retainage, then Lessee shall pay Lessor a sufficient sum so that, together with sums already held by Lessor, Lessor shall hold a sum equal to three (3) months Base 5 Rent which Lessor shall retain as an additional charge for use of the Premises, and such additional sum shall be paid by Lessee within thirty (30) days of termination of the Lease. o c D. Each consecutive twelve-month period this Lease is in effect, beginning with the Effective Date of this Lease, is herein called a "Lease Year." E. Lessee acknowledges that it is assuming all risks associated with Lessor's right to terminate this a Lease at any time as provided above, and (i) Lessor gives no assurance that Lessor will delay termination of this Lease for any length of time whatsoever, (ii) Lessee may expend money and effort during the term of this Lease which may not ultimately be of any benefit to Lessee if Lessor terminates this Lease, but nonetheless, Lessor shall have the right to terminate the Lease if Lessor determines in its sole and absolute discretion that Lessor BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 1 - Packet Pg. 176 8.I.b desires to terminate, and (iii) in no event shall Lessor be deemed to have any legal obligations to continue to lease the Premises for any length of time. Section 2. Use and Compliance. A. Lessee may use the Premises for the sole and exclusive purpose of and for no other purpose without the prior written consent of Lessor. Lessee shall respond to Lessor's reasonable inquiries regarding the use or condition of the Premises. c 4) E B. Lessee shall comply with all Laws applicable to Lessee, the Premises, this Lease and Lessee's activities and obligations hereunder, and shall have the sole responsibility for costs, fees, or expenses associated a with such compliance. As used herein, the term "Laws"shall mean any and all statutes, laws, ordinances, codes, rules or regulations or any order, decision, injunction, judgment, award or decree of any public body or authority 3 having jurisdiction over Lessee, the Premises, this Lease, and/or Lessee's obligations under this Lease, and shall include all Environmental Laws (as defined in Section 4(A)). U- C. If any governmental license or permit is required or desirable for the proper and lawful conduct of m Lessee's business or other activity in or on the Premises, or if the failure to secure such a license or permit might in any way affect Lessor, then Lessee, at Lessee's expense, shall procure and thereafter maintain such license c or permit and submit the same to inspection by Lessor. Lessee, at Lessee's expense, shall at all times comply N with the requirements of each such license or permit. W CY Section 3. Rent. 0 L A. Lessee shall pay as rental for the Premises, in advance, an amount equal to ($ ) annually during the term of the Lease, ("Base Rent"). Base Rent shall increase 3% annually during •- 00 the term of the Lease. Lessor reserves the right to change rental rates as conditions warrant. Billing or a acceptance by Lessor of any rental shall not imply a definite term or otherwise restrict either party from canceling this Lease as provided herein. Either party hereto may assign any receivables due it under this Lease; provided, 0 however, such assignments shall not relieve the assignor of any of its rights or obligations under this Lease. All J rent and other monetary payments under this Lease from Lessee to Lessor shall be delivered solely to the o following address: Jq a� N R [[OPTIONAL (USE IF MONTHLY, QUARTERLY OR BI-ANNUAL RENTAL)]] -J E L A. Lessee shall pay as rental for the Premises, in advance, an amount equal to ($ ) annually during the term of the Lease, which may be paid in equal [month ly/quarterly/bi-annual] (D installments of ($ ) ("Base Rent") each and . Such Base Rent shall E increase 3% annually during the term of the lease. Lessor reserves the right to change rental rates as conditions warrant. Billing or acceptance by Lessor of any rental shall not imply a definite term or otherwise restrict either 5 party from canceling this Lease as provided herein. Either party hereto may assign any receivables due it under this Lease; provided, however, such assignments shall not relieve the assignor of any of its rights or obligations o under this Lease. All rent and other monetary payments under this Lease from Lessee to Lessor shall be delivered solely to the following address: BNSF Railway Company PO Box 676160 a Dallas TX 75267-6160 Lessor shall have the right to designate at any time and from time to time a different address for delivery of such payments by written notice to Lessee pursuant to the notice provisions of Section 36 below. No rent or other payment sent to any other address shall be deemed received by Lessor unless and until Lessor has actually BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 2 - Packet Pg. 177 8.I.b posted such payment as received on the account of Lessee, and Lessee shall be subject to all default provisions hereunder, late fees and other consequences as a result thereof in the same manner as if Lessee had failed or delayed in making any payment. B. Lessee acknowledges that Lessor utilizes the rental collection system involving direct deposit of monies received through a financial institution selected by Lessor, which precludes Lessor's ability to exercise rejection of a rental payment before Lessee's check is cashed. Lessee agrees that as a condition of Lessor granting this Lease Lessee hereby waives any rights it may have under law to force continuation of this Lease due to Lessor having accepted and cashed Lessee's rental remittance. Lessor shall have the option of rejecting Lessee's payment by refunding to Lessee the rental amount paid by Lessee, adjusted as set forth in this Lease, and enforcing the termination provisions of this Lease. a C. Lessee shall pay the Base Rent and all additional amounts due pursuant to Section 9 as and 3 when the same become due and payable, without demand, set-off, or deduction. Lessee's obligation to pay F0 Base Rent and all amounts due under this Lease is an independent covenant and no act or circumstance, W regardless of whether such act or circumstance constitutes a breach under this Lease by Lessor, shall release z Lessee of its obligation to pay Base Rent and all amounts due as required by this Lease. m D. If any Base Rent or any payment under Section 9 or any other payment due by Lessee hereunder c is not paid within five (5) days after the date the same is due, Lessor may assess Lessee a late fee ("Late Fee") in an amount equal to 5% of the amount which was not paid when due to compensate Lessor for Lessor's administrative burden in connection with such late payment. In addition to said Late Fee, Lessee shall pay CY interest on the unpaid sum from the due date thereof to the date of payment by Lessee at an annual rate equal m to (i)the greater of(a)for the period January 1 through June 30, the prime rate last published in The Wall Street ° Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one- half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is less. (20 M Section 4. Environmental. J L A. Lessee shall strictly comply with all federal, state and local environmental laws and regulations in a0 its occupation and use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Clean Air Act, the Oil Pollution Act, the Hazardous Materials 3 Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Lessee shall not E maintain any treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws, on the Premises. Lessee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws, on or about the Premises. as B. Lessee shall give Lessor immediate notice to Lessor's Resource Operations Center at (800) 832- 5 5452 of any release of hazardous substances on or from the Premises and to Lessor's Manager Environmental Leases at (785) 435-2386 for any violation of Environmental Laws, or inspection or inquiry by governmental o authorities charged with enforcing Environmental Laws with respect to Lessee's use of the Premises. Lessee shall use its best efforts to promptly respond to any release on or from the Premises. Lessee also shall give Lessor's Manager Environmental Leases immediate notice of all measures undertaken on behalf of Lessee to investigate, remediate, respond to or otherwise cure such release or violation and shall provide to Lessor's Manager Environmental Leases copies of all reports and/or data regarding any investigations or remediations of a the Premises. C. In the event that Lessor has notice from Lessee or otherwise of a release or violation of Environmental Laws on the Premises which occurred or may occur during the term of this Lease, Lessor may BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 3 - Packet Pg. 178 8.I.b require Lessee, at Lessee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Lessor's right-of-way. D. Lessee shall promptly report to Lessor in writing any conditions or activities upon the Premises which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Lessee's reporting to Lessor shall not relieve Lessee of any obligation whatsoever imposed on it by this Lease. Lessee shall promptly respond to Lessor's request for information regarding said conditions or activities. 4) E E. Hazardous Materials are not permitted on the Premises except as otherwise described herein. Lessee expects to use on the Premises the following Hazardous Materials: a and to store on the Premises the following Hazardous Materials (as defined in Section 4(F) below): ; provided, however, that Lessee may 3 only use and store the listed Hazardous Materials in such amounts as are necessary and customary in Lessee's FO industry for the permitted uses hereunder ("Permitted Substances"). All such Permitted Substances shall be W placed, used, and stored in strict accordance with all Environmental Laws. Use or storage on the Premises of z any Hazardous Materials not disclosed in this Section 4(E) is a breach of this Lease. m F. For purposes of this Section 4, "Hazardous Materials" means all materials, chemicals, c compounds, or substances (including without limitation asbestos, petroleum products, and lead-based paint) identified as hazardous or toxic under Environmental Laws. •) CY G. Lessor may, at its option prior to termination of this Lease, require Lessee to conduct an M environmental audit of the Premises through an environmental consulting engineer acceptable to Lessor, at ° Lessee's sole cost and expense, to determine if any noncompliance or environmental damage to the Premises has occurred during Lessee's occupancy thereof. The audit shall be conducted to Lessor's satisfaction and a copy of the audit report shall promptly be provided to Lessor for its review. Lessee shall pay all expenses for any CODO remedial action that may be required as a result of said audit to correct any noncompliance or environmental damage, and all necessary work shall be performed by Lessee prior to termination of this Lease. J Section 5. Access to Adjacent Property by Lessee. o Jq w If access to and from the Premises can be accomplished only through use of Lessor's property adjacent to the Premises, such use is granted for ingress and egress only and on a non-exclusive basis, subject to such _J restrictions and conditions as Lessor may impose by notice to Lessee. Lessor shall have the right to designate E the location or route to be used. Lessee understands and agrees that all of the terms and obligations under this Lease applicable to Lessee shall also be applicable to Lessee with respect to Lessee's use of any property adjacent to the Premises which Lessee may use just as though the property has been specifically described as part of the Premises, including, without limitation, the indemnity provisions of Section 13. Notwithstanding anything to the contrary herein, this Section 5 shall not grant Lessee any right to cross any of Lessor's Tracks. 5 Any such crossing rights may only be granted by a separate written agreement between Lessor and Lessee. L Section 6. Access to Premises by Lessor. W A. Lessor and its contractors, agents and other designated third parties may at all reasonable times and at any time in case of emergency, in such manner as to not unreasonably interfere with Lessee's use of the Premises as allowed hereunder, (i) enter the Premises for inspection of the Premises or to protect the Lessor's a interest in the Premises or to protect from damage any property adjoining the Premises, (ii) enter the Premises to construct, maintain, and operate trackage, fences, pipelines, communication facilities, fiber optic lines, wireless towers, telephone, power or other transmission lines, or appurtenances or facilities of like character, upon, over, across, or beneath the Premises, without payment of any sum for any damage, including damage to growing crops, (iii) take all required materials and equipment onto the Premises, and perform all required work BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 4 - Packet Pg. 179 8.I.b therein, for the purpose of making alterations, repairs, or additions to the Premises as Lessor may elect if Lessee defaults in its obligation to do so, (iv) enter the Premises to show the Premises to holders of encumbrances on the interest of Lessor in the Premises, or to prospective purchasers or mortgagees of the Premises, and all such entries and activities shall be without any rebate of rent to Lessee for any loss of occupancy of the Premises, or damage, injury or inconvenience thereby caused. B. For purposes stated in this Section 6, Lessor will at all times have keys with which to unlock all of the doors and gates on the Premises, and Lessee will not change or alter any lock thereon without Lessor's permission. E as as C. In an emergency, Lessor will be entitled to use any and all means that Lessor may deem proper E to open doors, gates, and other entrances to obtain entry to the Premises. Any entry to the Premises by Lessor as described in this Section 6 shall not under any circumstances be construed or deemed to be a forcible or 3 unlawful entry into, or a detainer of,the Premises, or any eviction of Lessee from the Premises, and any damages F0 caused on account thereof will be paid by Lessee. w U- U) Section 7. Warranties. m as LESSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND c LESSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT N, IS MADE. This Lease is made subject to all outstanding rights or interests of others. If the Premises are •2 subsequently found to be subject to prior claim, this Lease shall terminate immediately on notice to that effect CY from Lessor. Lessee accepts this Lease subject to that possibility and its effect on Lessee's rights and ownership M of the Lessee Improvements. In case of eviction of Lessee by anyone other than Lessor, or anyone owning or ° claiming title to or any interest in the Premises, Lessor shall not be liable to Lessee for damage of any kind (including any loss of ownership right to Lessee's Improvements) or to refund any rent paid hereunder, except to return the unearned portion of any rent paid in advance. Q M Section 8. Premises Condition; Lessee Improvements. c J A. Lessee represents that the Premises, the Lessee owned fence, building, (or other improvement), o the title thereto, any subsurface conditions thereof, and the present uses thereof have been examined by the Lessee. Lessee accepts the same in the condition in which they now are, without representation or warranty, 0) expressed or implied, in fact or by law, by the Lessor, and without recourse to the Lessor as to the title thereto, 3 the nature, condition or usability thereof, or the uses to which the Premises may be put. By taking possession E or commencing use of the Premises, Lessee (i) acknowledges that it is relying on its own inspections of the Premises and not on any representations from Lessor regarding the Premises; (ii) establishes conclusively that (D the Premises are at such time in satisfactory condition and in conformity with this Lease and all zoning or other E governmental requirements in all respects; and (iii) accepts the Premises in its condition as of the Commencement Date on an "AS IS," "WHERE IS," and "WITH ALL FAULTS" basis, subject to all faults and 5 infirmities, whether now or hereafter existing. Nothing contained in this Section 8 affects the commencement of the term of the Lease or the obligation of Lessee to pay rent as provided above. Lessee represents and warrants o to Lessor as follows: (i) Lessee does not intend to, and will not, use the Premises for any purpose other than as set forth in Section 2; (ii) Lessee has previously disclosed in writing to Lessor all special requirements (but Lessor shall have no responsibility relative to any such special requirement), if any, which Lessee may have in connection with this intended use; and (iii) Lessee has undertaken and has reasonably and diligently completed all appropriate investigations regarding the suitability of the Premises for Lessee's intended use. Lessee shall a comply with any covenants, conditions or restrictions now or hereafter affecting the Premises, and acknowledges that Lessor may place any covenants, conditions or restrictions of record affecting the Premises prior to or during the term of the Lease. In such event, this Lease will be subject and subordinate to all of the same without further action by either party, including, without limitation, the execution of any further instruments. Lessee acknowledges that Lessor has given material concessions for the acknowledgements and provisions contained BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 5 - Packet Pg. 180 8.I.b in this Section 8, and that Lessor is relying on these acknowledgments and agreements and would not have entered into this Lease without such acknowledgements and agreements by Lessee. B. If improvements are necessary for Lessee's use of the Premises, Lessee, at Lessee's sole cost and expense, shall, on or after the Commencement Date, construct and install such improvements to the Premises which are necessary for Lessee's use of the Premises and are acceptable to Lessor in Lessor's sole discretion ("Lessee Improvements"). The construction and installation of any Lessee Improvements shall be subject to Lessor's prior written approval of plans and specifications for such Lessee Improvements to be prepared by Lessee and submitted to Lessor for approval as set forth below, such approval to be in Lessor's sole and absolute discretion. Within forty-five (45) days after the Commencement Date, Lessee shall submit detailed plans and specifications, and the identity of Lessee's proposed general contractor for the Lessee a Improvements for Lessor's review and approval. Lessor shall either approve or disapprove the plans and specifications and general contractor (in its sole and absolute discretion) by written notice delivered to Lessee 3 within sixty(60)days after receipt of the same from Lessee. In the event of any disapproval, Lessor shall specify •Fa the reasons for such non-approval. If Lessor fails to deliver notice to Lessee of Lessor's approval or disapproval � of the plans, specifications, and proposed general contractor within the time period discussed above, Lessee's z plans, specifications and proposed contractor shall be deemed disapproved. If Lessor specifies objections to m the plans and specifications or general contractor as herein provided and Lessor and Lessee are unable to resolve the objections by mutual agreement within a period of thirty (30) days from the date of delivery of written c notice thereof, Lessee, as its sole remedy, to be exercised not later than ten (10)days after the expiration of said14 thirty (30) days period, may terminate this Lease by written notice to Lessor. Upon approval of the plans and specifications by Lessor, Lessor and Lessee shall sign the same, and they shall be deemed a part hereof. All Cy Lessee Improvements shall be constructed and installed in accordance with the terms and conditions of Exhibit M "B" attached to the Lease and all applicable terms and conditions of the Lease regarding alterations and = improvements. Lessee shall not construct any other alteration or improvement to the Premises without Lessor's prior written consent. The Lessee Improvements constructed pursuant to the above provisions shall be owned by Lessee during the term of the Lease and removed from the Premises or surrendered to the Lessor pursuant COS to Section 20 below upon termination of this Lease. C. Lessee agrees to reimburse Lessor for all costs and expenses incurred by Lessor in connection J with Lessee's use of the Premises, including but not limited to the furnishing of Lessor's flaggers and any o vehicle rental costs incurred. Lessee shall bear the cost of flagger services and other safety measures provided by Lessor, when deemed necessary by Lessor's representative. Flagging costs shall include, but not be limited to the following: pay for at least an eight (8) hour basic day with time and one-half or double time for 3 overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable); railway and E unemployment insurance; public liability and property damage insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for railway labor or collective bargaining M agreements and rate changes authorized by appropriate Federal authorities may increase flagging rates. E Flagging rates in effect at the time of performance by the flaggers will be used to calculate the flagging costs. To arrange flagger services, contact BNSF's Scheduling Agent at wilsoncompany.utility.ic@wilsonco.com or 5 (816) 556-3624 at least fifteen (15) days in advance of entry and BEFORE YOU DIG, CALL (800) 533-2891 (option 7). o c Section 9. Taxes and Utilities. A. In addition to Base Rent, Lessee shall pay all taxes, utilities, and other charges of every kind and character, whether foreseen or unforeseen, ordinary or extraordinary, which are attributable to the term of this a Lease and may become due or levied against the Premises, against Lessee, against the business conducted on the Premises or against the Lessee Improvements placed thereon during the term hereof, even though such taxes, utilities or other charges may not become due and payable until after termination of this Lease provided; however, that Lessee shall only be responsible for the payment of property taxes levied against the Premises to the extent such taxes are separately assessed by the applicable taxing authority as a result of this Lease. Lessee BNSF- Indefinite Term Lease-Land Form 205;Rev. 07/01/14 - 6 - Packet Pg. 181 8.I.b agrees that Lessor shall not be required to furnish to Lessee any utility or other services. If this Lease is a transfer of an existing lease, Lessee must make arrangements with the present lessee for payment of any delinquent and current taxes, utilities, and other charges prior to taking possession. If such arrangements are not made, Lessee agrees to pay all such taxes, utilities, and other charges. If Lessor should make any such payments, Lessee shall promptly upon demand reimburse Lessor for all such sums. B. Should the Premises be subject to special assessment for public improvements in the amount of Five Hundred Dollars ($500.00) or less during any Lease Year, Lessee shall promptly reimburse Lessor the amount in full. Should the assessment exceed Five Hundred Dollars ($500.00)during any Lease Year then such excess shall be paid by Lessor, but the Base Rent herein shall be increased by an amount equal to twelve percent (12%) of such excess payable for each Lease Year such amounts are payable. a Section 10. Track Clearance. 3 A. Lessee shall not place, permit to be placed, or allow to remain, any permanent or temporary material, structure, pole, or other obstruction within (i) 8'/2 feet laterally from the centerline of any of Lessor's N Tracks on or about the Premises (nine and one-half(9-1/2)feet on either side of the centerline of any of Lessor's m Tracks which are curved) or (ii) 24 feet vertically from the top of the rail of any of Lessor's Tracks on or about the Premises ("Minimal Clearances"); provided that if any law, statute, regulation, ordinance, order, covenant or c restriction ("Legal Requirement") requires greater clearances than those provided for in this Section 10, then N Lessee shall strictly comply with such Legal Requirement. However, vertical or lateral clearances which are less than the Minimal Clearances but are in compliance with Legal Requirements will not be a violation of this Section CY 10, so long as Lessee strictly complies with the terms of any such Legal Requirement and posts a sign on the m Premises clearly noting the existence of such reduced clearance. Any such sign shall be painted with black and ° white reflective paint. B. Lessor's operation over any Lessor's Track on or about the Premises with knowledge of an (20 unauthorized reduced clearance will not be a waiver of the covenants of Lessee contained in this Section 10 or of Lessor's right to recover for and be indemnified and defended against such damages to property, and injury c to or death of persons, that may result therefrom. J L C. Lessee shall not place or allow to be placed any freight car within 250 feet of either side of any at- q grade crossings on Lessor's Tracks. a� J Section 11. Repairs; Maintenance. E L A. Lessee shall, at its sole expense, take good care of the Premises (including all Lessee °W Improvements) and shall not do or suffer any waste with respect thereto and Lessee shall promptly make all necessary or desirable Repairs to the Premises. The term "Repairs" means all reasonable repair and maintenance necessary to keep the Premises (including all Lessee Improvements) in good condition and 5 includes, without limitation, replacements, restoration and renewals when necessary. Lessee shall keep and maintain any paved areas, sidewalks, curbs, landscaping, and lawn areas in a clean and orderly condition, and o free of accumulation of dirt and rubbish. as B. Lessor shall not have any liability or obligation to furnish or pay for any services or facilities of whatsoever nature or to make any Repairs or alterations of whatsoever nature in or to the Premises, including but not limited to structural repairs, or to maintain the Premises in any manner. Lessee acknowledges that a Lessor shall have no responsibility for management of the Premises. Optional if adding fencing, add Section C below: BNSF- Indefinite Term Lease-Land Form 205;Rev. 07/01/14 - 7 - Packet Pg. 182 8.I.b C. Within thirty (30) days of the effective date of the agreement, Lessee shall, at its sole cost and expense, construct a protective chain link fence minimum of six (6) feet in height along the north and west sides of the parking area of the Premises as shown by a solid line with X's on Exhibit "A" of this agreement. Lessee shall thereafter repair, maintain, and renew said fence, so as to keep in good repair at the sole cost to the Lessee. If fence is not constructed within this time frame, Lessor may construct said fence at the sole cost of Lessee and Lessee shall pay Lessor all associated costs within 10 days of receipt of bills. c Section 12. Safety; Dangerous and Hazardous Conditions. as as A. It is understood by Lessee that the Premises may be in dangerous proximity to railroad tracks, `n including Lessor's Tracks, and that persons and property, whether real or personal, on the Premises will be in danger of injury, death or destruction incident to the operation of the railroad, including, without limitation, the 3 risk of derailment, fire, or inadequate clearance (including sight clearance or vision obstruction problems at grade •Fa crossings on or adjacent to the Premises), and Lessee accepts this Lease subject to such dangers, and O� acknowledges that its indemnification obligations hereunder extend to and include all such risks. z m B. Prior to entering the Premises, Lessee shall and shall cause its contractor(s) to comply with all of Lessor's applicable safety rules and regulations. Lessee must ensure that each of its employees, contractors, c agents or invitees entering upon the Premises completes the safety orientation program at the website N "www.BNSFcontractor.com" (the "Safety Orientation") within one (1) year prior to entering upon the Premises. Additionally, Lessee must ensure that each and every employee of Lessee, its contractors, agents CY and invitees possess a card certifying completion of the Safety Orientation prior to entering upon the m Premises. Lessee must renew the Safety Orientation annually. ° 00 Section 13. Indemnity. M A. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LESSOR AND LESSOR'S AFFILIATED COMPANIES, PARTNERS, J SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF 0) ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND E GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): as (i) THIS LEASE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS; 5 (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LEASE; o c (iii) LESSEE'S OCCUPATION AND USE OF THE PREMISES; (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY, AGGRAVATED BY, OR CONTRIBUTED IN WHOLE OR IN PART, BY LESSEE; OR a (v) ANY ACT OR OMISSION OF LESSEE OR LESSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01'14 - 8 - Packet Pg. 183 8.I.b EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LESSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. B. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 13(A), LESSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, c REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON STRICT LIABILITY, NEGLIGENCE OR E OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL a, LAWS. LESSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND a, ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LESSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LEASE SHALL NOT IN ANY WAY SUBJECT LESSOR TO CLAIMS THAT LESSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND v HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LESSOR m BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. c 0 C. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE FURTHER AGREES, N REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY,AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY a LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA")WHENEVER EMPLOYEES OF LESSEE OR ANY OF ITS ° AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS C OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE r? LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANYSIMILAR STATE OR FEDERAL STATUTE. J 0 D. Upon written notice from Lessor, Lessee agrees to assume the defense of any lawsuit or other a proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Lease for which 0 Lessee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Lessee shall � pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation E and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. a� r Section 14. Equal Protection. 4- m It is agreed that the provisions of Sections 10, 12, and 13 are for the equal protection of other railroad c companies, including, without limitation, the National Railroad Passenger Corporation (Amtrak), permitted to use Lessor's property, and such railroad companies shall be deemed to be included as Indemnitees under Sections o 10, 12, and 13. a� Section 15. Assignment and Sublease. r A. Lessee shall not (i) assign or otherwise transfer this Lease or any interest herein, or(ii) sublet the a Premises or any part thereof, without, in each instance, obtaining the prior written consent of Lessor, which consent may be withheld in Lessor's sole and absolute discretion. For purposes of this Section 15, in the event that there are aggregate transfers or other changes in the ownership interests of Lessee resulting in a change of more than 20% of the ownership interests as held on the date hereof, a transfer shall be deemed to have BNSF- Indefinite Term Lease-Land Form 205;Rev. 07/01/14 - 9 - Packet Pg. 184 8.I.b occurred hereunder. Any person or legal representative of Lessee, to whom Lessee's interest under this Lease passes by operation of law, or otherwise, will be bound by the provisions of this Lease. B. Any assignment, lease, sublease or transfer made pursuant to Section 15(A) may be made only if, and shall not be effective until, the assignee cures all outstanding defaults of Lessee hereunder and executes, acknowledges and delivers to Lessor an agreement, in form and substance satisfactory to Lessor, whereby the assignee assumes the obligations and performance of this Lease and agrees to be personally bound by and y upon all of the covenants, agreements, terms, provisions and conditions hereof on the part of Lessee to be performed or observed. Lessee covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of rent by Lessor from an assignee or transferee or any other party, Lessee will remain fully and primarily liable along with the assignee for the a payment of the rent due and to become due under this Lease and for the performance of all of the covenants, agreements, terms, provisions, and conditions of this Lease on the part of Lessee to be performed or observed. 