Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
10-17-2023 Council Packet - Regular
CITY OF �. Fe deral Way Centered on Opportunity CITY COUNCIL REGULAR MEETING AGENDA City Hall — Council Chambers* October 17, 2023 — 6:30 p.m. The City Council may amend this agenda and take action on items not currently listed. Regular Meetings are recorded and televised on Government Access Channel 21 and viewable on FWYoutube. For more information, or to view agenda materials and access public comment sign-up options, please visit www.cityoffederalway.com. 1. CALL MEETING TO ORDER 2. PLEDGE OF ALLEGIANCE 3. CEREMONIES & RECOGNITION a. Mayor's Key to the City to Rose Ehl, Dave Ehl, and Karla Kolibab, Founders of the Federal Way Farmers Market b. Police Department Swearing -In Ceremonies — Lieutenants and Corporals THE COUNCIL WILL RECESS FOR A BRIEF RECEPTION TO HONOR AND THANK ROSE AND DAVE EHL, AND KARLA KOLIBAB 4. MAYOR'S EMERGING ISSUES AND REPORT • Day Center Update — Community Development Director Keith Niven • Mayor's Day of Concern Food Drive at Fred Meyer Recap • Recent Events - Community Care Giving Network Souper Supper (10/6); City of Yangsan, South Korea Visit (10/10); Federal Way Arts Foundation "Enchante Celebration of the Arts" Event (10/14); Youth Cyclocross Race at Celebration Park lower parking lot (10/15) • Upcoming Events: Multi -Service Center MSC Helps Luncheon October 19 at 11:30 a.m.; 2023 Great Washington Shake -Out on October 19 and 10:19 a.m.; Tricks n' Treats Funfest at the Federal Way Community Center on Saturday, October 28 at 3:00 p.m. 5. PUBLIC COMMENT RULES: In accordance with State Law, the City of Federal Way prohibits any testimony regarding any campaign for election or promotion of, or opposition to, any ballot proposition during the public comment. City Council Rules of Procedure prohibit any personal, impertinent, threatening or slanderous remarks during public comment. The Mayor may interrupt comments that continue too long or violate the rules of conduct. No speaker may convey or donate their time for speaking to another speaker. The Mayor has the authority to preserve order at all meetings of the Council, and to cause the removal of any person from the meeting for being disorderly. All individual comments are limited to 3 minutes each. *Remote attendance available via Zoom meeting code: 363 503 282 and passcode: 738163; or https://cityoffederalway.zoom. us/m/363503282?pwd=Vm locGOrdFVyTURaQnIoRU IQOTQ4ZzO9 Assisted listening devices are available, please contact the City Clerk prior to the meeting. 6. PRESENTATIONS a. Proclamation: Domestic Violence Awareness Month - October 2023 7. COUNCIL COMMITTEE AND REGIONAL COMMITTEE REPORTS • Parks/Recreation/Human Services/Public Safety Committee (PRHSPS) • Land Use/Transportation Committee (LUTC) • Finance, Economic Development Regional Affairs Committee (FEDRAC) • Lodging Tax Advisory Committee (LTAC) • Deputy Mayor & Regional Committees Report • Council President Report 8. CONSENT AGENDA Items listed below have been previously reviewed in their entirety by a Council Committee of three members and brought before full Council for approval; all items are enacted by one motion. Individual items may be removed by a Councilmember for separate discussion and subsequent motion. a. Minutes: October 3, 2023 Special and Regular Meeting Minutes b. On -Call Sidewalk and Curb Replacement Contract - Approval to Award c. Amend the 2023 Right -of -Way Landscape Maintenance Contract d. Resolution: Renewing the Lake Management District Number 1 Advisory Committee for Steel Lake and Establishing the Duties Thereof e. S 288th St Road Diet Phase I King County Metro Interagency Agreement f. Vehicle Purchase for Special Investigations