3 Section 16. Liens. U- Lessee shall promptly pay, discharge and release of record any and all liens, charges and orders arising m out of any construction, alterations or repairs, suffered or permitted to be done by Lessee on the Premises. Lessor is hereby authorized to post any notices or take any other action upon or with respect to the Premises c that is or may be permitted by law to prevent the attachment of any such liens to the Premises; provided, 1 however, that failure of Lessor to take any such action shall not relieve Lessee of any obligation or liability under •2 this Section 16 or any other Section of this Lease. CY Section 17. Insurance. ° Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease the following 00 insurance coverage: Q M A. All risks property insurance covering all of Railroad's property including property in the care, o custody, or control of Lessee. Coverage shall include the following: J ♦ Issued on a replacement cost basis. o ♦ Shall provide that in respect of the interest of Railroad the insurance shall not be a invalidated by any action or inaction of Lessee or any other person and shall insure the 0) respective interests of Railroad as they appear, regardless of any breach or violation of —J any warranty, declaration or condition contained in such policies by Lessee or any other person. ♦ Include a standard loss payable endorsement naming Railroad as the loss payee as its r interests may appear. ♦ Include a waiver of subrogation in favor of Railroad. c L B. Commercial General Liability Insurance. This insurance shall contain broad form contractual o liability with a combined single limit of a minimum of $1,000,000 each occurrence and an c aggregate limit of at least $ 2,000,000 but in no event less than the amount otherwise carried by E Lessee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and U include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage a ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 10 - Packet Pg. 185 8.I.b • The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. • Waiver of subrogation in favor of and acceptable to Railroad. • Additional insured endorsement in favor of and acceptable to Railroad and Jones Lang LaSalle Brokerage, Inc. • Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. E It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial L General Liability insurance policy(s) required herein are intended to apply to employees of the policy a holder and shall not apply to Railroad employees. 3 No other endorsements limiting coverage may be included on the policy. u- C. Business Automobile Insurance. This insurance shall contain a combined single limit of at least z $1,000,000 per occurrence, and include coverage for, but not limited to the following: m ♦ Bodily injury and property damage 0 ♦ Any and all vehicles owned, used or hired N This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: cY ♦ Waiver of subrogation in favor of and acceptable to Railroad. M ♦ Additional insured endorsement in favor or and acceptable to Railroad. ° 0 ♦ Separation of insureds. ♦ The policy shall be primary and non-contributing with respect to any 00 insurance carried by Railroad. M D. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: J ♦ Lessee's statutory liability under the worker's compensation laws of the state(s) in which the o work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by J disease policy limit, $500,000 by disease each employee. E This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: ♦ Waiver of subrogation in favor of and acceptable to Railroad. as E. If construction is to be performed on the Premises by Lessee, Lessee or Lessee's contractor shall S procure Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) E ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to include Evacuation Expense Coverage Endorsement. a ♦ Endorsed to remove any exclusion for punitive damages. ♦ No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railroad prior to performing any work or services under this Lease. BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 11 - Packet Pg. 186 8.I.b In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $ - ❑ I elect to participate in Licensor's Blanket Policy; ❑ I elect not to participate in Licensor's Blanket Policy. c as E [[**OPTIONAL: ADD SECTION F. IF PLL IS REQUIRED AND ADD "P" TO THE FORM NAME AT THE BOTTOM OF THE PAGE**]] Q F. Contractor's Pollution Legal Liability (CPL) Insurance. This insurance shall be in an amount of at 3 least FIVE MILLION DOLLARS ($5,000,000) per occurrence and TEN MILLION DOLLARS ($10,000,000) in the aggregate including but not limited to coverage for the following: U_ z ♦ bodily injury, sickness, disease, mental anguish, or shock sustained by any person, including °0 death; ♦ property damage including physical injury to or destruction of tangible property including the N resulting loss of use thereof, cleanup costs, and the loss of use of tangible property that has a, not been physically injured or destroyed; CY ♦ defense costs including costs, charges and expenses incurred in the investigation, adjustment or defense of claims for such compensatory damages. o ♦ Coverage shall apply to sudden and non-sudden pollution conditions including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon c land, the atmosphere or any watercourse or body of water, which results in BODILY INJURY, PROPERTY DAMAGE, or Remediation Expense. ♦ If coverage is purchased on a "claims made" basis, lessee hereby agrees to maintain coverage in force for a minimum of three years after expiration, cancellation, or termination of this contract. Annually contractor agrees to provide evidence of such coverage as required ,° hereunder. n ♦ Delete any bodily injury exclusions resulting from lead or asbestos. J ♦ Amend the Contractual Liability exclusions and employers' liability exclusion to provide E coverage for liability assumed under contract. ♦ Amend the definition of Property Damage to provide coverage for natural resource damage. W .E Other Requirements: c All policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. o c Lessee agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or through policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Lessee further waives its right of recovery, and its insurers also waive their right of a subrogation against Railroad for loss of its owned or leased property or property under Lessee's care, custody, or control. Lessee is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Lessee in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - I2 - Packet Pg. 187 8.I.b provisions of this Lease, be covered by Lessee's insurance will be covered as if Lessee elected not to include a deductible, self-insured retention or other financial responsibility for claims. Prior to accessing the Premises, Lessee shall furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments.. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of c insurance. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished. as as Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with E a current Best's Guide Rating of A- and Class VI or better, and authorized to do business in the state(s) in which the Premises is located. 3 Lessee represents that this Lease has been thoroughly reviewed by Lessee's insurance agent(s)/broker(s), who have been instructed by Lessee to procure the insurance coverage required by this z Lease. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. m Not more frequently than once every five years, Railroad may reasonably modify the required insurance c coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in N the insurance industry. CY If any portion of the operation is to be contracted by Lessee, Lessee shall require that the contractor shall provide and maintain insurance coverages as set forth herein, naming Railroad as an additional insured, and ° shall require that the contractor shall release, defend and indemnify Railroad to the same extent and under the same terms and conditions as Lessee is required to release, defend and indemnify Railroad herein. 00 0 le Failure to provide evidence as required by this Section 17 shall entitle, but not require, Railroad to terminate this Lease immediately. Acceptance of a certificate that does not comply with this section shall not c operate as a waiver of Lessee's obligations hereunder. J ` The fact that insurance (including, without limitation, self-insurance) is obtained by Lessee shall not be ao deemed to release or diminish the liability of Lessee including, without limitation, liability under the indemnity provisions of this Lease. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage. E as For purposes of this Section 17, Railroad shall mean "Burlington Northern Santa Fe, LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. as c Section 18. Water Rights and Use of Wells. L This Lease does not grant, convey or transfer any right to the use of water under any water right owned or claimed by the Lessor which may be appurtenant to the Premises. All right, title, and interest in and to such water is expressly reserved unto Lessor, and the right to use same or any part thereof may be obtained only by the prior written consent of the Lessor. Lessee shall not use, install or permit to be installed or used any wells on the Premises without the prior written consent of Lessor. a Section 19. Default. A. An "Event of Default" by Lessee shall have occurred hereunder if any of the following shall occur: BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 13 - Packet Pg. 188 8.I.b (i) if Lessee violates any safety provision contained in this Lease; (ii) if Lessee fails to pay rent or any other monetary payment hereunder when due or fails to perform any other obligations under this Lease and such failure continues thirty (30) days after written notice from Lessor to Lessee of Lessee's failure to make such payment or perform such obligations; (iii) if a decree or order of a court having jurisdiction over the Premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Lessee c or over all or a substantial part of the property of Lessee shall be entered; or if Lessee becomes insolvent E or makes a transfer in fraud of creditors; or an interim receiver, trustee or other custodian of Lessee or of a all or a substantial part of the property of Lessee shall be appointed or a warrant of attachment, execution, a or similar process against any substantial part of the property of Lessee shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within thirty(30)days after entry, appointment 3 or issuance; (iv) if the Premises is abandoned or vacated by Lessee. z m B. If an Event of Default occurs as provided above, Lessor may, at its option, (i)terminate this Lease by serving five (5) days notice in writing upon Lessee, in which event Lessee shall immediately surrender c possession of the Premises to Lessor, without prejudice to any claim for arrears of rent or breach of covenant, (ii) proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance by Lessee of the applicable provisions of this Lease or to recover damages for a breach thereof, (iii) cure the CY default by making any such payment or performing any such obligation, as applicable, at Lessee's sole expense, M without waiving or releasing Lessee from any obligation, or (iv) enter into and upon the Premises or any part ° thereof and repossess the same without terminating the Lease and, without obligations to do so relet the Premises or any part thereof as the agent of Lessee and in such event, Lessee shall be immediately liable to Lessor for all costs and expenses of such reletting, the cost of any alterations and repairs deemed necessary by COS Lessor to effect such reletting and the full amount, if any, by which the rentals reserved in this Lease for the period of such reletting exceeds the amounts agreed to be paid as rent for the Premises for the period of reletting. c The foregoing rights and remedies given to Lessor are and shall be deemed to be cumulative and the exercise J of any of them shall not be deemed to be an election excluding the exercise by Lessor at any time of a different o or inconsistent remedy. If, on account of breach or default by Lessee of any of Lessee's obligations hereunder, it shall become necessary for the Lessor to employ an attorney to enforce or defend any of Lessor's rights or remedies hereunder, then, in any such event, any reasonable amount incurred by Lessor for attorneys'fees shall —J be paid by Lessee. Any waiver by Lessor of any default or defaults of this Lease or any delay of Lessor in E enforcing any remedy set forth herein shall not constitute a waiver of the right to pursue any remedy at a later date or terminate this Lease for any subsequent default or defaults, nor shall any such waiver in any way affect °M Lessor's ability to enforce any Section of this Lease. The remedies set forth in this Section 19 shall be in addition E to, and not in limitation of, any other remedies that Lessor may have at law or in equity, and the applicable statutory period for the enforcement of a remedy will not commence until Lessor has actual knowledge of a 5 breach or default. L Section 20. Termination. W Upon the termination of Lessee's tenancy under this Lease in any manner herein provided, Lessee shall M relinquish possession of the Premises and shall remove any Lessee Improvements, and restore the Premises to substantially the state and environmental condition in which it was prior to Lessee's use ("Restoration a Obligations"). If Lessee shall fail within thirty (30) days after the date of such termination of its tenancy to complete the Restoration Obligations, then Lessor may, at its election (i)either remove the Lessee Improvements or otherwise restore the Premises, and in such event Lessee shall, within thirty (30) days after receipt of bill therefor, reimburse Lessor for cost incurred, (ii) upon written notice to Lessee may take and hold any Lessee Improvements and personal property as its sole property, without payment or obligation to Lessee therefor, or BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 14 - Packet Pg. 189 8.I.b (iii) specifically enforce Lessee's obligation to restore and/or pursue any remedy at law or in equity against Lessee for failure to so restore. Further, in the event Lessor has consented to Lessee Improvements remaining on the Premises following termination, Lessee shall, upon request by Lessor, provide a Bill of Sale in a form acceptable to Lessor conveying such Lessee Improvements to Lessor. Section 21. Survival of Obligations. Notwithstanding any expiration or other termination of this Lease, all of Lessee's indemnification obligations and any other obligations that have accrued but have not been satisfied under this Lease prior to the E termination date shall survive such termination. L Section 22. Holding Over. a 3 If Lessee fails to surrender the Premises to Lessor upon the termination of this Lease, and Lessor does not consent in writing to Lessee's holding over, then such holding over will be deemed a month-to-month tenancy. Lessee's holdover will be subject to all provisions of this Lease. CO CO Section 23. Multiple Party Lessee. c 0 In the event that Lessee consists of two or more parties, all the covenants and agreements of Lessee N herein contained shall be the joint and several covenants and agreements of such parties. CY Section 24. Damage or Destruction. 0 L If at any time during the term of this Lease, the Premises are damaged or destroyed by fire or other casualty, then Lessor may terminate this Lease or repair and reconstruct the Premises to substantially the same condition in which the Premises existed immediately prior to the damage or destruction, except that Lessor is CODO not required to repair or reconstruct any Lessee Improvements, personal property, furniture, trade fixtures, or office equipment located on the Premises and removable by Lessee under the provisions of this Lease. 0 J Section 25. Eminent Domain. o Jq M If any part of the Premises is taken by eminent domain, Lessor may either terminate this Lease or continue the Lease in effect. If Lessor elects to continue the Lease, rent will be reduced in proportion to the area of the 3 Premises taken by eminent domain, and Lessor shall repair any damage to the Premises resulting from the E taking. All sums awarded or agreed upon between Lessor and the condemning authority for the taking of the interest of Lessor or Lessee, whether as damages or as compensation, will be the property of Lessor; without prejudice, however, to claims of Lessee against the condemning authority for moving costs and the unamortized cost of leasehold improvements paid for by Lessee taken by the condemning authority. If this Lease is terminated under this Section 25, rent will be payable up to the date that possession is taken by the condemning authority, 5 and Lessor shall refund to Lessee any prepaid unaccrued rent less any sum then owing by Lessee to Lessor. L Section 26. Representations. W Neither Lessor nor Lessor's agents have made any representations or promises with respect to the M Premises except as herein expressly set forth. a Section 27. Signs. No signs are to be placed on the Premises without the prior written approval of Lessor of the size, design, and content thereof. BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 15 - Packet Pg. 190 8.I.b Section 28. Consents and Approvals. Whenever in this Lease Lessor's consent or approval is required, such consent or approval shall be in Lessor's sole and absolute discretion. If Lessor delays or refuses such consent or approval, such consent or approval shall be deemed denied, and Lessee in no event will be entitled to make, nor will Lessee make, any claim, and Lessee hereby waives any claim, for money damages (nor will Lessee claim any money damages by way of set-off counterclaim or defense) based upon any claim or assertion by Lessee that Lessor unreasonably withheld or unreasonably delayed its consent or approval. as E Section 29. Captions. L The captions are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Lease nor the intent of any provision thereof. 3 Section 30. Public Record. U_ It is understood and agreed that this Lease shall not be placed of public record. m Section 31. Governing Law. 0 N All questions concerning the interpretation or application of provisions of this Lease shall be decided according to the laws of the state in which the Premises are located. CY Section 32. No Waiver. 0 One or more waivers of any covenant, term, or condition of this Lease by Lessor shall not be construed -- as a waiver of a subsequent breach of the same covenant, term, or condition. The consent or approval by Lessor (20 le to or of any act by Lessee requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. 0 J Section 33. Binding Effect. L_ 0 4' All provisions contained in this Lease shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of Lessor and Lessee to the same extent as if each such successor 3 and assign was named a party to this Lease. E as Section 34. Force Maieure. .E Except as may be elsewhere specifically provided in this Lease, if either party is delayed or hindered in, or prevented from the performance required under this Lease (except for payment of monetary obligations) by 5 reason of earthquakes, landslides, strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts of God or other reason of the like nature not the fault of the party delayed in performance of its obligation, such o party is excused from such performance for the period of delay. The period for the performance of any such act will then be extended for the period of such delay. Section 35. Entire Agreement/Modification. a This Lease is the full and complete agreement between Lessor and Lessee with respect to all matters relating to lease of the Premises and supersedes any and all other agreements between the parties hereto relating to lease of the Premises. If this Lease is a reissue of an existing agreement held by Lessee, it shall supersede and cancel the previous lease or leases, without prejudice to any liability accrued prior to cancellation. This Lease may be modified only by a written agreement signed by Lessor and Lessee. BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 16 - Packet Pg. 191 8.I.b Section 36. Notices. Any notice or documents required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given or shall be deemed to have been served and given if(i)delivered in person to the address hereinafter set forth for the party to whom the notice is given, (ii) placed in the United States mail, certified - return receipt requested, addressed to such party at the address hereinafter set forth, or(iii) deposited into the custody of any reputable overnight carrier for next day delivery, addressed to such party at the address c hereinafter set forth. Any notice mailed as above shall be effective upon its deposit into the custody of the U. S. E Postal Service or such reputable overnight carrier, as applicable; all other notices shall be effective upon receipt. All rent and other payments due to Lessor hereunder shall also be made as provided in Section 3(A) above, and a delivery of such rental and other payments shall only be effective upon actual receipt by Lessor. From time to time either party may designate another address or telecopy number within the 48 contiguous states of the 3 United States of America for all purposes of this Lease by giving the other party not less than fifteen (15) days' •FO advance written notice of such change of address in accordance with the provisions hereof. W U- z m If to Lessee: ' a� c 0 N N CY ca 0 L If to Lessor: 00 0 BNSF Railway Company 2650 Lou Menk Drive, MOB-2 Fort Worth, Texas 76131-2828 J Attn: Director Real Estate o Jq a� With a copy to: a� J Jones Lang LaSalle Global Services - RR, Inc. E 2650 Lou Menk Drive, MOB-2 Fort Worth, Texas 76131-2828 Attn: Director Leases as Section 37. Counterparts. 5 0 This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be o deemed an original but which together shall constitute one and the same instrument, and the signature pages from any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts of this Agreement may also be exchanged via electronic facsimile machines and any electronic M facsimile of any party's signature shall be deemed to be an original signature for all purposes. a Section 38. Relationship. Notwithstanding anything else herein to the contrary, neither party hereto shall be construed or held, by virtue of this Lease, to be the agent, partner, joint venturer, or associate of the other party hereto, it being BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 17 - Packet Pg. 192 8.I.b expressly understood and agreed that the relationship between the parties hereto is and at all times during the term of this Lease, shall remain that of Lessor and Lessee. Section 39. Severability. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that c in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part E of this Lease, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable. a Section 40. Transferability; Release of Lessor. 3 Lessor shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this Lease and in the Premises, and upon such transfer, Lessor shall be released from any further obligations z hereunder, and Lessee agrees to look solely to the successor in interest of Lessor for the performance of such in obligations. M c 0 Section 41. Tax Waiver. N a; 3 Lessee waives all rights pursuant to all Laws to protest appraised values or receive notice of reappraisal CY regarding the Premises (including Lessor's personalty), irrespective of whether Lessor contests the same. M 0 L Section 42. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Lease, the prevailing 2 party shall be entitled to reasonable attorneys'fees, costs, and necessary disbursements in addition to any relief to which it may be entitled. 0 J L Executed by the parties to be effective as of the Effective Date above. 'q as to R d J LESSOR E as BNSF Railway Company as By: _ Name: Title: o c as LESSEE c� a By: Name: Title: BNSF- Indefinite Term Lease-Land Form 205;Rev. 07/01/14 - 18 - Packet Pg. 193 8.I.b c a� E a� m L Q 3 U- CO z m a� c O N N CY ca O L CO 0 M C O J L O N R d J E L d L E V Q BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14 - 19 - Packet Pg. 194 8.I.b EXHIBIT "A" PREMISES c as E as as L Q 3 U- Co z m a� c O N N CY ca O L Co 0 M C O J L O N R d J E L d L E V Q Packet Pg. 195 8.I.b EXHIBIT "B" WORK LETTER AGREEMENT THIS WORK LETTER AGREEMENT (the "Agreement") supplements that certain Indefinite Term Lease for Land ("Lease") dated by and between BNSF Railway Company, a Delaware corporation ("Lessor") and , a(n) ("Lessee"). In the event of any conflict between the provisions of this Agreement and the provisions of the Lease, the provisions of this Agreement shall control. Unless the context otherwise requires, capitalized terms not defined herein shall have the meaning assigned to such terms in the Lease. as In the event Lessee uses one or more general contractors or subcontractors ("Contractor(s)") for any improvements, alterations, build out, finish out, or other similar work on the Premises ("Work"), Lessee agrees to and accepts the following: 3 1. Prior to performing any Work, Lessee shall obtain Lessor's approval of each Contractor and any Work to be performed by such Contractor shall be performed pursuant to a written contract between Lessee and N the Contractor ("Work Contract") approved in advance by Lessor m 2. Prior to commencing any Work, Lessee shall submit for Lessor's review and approval Lessee's c plans, specifications and/or drawings for such Work (collectively, "Plans") in accordance with the procedure set N forth in the Lease. CY 3. All Work must be performed at Lessee's sole cost and expense and in accordance with the Plans am which have previously been approved by Lessor. 4. Lessee shall cause its Contractors to meet all insurance and indemnification requirements required of Lessee under the Lease and shall obtain indemnification and insurance provisions from its o Contractors in favor of Lessor and in the same form as set forth in the Lease. M 5. Prior to the commencement of the Work, all required local building, fire, health and other departments must approve all Plans requiring approval by local building codes. In addition, the Work shall be performed, installed and/or constructed in accordance with all applicable federal, state and local laws, codes, ° ordinances, rules and regulations, including without limitation, the Americans With Disabilities Act of 1990, 42 U.S.C.A. 12101 et seq. J E 6. Lessee shall be responsible for obtaining all municipal and other governmental licenses or permits o for the Work with copies furnished to Lessor prior to commencement of any construction. r .E 7. Lessee shall furnish Lessor, for Lessor's approval, a copy of its schedule of the Work. Lessee a shall perform the Work in accordance with the schedule approved by Lessor, and any changes in such schedule c must be approved by Lessor in writing in advance. L 8. Notwithstanding the status of the completion of the Work, Lessee's obligation for payment of Base Rent and other amounts due under the Lease shall commence on the Commencement Date provided in the E Lease. Notwithstanding anything herein to the contrary, Lessor may, in Lessor's sole discretion, permit Lessee = and Lessee's Contractors to enter the Premises prior to the Commencement Date in order to commence Work; provided, however, that Lessee agrees that such early entry or occupation of the Premises shall be governed by a all of the terms and conditions of the Lease and this Agreement (including the insurance and indemnity requirements therein), as such terms and conditions are more specifically set forth in the Lease and this Agreement. 1 Packet Pg. 196 8.I.b 9. During construction, Lessor reserves the right to inspect the Work at any time upon reasonable notice to Lessee. 10. Lessee's Contractors shall keep the Premises reasonably clean at all times during the performance of the Work. 11. All Work must be performed in a good and workmanlike manner, free from defects in materials and workmanship. a� E 12. If any materialman's, mechanic's, laborer's or any other liens for any work claimed to have been undertaken for Lessee or at Lessee's request is filed against the Premises, Lessee shall indemnify, defend and `5 hold harmless Lessor from any such liens filed during the term of the Lease and shall, at Lessee's own expense, cause all such liens to be removed within ten (10) days after written notice from Lessor to Lessee of the filing 3 thereof. 13. Lessee must obtain Lessor's reasonable approval that the Work has been completed in z substantial accordance with the approved plans and specifications. Lessor shall receive copies of all Certificates m of Occupancy and as-built drawings (electrical, mechanical, fire and architectural) prior to approving the Work. c 0 14 All guarantees and warranties provided by Lessee's Contractors shall be issued to Lessee and, N for Work which is or will at the termination of this Lease be Lessor's property, also to Lessor. M CY IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date m first set forth above. 0 LESSOR: 00 0 BNSF Railway Company c By. J N o Title: a to R E E L M By. Nam 0 c 0 L E V Q BNSF- Indefinite Term Lease-Land Form 205;Rev. 07/01/14 - 2 - Packet Pg. 197 8.J y KENT DATE: January 17, 2023 TO: Kent City Council SUBJECT: Meeker Street Bridge Consultant Agreement with TranTech Engineering, LLC - Authorize MOTION: I move to authorize the Mayor to sign the Consultant Services Agreement with TranTech Engineering, LLC, in an amount not to exceed $352,519, for the Green River Bridge Repaint and Deck Resurfacing Project, subject to final terms and conditions acceptable to the Public Works Director and City Attorney. SUMMARY: The Meeker Street Bridge, originally constructed in 1958, requires repainting, deck resurfacing, and related repairs. The City has been authorized to receive up to $4,484,300 via two Federal grants to plan and execute this work. Following a request for qualifications and an interview process conducted in October and November of 2022, TranTech Engineering was selected to provide consultant services to the City for analysis and design of the projects. TranTech will develop design plans, specifications, and cost estimates for the bridge repainting and deck resurfacing work. These services will include structural and loading analyses, design of paint containment and work platforms for the bridge, lead paint analysis and remediation design, design of structural steel spot repairs, and deck pavement design. Once the plans are finalized and the project is advertised for bids, TranTech will also provide bid support services. BUDGET IMPACT: This project will be funded by federal grants administered by WSDOT and managed by City staff. SUPPORTS STRATEGIC PLAN GOAL: Evolving Infrastructure - Connecting people and places through strategic investments in physical and technological infrastructure. ATTACHMENTS: 1. Agreement (PDF) 01/09/23 Public Works Committee MOTION PASSES Packet Pg. 198 8.J RESULT: MOTION PASSES [UNANIMOUS]Next: 1/17/2023 7:00 PM MOVER: Marli Larimer, Councilmember SECONDER: Satwinder Kaur, Councilmember AYES: Brenda Fincher, Satwinder Kaur, Marli Larimer Packet Pg. 199 8.J.a Local Agency A&E Professional Services Negotiated Hourly Rate Consultant Agreemen Agreement Number: Firm/Organization Legal Name (do not use dba's): TranTech Engineering, LLC Address Federal Aid Number 365 118th Avenue SE, Suite 100, Bellevue, WA 98005-3557 BHM-1068(004) & BHM-1068(005) UBI Number Federal TIN 602507862 68-0607809 Execution Date Completion Date 12/31/2024 L 1099 Form Required Federal Participation a' Q ❑ Yes ❑■ No ■❑ Yes ❑ No r Project Title w Green River Meeker Street Bridge Deck Repair and Repainting Description of Work a� The Consultant shall prepare Plans, Specifications, and Estimate (PS&E) and perform Environmental m` Permitting Services for the project. For a description see the Consultant's Scope of Services which is 4) attached as Exhibit A and incorporated by this reference. L Y d O M r C d E ❑ Yes ❑■ No DBE Participation Maximum Amount Payable:352,519.00 a� ❑ Yes ❑■ No MBE Participation Q ❑ Yes ❑■ No WBE Participation ❑ Yes ❑■ No SBE Participation Index of Exhibits Q Exhibit A Scope of Work Exhibit B DBE Participation Exhibit C Preparation and Delivery of Electronic Engineering and Other Data Exhibit D Prime Consultant Cost Computations Exhibit E Sub-consultant Cost Computations Exhibit F Title VI Assurances Exhibit G Certification Documents Exhibit H Liability Insurance Increase Exhibit I Alleged Consultant Design Error Procedures Exhibit J Consultant Claim Procedures LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 Packet Pg. 200 8.J.a THIS AGREEMENT, made and entered into as shown in the "Execution Date" box on page one (1) of this AGREEMENT, between the City of Kent hereinafter called the "AGENCY," and the "Firm / Organization Name" referenced on page one (1) of this AGREEMENT, hereinafter called the "CONSULTANT." WHEREAS, the AGENCY desires to accomplish the work referenced in "Description of Work" on page one (1) of this AGREEMENT and hereafter called the "SERVICES;" and does not have sufficient staff to meet the required commitment and therefore deems it advisable and desirable to engage the assistance of a CONSULTANT to provide the necessary SERVICES; and WHEREAS, the CONSULTANT represents that they comply with the Washington State Statutes relating to professional registration, if applicable, and has signified a willingness to furnish consulting services to the AGENCY. NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performance contained herein, or attached and incorporated and made a part hereof, the parties hereto agree as follows: E m m L I. General Description of Work a The work under this AGREEMENT shall consist of the above-described SERVICES as herein defined, and o necessary to accomplish the completed work for this project. The CONSULTANT shall furnish all services, y labor, and related equipment and, if applicable, sub-consultants and subcontractors necessary to conduct and c complete the SERVICES as designated elsewhere in this AGREEMENT. a� L m II. General Scope of Work The Scope of Work and projected level of effort required for these SERVICES is described in Exhibit "A" C'n attached hereto and by this reference made a part of this AGREEMENT. The General Scope of Work was Y developed utilizing performance based contracting methodologies. 0 III. General Requirements All aspects of coordination of the work of this AGREEMENT with outside agencies, groups, or individuals shall a receive advance approval by the AGENCY. Necessary contacts and meetings with agencies, groups, and/or E individuals shall be coordinated through the AGENCY. The CONSULTANT shall attend coordination, progress, ID and presentation meetings with the AGENCY and/or such State, Federal, Community, City, or County officials, a groups or individuals as may be requested by the AGENCY. The AGENCY will provide the CONSULTANT c sufficient notice prior to meetings requiring CONSULTANT participation. The minimum required hours or E days' notice shall be agreed to between the AGENCY and the CONSULTANT and shown in Exhibit"A." The CONSULTANT shall prepare a monthly progress report, in a form approved by the AGENCY, which will a outline in written and graphical form the various phases and the order of performance of the SERVICES in sufficient detail so that the progress of the SERVICES can easily be evaluated. The CONSULTANT,any sub-consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations, and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 201 8.J.a Participation for Disadvantaged Business Enterprises (DBE) or Small Business Enterprises (SBE), if required, per 49 CFR Part 26, shall be shown on the heading of this AGREEMENT. If DBE firms are utilized at the commencement of this AGREEMENT, the amounts authorized to each firm and their certification number will be shown on Exhibit `B" attached hereto and by this reference made part of this AGREEMENT. If the Prime CONSULTANT is, a DBE certified firm they must comply with the Commercial Useful Function (CUF) regulation outlined in the AGENCY's "DBE Program Participation Plan" and perform a minimum of 30% of the total amount of this AGREEMENT. It is recommended, but not required, that non-DBE Prime CONSULTANTS perform a minimum of 30% of the total amount of this AGREEMENT. In the absence of a mandatory DBE goal, a voluntary SBE goal amount of ten percent of the Consultant Agreement is established. The Consultant shall develop a SBE Participation Plan prior to commencing work. Although the goal is voluntary, the outreach efforts to provide SBE maximum practicable opportunities are not. The CONSULTANT, on a monthly basis, shall enter the amounts paid to all firms (including Prime) involved with this AGREEMENT into the wsdot.diversitycompliance.com program. Payment information shall identify any DBE Participation. E m All Reports, PS&E materials, and other data furnished to the CONSULTANT by the AGENCY shall be returned. All electronic files, prepared by the CONSULTANT, must meet the requirements as outlined in Exhibit "C a —Preparation and Delivery of Electronic Engineering and other Data." r- M All designs, drawings, specifications, documents, and other work products, including all electronic files, y prepared by the CONSULTANT prior to completion or termination of this AGREEMENT are instruments of v service for these SERVICES, and are the property of the AGENCY. Reuse by the AGENCY or by others, 0 acting through or on behalf of the AGENCY of any such instruments of service, not occurring, as a part of this -a SERVICE, shall be without liability or legal exposure to the CONSULTANT. m` Any and all notices or requests required under this AGREEMENT shall be made in writing and sent to the other party by(i) certified mail, return receipt requested, or(ii)by email or facsimile, to the address set forth below: Y If to AGENCY: If to CONSULTANT: a Name: Stephen Lincoln, P.E. Name: Khashayar Nikzad Agency: City of Kent Agency: TranTech Engineering, LLC Q Address:220 4th Avenue S. Address:365 118th Avenue SE, Suite 100 City: Kent State:WA Zip:98032 City: Bellevue State:WA Zip:98005-3557 c Email: SLincoln@kentwa.gov Email: knikzad@trantecheng.com E Phone: (253) 856-5552 Phone: (425) 894-8937 i Facsimile: (253) 856-6500 Facsimile:(425)453-6779 a c a� IV. Time for Beginning and Completion The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authorized in writing a by the AGENCY. All work under this AGREEMENT shall conform to the criteria agreed upon detailed in the AGREEMENT documents. These SERVICES must be completed by the date shown in the heading of this AGREEMENT titled"Completion Date." The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but may be extended by the AGENCY in the event of a delay attributable to the AGENCY, or because of unavoidable delays caused by an act of GOD, governmental actions, or other conditions beyond the control of the CONSULTANT. A prior supplemental AGREEMENT issued by the AGENCY is required to extend the established completion time. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numbe Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 202 8.J.a V. Payment Provisions The CONSULTANT shall be paid by the AGENCY for completed SERVICES rendered under this AGREEMENT as provided hereinafter. Such payment shall be full compensation for SERVICES performed or SERVICES rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete SERVICES. The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 (www.ecfr.gov). A. Hourly Rates: Hourly rates are comprised of the following elements - Direct(Raw) Labor, Indirect Cost Rate, and Fee (Profit). The CONSULTANT shall be paid by the AGENCY for work done, based upon the negotiated hourly rates shown in Exhibits "D" and "E" attached hereto and by reference made part of this AGREEMENT. These negotiated hourly rates will be accepted based on a review of the CONSULTANT's direct labor rates and indirect cost rate computations and agreed upon fee. The accepted negotiated rates shall be memorialized in a final written acknowledgment between the parties. Such final written acknowledgment shall be incorporated into, and become a part of, this AGREEMENT. The initially accepted negotiated rates shall be applicable from the approval date, as memorialized in a final written acknowledgment, to 180 days following the CONSULTANT's fiscal year end(FYE) date. E m The direct (raw) labor rates and classifications, as shown on Exhibits "D" and "E" shall be subject to a, renegotiations for each subsequent twelve (12) month period (180 days following FYE date to 180 days a following FYE date) upon written request of the CONSULTANT or the AGENCY. The written request must v be made to the other party within ninety (90) days following the CONSULTANT's FYE date. If no such y written request is made, the current direct (raw) labor rates and classifications as shown on Exhibits "D" and c "E"will remain in effect for the twelve (12) month period. v as a� Conversely, if a timely request is made in the manner set forth above, the parties will commence negotiations :,2 to determine the new direct (raw) labor rates and classifications that will be applicable for the twelve (12 m month period. Any agreed to renegotiated rates shall be memorialized in a final written acknowledgment L between the parties. Such final written acknowledgment shall be incorporated into, and become a part of, this �n AGREEMENT. If requested, the CONSULTANT shall provide current payroll register and classifications to Y aid in negotiations. If the parties cannot reach an agreement on the direct (raw) labor rates and classifications, the AGENCY shall perform an audit of the CONSULTANT's books and records to determine the CONSULTANT's actual costs. The audit findings will establish the direct (raw) labor rates and c classifications that will applicable for the twelve (12)month period. The fee as identified in Exhibits "D" and"E" shall represent a value to be applied throughout the life of the AGREEMENT. E as as The CONSULTANT shall submit annually to the AGENCY an updated indirect cost rate within 180 days of a the close of its fiscal year. An approved updated indirect cost rate shall be included in the current fiscal year rate under this AGREEMENT, even if/when other components of the hourly rate are not renegotiated. These rates will be applicable for the twelve (12) month period. At the AGENCY's option, a provisional and/or conditional indirect cost rate may be negotiated. This provisional or conditional indirect rate shall remain in M effect until the updated indirect cost rate is completed and approved. Indirect cost rate costs incurred during a the provisional or conditional period will not be adjusted. The CONSULTANT may request an extension of the last approved indirect cost rate for the twelve (12) month period. These requests for provisional indirect cost rate and/or extension will be considered on a case-by-case basis, and if granted, will be memorialized in a final written acknowledgment. The CONSULTANT shall maintain and have accessible support data for verification of the components of the hourly rates, i.e., direct (raw) labor, indirect cost rate, and fee (profit) percentage. The CONSULTANT shall bill each employee's actual classification, and actual salary plus indirect cost rate plus fee. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 203 8.J.a A. Direct Non-Salary Costs: Direct Non-Salary Costs will be reimbursed at the actual cost to the CONSULTANT. These charges may include, but are not limited to, the following items: travel, printing, long distance telephone, supplies, computer charges, and fees of sub-consultants. Air or train travel will be reimbursed only to lowest price available, unless otherwise approved by the AGENCY. The CONSULTANT shall comply with the rules and regulations regarding travel costs (excluding air, train, and rental car costs) in accordance with the WSDOT's Accounting Manual M 13-82, Chapter 10—Travel Rules and Procedures, and all revisions thereto. Air, train, and rental card costs shall be reimbursed in accordance with 48 Code of Federal Regulations (CFR) Part 31.205-46 "Travel Costs." The billing for Direct Non-salary Costs shall include an itemized listing of the charges directly identifiable with these SERVICES. The CONSULTANT shall maintain the original supporting documents in their office. Copies of the original supporting documents shall be supplied to the STATE upon request. All above charges must be necessary for the SERVICES provided under this AGREEMENT. B. Maximum Amount Payable: The Maximum Amount Payable by the AGENCY to the CONSULTANT under this AGREEMENT shall not exceed the amount shown in the heading of this AGREEMENT on page one c (I.) The Maximum Amount Payable does not include payment for extra work as stipulated in section XIII, E "Extra Work."No minimum amount payable is guaranteed under this AGREEMENT. i C. Monthly Progress Payments: Progress payments may be claimed on a monthly basis for all costs authorized a in A and B above. Detailed statements shall support the monthly billings for hours expended at the rates 'M established in Exhibit "D," including names and classifications of all employees, and billings for all direct y non-salary expenses. To provide a means of verifying the billed salary costs for the CONSULTANT's c employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, salary rates, and present duties of those employees performing work on the SERVICES at the .� time of the interview. m D. Final Payment: Final Payment of any balance due the CONSULTANT of the gross amount earned will be made promptly upon its verification by the AGENCY after the completion of the SERVICES under this v� AGREEMENT, contingent upon receipt of all PS&E, plans, maps, notes, reports, electronic data, and other Y related documents, which are required to be furnished under this AGREEMENT. Acceptance of such Final Payment by the CONSULTANT shall constitute a release of all claims for payment, which the CONSULTANT may have against the AGENCY unless such claims are specifically reserved in writing and S transmitted to the AGENCY by the CONSULTANT prior to its acceptance. Said Final Payment shall not, however, be a bar to any claims that the AGENCY may have against the CONSULTANT or to any remedies the AGENCY may pursue with respect to such claims. E aD The payment of any billing will not constitute agreement as to the appropriateness of any item and at the time a, of final audit all required adjustments will be made and reflected in a final payment. In the event that such a final audit reveals an overpayment to the CONSULTANT, the CONSULTANT will refund such overpayment to the AGENCY within thirty (30) calendar days of notice of the overpayment. Such refund E shall not constitute a waiver by the CONSULTANT for any claims relating to the validity of a finding by the AGENCY of overpayment. Per WSDOT's "Audit Guide for Consultants," Chapter 23 "Resolution a Procedures," the CONSULTANT has twenty (20) working days after receipt of the final Post Audit to begin the appeal process to the AGENCY for audit findings E.Inspection of Cost Records: The CONSULTANT and their sub-consultants shall keep available for inspection by representatives of the AGENCY and the United States, for a period of six (6) years after receipt of final payment, the cost records and accounts pertaining to this AGREEMENT and all items related to or bearing upon these records with the following exception: if any litigation, claim or audit arising out of, in connection with, or related to this AGREEMENT is initiated before the expiration of the six (6) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. An interim or post audit may be performed on this AGREEMENT. The audit, if any, will be performed by the State Auditor, WSDOT's Internal Audit Office and /or at the request of the AGENCY's Project Manager. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 Packet Pg. 204 8.J.a VI. Sub-Contracting The AGENCY permits subcontracts for those items of SERVICES as shown in Exhibit "A" attached hereto and by this reference made part of this AGREEMENT. The CONSULTANT shall not subcontract for the performance of any SERVICE under this AGREEMENT without prior written permission of the AGENCY. No permission for subcontracting shall create, between the AGENCY and sub-consultant, any contract or any other relationship. Compensation for this sub-consultant SERVICES shall be based on the cost factors shown on Exhibit "E" attached hereto and by this reference made part of this AGREEMENT. The SERVICES of the sub-consultant shall not exceed its maximum amount payable identified in each sub consultant cost estimate unless a prior written approval has been issued by the AGENCY. All reimbursable direct labor, indirect cost rate, direct non-salary costs and fee costs for the sub-consultant shall be negotiated and substantiated in accordance with section V "Payment Provisions" herein and shall be memorialized in a final written acknowledgment between the parties m as All subcontracts shall contain all applicable provisions of this AGREEMENT, and the CONSULTANT shall a require each sub-consultant or subcontractor, of any tier, to abide by the terms and conditions of this AGREEMENT. With respect to sub-consultant payment, the CONSULTANT shall comply with all applicable 20 sections of the STATE's Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011. The CONSULTANT, sub-recipient, or sub-consultant shall not discriminate on the basis of race, color, national ci origin, or sex in the performance of this AGREEMENT. The CONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the m CONSULTANT to carry out these requirements is a material breach of this AGREEMENT, which may result in the termination of this AGREEMENT or such other remedy as the recipient deems appropriate. L d VII. Employment and Organizational Conflict of Interest The CONSULTANT warrants that they have not employed or retained any company or person, other than a bona fide employee working solely for the CONSULTANT, to solicit or secure this contract, and that it has not M paid or agreed to pay any company or person, other than a bona fide employee working solely for the CONSULTANT, any fee, commission, percentage, brokerage fee, gift, or any other consideration, a contingent upon or resulting from the award or making of this agreement. For breach or violation of E this warrant, the AGENCY shall have the right to annul this AGREEMENT without liability or, in its a, discretion, to deduct from this AGREEMENT price or consideration or otherwise recover the full amount a of such fee, commission, percentage,brokerage fee, gift, or contingent fee. Any and all employees of the CONSULTANT or other persons while engaged in the performance of any work or services required of the CONSULTANT under this AGREEMENT, shall be considered employees of theto CONSULTANT only and not of the AGENCY, and any and all claims that may arise under any Workmen's a Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a third party as a consequence of any act or omission on the part of the CONSULTANT's employees or other persons while so engaged on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONSULTANT. The CONSULTANT shall not engage, on a full- or part-time basis, or other basis, during the period of this AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of the United States Department of Transportation or the AGENCY, except regularly retired employees, without written consent of the public employer of such person if he/she will be working on this AGREEMENT for the CONSULTANT. Agreement Number: LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 205 8.J.a VIII. Nondiscrimination During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, sub-consultants, subcontractors and successors in interest, agrees to comply with the following laws and regulations: • Title VI of the Civil Rights Act of 1964 • Civil Rights Restoration Act of 1987 (Public Law (42 U.S.C. Chapter 21 Subchapter V § 100-259) 2000d through 2000d-4a) • American with Disabilities Act of 1990 (42 • Federal-aid Highway Act of 1973 (23 U.S.C. Chapter 126 § 12101 et. seq.) U.S.C. Chapter 3 § 324) • 23 CFR Part 200 • Rehabilitation Act of 1973 • 49 CFR Part 21 (29 U.S.C. Chapter 16 Subchapter V § • 49 CFR Part 26 794) • RCW 49.60.180 c • Age Discrimination Act of 1975 (42 E U.S.C. Chapter 76 § 6101 et. seq.) In relation to Title VI of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit a "F" attached hereto and by this reference made part of this AGREEMENT, and shall include the attached Exhibit "F" in every sub-contract, including procurement of materials and leases of equipment, unless exempt y by the Regulations or directives issued pursuant thereto. c a� IX. Termination of Agreement -� L The right is reserved by the AGENCY to terminate this AGREEMENT at any time with or without cause upon m ten(10) days written notice to the CONSULTANT. In the event this AGREEMENT is terminated by the AGENCY, other than for default on the part of the CONSULTANT, a final payment shall be made to the CONSULTANT for actual hours charged at the time of termination of this AGREEMENT, plus any direct non-salary costs incurred up to the time of termination of this AGREEMENT. 0 le No payment shall be made for any SERVICES completed after ten (10) days following receipt by the CONSULTANT of the notice to terminate. If the accumulated payment made to the CONSULTANT prior to Notice of Termination exceeds the total amount that would be due when computed as set forth in paragraph two (2) of this section, then no final payment shall be due and the CONSULTANT shall immediately reimburse the L AGENCY for any excess paid. a If the services of the CONSULTANT are terminated by the AGENCY for default on the part of the a CONSULTANT,the above formula for payment shall not apply. E In the event of a termination for default, the amount to be paid to the CONSULTANT shall be determined by the 2 AGENCY with consideration given to the actual costs incurred by the CONSULTANT in performing a SERVICES to the date of termination, the amount of SERVICES originally required which was satisfactorily completed to date of termination, whether that SERVICE is in a form or a type which is usable to the AGENCY at the time of termination, the cost to the AGENCY of employing another firm to complete the SERVICES required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the SERVICES performed at the time of termination. Under no circumstances shall payment made under this subsection exceed the amount, which would have been made using the formula set forth in paragraph two (2) of this section. If it is determined for any reason, that the CONSULTANT was not in default or that the CONSULTANT's failure to perform is without the CONSULTANT's or its employee's fault or negligence, the termination shall be deemed to be a termination for the convenience of the AGENCY. In such an event, the CONSULTANT would be reimbursed for actual costs in accordance with the termination for other than default clauses listed previously. Local Agency A&E Professional Services Agreement Numb LA10339&LA10341 Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 206 8.J.a The CONSULTANT shall, within 15 days, notify the AGENCY in writing, in the event of the death of any member, partner, or officer of the CONSULTANT or the death or change of any of the CONSULTANT's supervisory and/or other key personnel assigned to the project or disaffiliation of any principally involved CONSULTANT employee. The CONSULTANT shall also notify the AGENCY, in writing, in the event of the sale or transfer of 50% or more of the beneficial ownership of the CONSULTANT within 15 days of such sale or transfer occurring. The CONSULTANT shall continue to be obligated to complete the SERVICES under the terms of this AGREEMENT unless the AGENCY chooses to terminate this AGREEMENT for convenience or chooses to renegotiate any term(s) of this AGREEMENT. If termination for convenience occurs, final payment will be made to the CONSULTANT as set forth in the second and third paragraphs of this section. Payment for any part of the SERVICES by the AGENCY shall not constitute a waiver by the AGENCY of any remedies of any type it may have against the CONSULTANT for any breach of this AGREEMENT by the CONSULTANT,or for failure of the CONSULTANT to perform SERVICES required of it by the AGENCY. a� Forbearance of any rights under the AGREEMENT will not constitute waiver of entitlement to exercise those d rights with respect to any future act or omission by the CONSULTANT. a X. Changes of Work r_ M The CONSULTANT shall make such changes and revisions in the completed work of this AGREEMENT as n necessary to correct errors appearing therein, without additional compensation thereof. Should the AGENCY 5 find it desirable for its own purposes to have previously satisfactorily completed SERVICES or parts thereof changed or revised, the CONSULTANT shall make such revisions as directed by the AGENCY. This work shall L be considered as Extra Work and will be paid for as herein provided under section XIII"Extra Work." m as as XI. Disputes L Any disputed issue not resolved pursuant to the terms of this AGREEMENT shall be submitted in writing within 10 days to the Director of Public Works or AGENCY Engineer, whose decision in the matter shall be final and binding on the parties of this AGREEMENT; provided however, that if an action is brought challenging the Director of Public Works or AGENCY Engineer's decision, that decision shall be subject to judicial review. If v the parties to this AGREEMENT mutually agree, disputes concerning alleged design errors will be conducted under the procedures found in Exhibit "J". In the event that either party deem it necessary to institute legal action or proceeding to enforce any right or obligation under this AGREEMENT, this action shall be initiated in E the Superior Court of the State of Washington, situated in the county in which the AGENCY is located. The parties hereto agree that all questions shall be resolved by application of Washington law and that the parties a have the right of appeal from such decisions of the Superior Court in accordance with the laws of the State of Washington. The CONSULTANT hereby consents to the personal jurisdiction of the Superior Court of the State E of Washington, situated in the county in which the AGENCY is located. XII. Legal Relations a The CONSULTANT, any sub-consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. The CONSULTANT shall defend, indemnify, and hold the State of Washington (STATE) and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the negligence of, or the breach of any obligation under this AGREEMENT by, the CONSULTANT or the CONSULTANT's agents, employees, sub consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable; provided that nothing herein shall require a CONSULTANT LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 207 8.J.a to defend or indemnify the STATE and the AGENCY and their officers and employees against and hold harmless the STATE and the AGENCY and their officers and employees from claims, demands or suits based solely upon the negligence of, or breach of any obligation under this AGREEMENT by the STATE and the AGENCY, their agents, officers, employees, sub-consultants, subcontractors or vendors, of any tie , or any other persons for whom the STATE and/or the AGENCY may be legally liable; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT or the CONSULTANT's agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT is legally liable, and (b) the STATE and/or AGENCY, their agents, officers, employees, sub-consultants, subcontractors and or vendors, of any tier, or any other persons for whom the STATE and/or AGENCY may be legally liable, the defense and indemnity obligation shall be valid and enforceable only to the extent of the CONSULTANT's negligence or the negligence of the CONSULTANT's agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable. This provision shall be included in any AGREEMENT between CONSULTANT and any sub-consultant, subcontractor and vendor, of any tier. as The CONSULTANT shall also defend, indemnify, and hold the STATE and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, a patents, proprietary information, know-how, copyright rights or inventions by the CONSULTANT or the CONSULTANT's agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other y persons for whom the CONSULTANT may be legally liable, in performance of the Work under this c AGREEMENT or arising out of any use in connection with the AGREEMENT of methods, processes, designs, information or other items furnished or communicated to STATE and/or the AGENCY, their agents, officers and .� employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or m copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary a information, know-how, copyright rights or inventions resulting from STATE and/or AGENCY's, their agents', officers and employees' failure to comply with specific written instructions regarding use provided to STATE L. and/or AGENCY, their agents, officers and employees by the CONSULTANT, its agents, employees, sub- consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be M legally liable. 0 The CONSULTANT's relation to the AGENCY shall be at all times as an independent contractor. Notwithstanding any determination by the Executive Ethics Board or other tribunal, the AGENCY may, in its sole discretion, by written notice to the CONSULTANT terminate this AGREEMENT if it is found after due E notice and examination by the AGENCY that there is a violation of the Ethics in Public Service Act, Chapter ai 42.52 RCW; or any similar statute involving the CONSULTANT in the procurement of, or performance under, a this AGREEMENT. c as The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT's own E employees or its agents against the STATE and/or the AGENCY and, solely for the purpose of this 2 indemnification and defense, the CONSULTANT specifically waives any immunity under the state industrial a insurance law, Title 51 RCW. The Parties have mutually negotiated this waiver. Unless otherwise specified in this AGREEMENT, the AGENCY shall be responsible for administration of construction contracts, if any, on the project. Subject to the processing of a new sole source, or an acceptable supplemental AGREEMENT, the CONSULTANT shall provide On-Call assistance to the AGENCY during contract administration. By providing such assistance, the CONSULTANT shall assume no responsibility for proper construction techniques, job site safety, or any construction contractor's failure to perform its work in accordance with the contract documents. The CONSULTANT shall obtain and keep in force during the terms of this AGREEMENT, or as otherwise required, the following insurance with companies or through sources approved by the State Insurance Commissioner pursuant to Title 48 RCW. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 208 8.J.a Insurance Coverage A. Worker's compensation and employer's liability insurance as required by the STATE. B. Commercial general liability insurance written under ISO Form CG 00 01 12 04 or its equivalent with minimum limits of one million dollars ($1,000,000.00)per occurrence and two million dollars ($2,000,000.00) in the aggregate for each policy period. C. Business auto liability insurance written under ISO Form CG 00 01 10 01 or equivalent providing coverage for any"Auto" (Symbol 1)used in an amount not less than a one million dollar($1,000,000.00) combined single limit for each occurrence. Excepting the Worker's Compensation Insurance and any Professional Liability Insurance, the STATE and AGENCY, their officers, employees, and agents will be named on all policies of CONSULTANT and any sub- consultant and/or subcontractor as an additional insured (the "Als"), with no restrictions or limitations concerning products and completed operations coverage. This coverage shall be primary coverage and non- contributory and any coverage maintained by the AIs shall be excess over, and shall not contribute with, the additional insured coverage required hereunder. The CONSULTANT's and the sub-consultant's and/or subcontractor's insurer shall waive any and all rights of subrogation against the AIs. The CONSULTANT shall a furnish the AGENCY with verification of insurance and endorsements required by this AGREEMENT. The c AGENCY reserves the right to require complete, certified copies of all required insurance policies at any time. M All insurance shall be obtained from an insurance company authorized to do business in the State of c Washington. The CONSULTANT shall submit a verification of insurance as outlined above within fourteen (14) ci days of the execution of this AGREEMENT to: Name: Stephen Lincoln, P.E. L m Agency: City of Kent Address: 220 4th Avenue S. as City: Kent State:WA Zip: 98032 Email: SLincoln@kentwa.gov Phone: (253) 856-5552 M Facsimile:(253) 856-6500 c a� No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY. a, a The CONSULTANT's professional liability to the AGENCY, including that which may arise in reference to section IX "Termination of Agreement" of this AGREEMENT, shall be limited to the accumulative amount of the authorized AGREEMENT or one million dollars ($1,000,000.00), whichever is greater, unless the limit of 0 liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT's professional liability to third parties be limited in any way. a The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third party, and no third party beneficiary is intended or created by the execution of this AGREEMENT. The AGENCY will pay no progress payments under section V "Payment Provisions" until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action as is available to it under other provisions of this AGREEMENT, or otherwise in law. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 209 8.J.a XIII. Extra Work A. The AGENCY may at any time, by written order, make changes within the general scope of this AGREEMENT in the SERVICES to be performed. B. If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the SERVICES under this AGREEMENT, whether or not changed by the order, or otherwise affects any other terms and conditions of this AGREEMENT, the AGENCY shall make an equitable adjustment in the: (1) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify this AGREEMENT accordingly. C. The CONSULTANT must submit any"request for equitable adjustment," hereafter referred to as "CLAIM," under this clause within thirty (30) days from the date of receipt of the written order. However, if the AGENCY decides that the facts justify it, the AGENCY may receive and act upon a CLAIM submitted before final payment of this AGREEMENT. D. Failure to agree to any adjustment shall be a dispute under the section XI "Disputes" clause. However, a nothing in this clause shall excuse the CONSULTANT from proceeding with the AGREEMENT as changed. m E. Notwithstanding the terms and conditions of paragraphs (A.) and (B.) above, the maximum amount payable a, for this AGREEMENT, shall not be increased or considered to be increased except by specific written a supplement to this AGREEMENT. v XIV. Endorsement of Plans y 0 If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering data furnished by them. .� •L XV. Federal Review m The Federal Highway Administration shall have the right to participate in the review or examination of the SERVICES in progress. a� XVI. Certification of the Consultant and the Agency Attached hereto as Exhibit "G-I(a and b)" are the Certifications of the CONSULTANT and the AGENCY, Exhibit "G-2" Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions, Exhibit "G-3" Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit "G-4" Certificate of Current Cost or Pricing Data. Exhibit "G-3" is required only in AGREEMENTS over one hundred thousand dollars ($100,000.00) and Exhibit "G-4" is required only E in AGREEMENTS over five hundred thousand dollars ($500,000.00.) These Exhibits must be executed by the CONSULTANT, and submitted with the master AGREEMENT, and returned to the AGENCY at the a address listed in section III "General Requirements" prior to its performance of any SERVICES under this AGREEMENT. E E XVII. Complete Agreement This document and referenced attachments contain all covenants, stipulations, and provisions agreed upon by a the parties. No agent, or representative of either party has authority to make, and the parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein. No changes, amendments, or modifications of the terms hereof shall be valid unless reduced to writing and signed by the parties as a supplement to this AGREEMENT. XVIII. Execution and Acceptance This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. The CONSULTANT does hereby ratify and adopt all statements, representations, warranties, covenants, and AGREEMENT's contained in the proposal, and the supporting material submitted by the CONSULTANT, and does hereby accept this AGREEMENT and agrees to all of the terms and conditions thereof. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 210 8.J.a XIX. Protection of Confidential Information The CONSULTANT acknowledges that some of the material and information that may come into its possession or knowledge in connection with this AGREEMENT or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other local, state, or federal statutes ("State's Confidential Information"). The "State's Confidential Information" includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles credit card information, driver's license numbers, medical data, law enforcement records (or any other information identifiable to an individual), STATE and AGENCY source code or object code, STATE and AGENCY security data, non-public Specifications, STATE and AGENCY non-publicly available data, proprietary software, STATE and AGENCY security data, or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State's Confidential Information in strictest confidence and not to make use of the State's Confidential Information for any purpose other than the performance of this AGREEMENT, to release it only to authorized employees, sub- consultants or subcontractors requiring such information for the purposes of carrying out this AGREEMENT, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make it known to any other party without the AGENCY's express written consent or as provided by law. The CONSULTANT agrees to release such information or material only to employees, sub-consultants or subcontractors who have signed a a nondisclosure AGREEMENT, the terms of which have been previously approved by the AGENCY. The v CONSULTANT agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized y access to the State's Confidential Information. c V Immediately upon expiration or termination of this AGREEMENT, the CONSULTANT shall, at the AGENCY's option: (i) certify to the AGENCY that the CONSULTANT has destroyed all of the State's :,2 Confidential Information; or (ii) returned all of the State's Confidential Information to the AGENCY; or (iii) m take whatever other steps the AGENCY requires of the CONSULTANT to protect the State's Confidential Information. v� L As required under Executive Order 00-03, the CONSULTANT shall maintain a log documenting the following: d the State's Confidential Information received in the performance of this AGREEMENT; the purpose(s) for which the State's Confidential Information was received; who received, maintained, and used the State's Confidential Information; and the final disposition of the State's Confidential Information. The Q CONSULTANT's records shall be subject to inspection, review, or audit upon reasonable notice from the AGENCY. The AGENCY reserves the right to monitor, audit, or investigate the use of the State's Confidential Information 4) collected, used, or acquired by the CONSULTANT through this AGREEMENT. The monitoring, auditing, or a investigating may include, but is not limited to, salting databases. c Violation of this section by the CONSULTANT or its sub-consultants or subcontractors may result in termination of this AGREEMENT and demand for return of all State's Confidential Information, monetary 0 damages, or penalties a It is understood and acknowledged that the CONSULTANT may provide the AGENCY with information, which is proprietary and/or confidential during the term of this AGREEMENT. The parties agree to maintain the confidentiality of such information during the term of this AGREEMENT and afterwards. All materials containing such proprietary and/or confidential information shall be clearly identified and marked as "Confidential" and shall be returned to the disclosing party at the conclusion of the SERVICES under this AGREEMENT. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 211 8.J.a The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers confidential and/or proprietary in nature: (a) at the commencement of the term of this AGREEMENT, or (b) as soon as such confidential or proprietary material is developed. "Proprietary and/or confidential information" is not meant to include any information which, at the time of its disclosure: (i) is already known to the other party; (ii) is rightfully disclosed to one of the parties by a third party that is not acting as an agent or representative for the other party; (iii) is independently developed by or for the other party; (iv) is publicly known; or (v) is generally utilized by unaffiliated third parties engaged in the same business or businesses as the CONSULTANT. The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure laws. As such, the AGENCY shall maintain the confidentiality of all such information marked proprietary and or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a public disclosure request is made to view materials identified as "Proprietary and/or confidential information" or otherwise exempt information, the AGENCY will notify the CONSULTANT of the request and of the date that such records will be released to the requester unless the CONSULTANT obtains a court order from a court of competent jurisdiction enjoining that disclosure. If the CONSULTANT fails to obtain the court order enjoining m disclosure, the AGENCY will release the requested information on the date specified. a The CONSULTANT agrees to notify the sub-consultant of any AGENCY communication regarding disclosure that may include a sub-consultant's proprietary and/or confidential information. The CONSULTANT notification to the sub-consultant will include the date that such records will be released by the AGENCY to the c requester and state that unless the sub-consultant obtains a court order from a court of competent jurisdiction v enjoining that disclosure the AGENCY will release the requested information. If the CONSULTANT and/or sub-consultant fail to obtain a court order or other judicial relief enjoining the AGENCY by the release date, the :,2 CONSULTANT shall waive and release and shall hold harmless and indemnify the AGENCY from all claims of 0° actual or alleged damages, liabilities, or costs associated with the AGENCY's said disclosure of sub- consultants' information. v� L d d XX. Records Maintenance During the progress of the Work and SERVICES provided hereunder and for a period of not less than six (6) c years from the date of final payment to the CONSULTANT, the CONSULTANT shall keep, retain, and maintain all "documents" pertaining to the SERVICES provided pursuant to this AGREEMENT. Copies of all "documents" pertaining to the SERVICES provided hereunder shall be made available for review at the E CONSULTANT's place of business during normal working hours. If any litigation, claim, or audit is commenced, the CONSULTANT shall cooperate with AGENCY and assist in the production of all such a documents. "Documents" shall be retained until all litigation, claims or audit findings have been resolved even though such litigation, claim, or audit continues past the six (6) year retention period. E For purposes of this AGREEMENT, "documents" means every writing or record of every type and description, including electronically stored information ("ESI"), that is in the possession, control, or custody of the a CONSULTANT, including, without limitation, any and all correspondences, contracts, AGREEMENTS, appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten notes, reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets, charts, notes, drafts, scribblings, recordings, visual displays, photographs, minutes of meetings, tabulations, computations, summaries, inventories, and writings regarding conferences, conversations or telephone conversations, and any and all other taped, recorded, written, printed or typed matters of any kind or description; every copy of the foregoing whether or not the original is in the possession, custody, or control of the CONSULTANT, and every copy of any of the foregoing, whether or not such copy is a copy identical to an original, or whether or not such copy contains any commentary or notation whatsoever that does not appear on the original. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 1 Packet Pg. 212 8.J.a For purposes of this AGREEMENT, "ESI" means any and all computer data or electronic recorded media of any kind, including "Native Files", that are stored in any medium from which it can be retrieved and examined, either directly or after translation into a reasonably useable form. ESI may include information and/or documentation stored in various software programs such as Email, Outlook, Word, Excel, Access, Publisher, PowerPoint, Adobe Acrobat, SQL databases, or any other software or electronic communication programs or databases that the CONSULTANT may use in the performance of its operations. ESI may be located on network servers, backup tapes, smart phones, thumb drives, CDs, DVDs, floppy disks, work computers, cell phones, laptops, or any other electronic device that CONSULTANT uses in the performance of its Work or SERVICES hereunder, including any personal devices used by the CONSULTANT or any sub-consultant at home. "Native files" are a subset of ESI and refer to the electronic format of the application in which such ESI is normally created, viewed, and/or modified The CONSULTANT shall include this section XX "Records Maintenance" in every subcontract it enters into in relation to this AGREEMENT and bind the sub-consultant to its terms, unless expressly agreed to otherwise in writing by the AGENCY prior to the execution of such subcontract. d In witness whereof, the parties hereto have executed this AGREEMENT as of the day and year shown in the "Execution Date"box on page one (1) of this AGREEMENT. a c 0 c 0 c� m a� L m Slgiature TranTech Engineering,LLC Date .r L d d C� G Slgrature City of Kent Date Dana Ralph,Mayor c m E m Any modification, change, or reformation of this AGREEMENT shall require approval as to form by the Office of the Attorney General. a c a� E 0 a LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012022 Packet Pg. 213 8.J.a Exhibit A Scope of Worl Project No. BHM-1068(004) &BHM-1068(00. r c a� E a� a� L Q N C O U a� �L m T d d L L Y d O O M r C d E N N L Q r E V Q LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 214 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay EXHIBIT A CITY OF KENT Green River Bridge Repainting and Structural Deck Overlay SCOPE OF WORK Project Background: The existing Green River Bridge is a steel truss, two-lane, 245-foot bridge constructed in 1958. The facility is critical transportation infrastructure for the City of Kent, connecting SR 167 to Kent Des Moines Road and ultimately to 1-5. The bridge deck has deteriorated and shows potholes and E delamination at multiple locations. The bridge was last painted over 30 years ago, and it is L a� showing paint failure throughout the structure and, in some places, pack rust and minor section Q loss. The bridge has a high vehicular volume, it averaging 25,000 vehicles per day per the most recent inspection report. With projected growth in the area, that number is expected to swell to 35,000 by 2038. The City of Kent has applied for federal funding and has been successful in o securing grants to repair and repaint the Green River Bridge to support its intended life L) a� expectancy. •L m Project Objectives: aD a� L City of Kent (AGENCY) has tasked the TranTech Engineering, LLC team (CONSULTANT) to prepare L_ Plans, Specifications, and Estimate (PS&E) and perform Environmental Permitting Services for the Green River Bridge Repainting and Structural Deck Overlay (PROJECT). o� In addition, the AGENCY reserves the right to retain the services of the CONSULTANT and its team M for the PROJECT's construction phase engineering services inclusive of construction inspection c and management, if desired. E a� All work performed by the CONSULTANT's team shall be per the WSDOT and AASHTO guidelines for federally funded projects. Q r c The following work elements present a summary of the services associated with the PROJECT: E Scope Summary: r a 1. Project Management 2. Environmental Permitting 3. Traffic Engineering 4. Civil/ Roadway/ Drainage Design 5. Load Rating Analysis and Reports 6. Structural Design 7. Assistance During Bid Period Page 1 of 17 Packet Pg. 215 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay General Assumptions: The following items are assumed to be provided to the CONSULTANT by the AGENCY or prepared by AGENCY staff: 1. All available existing as-built plans, right-of-way plans, horizontal and vertical monument information, GIS maps, and other mapping information as available. 2. The AGENCY shall secure all necessary right-of-entry from adjacent property owners where requested by the CONSULTANT. 3. All relevant recent project area survey/topographic data collected by the AGENCY or provided to the AGENCY by third parties will be provided in AutoCAD 2020 format with supporting survey field notes as available. a L Project Standards: Q r c Reports and plans,to the extent feasible, shall be developed in accordance with the latest edition and amendments of the following guidelines and documents: 0 U • AASHTO LRFD Bridge Design Specifications— Ninth Edition a� • AASHTO 2018, "A Policy of Geometric Design of Highways and Streets", 71h Edition m • Washington State Department of Transportation, "Bridge Design Manual" m • Washington State Department of Transportation, "Design Manual" Cn • Washington State Department of Transportation, "Highway Runoff Manual" aD • Washington State Department of Transportation, "Materials Laboratory Outline" • Washington State Department of Transportation, "Construction Manual" • Washington State Department of Transportation, "Local Agency Guidelines" c • Washington State Department of Transportation, "Standard Specifications for Road and Bridge Construction" c m • Highway Research Board's Manual entitled "Highway Capacity" E a� • United State Department of Transportation and Federal Highway Administration (FHWA) a� "Manual on Uniform Traffic Control Devices for Streets and Highways" Q • Agency, "Public Works Development Guidelines and Improvements Standards" • Agency "CAD Standards" E r Project Team: Q The project team is composed of the following: A. Owner: City of Kent (AGENCY) B. Owner Point-of-Contact (POQ Stephen Lincoln, PE C. Prime Consultant—TranTech Engineering, LLC (CONSULTANT) (POC: Kash Nikzad) D. Subconsultant— Landau Associates, Inc. (LAI) (POC: Steve Quarterman) Page 2 of 17 Packet Pg. 216 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay WORK ELEMENT 1 PROJECT MANAGEMENT This work element includes administration of the contract between the CONSULTANT and the AGENCY. The Task includes administrative services needed to coordinate with the sub- consultant/s and to complete the PROJECT on time and within budget. The following are the activities associated with this work element: 1.1 Monthly Progress Reports and Invoicing Progress reports will contain a narrative that identifies and describes significant activities performed in the previous month and the significant planned activities for the upcoming month. r c a� 1.2 Project Kick-off Meeting and Progress Meetings E After receiving notice to proceed from the AGENCY, the CONSULTANT will conduct a project team aD kick-off meeting with staff expected to be involved in the project and key AGENCY staff. The Q r meeting will be used to discuss key elements of the Scope of Work, the project schedule, r document control, and QA/QC procedures; and to clearly define the roles and responsibilities of y the project team members. o U a� This work element provides for the preparation, attendance, follow-up, and documentation of -a meetings during the length of the project. These meetings will be the forums to provide input m r and guidance for the direction of the project. They will also be used to discuss project issues, a L approve submittals, and develop potential solutions. Cn The CONSULTANT shall attend up to twelve (12) meetings with AGENCY staff. Y m a� 1.3 Design Team Management Tasks associated with management of the design team: M • General team coordination a� • Preparing sub-consultant agreements E a� • Preparing, monitoring, and updating PROJECT schedule Q • Monitoring the PROJECT budget and task progress • Preparing and maintaining a project Risk Matrix E • Maintaining regular informal contact telephone discussions and electronic mail r • Obtain, with assistance from the AGENCY, rights of entry necessary for geotechnical Q studies, etc. Deliverables: • Progress Reports • Monthly Invoicing • Project Schedule w/updates • Risk Matrix Page 3 of 17 Packet Pg. 217 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay WORK ELEMENT 2 ENVIRONMENTAL PERMITTING AND WETLAND DELINEATION This Work Element will be performed by Landau Associates, Inc. (LAI) to provide wetland / waterway delineation and environmental permitting support for the PROJECT. 2.1 Wetland/Waterway Delineation LAI will conduct wetland delineations in accordance with the US Army Corps of Engineers (USACE) 1987 Wetlands Delineation Manual and the 2010 USACE Regional Supplement to the Wetland Delineation Manual. The ordinary high-water mark (OHWM) of waterways will be delineated using guidance provided in Washington State Department of Ecology's (Ecology's) c a� Determining the Ordinary High-Water Mark on Streams in Washington State. E a) aD L LAI will compile and review environmental information from readily available public domain Q resources to gain a general understanding of potential wetlands at the site. Public domain resources include, but are not limited to: y C • Natural Resources Conservation Service Soil Survey data a� • National Wetlands Inventory mapping L • Local Critical Areas mapping m r • US Geological Survey topographic mapping L • Cn Recent aerial photography. Y Q) a) The field investigation will include an examination of vegetation, soils, and hydrology within the project area. Flagging will be placed along the wetland/waterway boundaries and will be confined to the project area. Any wetland/waterway habitat that extends beyond the project area, and within 275 feet (ft) (referred to as "the study area"), will be estimated both visually and using public domain resources to assess extent. We will document the flag locations using aEi global positioning system (GPS) equipment capable of sub-meter accuracy. ;v a� Q Wetlands within the study area will be rated in accordance with Ecology's Washington State Wetland Rating System for Western Washington, and buffer widths will be determined in E compliance with applicable Critical Areas regulations. Stream typing and buffer widths will be based on Chapter 11.06 of the Kent City Code (KCC), and the water-typing system Q promulgated in Washington Administrative Code (WAC) 222-15-131. LAI will prepare a draft Wetland and Waterway Delineation Technical Memorandum for the project with the information obtained from field delineation and ratings. The memorandum, which will be submitted to the AGENCY for shoreline critical areas compliance and to other regulatory agencies, will include: • A summary of the methodology used • The size and rating of each wetland and waterway; a characterization of wetland Page 4 of 17 Packet Pg. 218 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay vegetation, soils, and hydrology; and field data sheets • A scaled site map showing the locations of wetland/waterway boundaries and buffers, locations of wetland data plots, and site topography • Supporting photographs • A summary of regulatory jurisdiction and applicable exemptions. The draft memorandum will be provided to the AGENCY for review. Comments will be reviewed and incorporated, as appropriate, into a final Wetland and Waterway Delineation Technical Memorandum. r c a� Assumptions: E a) • The AGENCY will provide site access and permissions, which will include clearing the site a, of homeless encampments as needed to provide safe access to the project area. • Wetland/waterway boundary flagging will be placed only in accessible parts of the project area. 0 o Tree cover and/or topography onsite will not provide an obstruction to the GPS U a� signal. If GPS connectivity is not available, LAI will request an amendment to this scope and budget for surveying the wetland flag locations. m r aD Deliverables: Cn • An electronic (Adobe PDF) copy of the draft and final Wetland and Waterway Delineation Y Technical Memorandum. o� 2.2 WSDOT Local Program National Environmental Policy Act Categorical Exclusion Form M LAI will prepare a preliminary version of the WSDOT Local Programs NEPA Categorical Exclusion (CE) Form (formerly the Local Agency Environmental Classification Summary). The purpose of the preliminary NEPA CE form is to facilitate discussion with WSDOT Local L Programs to determine subsequent NEPA compliance needs. Q r c To complete the preliminary version of the CE form, LAI will compile and review E environmental information from readily available public domain resources to gain a general understanding of relevant environmental resources along the project corridor. r a As part of this task, LAI will identify the Area of Potential Effects (APE) in accordance with 36 Code of Federal Regulations (CFR) 800.16(d) and coordinate, through the AGENCY, with the WSDOT Local Program Engineer and WSDOT archeologist on the APE and Section 106 National Historic Preservation Act exemption. A final version of the NEPA CE Form will be prepared following completion of preliminary design plans. Page 5 of 17 Packet Pg. 219 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay Assumptions: • Costs for professional archaeological investigation and/or historic property inventory are not included in this scope of services. • The project will qualify for a SEPA exemption. This scope of services does not include preparation of a SEPA Checklist or Environmental Impact Statement. • The proposed project will receive funding from the Federal Highway Administration (FHWA) administered through WSDOT Highways and Local Programs and will satisfy the criteria as a NEPA Categorical Exclusion. • The project will have a no effect determination on listed species and/or their designated critical habitat and a formal Biological Opinion will not be required. The r project will have no adverse impact to EFH. The No Effect determination will be presented in the NEPA CE form. Preparation of a technical memorandum a0i documenting determination of No Effect will not be required and is not included in a, this scope of services. Deliverables: y • An electronic (MS Word) copy of the preliminary and final NEPA CE forms. o • An electronic (MS Word) copy of the draft and final APES. •L 2.3 Agency Preapplication Meetings m m LAI will participate in up to two pre-application meetings and three conference calls, as Cn needed, with the AGENCY, WSDOT Local Programs, Washington Department of Fish & Wildlife (WDFW), USACE, and the US Coast Guard (USCG) to coordinate jurisdictional limits and permit conditions for the project. o� 0 This task includes participation in at least two onsite meetings, three conference calls, and M associated correspondence to support preapplication inquiries. a� Deliverables: L • Meeting summaries in email format. Q r c a� 2.4 Hazardous Materials Good-Faith Field Survey E LAI will provide a good-faith survey (GFS) focused on those painted steel surfaces on the r Green River Bridge that will be repainted as a portion of the structural rehabilitation efforts Q (Project Area). More specifically, the GFS will include the following activities: • LAI will identify and sample suspect lead containing paint (LCP) and document the locations of the suspect LCP within the Project Area. • Suspect LCP samples will be submitted to NVL Laboratories (NVL) to be analyzed for the presence of total lead by Environmental Protection Agency (EPA) Method SW 846- 3051/7000B, using flame atomic absorption spectrometry. With a sufficient size sample (0.2 gram or greater), this methodology has a minimum detection limit of 25 Page 6 of 17 Packet Pg. 220 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay parts per million.This detection limit is sufficiently low to identify lead concentrations in paint that will allow an employer to comply with the State's worker protection statute, and to identify materials that may need to be segregated from the waste stream during the rehabilitation and repainting efforts. NVL is certified by Ecology's Environmental Laboratory Accreditation Program and the American Industrial Hygiene Association for analysis of lead in paint and other media. • A request will be made that LCP samples submitted to NVL be archived and held for a potential toxicity characteristic leaching procedure (TCLP) for lead using EPA Method 1311/6010. Upon the request of the Project team, LCP samples will be analyzed using TCLP to determine applicable regulatory disposal requirements for the material, but r only if the results of analysis by flame atomic absorption spectrometry show lead concentrations greater than or equal to 100 milligrams per kilogram (mg/kg) for a) individual LCP samples. (D, Q r c Prior to any field activities, LAI will prepare a Project-specific health and safety plan (HASP) that will be reviewed and approved by LAI's corporate Health and Safety Officer. 0 U LAI will prepare a brief Technical Memorandum summarizing the GFS, sampling activities, and results. This report will include descriptions of the survey and sampling activities; tabulated analytical results; identification, approximate locations, and estimated quantities of LCP; 00 aD photographs of confirmed LCP sampling locations; and a summary of results. The report will also outline field limitations and discuss suspect materials that were inaccessible for sampling cn_ during the survey. a� A draft GFS report will be submitted to CONSULTANT and the AGENCY for review and o� comment. Upon receipt, comments will be addressed, as appropriate, and LAI will issue a final M report. r c m LAI will assist with identifying applicable standard and/or general special provisions related to E LCP mitigation to be included in the project specifications. Q Assumptions: a� • The AGENCY will provide site access and permissions, which include clearing the site of E homeless encampments as needed to provide safe access to the project area. r • A Hazardous Materials Discipline Report to address hazardous and problem waste may Q be required by WSDOT based on its review of the preliminary NEPA CE form. Preparation of a Hazardous Materials Discipline Report is not included in this scope of services. The level of detail and report format for a Hazardous Materials Discipline Report is dependent on the project activities and type and number of potential hazardous material impacts identified. A scope and cost estimate to complete a Hazardous Materials Discipline Report, if required by WSDOT, will be provided following receipt of review comments from WSDOT regarding the preliminary NEPA CE form. Page 7 of 17 Packet Pg. 221 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay • LAI will not enter or survey portions of the Project Area that: o are within high vehicular traffic areas without proper and appropriate traffic control; o are deemed by the inspector to be permit-required, confined spaces; o would require fall protection or are otherwise elevated and cannot be safely accessed from the ground surface; or o are otherwise judged to be unsafe to enter (e.g., dilapidated structures, electrical or mechanical vaults, excessively high or steep surfaces, inaccessible or overly constricted spaces, homeless encampments, or other areas not safe for entry by LAI staff). r If such areas are identified, the inspector will attempt to identify suspect building materials from a safe location or from a distance outside these areas, to the extent practicable. a • GFS fieldwork, including mobilization and sample collection, can be completed by one c team of two inspectors. The GFS will be completed during daylight hours. N • Given the presence of elevated shoulder/walkway areas on the outer margins of the o bridge, and various pedestrian pathways beneath the bridge, the field team will be able a� to safely collect samples from areas outside of the travel lanes and traffic control will not L be required. If, however, traffic control is required to allow for the field team to safely 00 W collect samples, such work would either be provided by the AGENCY or by LAI under a supplemental agreement. W Y • Up to 15 samples of suspect LCP will be collected during this GFS, all of which would be analyzed for total lead; up to five samples may then be reanalyzed using the TCLP as methodology. Q M • Samples will be submitted to NVL and analyzed with a 5-business-day turnaround time. c • No lighting or other electrical equipment will be needed to complete the sampling. • The LCP survey will include targeted destructive sampling. This scope does not include a time or material costs for LAI to repair sampling locations. Destructive methods will be a limited. LAI will not attempt to locate or identify hazardous materials that are not readily accessible (e.g., areas concealed beneath road decking, behind concrete or metal retaining walls, or otherwise concealed by solid materials). • As-built drawings that include features within the PROJECT Area will be provided to LAI at a least 5 business days prior to the sampling event. LAI will review these drawings prior to the sampling efforts to better understand the surveyed features' construction process and potential material homogeneity. If such drawings are not available prior to the fieldwork, this may be identified as a limitation in the GFS report. • The draft GFS report will need only minor revisions, requiring no more than 2 hours to produce the final document. • This task does not include the development of specifications for use during construction. Page 8 of 17 Packet Pg. 222 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay Deliverables: • An electronic (Adobe PDF) copy of the draft and final GFS Report. 2.5 Section 4(f) Documentation LAI will prepare the WSDOT Section 4(f) Temporary Occupancy form(s) to address use/impacts of the project on the Green River Trail and/or associated parking area that may be used for construction access and/or staging. The form(s) will provide: r • A project description • A description of Section 4(f) resources (i.e., park and/or historic sites) affected by a) the project and proposed impacts (including figure) (D, • A summary of public outreach efforts. r LAI will prepare a draft form(s) for review and comment by CONSULTANT and the AGENCY, y and then prepare a final document. 0 a� Assumptions: •L • A concurrence letter from the agency with jurisdiction over the Section 4(f) resource will m r be provided to LAI by the AGENCY. L Cn L Deliverables: a� • An electronic (Adobe PDF) copy of the draft and final Section 4(f) Temporary Occupancy form(s). c M r 2.6 Permit Applications E LAI will support the AGENCY, as requested, with application for Hydraulic Project Approval L (HPA) from WDFW. An application for HPA will be submitted by the AGENCY through the Q online Automated Package Processing System (APPS) website. LAI will also support, as requested, preparation of the AGENCY's Shoreline Exemption application form and the USCG Bridge Work Plan Concurrence and Maritime Stakeholder Notification. r Assumptions: Q • The AGENCY will initiate compilation of application materials and LAI will provide review and/or additional information in support of the application(s). • The AGENCY will pay all the applicable permit application fees. • USCG bridge permit and associated navigation study will not be required. • No work will occur below the ordinary high water line of the Green River and a permit from the USACE will not be required. • Plan view of the bridge and navigation clearances will be provided to LAI. Page 9 of 17 Packet Pg. 223 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay Deliverables: • An electronic (Adobe PDF) copy of the draft and final Shoreline Exemption forms. • An electronic (Adobe PDF) copy of the draft and final Section 4(f) Temporary Occupancy form(s) • An electronic (Adobe PDF) copy of the draft and final USCG Bridge Work Plan Concurrence and Maritime Stakeholder Notifications. 2.7 Agency Coordination c LAI will assist CONSULTANT and the AGENCY to respond to agency comments on application E submittals and provide support with inquiries on agency status of reviews. L a� Q The agencies may require additional data regarding potential environmental impacts and their mitigation to avoid/minimize impacts. Support will be provided via teleconference and email. c 0 U Assumptions: a� • Onsite meetings are not included in this task. m r a� a� Deliverables: Cn • Email and/or telephone correspondence. Y a� a� o� 0 M r C d E d L Q Q� E V r a Page 10 of 17 Packet Pg. 224 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay WORK ELEMENT 3 TRAFFIC ENGINEERING This Work Element is performed by CONSULTANT to provide Traffic Engineering assistance to the City required for the PROJECT. This work element includes the following subtasks: 3.1 Mobility of Traffic (MOT) Plans CONSULTANT will act in an advisory role to provide any desired Mobility of Traffic (MOT) plans for the construction phase of the Green River Bridge Repainting and Structural Deck Overlay to the City. This subtask involves the following activities: • Initial coordination with project team, AGENCY, and other stakeholders on traffic = a� control strategies and options based on design alternatives, including full closure E and partial closure options aD • Any desired input in development of traffic control plans and review with project Q r team and agency stakeholders r • Attendance of one project public meeting to discuss traffic control strategies and y get input from public 0 • Meeting with project team and the AGENCY to select preferred traffic control strategy •L m r aD P WORK ELEMENT 4 CIVIL/ ROADWAY/ DRAINAGE DESIGN AND UTILITY COORDINATION Cn This work element is performed by CONSULTANT to provide civil design services for the erosion repairs at the abutments of the PROJECT. This task will include the following subtasks: o� 0 1. A grading plan at abutments to stabilize the sloughing that has occurred due to storm water penetration throught the failed expansion joints. This subtask will be performed based on the available topo underneath the bridge at the abutment locations E a� 2. A plan for surface drainage at the structure's superstructure deck level Q r c Assumptions: E • All civil work will be performed per existing topo information. r a Deliverables: • Bridge abutment grading, and surface drainage plans. Page 11 of 17 Packet Pg. 225 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay WORK ELEMENT 5 STRUCTURAL LOAD RATING AND ANALYSIS This work element is performed by CONSULTANT to provide structural load rating and analysis. This task includes the following activities: • Review of existing load ratings and inspection reports • Load rating and analysis for painting and repair activities: o Load rating for dead and live loads anticipated for the work platform o Load rating for post-repair conditions that includes overlay dead load and analysis and rating for King County Rapid Route vehicles c a� E All load rating activities will be performed per the Chapter 12 of 2022 WSDOT Bridge Design L Manual and the current AASHTO Manual for Bridge Evaluation (MBE). Q r c The post rehabilitation load rating will be performed per WSDOT and AASHTO Load Factor Rating (LFR) methodology. 0 U The load rating will include the following elements: 2 • Main girders m • Stringers aD • Truss rating ;v Cn L Y Assumptions: a • AGENCY will provide the information for King County's vehicles for Rapid Ride Route All o� existing structural load rating information M r c Deliverables: • Load Rating Report for painting and repair activities L • Post Rehabilitation Load Rating Report including analysis for KC Rapid Ride Route vehicles Q r c a� E r a Page 12 of 17 Packet Pg. 226 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay WORK ELEMENT 6 STRUCTURAL DESIGN This work element is performed by CONSULTANT to prepare 50%, and 100% Ad-Ready structural and overlay design for the PROJECT. This task will include the following: • Review of existing information and inspection reports to determine extent of steel member repairs needed • Deck overlay design • Full Plans, Specifications, and Estimates for the following: o Painting plan r o Paint containment system and work platform a� E o Deck overlay L o Expansion joint repair Q r c r 6.1 50% Design y c The activities associated with this task include the following: a� • Data Collection and Review: CONSULTANT will further evaluate inspection reports, recommendations by the inspector, load ratings, and documents available in BridgeWorks 00 r and provided by the AGENCY. L Cn • Field Evaluation: CONSULTANT will perform a field evaluation of the existing condition of the bridge deck and steel members that require repair, which may include: o Bridge deck acoustic response (chain dragging) o� o Additional core samples for evaluation of chloride content M o Evaluation of expansion joints for most durable replacement options c o Condition of deck rebar in terms of corrosion build up and location from deck surface L o Inspection of steel elements to determine extent of repair needed in Q preparation for painting c a� • Overlay Design: in coordination with the AGENCY, CONSULTANT will prepare a memo that E describes different bridge deck overlay systems with a recommendation for system to be advanced to full design. The memo will describe investigations on the following overlay Q systems: o Modified Concrete Overlay o Polyester Overlay o Methyl Methacrylate Overlay Pros and cons of each system will be studied and the CONSULTANT will recommend the system that is optimized for the PROJECT site. The AGENCY will be an inherent part of Page 13 of 17 Packet Pg. 227 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay this selection and upon the AGENCY's approval of the selected overlay system, the CONSULTANT will advance design to full construction documents. • Containment/ Work Platform System Design: CONSULTANT will prepare a 50% containment system concept. • Abutment Erosion Repair: CONSULTANT will prepare 50% design to mitigate and repair abutment erosion at locations above Ordinary High Water Marks (OHWM). • Joint Repairs: CONSULTANT will prepare 50% design for repair of static and expansion joints of the bridge. Expansion Joints are only utilized at the bridge abutments. • Specifications: CONSULTANT will prepare 50% preliminary specifications. a� • Engineer's Estimate of Construction Cost (EECC): CONSULTANT will prepare preliminary aa) (50%) Engineer's Estimate of Construction Cost. (D, Q All activities will be performed in coordination with the AGENCY. Throughout the c structural design activities, special care will be given toward a low impact design approach for many reasons including noise reduction, protection of the bridge structure and c protection of the waterway. L) a� QA/QC activities are an inherent part of this task. •L Assumptions: m • It is assumed that an in-depth inspection of the steel components of the bridge is not ;v Cn necessary. If it is determined that there is a need following the site foot-inspection of the aD Y bridge, a management reserve release will be requested by CONSULTANT for additional funds to perform an in-depth inspection. o� 0 Deliverables: r • One electronic copy in Adobe pdf of the 50% Plans Set, 11x17 (half-size). • One electronic copy in Adobe pdf of the Preliminary (50%) Engineer's Opinion of L Construction Cost. Q • One electronic copy in MS Word of the Preliminary (50%) Specifications and the Runlist a� E 6.2 Draft 100% Design r a The activities associated with this task include the following: • Overlay Design: CONSULTANT will advance the 50% design to draft 100% completion for the bridge deck overlay. • Containment/Work Platform System Design: CONSULTANT will advance the 50% design to 95% completion for the containment system design. • Abutment Erosion Repair: CONSULTANT will advance the 50% design to draft 100% design. Page 14 of 17 Packet Pg. 228 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay • Joint Repairs: CONSULTANT will advance the 50% design to draft 100% design for repair of static and expansion joints of the bridge. • Specifications: In coordination with the AGENCY, CONSULTANT will advance the 50% specifications to draft 100% completion. • Engineer's Estimate of Construction Cost: CONSULTANT will advance the 50% EECC to draft 100% completion. QA/QC activities are an inherent part of this task. Deliverables: • One electronic copy in Adobe pdf of the draft 100% Plans Set, 11x17 (half-size) E a) • One electronic copy in Adobe pdf of the draft 100% Engineer's Opinion of Construction Cost Q r c • One electronic copy in MS Word of the draft 100% Specifications and the Runlist r y C 6.3 Ad-Ready PS&E (100%) Design a� a� The activities associated with this task include the following: m r a) • Overlay Design: CONSULTANT will advance the draft 100% to Ad-Ready completion for the bridge deck overlay. cn_ aD Y • Containment System Design: CONSULTANT will advance the draft 100% to Ad-Ready completion for the containment system design. o� • Work Platform Design: CONSULTANT will advance the draft 100% to Ad-Ready M completion. r c • Abutment Erosion Repair: CONSULTANT advance the draft 100%to Ad-Ready completion. E a� • Joint Repairs: CONSULTANT will advance the draft 100% to Ad-Ready completion for repair of static and expansion joints of the bridge. Q r c • Specifications: In coordination with the AGENCY, CONSULTANT will advance the draft E 100%to Ad-Ready completion. r • Engineer's Estimate of Construction Cost: CONSULTANT will advance the draft 100% EECC Q to Ad-ready completion. QA/QC activities are an inherent part of this task. Assumptions: • AGENCY to provide Specification Manual template to CONSULTANT Page 15 of 17 Packet Pg. 229 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay Deliverables: • One electronic copy in Adobe pdf of the Ad-Ready 100% Plans Set, 11x17 (half-size) • One electronic copy in Adobe pdf of the Ad-Ready 100% Engineer's Estimate of Construction Cost • One electronic copy in MS Word of the Ad-Ready 100% Specifications and the Runlist in the AGENCY's format Sheet Set PS&E Submittal Phase Sheet Name #of Sheets Draft 50% 100% 100% E a) Cover Sheet&Sheet Index 1 X X X L a� Legend,Abbreviations& Notes 1 X X X Q r c r 3 y C O U a� Structural General Notes 1 X X m Bridge Plan, Elevation,and Section 1 X X X r aD Construction sequence 2 X X X L Bridge Overlay Plans&Details 3 X X X Cn L Steel repairs and details 2 X X Y Expansion Joint Details 1 X X 0 Bridge Drainage Details 1 X X 2 Utility Support Details 2 X X 0 Abutment Erosion Repair 3 X X X M r c m E a� WORK ELEMENT 7 ASSISTANCE DURING BID PERIOD a, Q r CONSULTANT shall provide bid support and assist AGENCY in answering questions from prospective bidders during the bid process. After the construction contract has been awarded, CONSULTANT shall attend one prebid conference with potential bidders to assist r AGENCY in responding to questions. Q CONSULTANT shall provide responses to up to ten contractor Request for Information (RFIs) and prepapre up to two contract addendums, if required. Page 16 of 17 Packet Pg. 230 8.J.a City of Kent - Green River Bridge Repainting and Structural Deck Overlay Project Deliverable Anticipated Schedule Deliverable Anticipated Delivery Date Invoices and Progress Reports Monthly Project Schedule Two weeks after NTP Risk Matrix Ongoing Load Rating Report for painting and repair activities 4/30/2023 Post Rehabilitation Load Rating Report After construction Draft Wetland and Waterway Delineation Technical Memorandum 2/10/2023 Final Wetland and Waterway Delineation Technical Memorandum 2/17/2023 E NEPA CE Submittal 5/1/2023 d L Area of Potential Affect(APE) 2/33/2023 Q Good Faith Survey Report 3/1/2023 Section 4(f)Temporary Occupancy form(s) 4/1/2023 M° USCG Bridge Work Plan Concurrence and Maritime Stakeholder 5/1/2023 Notifications C c� Shoreline Exemption forms 3/1/2023 Draft 50% Plans,Specifications, and Estimate (PS&E) 3/01/2023 L City Review 3/02/2023--3/16/2023 m Approval To Proceed for Draft 100% Phase 3/20/2023 Draft 100% Plans, Specifications, and Estimate 7/03/2023 v� Ad-ready PS&E 7/28/2023 Y m m PHASE 2 SUPPLEMENT- CONSTRUCTION PHASE SERVICES 0 At the discretion of the AGENCY, construction phase services may be added as a supplement to this contract. E as as L Q E V Q Page 17 of 17 Packet Pg. 231 8.J.a Exhibit C Preparation and Delivery of Electronic Engineering and Other Dati In this Exhibit the agency, as applicable, is to provide a description of the format and standards the consultant is to use in preparing electronic files for transmission to the agency. The format and standards to be provided may include, but are not limited to, the following: Z Surveying, Roadway Design &Plans Preparation Section A. Survey Data c as E m as L Q M O V L B. Roadway Design Files 0° as as L L d d C� G M C N L Q C. Computer Aided Drafting Files a LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 232 8.J.a D. Specify the Agency's Right to Review Product with the Consultant E. Specify the Electronic Deliverables to Be Provided to the Agency E m as L Q M O V L m d d L L d F. Specify What Agency Furnished Services and Information Is to Be Provided 0 M C E N L Q E V Q LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 233 8.J.a K Any Other Electronic Files to Be Provided c a� E d as L Q M O V �L m T d d L Ill. Methods to Electronically Exchange Data v) L d d C� G Q M C E N L Q c� G V Q LA1-339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 234 8.J.a A. Agency Software Suite B. Electronic Messaging System E m as L Q M O V �L m d d L L d C. File Transfers Format 0 M C E N L Q c� G V Q LA1-339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 235 8.J.a Exhibit D Prime Consultant Cost Computation; E L Q N C O U a� �L m T d d L L Y d O O M r C d E N N L Q r E M V Q LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 236 8.J.a Exhibit D - Prime Consultant Cost Computations Summary Ik-1- T R A N T E C H Project Name Green River Bridge Deck Overlay and Repainting Engineering L L C ^ J 9 Y p 9 Client City of Kent a� L TRANTECH TEAM BUDGET BREAKDOWN a c Work Element 1 Project Management $31,029 N Work Element 2 Environmental Permitting and Wetland/Waterway Delineation $38,526 0 Work Element 3 Traffic Engineering $10,423 Work Element 4 Civil/ Roadway/ Drainage & Utility Coordination $14,258 -a Work Element 5 Structural Load Rating &Analysis $65,507 m Work Element 6 Structural Design PS&E $182,866 Work Element 7 Assistance During Bid Period $9,297 P Reimbursable Expenses $613 N a� TOTAL PROJECT BUDGET $352,519 0 0 M r C d E d d i a r E r a Packet Pg. 237 8.J.a Exhibit D - Prime Consultant Cost Computations Summary T R A M TE C H Project Name Green River Bridge Deck Overlay and Repainting LI 1 Engineering L L C ^ J 9 Y p 9 Client City of Kent a� L TRANTECH TEAM BUDGET BREAKDOWN Q �o TranTech -Civil/Roadway/Structural $313,993 N Landau Associates - Environmental $38,526 0 U TOTAL PROJECT BUDGET $352,519 m r a� a� U) a� m rn 0 v M r C d E d d i a E U fC r Q Packet Pg. 238 8.J.a TranTech Exhibit D-Prime Consultant Cost Computation TranTech Engineering City of Kent Green River Bridge Deck Overlay and Repainting Project multiplier: 2.6057 CY m � u rn rn c c w C w w m Y Y W w w m OI C R e U d > > W W C im w u > > > W W a 2 W ig 2 2 U U > tY U a Y N N G C Y (.1 W e r .p Total Direct Labor Total Cost Per 1 6 N 6 N N N 6 N m C y Q Hours Coati Work Element +�+ Initials/Name P.Limaye K.Nilc ad J KingrA 5 Shih K.Massey A.E—to A.Gage/IDS R.Bran K.Van VeL er C.Sherrell M.Shukhindeh D.Jensen B.Bryant direct rate 70 89 89 71.9 52 41 70 58 50 60 89 50 45 N 68 1.1 Monthly Progress Reports and Invoicir 2 80 24 106 $ 8,340.00 0 1.2 Project Kickoff Meeting and Progress Meetings 16 8 24 $ 1,784.00 U 1.3 Design Team Management 16 8 24 $ 1,784.00 d 0 $ ork Element 3-Traffic Engineering N.4,000.00 $ 10,422.80 .a 40 16 8 64 $ 4,000.00 L. 0 $ m nt 4-Civil/Roadway/Drainage Design&Utlity Coordinatl 14,258.39 0 0 24 24 32 16 96 $ 5,472.00 +y+ 0 $ N 5-Structural Load Rating and Anal $ 65,507.30 0 6 40 120 120 120 24 432 $ 25,140.00 �[ 0 $ tU 0 0 -Structural Design 182,865.94 6.1 Overlay Alternatives Memo 8 8 8 8 16 8 56 $ 4,087.20 , 6.2 50%PS&E $ - Data Collection and Review 8 8 16 $ 1,424.00 G Field Evaluation 8 8 8 24 $ 1,904.00 50%Design $ M Overlay Design 8 8 8 8 8 32 8 24 104 $ 6,575.20 v Containment/Work Platform 8 8 8 8 8 16 56 $ 3,927.20 ++ Abutment Erosion Repair 8 16 20 20 8 24 96 $ 6,526.00 Joint Repairs 8 8 16 16 8 16 72 $ 4,918.40 CtCU 50%Specifications 16 24 16 56 $ 3,392.00 G 50%Estimate 8 20 28 $ 1,752.00 d 6.3 Draft100%PS&E $ - >_ Overlay Design 6 6 6 6 6 32 6 24 104 $ 6,575.20 � Containment/Work Platform Design 8 8 8 8 8 16 56 $ 3,927.20 Q Abutment Erosion Repair 6 16 20 20 6 24 96 $ 6,526.00 Joint Repairs 8 8 16 16 6 16 72 $ 4,918.40 ++ Draft 100%Specifications 16 24 16 56 $ 3,392.00 Draft 100%Estimate 8 20 28 $ 1,752.00 d 6.4 100%PS&E $ - 100%Plans 8 16 16 16 8 8 8 8 8 8 16 16 136 $ 8,582.40 t 100%Specifications 0 V 100%Estimate 0 MlWa+ nt 7-Assistance During Bid Pe +r 16 16 16 48 $ 3,568.00 Q 0 $ 0 $ 0 $ 0 Total Staff Hours 2 280 168 248 336 144 72 32 56 96 88 200 126 1850 Page 1 Packet P9. 239 8.J.a TranTech Exhibit D-Prime Consultant Cost Computation TranTech Engineering City of Kent Green River Bridge Deck Overlay and Repainting Project multiplier: 2.6u °a ca m 2 W W m e r O Y d W W W 6 OI C R e L M aV C W C m C � Y j > > W C R •C ~ W 6 2 Y Y j > W N W Q W 0a a ur rn 2 2 u D > tY O m a C u N N G o U e m 'C c c c o c v 'c E Total Direct Labor Total Cost Per �+ 6 6 W a W W W a W m` C y ¢ Hours Cost Work Element C Initials/Name P.Unn ye K.Nikzad J King/A S Shih K.Massey A.Emoto A.Gage/DS R.Brar K.Van Velzer C.Sherrell M.Sheikhindehl D.Jensen B.Bryant direct rate 70 89 89 71.9 52 41 70 58 50 60 89 50 45 Total Direct Labor Cost $140.00 $24,920.00 $14,952.00 $17,831.20 $17,472.00 $5,904.00 $5,040.00 $1,856.00 $2,800.00 $5,760.00 $7,832.00 $10,000.00 $5,760.00 $ 120,267.20 $ 313,380.24 to $12026720 O Reimbursable Expenses Subtotal(Labor)l $ 120,267.20 V Overhead @ 130.57Yo $ 157,032.88 Fee @ 30% $ 36,080.16 � Travel expenses(mileage) 100 •$0.625 $• 62.50 '(f Graphic supplies 1 $150.000 $ 150.00 'L Production 1 $400.000 $ 400.00 Reimbursable Expenses $ 612.50 m $ Total Reimbursable Expenses $ 612.50 a+ Notes: (a)Rates shown reflect the typical compensation rate of employees assigned to the labor classification listed. y Each category may have multiple employees assigned to that labor classification and each employee may have a different hourly rate cf pay.Invoices will reflect actual pay rate. , (6)Classifications shown are general,the actual invoice will show our employee's specific labor classification- p for e.g.,Senior Engineer,Senior Geologist,Senior Planner. M r C d E d d i� a r r a Page 2 Packet Pg. 240 8.J.a Exhibit E Sub-consultant Cost Computation: If no sub-consultant participation listed at this time. The CONSULTANT shall not sub-contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY. Refer to section VI "Sub-Contracting" of this AGREEMENT. c as E m as L Q M O V L m d d L L d d C� G Q M C N L Q c� G V Q LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 241 8.J.a LAI Exhibit E-Subconsultant Cost Computation Landau Associates Client City of Kent Green River Bridge Repainting and Structural Overlay Project multiplier: 3.1098 u 'c 0) L L C L y c C m 'Y 5 F a U L N N W a ZM a a H y a m Q W a N m m U a inC •u .� G u N m u N (7 O Y o c o p a Total Direct Labor Total Cost Per C a` U) ¢ in rn a U) U) a a G cL) m Hours Cost Work Element +�+ Allan Barton Katie Saltoitz Steven Quarterman Derek m Palvino Nicole Foster Chris Sommer Nick Ulacia Devan King Jeff Valluui J nav ennifer Wynkoop Alyssa Johnson Eric Zick Name 0 direct rate $91.35 1 $65.39 $56.01 $48.08 1 $47.36 $36.06 $32.70 1 $33.00 $24.00 1 $38.50 $38.47 $45.35 $25.75 1V 7,564.89 tU 1 Wetland/Waterway Delineation 1 21 30 6 6 64 $ 2,948.64 2 WSDOT Local Programs NEPA 26 4 3 2 35 $ 2,037.14 .a 3 Agency Preapplication Meetings 20 20 $ 1,307.80 L 4 Hazardous Materials GFS 1 1 12 18 4 14 50 $ 2,208.84 m 5 Section 4(f)Documentation 13 3 4 20 $ 1,146.97 y 6 Permit Applications 1 20 3 24 $ 1,514.65 i 7 Agency Coordination 12 4 16 $ 915.48 ++ Total Staff Hours 3 113 12 0 0 18 38 0 4 15 0 26 0 229 tV d Total Direct Labor Cost $274.05 $7,389.07 $672.12 E0.00 $0.00 E649.08 $1,242.60 $0.00 $96.00 $577.50 E0.00 $1,179.10 E0.00 $ 12,079.52 $ 37,564.89 $12,079.52 Reimbursable Expenses Subtotal(Labor) $ 12,079.52 p Overhead @ 180.98% $ 21,861.52 It.. units Unit Fee @ 30% $ 3,623.86 v Travel expenses(mileage) 100 •$0.625 $Total 62.50 Field Supplies 205 $1.000 $ 205.00 Laboratory 1 $694.000 $ 694.00 Reimbursable Expenses $ 961.50 d $ E $Total Reimbursable Expenses $ 961.50 0 L a Notes: Y C (a)Rates shown reflect the typical compensation rate of employees assigned to the labor classification listed. tCv Each category may have multiple employees assigned to that labor classification and each employee C may have a different hourly rate of pay.Invoices will reflect actual pay rate. V R (b)Classifications shown are general,the actual invoice will show our employee's specific labor classification- r for e.g.,Senior Engineer,Senior Geologist Senior Planner. a Page 1 Packet Pg. 242 8.J.a Exhibit F - Title VI Assurances Appendix A & E APPENDIX A During the performance of this contract, the contractor, for itself, its assignees, and successors in interest(hereinafter referred to as the "contractor") agrees as follows: 1. Compliance with Regulations: The contractor(hereinafter includes consultants)will comply with the Acts and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, (Federal Highway Administration), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2. Non-discrimination: The contractor,with regard to the work performed by it during the contract,will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity,project, or program set forth in Appendix B of 49 CFR Part 21. 4) [Include Washington State Department of Transportation specific program requirements.] a 3. Solicitations for Subcontracts,Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a y subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or o supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. [Include -a Washington State Department of Transportation specific program requirements.] m` as as 4. Information and Reports: The contractor will provide all information and reports required by the Acts,the Regulations, and directives issued pursuant thereto and will permit access to its books,records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the (Federal Highway Administration) to be pertinent to ascertain compliance with such Acts,Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish c the information, the contractor will so certify to the Recipient or the (Federal Highway Administration), as M appropriate, and will set forth what efforts it has made to obtain the information. c as 5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination 4) provisions of this contract, the Recipient will impose such contract sanctions as it or the (Federal Highway a Administration) may determine to be appropriate, including,but not limited to: ; c as a. withholding payments to the contractor under the contract until the contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. 2 a 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the (Federal Highway Administration) may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 1 Packet Pg. 243 8.J.a Exhibit F - Title VI Assurances Appendix A & E APPENDIX E During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); m • Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); a • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; y • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination c on the basis of age); v a� • Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits .� discrimination based on race, creed, color, national origin, or sex); m • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems,places of public M accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits E discrimination on the basis of race, color, national origin, and sex); a, • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and a Low-Income Populations, which ensures discrimination against minority populations by discouraging programs,policies, and activities with disproportionately high and adverse human health or E environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, a and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency(LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 1 Packet Pg. 244 8.J.a Exhibit G Certification Document Exhibit G-1(a) Certification of Consultant Exhibit G-1(b) Certification of Agency Official Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions Exhibit G-3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying Exhibit G-4 Certificateof Current Cost or Pricing Data N/A c as E m as L Q M O V L m d d L L d d C� G Q M C E N L Q E V Q Local Agency A&E Professional Services Agreement Numb LA10339&LA10341 Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 245 8.J.a Exhibit G-1(a) Certification of Consultant I hereby certify that I am the and duly authorized representative of the firm of TranTech Engineering, LLC whose address is 365 118th Avenue SE, Suite 100, Bellevue, WA 98005-3557 and that neither the above firm nor I have a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person(other than a bona fide employee working solely for me or the above CONSULTANT) to solicit or secure this AGREEMENT; b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out this AGREEMENT; or as c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working m solely for me or the above CONSULTANT) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this AGREEMENT; except as hereby expressly a stated (if any); I acknowledge that this certificate is to be furnished to the City of Kent and the Federal Highway Administration, U.S. Department of Transportation in connection with this v AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and om Federal laws,both criminal and civil. m T as as TranTech Engineering, LLC Y Consultant(Firm Name) 0 M C Signature(Authorized Offidal of Consultant) Date L Q G V Q LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 246 8.J.a Exhibit G-1(b) Certification of City of Kent I hereby certify that I am the: R Agency Official ❑ Other of the City of Kent , and TranTech Engineering, LLC or its representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this AGREEMENT to: a) Employ or retain, or agree to employ to retain, any firm or person; o b) Pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or consideration of any kind; except as hereby expressly stated(if any): I acknowledge that this certificate is to be furnished to the City of Kent m as and the Federal Highway Administration, U.S. Department of Transportation, in connection with this a AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and c Federal laws,both criminal and civil. M c 0 c� m a� L m Signature City of Kent pate }' d Dana Ralph,Mayor L d d C� G M C E N L Q c� G V yr Q Local Agency A&E Professional Services Agreement Numb LA10339&LA10341 Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 247 8.J.a Exhibit G-2 Certification Regarding Debarment Suspension and Other Responsibility Matters - Primary Covered Transactions I. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; B. Have not within a three (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State anti-trust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; an a D. Have not within a three (3) year period preceding this application /proposal had one or more public transactions (Federal, State and local)terminated for cause or default. II. Where the prospective primary participant is unable to certify to any of the statements in this 0 certification such prospective participant shall attach an explanation to this proposal. a) a� L m d d L TranTech Engineering, LLC Y Consultant(Firm Name) 0 M C E Signature(Authorized Official of Consultant) Date L Q E V Q LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 248 8.J.a Exhibit G-3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or any employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative AGREEMENT, and the extension, continuation, renewal, amendment, or modification of Federal contract, grant, loan or cooperativeAGREEMENT. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperative AGREEMENT, the undersigned shall complete and E submit Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. Q c This certification is a material representation of fact upon which reliance was placed when this `�° transaction was made or entered into. Submission of this certification is a prerequisite for making or c entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file 0 the require certification shall be subject to a civil penalty of not less than $10,000.00, and not more than a� $100,000.00 for each such failure. � L m The prospective participant also agrees by submitting his or her bid or proposal that he or she shall a require that the language of this certification be included in all lower tier sub-contracts, which exceed 2 $100,000 and that all such sub-recipients shall certify and disclose accordingly. L d d C� G TranTech Engineer, LLC 0 M Consultant(Firm Name) c m E m d L Q Signature(Authorized Official of Consultant) Date E Q Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 249 8.J.a Exhibit I Alleged Consultant Design Error Procedure: The purpose of this exhibit is to establish a procedure to determine if a consultant has alleged design error is of a nature that exceeds the accepted standard of care. In addition, it will establish a uniform method for the resolution and/or cost recovery procedures in those instances where the agency believes it has suffered some material damage due to the alleged error by the consultant. Step 1 Potential Consultant Design Error(s) is Identified by Agency's Project Manager At the first indication of potential consultant design error(s), the first step in the process is for the Agency's project manager to notify the Director of Public Works or Agency Engineer regarding the potential design error(s). For federally funded projects, the Region Local Programs Engineer should be informed and involved in these procedures. (Note: The Director of Public Works or Agency Engineer may appoint an agency staff person other than the project manager, who has not been as directly a involved in the project, to be responsible for the remaining steps in these procedures.) d as Step 2 Project Manager Documents the Alleged Consultant Design Error(s) a After discussion of the alleged design error(s) and the magnitude of the alleged error(s), and with the r- Director of Public Works or Agency Engineer's concurrence, the project manager obtains more detailed m documentation than is normally required on the project. Examples include all decisions and descriptions c of work,photographs, records of labor, materials, and equipment. v as Step 3 Contact the Consultant Regarding the Alleged Design Error(s) -� L If it is determined that there is a need to proceed further, the next step in the process is for the project m manager to contact the consultant regarding the alleged design error(s) and the magnitude of the alleged Sl error(s). The project manager and other appropriate agency staff should represent the agency and the vn consultant should be represented by their project manager and any personnel (including sub-consultants) Y deemed appropriate for the alleged design error(s) issue. Step 4 Attempt to Resolve Alleged Design Error with Consultant 0 After the meeting(s) with the consultant have been completed regarding the consultant's alleged design error(s), there are three possible scenarios: c a� • It is determined via mutual agreement that there is not a consultant design error(s). If this is the case, E then the process will not proceed beyond this point. • It is determined via mutual agreement that a consultant design error(s) occurred. If this is the case, a then the Director of Public Works or Agency Engineer, or their representatives, negotiate a settlement with the consultant. The settlement would be paid to the agency or the amount would be reduced from the consultant's agreement with the agency for the services on the project in which the design OM error took place. The agency is to provide LP, through the Region Local Programs Engineer, a a summary of the settlement for review and to make adjustments, if any, as to how the settlement affects federal reimbursements. No further action is required. • There is not a mutual agreement regarding the alleged consultant design error(s). The consultant may request that the alleged design error(s) issue be forwarded to the Director of Public Works or Agency Engineer for review. If the Director of Public Works or Agency Engineer, after review with their legal counsel, is not able to reach mutual agreement with the consultant, proceed to Step 5. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 1 Packet Pg. 250 8.J.a Step 5 Forward Documents to Local Programs For federally funded projects, all available information, including costs, should be forwarded through the Region Local Programs Engineer to LP for their review and consultation with the FHWA. LP will meet with representatives of the agency and the consultant to review the alleged design error(s), and attempt to find a resolution to the issue. If necessary, LP will request assistance from the Attorney General's Office for legal interpretation. LP will also identify how the alleged error(s) affects eligibility of project costs for federal reimbursement. • If mutual agreement is reached, the agency and consultant adjust the scope of work and costs to reflect the agreed upon resolution. LP,in consultation with FHWA,will identify the amount of federal participation in the agreed upon resolution of the issue. • If mutual agreement is not reached, the agency and consultant may seek settlement by arbitration or by litigation. c as E m as L Q M O V L m d d L L d d C� G Q M C E N L Q E V Q LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 251 8.J.a Exhibit J Consultant Claim Procedure: The purpose of this exhibit is to describe a procedure regarding claim(s) on a consultant agreement. The following procedures should only be utilized on consultant claims greater than $1,000. If the consultant's claim(s) total a $1,000 or less, it would not be cost effective to proceed through the outlined steps. It is suggested that the Director of Public Works or Agency Engineer negotiate a fair and reasonable price for the consultant's claim(s)that total $1,000 or less. This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential claim by the consultant. Step 1 Consultant Files a Claim with the Agency Project Manager If the consultant determines that they were requested to perform additional services that were outside of the agreement's scope of work, they may be entitled to a claim. The first step that must be completed is E the request for consideration of the claim to theAgency's project manager. L The consultant's claim must outline the following: a • Summation of hours by classification for each firm that is included in the claim v • Any correspondence that directed the consultant to perform the additional work; 0 • Timeframe of the additional work that was outside of the project scope; v as • Summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the L additional work; and m T as • Explanation as to why the consultant believes the additional work was outside of the agreement scope of work. L d Step 2 Review by Agency Personnel Regarding the Consultant's Claim for Additional Compensation After the consultant has completed step 1, the next step in the process is to forward the request to the Agency's project manager. The project manager will review the consultant's claim and will met with the C Director of Public Works or Agency Engineer to determine if the Agency agrees with the claim. If the FHWA is participating in the project's funding, forward a copy of the consultant's claim and the Agency's recommendation for federal participation in the claim to the WSDOT Local Programs through E the Region Local Programs Engineer. If the claim is not eligible for federal participation, payment will need to be from agency funds. a If the Agency project manager, Director of Public Works or Agency Engineer, WSDOT Local Programs (if applicable), and FHWA (if applicable) agree with the consultant's claim, send a request memo, E including backup documentation to the consultant to either supplement the agreement, or create a new agreement for the claim. After the request has been approved, the Agency shall write the supplement a and/or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. No further action in needed regarding the claim procedures. If the Agency does not agree with the consultant's claim,proceed to step 3 of the procedures. LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 1 Packet Pg. 252 8.J.a Step 3 Preparation of Support Documentation Regarding Consultant's Claim(s) If the Agency does not agree with the consultant's claim, the project manager shall prepare a summary for the Director of Public Works or Agency Engineer that included the following: • Copy of information supplied by the consultant regarding the claim; • Agency's summation of hours by classification for each firm that should be included in the claim • Any correspondence that directed the consultant to perform the additional work; • Agency's summary of direct labor dollars, overhead costs, profit and reimbursable costs associate with the additional work; • Explanation regarding those areas in which the Agency does/does not agree with the consultant's claim(s); • Explanation to describe what has been instituted to preclude future consultant claim(s); and as • Recommendations to resolve the claim. E m as Step 4 Director of Public Works or Agency Engineer Reviews Consultant Claim and Agency Q Documentation c M The Director of Public Works or Agency Engineer shall review and administratively approve or 5 disapprove the claim, or portions thereof, which may include getting Agency Council or Commission c approval (as appropriate to agency dispute resolution procedures). If the project involves federal 00 participation, obtain concurrence from WSDOT Local Programs and FHWA regarding final settlement M of the claim. If the claim is not eligible for federal participation, payment will need to be from agency m funds. a as Step 5 Informing Consultant of Decision Regarding the Claim L The Director of Public Works or Agency Engineer shall notify (in writing) the consultant of their final Y decision regarding the consultant's claim(s). Include the final dollar amount of the accepted claim(s) and rationale utilized for the decision. Step 6 Preparation of Supplement or New Agreement for the Consultant's Claim(s) M The agency shall write the supplement and/or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit E as as L Q c� G V yr Q LA10339&LA10341 Local Agency A&E Professional Services Agreement Numb Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 253 8.K KENT WASH IN G T O N DATE: January 17, 2023 TO: Kent City Council SUBJECT: King County Waste Reduction & Recycling (WRR) Grant Agreement - Authorize MOTION: I move to authorize the Mayor accept the 2023-2024 Waste Reduction and Recycling grant from the King County Solid Waste Division in the amount of $178,189.00, to amend the budget and authorize expenditure of the funds, and sign the grant agreement with King County subject to final terms and conditions acceptable to the Public Works Director and City Attorney. SUMMARY: The King County Waste Reduction and Recycling grant is primarily used to fund the City's residential recycling collection events at no additional cost to residents. These events provide responsible ways for residents to dispose of hard- to-recycle materials including but not limited to appliances, mattresses, Styrofoam, bulky yard debris, concrete, and tires. Making these events free to the public provides access for more residents to participate. Additionally, this grant will fund other waste reduction programs, activities, and education to Kent residents and City staff including translation of solid waste communication materials, social media campaigns, the purchase of compostable materials, and disposal costs for hard-to-recycle materials. BUDGET IMPACT: The City will receive $178,189 in 2023-2024. SUPPORTS STRATEGIC PLAN GOAL: Innovative Government - Delivering outstanding customer service, developing leaders, and fostering innovation. Evolving Infrastructure - Connecting people and places through strategic investments in physical and technological infrastructure. Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. Packet Pg. 254 8.K Inclusive Community - Embracing our diversity and advancing equity through genuine community engagement. ATTACHMENTS: 1. WRR Grant 2023-2024 IAA (PDF) 01/09/23 Public Works Committee MOTION PASSES RESULT: MOTION PASSES [UNANIMOUS]Next: 1/17/2023 7:00 PM MOVER: Satwinder Kaur, Councilmember SECONDER: Marli Larimer, Councilmember AYES: Brenda Fincher, Satwinder Kaur, Marli Larimer Packet Pg. 255 8.K.a CPA # INTERAGENCY AGREEMENT FOR 2023 and 2024 Between KING COUNTY and the CITY OF KENT This two-year Interagency Agreement"Agreement" is executed between King County, a Charter County and political subdivision of the State of Washington, and the City of Kent, a municipal corporation of the State of Washington, hereinafter referred to as "County" and "City" respectively. Collectively, the County and City will be referred to as "Party" or"Parties." PREAMBLE L King County and the City of Kent adopted the 2019 King County Comprehensive Solid Waste Management Plan(Comp Plan), which includes waste reduction and recycling goals. In order to help meet these goals, the King County Solid Waste Division has established a waste reduction and recycling o grant program for the cities that operate under the Comp Plan. This program provides funding to further the development and/or enhancement of local waste reduction and recycling projects and for broader S resource conservation projects that integrate with waste reduction and recycling programs and services. This grant program does not fund household hazardous waste collection activities. Program eligibility and grant administration terms are discussed in the Grant Guidelines, attached to this Agreement as Exhibit B and incorporated herein by reference. Grant funding for this program is subject to the budget approval process of the King County Council. N O Grant funding approved by the King County Council is available to all King County cities that operate M under the Comp Plan. The City will spend its grant funds to fulfill the terms and conditions set forth in N the scope of work, which is attached hereto as Exhibit A and incorporated herein by reference. The c County expects that any information and/or experience gained through the grant program by the City will be shared with the County and other King County cities. I. PURPOSE The purpose of this Agreement is to define the terms and conditions for funding to be provided to the r City by the County for waste reduction and recycling programs and/or services as outlined in the scope of a work and budget attached as Exhibit A. 1 Packet Pg. 256 8.K.a II. RESPONSIBILITIES OF THE PARTIES The responsibilities of the Parties to this Agreement shall be as follows: A. The Ci 1. Funds provided to the City by the County pursuant to this Agreement shall be used to provide waste reduction and recycling programs and/or services as outlined in Exhibit A. The total amount of funds available from this grant in 2023 and 2024 shall not exceed$178,189. 2. This Agreement provides for distribution of 2023 and 2024 grant funds to the City. However, grant funds are not available until January 1, 2023. 3. During this two-year grant program, the City will submit a minimum of two (2), but no more than eight(8),progress reports to the County in a form determined by the County. Reports must be signed by a City official. These reports will include: a. a description of each activity accomplished pertaining to the scope of work; and 0 b. reimbursement requests with both a Budget Summary Report Form, which is attached V a� hereto as Exhibit D and incorporated herein by reference, and an Expense Summary Form, S which is attached hereto as Exhibit E and incorporated herein by reference,unless the City has a spreadsheet similar to the Expense Summary Form already in use, in which case the City is free to use that spreadsheet instead of the Expense Summary Form. The City will submit the form or similar spreadsheet and not submit backup documentation for grant expenses. If backup documentation is submitted, SWD will not retain it. The City shall maintain this documentation in its records. o N M If the City chooses to submit up to the maximum of eight (8)progress reports and requests for N reimbursement during the two-year grant program, they shall be due to the County on the last day c of the month following the end of each quarter(April 30, July 31, October 31, January 31), except for the final progress report and request for reimbursement, which shall be due by March 21, 2025. � If the City chooses to submit the minimum of two progress reports and requests for reimbursement during the two-year grant program, they shall be due to the County by March 15, 2024 and March 21, 2025. r a Regardless of the number of progress reports the City chooses to submit, in order to secure reimbursement, the City must provide in writing to the County by the 5t'working day of January 2024 and January 2025, the dollar amount of outstanding expenditures for which the City has not yet submitted a reimbursement request. 2 Packet Pg. 257 8.K.a 4. If the City accepts funding through this grant program for the provision of waste reduction and recycling programs and projects for other incorporated areas of King County, the City shall explain the relationship with the affected adjacent city or cities that allows for acceptance of this funding and the specifics of the proposed programs and projects within the scope of work document related thereto. 5. The City shall be responsible for following all applicable Federal, state, and local laws, ordinances, rules, and regulations in the performance of work described herein. The City assures that its procedures are consistent with laws relating to public contract bidding procedures, and the County neither incurs nor assumes any responsibility for the City's bid, award, or contracting process. 6. During the performance of this Agreement, neither the City nor any Party subcontracting under the authority of this Agreement shall discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation, age, or presence of any sensory, mental, or physical handicap in the employment or application for employment or in the administration or delivery of or access to services or any other benefits under this Agreement as defined by King County Code, Chapter 12.16. 0 7. During the performance of this Agreement, neither the City nor any Party subcontracting under v a� the authority of this Agreement shall engage in unfair employment practices as defined by King S County Code, Chapter 12.18. The City shall comply fully with all applicable federal, state, and local laws, ordinances, executive orders and regulations that prohibit such discrimination. These laws include, but are not limited to, RCW Chapter 49.60 and Titles VI and VII of the Civil Rights Act of 1964. 8. The City shall use recycled paper for the production of all printed and photocopied documents N related to the fulfillment of this Agreement. The City shall use both sides of paper sheets for M copying and printing and shall use recycled/recyclable products wherever practical. N 9. The City shall maintain accounts and records, including personnel, financial, and programmatic M records, and other such records as may be deemed necessary by the County, to ensure proper accounting for all project funds and compliance with this Agreement. All such records shall sufficiently and properly reflect all direct and indirect costs of any nature expended and service provided in the performance of this Agreement. These records shall be maintained for a period of six (6)years after termination hereof unless r permission to destroy them is granted by the Office of the State Archivist in accordance with a RCW Chapter 40.14. These accounts shall be subject to inspection, review, or audit by the County and/or by federal or state officials as so authorized by law. 10. The City shall maintain a record of the use of any equipment that costs more than $1,000 and is purchased with grant funds from King County for a total period of three (3) years. The records shall be compiled into a yearly evaluation report, a copy of which shall be submitted to King County by March 31 of each year through the year 2025. 3 Packet Pg. 258 8.K.a 11. The City agrees to credit King County on all printed materials provided by the County, which the City is duplicating, for distribution. Either King County's name and logo must appear on King County materials (including fact sheets, case studies, etc.), or, at a minimum, the City will credit King County for artwork or text provided by the County as follows: "artwork provided courtesy of King County Solid Waste Division" and/or"text provided courtesy of King County Solid Waste Division." 12. The City agrees to submit to the County copies of all written materials which it produces and/or duplicates for local waste reduction and recycling projects which have been funded through the waste reduction and recycling grant program. Upon request, the City agrees to provide the County with a reproducible copy of any such written materials and authorizes the County to duplicate and distribute any written materials so produced, provided that the County credits the City for the materials. 13. The City will provide the King County Project Manager with the date and location of each Recycling Collection Event provided by the City, as well as copies of any printed materials used to publicize each event, as soon as they are available but no later than thirty(30) days prior to the event. If there is any change in the date or the location of an event, the City will notify the County a minimum of thirty(30) days prior to the event. If the event brochure is required for o admission to the City's event, the City is exempt from having to provide the brochure to King County. _ 14. If the City accepts funding through this grant program for the provision of recycling collection events for adjacent areas of unincorporated King County, the City shall send announcements of the events to all residences listed in the agreed upon areas listed in Exhibit A. The announcements and all other printed materials related to these events shall acknowledge King County as the funding source. N M 15. This project shall be administered by Tony Donati, Conservation Coordinator, or designee. N B. The County: 1. The County shall administer funding for the waste reduction and recycling grant program. Funding is designated by the city and is subject to the King County Council's budget approval process. Provided that the funds are allocated through the King County Council's budget approval process, grant funding to the City will include a base allocation of$10,000 per year with the balance of funds to be allocated according to the City's percentage of King County's r residential and employment population. However, if this population based allocation formula a calculation would result in a city receiving less than $10,000 per year, that city shall receive an additional allocation that would raise their total grant funding to $10,000 per year. 4 Packet Pg. 259 8.K.a 2. Within forty-five (45) days of receiving a request for reimbursement from the City, the County shall either notify the City of any exceptions to the request which have been identified or shall process the request for payment. If any exceptions to the request are made, this shall be done by written notification to the City providing the reason for such exception. The County will not authorize payment for activities and/or expenditures which are not included in the scope of work and budget attached as Exhibit A, unless the scope has been amended according to Section V of this Agreement. King County retains the right to withhold all or partial payment if the City's report(s) and reimbursement request(s) are incomplete (i.e., do not include proper documentation of expenditures and/or adequate description of each activity described in the scope of work for which reimbursement is being requested), and/or are not consistent with the scope of work and budget attached as Exhibit A. 3. The County agrees to credit the City on all printed materials provided by the City to the County, which the County duplicates, for distribution. Either the City's name and logo will appear on such materials (including fact sheets, case studies, etc.), or, at a minimum,the County will credit the City for artwork or text provided by the City as follows: "artwork provided courtesy of the City of Kent" and/or"text provided courtesy of the City of Kent." 4. The County retains the right to share the written material(s)produced by the City which have o been funded through this program with other King County cities for them to duplicate and a� distribute. In so doing, the County will encourage other cities to credit the City on any pieces that S were produced by the City. 0 5. The waste reduction and recycling grant program shall be administered by Lucy Auster, Project Manager, King County Solid Waste Division, or designee. III. DURATION OF AGREEMENT o N M This Agreement shall become effective on either January 1, 2023 or the date of execution of the N Agreement by both the County and the City, if executed after January 1, 2023, and shall terminate on c June 30, 2025. The City shall not incur any new charges after December 31, 2024. However, if M execution by either Party does not occur until after January 1, 2023,this Agreement allows for disbursement of grant funds to the City for County-approved programs initiated between January 1, 2023 and the later execution of the Agreement provided that the City complies with the reporting requirements c of Section II.A of the Agreement. r a 5 Packet Pg. 260 8.K.a IV. TERMINATION A. This Agreement may be terminated by King County, in whole or in part, for convenience without cause prior to the termination date specified in Section III, upon thirty (30) days advance written notice. B. This Agreement may be terminated by either Party, in whole or in part, for cause prior to the termination date specified in Section III, upon thirty(30) days advance written notice. Reasons for termination for cause may include but not be limited to: nonperformance; misuse of funds; and/or failure to provide grant related reports/invoices/statements as specified in Section II.A.3. and Section II.A.4. C. If the Agreement is terminated as provided in this section: (1)the County will be liable only for payment in accordance with the terms of this Agreement for services rendered prior to the effective date of termination; and(2)the City shall be released from any obligation to provide further services pursuant to this Agreement. D. Nothing herein shall limit, waive, or extinguish any right or remedy provided by this Agreement or law that either Parry may have in the event that the obligations, terms and conditions set forth in this C Agreement are breached by the other Party. _ V. AMENDMENTS 0 This Agreement may be amended only by written agreement of both Parties. Amendments to scopes of work will only be approved if the proposed amendment is consistent with the most recently adopted King County Comprehensive Solid Waste Management Plan. Amendments will only be approved if the proposed change(s) is (are) consistent with and/or achieves the goals stated in the scope and falls within N the activities described in the scope. Funds may be moved between tasks in the scope of work, attached M as Exhibit A, upon written notification by the City to King County. N VI. HOLD HARMLESS AND INDEMNIFICATION M The City shall protect, indemnify, and hold harmless the County, its officers, agents, and employees from and against any and all claims, costs, and/or issues whatsoever occurring from actions by the City and/or c its subcontractors pursuant to this Agreement. The City shall defend at its own expense any and all claims, demands, suits,penalties, losses, damages, or costs of any kind whatsoever(hereinafter "claims") brought against the County arising out of or incident to the City's execution of, performance of, or failure r to perform this Agreement. Claims shall include but not be limited to assertions that the use or transfer a of any software,book, document, report, film, tape, or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright, patent, trademark,trade name, and/or otherwise results in unfair trade practice. 6 Packet Pg. 261 8.K.a VII. INSURANCE A. The City, at its own cost, shall procure by the date of execution of this Agreement and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with performance of work pursuant to this Agreement by the City, its agents, representatives, employees, and/or subcontractors. The minimum limits of this insurance shall be $1,000,000 general liability insurance combined single limit per occurrence for bodily injury, personal injury, and property damage. If the policy has an aggregate limit, a$2,000,000 aggregate shall apply. Any deductible or self-insured retentions shall be the sole responsibility of the City. Such insurance shall cover the County, its officers, officials, employees, and agents as additional insureds against liability arising out of activities performed by or on behalf of the City pursuant to this Agreement. A valid Certificate of Insurance and additional insured endorsement is attached to this Agreement as Exhibit C, unless Section VII.B. applies. B. If the Agency is a Municipal Corporation or an agency of the State of Washington and is self-insured for any of the above insurance requirements, a written acknowledgement of self-insurance is attached to this Agreement as Exhibit C. C. If the Agency is a Municipal Corporation or an agency of the State of Washington and is a member of o the Washington Cities Insurance Authority(WCIA), a written acknowledgement/certification of v a� current membership is attached to this Agreement as Exhibit C. S VIII. ENTIRE CONTRACT/WAIVER OF DEFAULT M This Agreement is the complete expression of the agreement of the County and City hereto, and any oral or written representations or understandings not incorporated herein are excluded. Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of breach of any provision of this N Agreement shall not be deemed to be waiver of any other or subsequent breach and shall not be M construed to be a modification of the terms of this Agreement unless stated to be such through written N approval by the County, which shall be attached to the original Agreement. c M L IX. TIME IS OF THE ESSENCE The County and City recognize that time is of the essence in the performance of this Agreement. c as X. SEVERABILITY r If any section, subsection, sentence, clause or phrase of this Agreement is, for any reason, found to be a unconstitutional or otherwise invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions. 7 Packet Pg. 262 8.K.a XI. NOTICE Any notice required or permitted under this Agreement shall be deemed sufficiently given or served if sent to the King County Solid Waste Division and the City at the addresses provided below: Lucy Auster, Project Manager, or a provided designee King County Solid Waste Division Department of Natural Resources and Parks Lucy.auster@kingcounty.gov If to the City: Tony Donati, Conservation Coordinator, or a provided designee City of Kent 220 41h Avenue South Kent, WA 98032 L IN WITNESS WHEREOF this Agreement has been executed by each Parry on the date set forth below: 0 City of Kent King County V aM c BY Dana Ralph,Mayor Pat D. McLaughlin,Director City of Kent Solid Waste Division For Dow Constantine,King County Executive N O N M N O N Date Date = 0 'L^ VN LPL d E V Q g Packet Pg. 263 8.K.a Exhibit A King County Waste Reduction and Recycling Grant Program City of Kent - 2023-2024 Scope of Work A. Basic Information 1. Applicant: City of Kent 2. Grant Project Manager: Tony Donati, Conservation Coordinator City of Kent 220 4th Ave. South Kent, WA 98032-5895 TEL - c: (206) 867-2739 o: (253) 856-5589 FAX - (253) 856-6500 Email - tdonati@kentwa.gov L c� Grant Contract Signer: Dana Ralph, Mayor City of Kent 220 4t" Ave. South U Kent, WA 98032-5895 TEL: 253-856-5700 Y FAX: 253-856-6700 0 Email: dralph(abkentwa.gov M 3. 2023-2024 Budget: $178,189.00 Q v N B. Proposed Scope of Work N M N Task #1: Recycling Collection Events N r c A) Schedule - Events will be held each March, June, and October, 2023-2024 B) Program/Project Description: • Total Number of Recycling Collection Events - Six (6) • Materials to be collected: E • Appliances • Bulky Yard Debris (March & June) Q • Cardboard • CFC Appliances • Concrete, Asphalt, Rock, and Brick (June & October) • Electronics • Mattresses • Paint • Porcelain Toilets and Sinks • Reusable Household Goods • Textiles • Scrap Metal • Ferrous • Non-ferrous • Shredding 1 Packet Pg. 264 8.K.a • Styrofoam • Tires (March & October) • The following educational materials will be distributed: • Information on City recycling programs • Educational materials produced by King County Solid Waste Division and Hazardous Waste Management Program • Other educational materials as appropriate • Event Promotion: • Recycle event flyer will be posted on City website: KentWA.gov/TalkingTrash, detailing what residents can bring and giving credit to granting agencies funding the events. • Notices included in: • Event flyer mailed to 63,000 homes • City & Reporter Newspaper calendars • Kent social media (Facebook/Twitter) • Event flyer sent to city staff in multiple departments for distribution • Event flyers in brochure racks at Senior Center, Kent Commons, c0 City Hall, and Centennial Center • Event posted on King County website Y • Event dates included on Republic Services' annual calendar o distributed to residents M C) Deliverables: Q The City will promote the recycling events to Kent single-family and multi- N family residents in a variety of ways to ensure a good turnout, and contract M with knowledgeable, experienced contractors to assist residents attending the N events. In return, the city anticipates collecting 275-300 tons material from the local waste stream each year. Benefits of diverting these recyclables from the waste stream include: ❑ Saving limited space in our area's last remaining landfill ❑ Conserving natural resources ❑ Saving water and energy that would otherwise have been used in E extraction of raw materials and in manufacturing o a D) Expected Outcomes/Impacts: By providing convenient and free collection at the March, June, and October Recycling Events, not only does it provide equity for all, but Kent residents can help reduce the amount of environmentally damaging materials from finding their way to King County's last remaining landfill, local storm drains and waterways, and vacant properties. With a population of approximately 135,000 residents, the City of Kent has experienced increased volumes in residents attending recent recycling events. The city anticipates this trend to continue with approximately 3,000 households participating each year, resulting in approximately 300 tons of materials diverted from the waste stream for recycling per event. In addition to diverting materials from the waste stream, attracting residents to these ever-popular events provides an opportunity to distribute edu ational 2 Packet Pg. 265 8.K.a material on City and King County recycling programs, enhancing their knowledge and improving behavior in purchasing, handling, and disposal of recyclable materials. E) Evaluation: Event reports will include: • Number of vehicles attending • Volume of each material collected • Event costs • Event summaries write up Task #2: Mini Neighborhood Recycling Collection Events A) Schedule: In compliance with county and environmental regulations conduct ten - sixteen mini collection recycling events between 2023-2024. B) Program/Project Description: • Materials to be collected: • Document Shredding W • Electronics o • Mattresses L) • Paint • Textiles Y 0 • Event Promotion: M • Mini recycle event flyer will be posted on City website: Q KentWA.gov/TalkingTrash, detailing what residents can bring and a giving credit to granting agencies funding the events. o • Notices included in: N • City Community Calendar o • Kent social media (Facebook/Twitter) CN • Advertised in the Mayor's weekly newsletter • Event flyer sent to city staff in other departments for distribution C) Deliverables: The City will promote these mini recycling events to Kent single-family and E multi-family residents in a variety of ways to ensure a good turnout, and U contract with knowledgeable, experienced contractors to assist residents a attending the events. In return, the city anticipates collecting 50 tons material from the local waste stream each year. Benefits of diverting these recyclables from the waste stream include: ❑ Saving limited space in our area's last remaining landfill ❑ Conserving natural resources ❑ Saving water and energy that would otherwise have been used in extraction of raw materials and in manufacturing D) Expected Outcomes/Impacts By providing convenient and free mini neighborhood collection events throughout the year, not only does it provide equity for all, but Kent residents can help reduce the amount of environmentally damaging materials from finding their way to King County's last remaining landfill, local storm drains 3 Packet Pg. 266 8.K.a and waterways, and vacant properties. These events will also reach a different population due to their smaller nature, variety of locations and days on which they will be held. These events are also intended to reduce the amount of congestion we traditionally see at our regular larger events. With a population of approximately 135,000 residents, the City of Kent has experienced increased volumes in residents attending recent recycling events. The city anticipates approximately 1,000 - 1,500 households to participate each year, resulting in approximately 10-15 tons of materials diverted from the waste stream for recycling per event. In addition to diverting materials from the waste stream, attracting residents to these new events provides an opportunity to distribute educational material on City and King County recycling programs, enhancing their knowledge and improving behavior in purchasing, handling, and disposal of recyclable materials. E) Evaluation Event reports will include: • Number of vehicles attending • Volume of each material collected 0 0 • Event costs • Event summaries write up Y Task #3: Residential, Multifamily & Business Outreach M A) Schedule: 2023-2024 Q Q B) Program/Project Description: o N The city of Kent will use different forms of media, presentations, trainings, o online materials, and promotional items to promote waste reduction and CN recycling programs. The city will look to staff and/or consultants to continue providing outreach as well. Priority areas of focus will include working with c� multifamily properties on the regional outreach messaging to promote contamination reduction within the recycling stream. Other focuses will be targeted on residential food waste diversion where the city will purchase and distribute compostable BioBags. E M U The city will also team with other south sound cities on monthly social media a outreach through Facebook boosts to promote common outreach messages to a broader audience. The city will assist in providing education to businesses on the requirements of HB 1799 - organics materials. Finally, the city will continue to team with our contracted garbage hauler as we implement our own Contamination Reduction Program for residential and multifamily customers. City staff will evaluate monthly reports and visit properties needing assistance and/or have high contamination rates providing outreach and education along with hauler staff. C) Deliverables: The city will produce media pieces, displays, trainings, online materials, and promotional items, which may include, but are not limited to posters, 4 Packet Pg. 267 8.K.a postcards, flyers, and workshops. These materials will be used to promote waste reduction and recycling including food waste. The city may produce educational materials for property owners/managers and residents, distribute recycle tote bags, and conduct onsite visits to assist properties on proper contamination reduction within the recycle stream and avoid possible fines from the garbage company. D) Expected Outcomes/Impacts: Postcards, flyers, advertisements, social media announcements, and online materials will promote upcoming City and County events and inform residents about resources available for waste reduction and recycling specific to their home. The city will increase awareness of and participation in the City's Waste Reduction and Recycling Programs. Businesses will be aware of the requirements and different methods to comply with HB 1799. L c� The city will educate residents of the proper methods of recycling and waste dispose of non-recyclable materials to reduce recycle o contamination. E) Evaluation: Y Reports will include: • The city will record the number of businesses and residents were reached, M number of events and the types of materials that were distributed. a • The city will record the number of properties who received outreach, the Q number of outreach materials were distributed, the percentage o contamination reduced, and a summary calculation of changes and N improvements made to each facility's recycling volumes. N N r Task #4: Residential Recycling Event Brochure Translation L U A) Schedule: 2023-2024 B) Program/Project Description: (D E To better engage with our diverse populations the city will look to translate its Residential Recycling Event Brochure into Spanish and possibly other a languages for the first time. Q Deliverables: Spanish is the second leading language spoken in the diverse city of Kent. The city will work with a translation service to translate its recycling collection event brochure into at least one additional language. D) Expected Outcomes/Impacts: Translating the city's recycle event brochure into another language provides equity and inclusion to those who do not read or speak English as a first language. Additional languages may also lead to more people attending events and more items being property recycled. 5 Packet Pg. 268 8.K.a E) Evaluation: A report of which languages the brochure was translated into, and copies of the new brochure will be shared. Task #5: City Purchases Promoting Waste Reduction and Recycling A) Schedule: 2023-2024 B) Activities: • The city may purchase water bottle refill stations which may be installed in city parks and/or buildings. • The city will purchase compostable plates, cups, and utensils for staff to utilize during staff lunches or celebrations to reduce the amount of non- recyclable and single use plastics entering the waste stream. • The city will collect and pay for the disposal to recycle Styrofoam and light bulbs within city facilities. o U C) Performance and Impact Objectives: Y • The city of Kent has one of the highest quality drinking water in the area. Within this budget timeframe, Kent will purchase and install water bottle refill stations which may be installed in city owned parks and/or Q buildings. Residents will understand that water coming from their tap, in g Kent, is just as high in quality as water from bottles they purchase at o the store. N M N O Refillable water bottle stations are quick and easy for all people to use CN and provide contactless refilling abilities. Stations inspire trust in the quality and safety of the city's tap water and encourage proper c� hydration as well. Using a water bottle refill station saves one to two plastic water bottles from being purchased and improperly disposed of. • The city of Kent understands the importance of waste reduction and E extending the life of King County's last remaining landfill. The city has U been composting food waste within city facilities for over a decade. By a continuing to purchase compostable plates, cups, and utensils for staff use it not only saves our landfill, but it also educates the user of the product. The city purchases clearly labeled compostable items (including brown paper plates and brown colored utensils) to signify to the user to be more cautious and to ensure it can go into the correct receptacle. • Creating opportunities for staff and residents to recycle Styrofoam and light bulbs is very important to responsibly reducing the waste stream. The city partners with Kent's own, StyroRecycle, the state's only Styrofoam recycling facility, to recycle its generated Styrofoam. The city has two large gaylords which collect Styrofoam and keeps it from our waste stream. Once full, StyroRecycle comes to collect the containers for a fee. 6 Packet Pg. 269 8.K.a The city also houses multiple lightbulb recycle stations throughout multiple facilities that are available to public and staff. These containers need to be purchased and once full, are shipped to a local bulb recycler. D) Evaluation: • The city will report on the number of water bottle refill stations purchased and installed. • The city will provide proof of purchase of compostable materials. • The city will provide weight of recycled Styrofoam and number of lightbulb recycle stations purchased and shipped. Task #6: Solid Waste Professional Development and Education for Staff The city will utilize grant dollars to continually educate staff on current matters regarding solid waste and waste reduction. Professional development and staying updated on the latest trends in solid waste and waste reduction and recycling are of the upmost importance. The city will utilize o grant dollars to continually educate staff on these matters by: L) c • Becoming a WSRA member Y • Attending the WSRA annual conference • Registering for other appropriate educational trainings through the M WSRA, SWANA, and other opportunities that may become available. a Q Task #7: Grant Administration N 0 N The city will perform the following: N N r • Track project expenses. L • Provide ongoing grant administration through the completion of the tasks, 0 as outlined in this Scope of Work. • Prepare reports for the grant program; and • Prepare final report. aD E r r Q 7 Packet Pg. 270 8.K.a Exhibit B 2023-2024 WRR Grant Guidelines Program Eligibility: The King County Solid Waste Division(SWD) has prepared a list of Re+Action Ideas that expands on the WRR Case Studies shared in the past two grant cycles and that includes new creative and innovative project ideas for WRR Grant proposals/scopes of work(Attachment 3). The goal of this list is to offer ideas for innovative projects beyond current WRR SOWs including, ideas for incorporating Equity and Social Justice into all of our work such as transcreating materials and signage into top spoken languages in King County. The list offers ideas for influencing waste prevention and recycling consistent with Title 10 of King County Code, the King County Strategic Climate Action Plan, and the King County 2019 Comprehensive Solid Waste Management Plan (Comp Plan), all of which have policies to achieve Zero Waste of Resources by 2030. SWD strongly encourages consideration of these projects in the development of grant proposals and encourages Cities to leverage WRR grant funds with multi-city o projects. a, c Grant funds may be used for a variety of WRR related programs consistent with the Comp Plan. Cities are encouraged to work together to leverage funds and have a greater influence on waste prevention and recycling. Cities may choose to use their funding on one program or a combination of programs. For WRR program ideas, please refer to the Re+Action Ideas, which includes the examples below. Sample Re+Actions N • Food Waste—Food rescue infrastructure investment—supporting hunger relief organizations and N food banks with resources like food storage, trucks, etc. N • Community- Establishing tool and other equipment libraries or other sharing initiatives, e.g., borrow party packs for picnics and birthday parties. c� • Paper/Plastic Recycling - Multi-family- Technical assistance and in-person outreach to increase recycling in multifamily complexes, with an emphasis of a multicultural and multilingual approach such as through Spanish speaking Facilitadores and or use of other regularly spoken languages for a particular housing community. E • Banning single-use items in dine-in restaurants and hotels, e.g., coffee cups, water bottles, mini personal care items, etc. a • Conduct food waste audits and implement customized food waste recycling programs in economically and culturally diverse communities. In addition, below are project examples included in the Case Studies shared in the last two grant cycles. Sample Case Study Actions • City Development of Contracts for"Responsible Recycling." • Purchase School Milk Dispensers and Reusable Cups to Replace Single-use Milk Cartons. • City of Bellevue Recycling Unusual of Bulky Items. • City of Kirkland Organics Contamination Enforcement—Cart Tagging 1 Packet Pg. 271 8.K.a Please contact Lucy Auster at 206-477-5268 or lucy.auster(&kingcounty.gov if you have questions about specific program eligibility and/or consistency with the Comp Plan. The following are not eligible for funding: • Collection of garbage, except for residual garbage related to the collection of recyclables. • Household Hazardous Waste (HHW) education programs. • Collection of any household hazardous waste items including, but not limited to: treated wood,paint, lead acid batteries, oil, gasoline, and antifreeze, fluorescent lights. Cities should pursue funding for HHW collection or education programs through the King County Hazardous Waste Management Program (Haz Waste) or the Washington State Department of Ecology Local Solid Waste Financial Assistance (LSWFA) Program. Grant Administration Requests for Reimbursement: Cities may submit as few as one request for reimbursement per year during the funding cycle, due no later than March 16, 2024 and March 14, 2025. Alternately, Cities may submit requests for reimbursement as frequently as quarterly. A Budget Summary Report Form and an Expense Summary v Report Form must be used when submitting requests for reimbursement and will be provided to Cities when the grant agreements are executed. 0 Accrual Reporting: M By the 51h working days of January 2024 and January 2025, Cities must notify SWD of the amount of their total expenditures for work that has been completed in the previous year but for which a request for reimbursement has not yet been submitted so that SWD can accrue the amounts. N 0 N Progress Reports o Progress reports describing program activities, accomplishments, and evaluation results must N accompany each request for reimbursement. All progress reports must be signed by a City official and M be submitted via email. c� Amendments Amendments to grant Interagency Agreements (IAAs) are unnecessary unless the City wishes to significantly change its scope of work. In general, a significant change would be one in which the City E wishes to add or delete a task from its scope of work. Amendments will only be approved if the proposed change(s) is/are consistent with and/or achieves the goals stated in the scope and falls within a the activities described in the scope. A minor change, such as moving dollars between tasks, would only require written notification, which may be submitted via e-mail. However, the City should contact SWD when considering changes to their scopes to determine if an amendment is needed. 2 Packet Pg. 272 8.K.a Exhib BUDGET SUMMARY REPORT FORM 2023-2042 Waste Reduction & Recycling Grant Program City: Date: Address: Phone: Invoice #: Report Period: Preparer's Name: Contract#: Total amount requested this period: c Total amount previously invoiced: Original interlocal amount: 0 U Total amount charged to date: $ - Y Amount remaining for completion of interlocal: $ - M Scope of Work Current Amount Q Task Description Budget Quarter Previously Remaining g # (Task/title) Costs Invoiced Balance o N 1 $ - N O N 2 $ - f� L 3 $ - 4 $ - 5 $ - a� E 6 $ - 0 r 7 $ - a TOTALS $ $ $ $ For King County Use Contract# 0 Project 1126942 Org 720122 Exp.Account 54150 Task 22.000' Purchase Order# Requisition# Receipt Supplier# Supplier Pay Site Invoice# Payment Type Total charges this period are approved for paymen$ Project Manager: Date Packet Pg. 273 8.K.a Exhib Exhibit D c ,L^ V 0 U c Y 0 v M Q Q N O N Cl) N O N r C m ,Ln NV INf� 0 E V Q Packet Pg. 274 8.K.a Exhibit E King County Waste Reduction Recycling Grant Expense Summary Form 2023-2024 Grant Cycle City of Reimbursement Request# Date Contract# Task Title & No. Vendor Date of Service Item Description Invoice No. Amount Paid , c ,L^ V O U c Y 0 v Q N O N M N O N C C N t V R r Q Total G Packet Pg. 275 8.L KENT WASH IN G T O N DATE: January 17, 2023 TO: Kent City Council SUBJECT: Ordinance Clarifying Authority of Independent Salary Commission — Adopt MOTION: I move to adopt Ordinance No. 4457, to make a housekeeping amendment to KCC 2.65.050 that clarifies the Independent Salary Commission will review and set the salaries of the city council, the council president, and the mayor. SUMMARY: On November 15, 2022, the Kent City Council considered and passed Ordinance No. 4454, which established an Independent Salary Commission to review and set the salaries of the elected officials of the City of Kent, except for judges elected to the Kent Municipal Court. KCC 2.65.010(B) provides that the Independent Salary Commission may consider setting a salary for the Councilmember chosen to serve as Council President that is different in amount than that set for other Councilmembers, in consideration of the additional duties performed by the Council President. KCC 2.65.050(A), however, which sets out the responsibilities of the Independent Salary Commission, uses language that is not as clear as the purpose statement set forth in KCC 2.65.010(B) and could lead to confusion. For that reason, this housekeeping ordinance revises KCC 2.65.050(A) to more clearly reflect the purpose statement adopted in KCC 2.65.010-that the Independent Salary Commission is vested with the authority to consider setting a salary for the Council President that is different in amount than that salary set for other Councilmembers, in consideration of the additional duties performed by the Council President. As a result, the Independent Salary Commission will review and set the salaries for the City Council, the Council President, and the Mayor. This ordinance is being presented to and discussed at tonight's Operations and Public Safety Committee as well. It will remain on the consent calendar if it passes out of Committee. BUDGET IMPACT: None. SUPPORTS STRATEGIC PLAN GOAL: Packet Pg. 276 8.L Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. ATTACHMENTS: 1. Salary Commission - Clarification (PDF) Packet Pg. 277 8.L.a 0. 0 Q i c 0 N N ORDINANCE NO. 4457 E E 0 U cv AN ORDINANCE of the City Council of the U) City of Kent, Washington, amending section 2.65.050 of the Kent City Code, related to the Independent Salary Commission and entitled "Responsibilities", to clarify that the Independent Salary Commission may elect to provide for a o different salary for the council president, than that salary which is sets for councilmembers. o 0 Q a� c RECITALS '' L A. On November 15, 2022, the Kent City Council considered and passed Ordinance No. 4454, which established an Independent Salary Commission to review and set the salaries of the elected officials of the City o of Kent, except for judges elected to the Kent Municipal Court. M M B. KCC 2.65.010(B) provides that the Independent Salary .2 c Commission may consider setting a salary for the Councilmember chosen to serve as Council President that is different in amount than that set for other U Councilmembers, in consideration of the additional duties performed by the 0 Council President. N E E C. KCC 2.65.050(A), however, which sets out the responsibilities 0 U of the Independent Salary Commission, uses language that is not as clear as the purpose statement set forth in KCC 2.65.010(B) and could lead to U) a� 1 E Amend KCC 2.65.050 - Re: Responsibilities R of the Independent Salary Commission Q Packet Pg. 278 8.L.a confusion. For that reason, this housekeeping ordinance revises KCC 2.65.050(A) to more clearly reflect the purpose statement adopted in KCC o 2.65.010—that the Independent Salary Commission is vested with the a i authority to consider setting a salary for the Council President that is o .N different in amount than that salary set for other Councilmembers, in y E consideration of the additional duties performed by the Council President. o U cv NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: c as Q. ORDINANCE c SECTION 1. - Amendment - KCC 2.65.050. Section 2.65.050 of the o Kent City Code, entitled 'Responsibilities," is amended as follows: o a Sec. 2.65.050. Responsibilities. The independent salary commission shall have the following responsibilities: U m A. To study the relationship of salaries to the duties of the city council c members, the council president, and the mayor and those of comparable cities, as defined hereinabove, and to establish a salary for the mayor-a+rd N allcity council members, and the council president, as M described hereinabove, by either increasing or decreasing the existing c salaries for the city council, the council president, and the mayor by an affirmative vote as provided for by Ch. 2.50 KCC; U B. To review salary schedules and file its amending salary schedules, if 2 any, not later than the third Tuesday in November of each year to coincide E E with the City's annual budget cycle; provided, that this does not preclude G U the independent salary commission from reviewing and amending salary schedules more often than once per year if circumstances warrant; U) a� 2 E Amend KCC 2.65.050 - Re: Responsibilities R of the Independent Salary Commission Q Packet Pg. 279 8.L.a C. To submit each amended salary schedule to the city clerk, who will r 0. publish the complete schedule two times, at least one week apart, in the a official newspaper of the city. The second publication date will be the official 0 filing date. The schedule will become effective 30 days after this date. y E E D. The commission will use its best efforts to file its initial schedule of 0 U salaries for the positions of Mayor, City councilmembers, and municipal court judges with the city clerk no later than April 1, 2023. After that date, the U) c commission will review and, if it so determines, amend and file its salary schedules not later than the third Tuesday in November of each year to coincide with the City's annual budget cycle. The commission's initial 0 schedule of salaries will have an effective date no sooner than January 1, L 2023. 0 0 a E. The signature of the chair of the independent salary commission shall be affixed on each schedule submitted to the city clerk. The salary schedule will be subject to referendum petition in the same manner as a City ordinance, if a valid referendum petition is filed within thirty (30) days of the salary schedule's official filing date. o N F. The commission's established or amended salary schedule will M become effective in the amounts, at the times, and under the conditions c established in the schedule by the commission. Once filed, the City will incorporate the schedule into the City budget without further action by the o U City Council or the commission. c 0 G. Salary increases established by the independent salary commission E E shall be effective as to all city council members and the mayor regardless of 0 U their terms of office. Salary decreases established by the commission shall U) a� 3 E Amend KCC 2.65.050 - Re: Responsibilities R of the Independent Salary Commission Q Packet Pg. 280 8.L.a become effective as to incumbents at the commencement of their next subsequent terms of office. o a H. Existing salaries for the mayor and members of council established by 0 City ordinance or City budget, or by prior action of the independent salary y commission, will remain in effect unless and until changed in accordance E E 0 with the provisions of this chapter. U 0 I. The terms and conditions of the commission's adopted salary U) c schedule will remain in effect until amended under the terms and conditions a c of a new salary schedule filed in accordance with this chapter. c SECTION 2. - Severability. If any one or more section, subsection, o or sentence of this ordinance is held to be unconstitutional or invalid, such o decision shall not affect the validity of the remaining portion of this ordinance a and the same shall remain in full force and effect. L SECTION 3. - Corrections by City Clerk or Code Reviser. Upon U a� approval of the city attorney, the city clerk and the code reviser are c authorized to make necessary corrections to this ordinance, including the correction of clerical errors; ordinance, section, or subsection numbering; or 0 N references to other local, state, or federal laws, codes, rules, or regulations. M c 0 SECTION 4. - Effective Date. This ordinance shall take effect and be in force thirty days from and after its passage, as provided by law. 0 U c O January 17, 2023 E DANA RALPH, MAYOR Date Approved c U �a U) r c as 4 E Amend KCC 2.65.050 - Re: Responsibilities R of the Independent Salary Commission Q Packet Pg. 281 8.L.a ATTEST: r 0 Q January 17, 2023 KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted y January 20, 2023 E Date Published 0 U L APPROVED AS TO FORM: U) r c a� c a� a a� CHRISTINA SCHUCK, DEPUTY CITY ATTORNEY 4- 0 'L 0 r Q a� c . :4 'L U m v c c E L 0 N M M C O r R v fC U c O E 0 U L R N 5 E Amend KCC 2.65.050 - Re; Responsibilities of the Independent Salary Commission Q Packet Pg. 282 8.M KENT WASH IN G T O N DATE: January 17, 2023 TO: Kent City Council SUBJECT: Appointments to the Lodging Tax Advisory Committee - Appoint MOTION: I move to reappoint David Kwok and Tim Higgins and appoint Burl Battersby to the Lodging Tax Advisory Committee for three-year terms effective from January 17, 2023 thru January 16, 2026. SUMMARY: David Kwok and Tim Higgins' most recent terms expired on September 30, 2022. Both have served this committee since July of 2010, and September of 2013 respectively. Despite efforts to recruit new qualified applicants to participate on the committee, the small number of Kent hotels coupled with the strict membership qualifications required by the State, have made staffing this advisory committee particularly challenging. Both Mr. Kwok and Mr. Higgins have agreed to stay on as committee members, pending council approval. We also recommend that you appoint a new committee member, Burl Battersby, Director, of the Kent Campus of Green River College, who brings a valuable perspective from his previous long career as an executive in the hospitality industry. Mr. Battersby will fill the expired and vacant seat previously occupied by John Casey. All three appointments would begin from Council approval on January 17, 2023 and end January 16, 2026. BUDGET IMPACT: None SUPPORTS STRATEGIC PLAN GOAL: Innovative Government - Delivering outstanding customer service, developing leaders, and fostering innovation. Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. 01/09/23 Economic and Community Development Committee RECOMMENDED TO COUNCIL Packet Pg. 283 8.M RESULT: RECOMMENDED TO COUNCIL [UNANIMOUS] Next: 1/17/2023 7:00 PM MOVER: Marli Larimer, Councilmember SECONDER: Zandria Michaud, Councilmember AYES: Bill Boyce, Marli Larimer, Zandria Michaud ABSENT: Toni Troutner Packet Pg. 284 8.N KENT WASH IN G T O N DATE: January 17, 2023 TO: Kent City Council SUBJECT: Appointments to the Independent Salary Commission - Confirm MOTION: I move to confirm the appoint of Patrick Hanis to an initial four- year term, Todd Minor to an initial three-year term, and Julie Miller to an initial two-year term to the Independent Salary Commission effective January 18, 2023. SUMMARY: On November 15, 2022, the City Council passed Ordinance No. 4454, establishing an Independent Salary Commission that would review, establish and annually set, increase, or decrease salaries of the Mayor and members of the City Council. Immediately following the adoption of the ordinance, an extensive recruitment process was launched. Over the course of two months, the City received three applications. All three applicants have met the membership requirements of being a resident of the City of Kent and a registered voter. Patrick Hanis has been a resident of Kent since 1982 when his family moved to the area. Pat and his wife, Sarah, raised their five children in Kent. Pat has made Kent his business "home" for nearly 20 years. He appreciates the work that our City does and believes that its citizens should be engaged in our local governments to help make our community a great place to live. Pat indicated "I know the time and effort that City staff and elected officials put into their work in order to be successful. I appreciate the opportunity to apply for this position to make sure that we as residents are properly compensating those that work on our behalf." Todd Minor is an executive at Microsoft and the owner of Nana's Southern Kitchen on Kent's East Hill and a father to 5 children. Todd indicated "My 15-plus years of experience in the business industry, my previous role on the Kent Parks and Recreation Commission, and my current position on the Police Equity Board put me in the unique position to understand fair compensation and the role of elected officials." Julie Miller has been a resident of Kent for over 40 years. Julie indicated "The City of Kent faces big challenges including rising costs and public safety. A talented and stable workforce to address these challenges is imperative." Packet Pg. 285 8.N Ordinance 4454 requires that the initial terms be staggered, therefore, Mayor Ralph is recommending Patrick Hanis serve an initial 4-year term, Todd Minor serve and initial 3-year term and Julie Miller serve an initial 3-year term. BUDGET IMPACT: None SUPPORTS STRATEGIC PLAN GOAL: Innovative Government - Delivering outstanding customer service, developing leaders, and fostering innovation. Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. Inclusive Community - Embracing our diversity and advancing equity through genuine community engagement. Packet Pg. 286 9.A KENT WASH IN G T O N DATE: January 17, 2023 TO: Kent City Council SUBJECT: Interlocal Agreement with the Puget Sound Regional Fire Authority for FD CARES Pilot Project — Authorize MOTION: I move to authorize the Mayor to sign an Interlocal Agreement with the Puget Sound Regional Fire Authority to launch the FD CARES pilot program in Kent, at an initial cost of $175,000 per year, which amount may adjust annually by an amount no greater than CPI, subject to final terms and conditions acceptable to the Police Chief and City Attorney. SUMMARY: Through this interlocal agreement, the Puget Sound Regional Fire Authority (PSRFA) will launch its FD Cares pilot program in Kent, which includes co- responder services. Through FD Cares, the PSRFA will make a team available to Kent police officers that includes a registered nurse and/or social worker. FD Cares staff will respond or co-respond with Kent police officers to engage community members who are experiencing a variety of challenges that may not require a more traditional police response, including issues related to homelessness, access to social services, addiction challenges and recovery, and behavioral health needs, including assisting with those individuals who are suffering from a mental health crisis or may need mental health treatment. The PSRFA will appoint a liaison to communicate daily with a Kent police sergeant to discuss overnight calls for services and assistance required of FD Cares staff, to discuss follow-up referrals made to FD Cares, and to discuss and request FD Cares follow-up with chronic 911 callers. In providing services under this Agreement, FD Cares staff will coordinate with non-governmental organizations to facilitate connecting contacted community members to a variety of resources, including those provided by the Union Gospel Mission, Catholic Community Services, PEER Kent, and Valley Cities Counseling. When FD Cares staff is not responding to calls for service or following up on referrals, they will proactively engage with unhoused community members in an effort to develop positive connections for future contacts and service connections. At tonight's Council meeting, representatives from the PSRFA and Kent Police will make a joint presentation to explain the FD Cares pilot program in more detail. BUDGET IMPACT: $175,000 in 2023, which amount may increase each year by an Packet Pg. 287 9.A amount no greater than the percentage increase in the CPI-W rate for the prior year. This expense will be paid from the Human Services Fund. SUPPORTS STRATEGIC PLAN GOAL: Innovative Government - Delivering outstanding customer service, developing leaders, and fostering innovation. Evolving Infrastructure - Connecting people and places through strategic investments in physical and technological infrastructure. Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. Inclusive Community - Embracing our diversity and advancing equity through genuine community engagement. ATTACHMENTS: 1. FDCARES ILA - Pilot Service for Kent PD (PDF) Packet Pg. 288 9.A.a INTERLOCAL AGREEMENT FOR Cn REGIONAL FD CARES PILOT PROJECT ¢ c THIS INTERLOCAL AGREEMENT FOR REGIONAL FD CARES PILOT PROJECT U_ L ("Agreement") is entered into between PUGET SOUND REGIONAL FIRE AUTHORITY, a .° Washington Municipal Corporation ("Provider"), and the undersigned Washington Municipal Corporation (the "User"). Provider and User are referred to herein together as the "Parties" and 0 individually a"Party." 3 a as L RECITALS U. 1. The purpose and objective of the REGIONAL FD CARES PILOT PROJECT INTERLOCAL c AGREMENT ("Agreement") is to set forth the understanding, rights and responsibilities of the Parties with respect to the provision of non-emergency community assistance referral and education services pursuant to RCW 35.21.930, together with additional services identified by the c Parties through this Agreement in an effort to develop a regionally consistent and efficient method N of providing community assistance through non-emergency referral and education services, and a, emergency and non-emergency co-responder and mental health crisis response services, a' throughout the jurisdictions of the Provider and Users. z z 2. The Provider currently has the equipment and personnel to provide FD CARES Services on a 3 regional basis and is willing to extend this service to the User to include co-responder and mental c health crisis response services to assist law enforcement tasked with responding to emergency and E non-emergency incidents involving individuals experiencing a mental health crisis. i a 3. User has a need for such services and wishes to support the Regional FD CARES Pilot Project described above. o L 4. This Agreement is made and entered into pursuant to the provisions of RCW Chapter 39.34, the Interlocal Cooperation Act. N M AGREEMENT c a To carry out the purpose of this Agreement and in consideration of the benefits to be received by each Party, it is agreed as follows: Y L O 1. FD CARES Services. Subject to the terms of this Agreement, Provider shall provide User with community assistance through non-emergency referral and education services, and emergency and non-emergency co-responder and mental health crisis response services, as set forth in Exhibit A. Cn r ("FD CARES Services")The chief executive or designee of the User and the Fire Chief or designee of Provider may negotiate changes, amendments, and modifications to Exhibit A if mutually a agreed to in writing. J Cn 2. Payment for Services. In consideration of the FD CARES Services provided, User shall pay LU Provider a flat fee of$175,000 for the 2023 calendar year. This payment shall be prorated, on a v quarterly basis, with one-quarter of this fee ($43,750) payable on March 1, June 1, September I o LL and December 1, 2023. Provider shall notify User, on or before August 1 of the preceding year, of c the annual fee to be charged by Provider to provide FD CARES Services for the subsequent year. E In no event,however, shall the annual fee increase by more than an amount equal to the preceding 12-month June-to-June Consumer Price Index for Urban Wage Earners and Clerical Workers 2 a Page 1 REGIONAL FD CARES PILOT PROJECT ILA Packet Pg. 289 9.A.a (CPI-W) for the Seattle-Tacoma-Bellevue region. If substantively different or additional services w are added to FD CARES Services,this annual percentage cap will not apply to the costs attributable Q to add those different or additional services. v c U_ 3. Reporting. Provider shall provide User with biannual reports documenting the FD CARES 0 Services provided. The biannual reports shall be issued on or before January 3 1" and July 31st of each year and should include the following minimum information for the preceding 6-month time `0 period,unless the parties agree otherwise(i.e. the report for January through June is due July 31st, and the report for July through December is due January 31 st): a as i� 3.1. Number of in-field response requests received from User's employees; 0 3.2. Number of actual responses Provider made to those User requests; 3.3. Number of follow-up referrals submitted by User's employees; 0 3.4. Number of follow-up referrals completed by Provider; 0 3.5. Number of proactive interventions made by Provider for FD CARES Services that did not a result from a User-requested follow-up referral; z 3.6. Number of individuals connected with services and an identification of the type of service 3 to which they were connected(mental health, housing, addiction recovery, etc.) E m 4. Term. The effective date of this Agreement shall be January 1, 2023. If this Agreement is signed after this date, all acts consistent with the authority of the Agreement and prior to January 1, 2023, a are ratified and affirmed and the terms of this Agreement shall be deemed to have applied. This Agreement shall automatically renew for additional one year terms each January 1 unless either terminated by a Party in writing prior to the preceding September 1, or by the User providing its written objection to Provider's stated fee as provided for in Section 2. In addition, any party may to terminate with six months advance written notice at any time. Payment obligations for such terminations shall be prorated based on the effective date of termination. c a 5. Indemnification. Each Party shall indemnify and hold the other Party and the other Party's agents, employees, and/or officers, harmless from, and shall process and defend at its own expense, any Y and all claims, demands, suits, at law or equity, actions, penalties, losses, damages, or costs, of 0 whatsoever kind or nature,brought against the other Party arising out of or in connection with the a) Party's performance or failure to perform any aspect of this Agreement; provided, however, that if such claims are caused by or result from the concurrent negligence of both Parties, and/or their in agents, employees, and/or officers,this indemnity provision shall be valid and enforceable only to 0 the extent of the negligence of each Party; and provided further, that nothing herein shall require M one Party to hold harmless or defend the other Party, its agents, employees and/or officers from J any claims arising from the sole negligence of the other Party, its agents, employees, and/or officers. No liability shall attach to either Party by reason of entering into this Agreement except LU as expressly provided herein. Provider agrees that the foregoing indemnity specifically covers v actions brought by its own employees, and thus Provider expressly waives its immunity under o industrial insurance, Title 51, as necessary to effectuate this indemnity. c as E z 0 a Page 2 REGIONAL FD CARES PILOT PROJECT ILA Packet Pg. 290 9.A.a 6. Insurance. The Provider shall provide insurance coverage for all Provider equipment and w personnel. The insurance coverage shall include all risk property insurance and general liability Q insurance, including errors and omissions coverage. The Provider shall, upon request from the v User, furnish to User appropriate documentation showing that such coverage is in effect. The User o recognizes that the Provider is a member of a governmental insurance pool. o 7. Dispute Resolution. `o 7.1. Prior to any other action,the Parties shall meet and attempt to negotiate a resolution to such a dispute. iL 7.2. If the Parties are unable to resolve a dispute regarding this Agreement through negotiation, c either Party may demand mediation through a process to be mutually agreed to in good faith between the Parties within 30 days. The Parties shall share equally the costs of mediation and each Party shall be responsible for their own costs in preparation and participation in the mediation,including expert witness fees and reasonable attorney's fees. r° m 7.3. If a mediation process cannot be agreed upon or if the mediation fails to resolve the IL dispute, then, within 30 calendar days, either Party may submit the dispute to arbitration according to the procedures of the Superior Court Rules for Mandatory Arbitration, including the Local Mandatory Arbitration Rules of the King County Superior Court,King 3 County, Washington, as amended, unless the Parties agree in writing to an alternative dispute resolution process. The arbitration shall be before a disinterested arbitrator selected pursuant to the Mandatory Arbitration Rules with both Parties sharing equally in the cost of the arbitrator. The location of the arbitration shall be mutually agreed or established by a the assigned Arbitrator, and the laws of Washington will govern its proceedings. Each Party shall be responsible for its own costs in preparing for and participating in the c arbitration, including expert witness fees and reasonable attorney's fees. ; c 7.4. Following the arbitrator's issuance of a ruling/award, either Party shall have 30 calendar to days from the date of the ruling/award to file and serve a demand for a bench trial de novo M in the King County Superior Court. The court shall determine all questions of law and fact without empanelling a jury for any purpose. If the Party demanding the trial de novo does a not improve its position from the arbitrator's ruling/award following a final judgment,that Party shall pay all costs, expenses and attorney fees to the other Party, including all costs, Y attorney fees and expenses associated with any appeals. ° as 7.5. Unless otherwise agreed in writing, this dispute resolution process shall be the sole, exclusive and final remedy to or for either Party for any dispute regarding this Agreement, Cn r and its interpretation, application or breach, regardless of whether the dispute is based in 2 contract,tort, any violation of federal law, state statute or local ordinance or for any breach a of administrative rule or regulation and regardless of the amount or type of relief J demanded. Cn w 8. Miscellaneous: a U U. 8.1. Independent Governments. The Parties recognize and agree that the Provider and the User are independent governments. The User is establishing a contractual relationship solely E with the Provider and is not establishing a contractual relationship with any other User of Provider's FD CARES Services. Except for the specific terms of this Agreement, nothing a Page 3 REGIONAL FD CARES PILOT PROJECT ILA Packet Pg. 291 9.A.a herein shall be construed to limit the discretion of the governing bodies of the Parties. This w Agreement shall not be construed as creating an association,joint venture, or partnership Q between the Parties,nor to impose any partnership obligations or liabilities on either Party. v c U_ 8.2. Administration. This Agreement shall be administered by each Party's chief executive 0 officer or designee. L O 8.3. Property Ownership. This Agreement does not provide for jointly owned property unless specific provision is made for joint ownership in a Collaborative Activities Exhibit. All Q property presently owned or hereafter acquired by a Party to enable it to perform the U. services required under this Agreement, shall remain the property of the acquiring Party in a the event of the termination of this agreement. c 0) aD 8.4. Service Limitation. The FD CARES Services provided under this Agreement represent an extension and expansion of services the Provider owes to the public in general. Neither Party intends to create a special relationship or duty to the other Party or to the public r°n served by either Party. 8.5. Notices. All notices, requests, demands and other communications required by this Agreement shall be in writing and, except as expressly provided elsewhere in this Agreement, shall be deemed to have been given at the time of delivery if personally ! delivered or at the time of mailing if mailed by first class, postage pre-paid and addressed c to the Party at its address as stated in this agreement or at such address as any Party may designate at any time in writing. L 8.6. Severability. If any provision of this agreement or its application is held invalid, the Q remainder of the Agreement or the application of the remainder of the Agreement shall not c be affected. aD c 8.7. Modification. This Agreement represents the entire Agreement between the Parties. No to change, termination or attempted waiver of any of the provisions of this Agreement shall CM be binding on either of the Parties unless executed in writing by authorized representatives of each of the Parties. The Agreement shall not be modified, supplemented, or otherwise a affected by the course of dealing between the Parties. Y 8.8. Benefits. This Agreement is entered into for the benefit of the Parties to this Agreement ,o only and shall confer no benefits, direct or implied, on any third persons. 8.9. Non-Exclusive Agreement. The Parties to this Agreement shall not be precluded from in entering into similar agreements with other municipal corporations. o a J LV Q U. d E z tt r� a Page 4 REGIONAL FD CARES PILOT PROJECT ILA Packet Pg. 292 9.A.a 8.10. Filing/Web Site. Filing/Web Site. This Agreement shall either be filed with the County W Auditor or by listing on either of the Party's websites in accordance with RCW 39.34.040. oc Q c.� 9. DUPLICATE ORIGINALS. This Agreement may be executed in duplicate originals. o L 0 PROVIDER: USER: �L 0 Puget Sound Regional Fire Authority City of Kent Q as L U. By: By: Matthew Morris, Fire Chief Dana Ralph, Mayor o as Attest: 0 W m Kent City Clerk a' d z z Approved as to Form: 3 c as E Kent City Attorney Q 0 L to N M C a c d Y L 0 d V W O a J W W Q U W c m E z v a Page 5 REGIONAL FD CARES PILOT PROJECT ILA Packet Pg. 293 9.A.a EXHIBIT A M w FD CARES SERVICES oc a c.� 1. Services. Provider shall provide the User with the following services. o L O A. Non-emergency referral and education services to include: L O (1) Referral and requests for assistance: Q as (a) Officers may access JULOTA, Provider's case management system U. through a QR Code or logging into the online system, to enter a referral that will go directly to Provider. The JULOTA platform is a referral-based 2 system that allows User's employees to communicate with Provider. (b) User's employees may also request FD CARES Services through c ValleyCom and FD CARES will be dispatched to assist User's employees N in the field. a, a (c) User's employees may additionally make direct contact with FD CARES z by phone or through the officers' mobile data computers. 3 (2) Education services: as E m (a) FD CARES will participate in training sessions with User's employees. a (b) Participate in community events to provide education on the co-responder program. as c B. Co-responder services to assist User's law enforcement officers tasked with responding to emergency and non-emergency incidents involving individuals experiencing a mental CM health crisis. These services include: c a (1) Dispatch an FD CARES Co-Response Unit staffed with a Registered Nurse and/or Social Worker Y L O (2) Appoint a liaison who will serve as a liaison between User and Provider and will communicate daily with User's Co-Responder Sergeant in order to: as Cn (a) Follow-up from overnight calls for service (primarily from referrals made o by User's patrol officers); a J (b) Follow-up on referrals made by User's staff, w W (c) Follow-up on chronic 911 callers to User's dispatch center, Valley v Communications Center; U. (3) Respond, or co-respond with User's employees, to engage people who are experiencing a variety of challenges that may not require a traditional police response, including without limitation: issues relating to homelessness; access 2 a Page 6 REGIONAL FD CARES PILOT PROJECT ILA Packet Pg. 294 9.A.a social services; addiction challenges and recovery; and behavioral health needs, w including mental health treatment. oc a c.� (4) Coordinate with non-governmental-organizations (NGO's), e.g., Union Gospel o Mission, Catholic Community Services, PEER Kent, Valley Cities Counseling, o etc., to facilitate access to a variety of resources they provide. L O (a) If Provider's FD CARES Unit refers an individual to resource services, the Q FD CARES Unit will follow-up with that individual, confirm that services were sought and received, and if a resource connection was not successful, LL the FD CARES Unit will take additional steps to connect that individual with appropriate community resources and services. c as (5) When not responding to calls or following up on referrals, Provider's FD CARES 3 Unit will proactively engage transients in User's city limits, work to get to know c them, and work to establish a relationship with them. The goal is to connect and N provide assistance with resources, and to develop a positive connection for future a, contacts. These contacts can be made anywhere within the City of Kent, but a' Provider's primary focus will be in downtown Kent. z (6) When User's employees request assistance during FD Cares shift hours (0800 3 hours—2000 hours), User will have its FD CARES Unit in route within 30 minutes. If Provider's FD CARES Unit is unable to dispatch within 30 minutes, it will promptly provide an estimated dispatch time to User's on-scene employee by phone or MDC contact. a (a) The expectation is that Provider will dedicate a primary FD CARES Unit to Kent, and it is that Kent team that will respond to requests from User, if available. If the Kent FD CARES Unit is unavailable, one of the other participating FD CARES Units will respond to assist under the same C4 parameters provided for by this Agreement. c a (7) Whenever reasonably possible, User will transfer care for a person to the FD CARES Unit in-person. If that is not possible, and it is reasonably safe to do so, Y User's employees can clear the scene and utilize Provider's JULOTA case ,o management system to generate a referral to the Kent FD CARES Unit to respond when they become available. as Cn C. Provide access and use of all FD CARES related written materials to include all legal o forms for use as the User's organization and their legal deem appropriate. 'a J (1) Provider's FD CARES team members will need access to User databases in order Cn prepare for making contact with referred individuals. This will require Provider's team members to undertake the following training through User: v (a) Level I ACCESS training; and U. (b) Criminal Justice Information Services training. as E z a Page 7 REGIONAL FD CARES PILOT PROJECT ILA Packet Pg. 295 9.A.a D. Assist appointed User employee in understanding the necessary data collection for w responders at all EMS related incidents. oc Q E. Assist appointed User employee(s)with addressing repetitive medical responses, o including mental health issues that lead to crisis events. F. Work with appointed User employee(s) on developing possible funding partnerships that 0 may include but may not be limited to: Q as (a) King County Emergency Medical Services; LL (b) King County Mental Health; (c) King County area Hospitals; 0 (d) Local area medical payer groups such as Medicaid, Medicare, Premera, Molina, etc. c 0 2. User Obligations.Appointed User employee(s)will work with Provider and other assigned staff and N partners to assist with further building and improving the FD CARES program for all organizations a, adopting or interested in adopting the program. a' d z z 3 c as E m as L Q V 0 L to N M C a c d Y L 0 d V Cn a J Cn W Q U LL c m E z v a Page 8 REGIONAL FD CARES PILOT PROJECT ILA Packet Pg. 296 10.A y KENT DATE: January 17, 2023 TO: Kent City Council SUBJECT: 2023 Railroad Quiet Zone BNSF Railroad Trespass Fencing Bid - Award MOTION: I move to award the 2023 Railroad Quiet Zone BNSF Railroad Trespass Fencing Project to A-1 American Fence, Inc. in the amount of $700,125.90 and authorize the Mayor to sign all necessary documents, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. SUMMARY: The project includes installation of trespass fencing along the Burlington Northern Santa Fe (BNSF) Railroad. The no-cut trespass fencing will be installed along BNSF property, south of Willis Street and north of James Street. This project will help to inhibit trespassing along the railroad in these areas. The bid opening for the 2023 Railroad Quiet Zone BNSF Railroad Trespass Fencing Project was held on January 10, 2023, with five bids received. The lowest responsible and responsive bid was submitted by A-1 American Fence, Inc. in the amount of $700,125.90. Bid Tab Summary 01. A-1 American Fence, Inc. $700,125.90 02. Northwest Cascade, Inc. $718,953.00 03. TITAN Earthwork $756,019.27 04. Road Construction Northwest, Inc. $810,649.79 05. Combined Construction, Inc. $995,052.97 Engineer's Estimate $667,333.72 BUDGET IMPACT: Council has approved accepting a grant from the Washington State Department of Commerce for $2.95M for the work associated with this Project. Work completed prior to June 30, 2023 is eligible for reimbursement from the state, work completed starting July 1, 2023 will be funded by the City through budgeted project funding. SUPPORTS STRATEGIC PLAN GOAL: Packet Pg. 297 10.A Evolving Infrastructure - Connecting people and places through strategic investments in physical and technological infrastructure. Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and inviting parks and recreation. Sustainable Services - Providing quality services through responsible financial management, economic growth, and partnerships. Inclusive Community - Embracing our diversity and advancing equity through genuine community engagement. ATTACHMENTS: 1. BNSF RR Trespass Fencing Bid Tab (PDF) Packet Pg. 298 10.A.a 2023 Railroad Quiet Zone BNSF Railroad 1 2 3 4 Trespass Fencing Bid Opening: January 10, 2023, 11:00 AM A-1 American Fence, Inc. Northwest Cascade, Inc. TITAN Earthwork Road Construction Northwest, Inc. 701 Lutcher Dr. PO Box 73399 1585 Valentine Ave. SE PO Box 2228 O Disclaimer: These preliminary bid results are provided as a convenience to Orange,TX 77632 Puyallup, WA 98373 Pacific, WA 98047 Renton, WA 98056 -` contractors for informational purposes only and do not identify lowest responsible bidder. Bid review by staff and final award pending. LL TOTAL $700,125.90 $718,953.00 $756,019.27 $810,649.79 Z ITEM DESCRIPTION QTY UNIT UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL m NO. PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT d C SCHEDULE I: STREET N 1000 Mobilization 1 LS 30,000.00 $30,000.00 64,446.00 $64,446.00 62,539.00 $62,539.00 73,000.00 $73,000.00 d 1005 Clearing and Grubbing 1 LS 20,000.00 $20,000.00 17,100.00 $17,100.00 7,500.00 $7,500.00 11,000.00 $11,000.00 7 1007 Replace Existing Fence Fabric with Modified Type 3 258 LF 70.00 $18,060.00 82.50 $21,285.00 88.00 $22,704.00 98.00 $25,284.00 Polvmer Coated No-Cut Chain Link Fence 1010 Double 16' Polymer Coated No-Cut Chain Link Gate 4 EA 5,000.00 $20,000.00 2,550.00 $10,200.00 3,525.00 $14,100.00 7,800.00 $31,200.00 p 1015 6' High Modified Type 3 Polymer Coated No-Cut Chain 4,920 LF 90.00 $442,800.00 90.00 $442,800.00 101.00 $496,920.00 105.00 $516,600.00 Link Fence R 1020 Pothole Utilities 8 EA 1,200.00 $9,600.00 700.00 $5,600.00 1,200.00 $9,600.00 1,200.00 $9,600.00 W 1025 Traffic Control Labor 360 HR 75.00 $27,000.00 70.00 $25,200.00 70.00 $25,200.00 78.00 $28,080.00 0 1030 Construction Signs Class A 192 SF 20.00 $3,840.00 32.00 6,144.00 16.50 $3,168.00 34.00 $6,528.00 N 1035 Traffic Control Supervisor 180 HR 85.00 $15,300.00 72.50 $13,050.00 70.00 $12,600.00 83.00 $14,940.00 00 1040 Temporary Traffic Control Devices 1 LS 10,000.00 $10,000.00 16,500.00 $16,500.00 2,500.00 $2,500.00 7,700.00 $7,700.00 cV 1045 Portable Changeable Message Sign (PCMS) 45 DAY 300.00 $13,500.00 200.00 $9,000.00 138.00 $6,210.00 75.00 $3,375.00 M 1050 Permanent Signing 1 LS 10,000.00 $10,000.00 16,000.00 $16,000.00 17,500.00 $17,500.00 3,150.00 $3,150.00 1055 Inlet Protection 9 EA 1,200.00 $10,800.00 75.00 $675.00 125.00 $1,125.00 92.00 $828.00 1060 Erosion/Water Pollution Control 1 FA 5,000.00 $5,000.00 5,000.00 $5,000.00 5,000.00 $5,000.00 5,000.00 $5,000.00 SUB TOTAL $635,900.00 $653,000.00 $686,666.00 $736,285.00 m 10.1%SALES TAX $64,225.90 $65,953.00 $69,353.27 $74,364.79 C CONSTRUCTION CONTRACT TOTALI $700,125.90 $718,953.00 $756,019.27 $810,649.79 y LL N N Q N d L I- LL Z m E V rt+ a Packet Pg. 299 10.A.a 2023 Railroad Quiet Zone BNSF Railroad 5 Trespass Fencing Bid Opening: January 10, 2023, 11:00 AM Combined Construction, Inc. Engineer's Estimate 3701 South Rd. Toby Hallock O Disclaimer: These preliminary bid results are provided as a convenience to Mukilteo, WA 98275 —` contractors for informational purposes only and do not identify lowest responsible bidder. Bid review by staff and final award pending. LL TOTAL $995,052.97 $667,333.72 (j) ITEM DESCRIPTION QTY UNIT UNIT TOTAL UNIT TOTAL Z 0] NO. PRICE AMOUNT PRICE AMOUNT d C SCHEDULE I: STREET N 1000 Mobilization 1 LS 100,000.00 $100,000.00 50,000.00 $50,000.00 +' d 1005 Clearing and Grubbing 1 LS 10,000.00 $10,000.00 6,000.00 $6,000.00 1007 Replace Existing Fence Fabric with Modified Type 3 258 LF 134.00 $34,572.00 70.00 $18,060.00 Polvmer Coated No-Cut Chain Link Fence 1010 Double 16' Polymer Coated No-Cut Chain Link Gate 4 EA 3,750.00 $15,000.00 1,800.00 $7,200.00 p 1015 6' High Modified Type 3 Polymer Coated No-Cut Chain 4,920 LF 120.00 $590,400.00 90.00 $442,800.00 Link Fence 1020 Pothole Utilities 8 EA 1,000.00 $8,000.00 300.00 $2,400.00 1025 Traffic Control Labor 360 HR 70.00 $25,200.00 80.00 $28,800.00 0 1030 Construction Signs Class A 192 SF 50.00 $9,600.00 18.00 $3,456.00 N 1035 Traffic Control Supervisor 180 HR 70.00 $12,600.00 100.00 $18,000.00 00 1040 Temporary Traffic Control Devices 1 LS 67,200.00 $67,200.00 5,000.00 $5,000.00 04 1045 Portable Changeable Message Sign (PCMS) 45 DAY 120.00 $5,400.00 100.00 $4,500.00 ch 1050 Permanent Signing 1 LS 19,000.00 $19,000.00 14,000.00 $14,000.00 1055 Inlet Protection 9 EA 200.00 $1,800.00 100.00 $900.00 1060 Erosion/Water Pollution Control 1 FA 5,000.00 $5,000.00 5,000.00 $5,000.00 SUB TOTAL $903,772.00 $606,116.00 0] 10.1%SALES TAX $91,280.97 $61,217.72 C CONSTRUCTION CONTRACT TOTALI $995,052.97 $667,333.72 y uL to to Q to d L I— II1 Z m E V rt+ a Packet Pg. 300