Unit 9 Purchase of Portable Surveillance Camera Trailers h. Parking Lot Sweeping Services 2024-2026 9. COUNCIL BUSINESS a. Performing Arts and Event Center Venue Management Contract Staff Report: Autumn Gressett, Community Relations Liaison/Contract Administrator b. DeDartment of Commerce Climate Plannina Grant - Authorization to • Staff Report: Evan Lewis, Senior Planner 10. ORDINANCES First Reading a. Council Bill #862/Highline Water District Franchise Ordinance AN ORDINANCE OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING HIGHLINE WATER DISTRICT, A NONEXCLUSIVE FRANCHISE TO OCCUPY RIGHTS -OF -WAY IN THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIFIED FRANCHISE AREA FOR THE PURPOSES OF CONSTRUCTING, MAINTAINING, OPERATING, REPLACING, AND REPAIRING A PUBLIC WATER SYSTEM WITHIN AND THROUGHOUT THE CITY OF *Remote attendance available via Zoom meeting code: 363 503 282 and passcode: 738163; or https://cityoffederalway.zoom. us/m/363503282?pwd=Vm locGOrdFVyTU RaQn]oRU IQOTQ4Zz09 Assisted listening devices are available, please contact the City Clerk prior to the meeting. FEDERAL WAY. Staff Report: Cole Elliott, Development Services Manager Public Comment — 3 minutes each b. Council Bill #863/ Establishing the Time of Payment, Interest and Penalties to be imposed on Delinquents Annual Special Assessment for Lake Management District Number 1 Steel Lake AN ORDINANCE OF THE CITY OF FEDERAL WAY, WASHINGTON, ESTABLISHING THE TIME OF PAYMENT, INTEREST, AND PENALTIES TO BE IMPOSED ON DELINQUENT ANNUAL SPECIAL ASSESSMENTS FOR LAKE MANAGEMENT DISTRICT NUMBER 1 FOR STEEL LAKE. Staff Report: Kevin Du, Surface Water Quality Program Supervisor Public Comment — 3 minutes each c. Council Bill #864/ Development Agreement Code Amendments AN ORDINANCE OF THE CITY OF FEDERAL WAY, WASHINGTON, RELATING TO AMENDMENTS TO CHAPTER 19.85 FWRC, DEVELOPMENT AGREEMENTS; AMENDING FWRC 19.85.010, 19.85.020, 19.85.030, 19.85.050; 19.85.060; 19.85.070; 19.85.080; 19.85.090; 19.85.110; 19.85.120; 19.85.130; 19.85.140; 19.85.150; 19.85.160; 19.85.180; 19.85.190; 19.85.200; AND 19.85.210 (AMENDING ORDINANCE NOS. 02-426 AND 09-594). • Staff Report: Keith Niven, Community Development Director • Public Comment — 3 minutes each 11. COUNCIL REPORTS 12. ADJOURNMENT *Remote attendance available via Zoom meeting code: 363 503 282 and passcode: 738163; or https://cityoffederalway.zoom. us/m/363503282?pwd=Vm locGOrdFVyTU RaQn]oRU IQOTQ4Zz09 Assisted listening devices are available, please contact the City Clerk prior to the meeting. CITY OF I Federal Way PROCLAMATION "Domestic Violence Awareness Month" WHEREAS, domestic violence is a serious crime that affects people of all races, ages, gender, and income levels; and WHEREAS, according to the Washington Association of Sheriffs and Police Chiefs, police respond to about 50,000 domestic violence calls every year in Washington and approximately 2,100 domestic violence calls every year in the City of Federal Way; and WHEREAS, even with the significant number of calls responded to by police, 70% of domestic violence that occurs goes unreported; and WHEREAS, although men and children can be victims of domestic violence it is committed predominately against women and is the leading cause of injury to women between the ages of 15 to 44 in the United States; and WHEREAS, children that grow up in violent homes are believed to be abused and neglected at a rate higher than the national average; and children that experience domestic violence are impacted in their education and are more likely to continue the cycle of domestic violence in dating relationships as youth and in adult relationships; and WHEREAS, each year, medical expenses from domestic violence total at least $5 billion dollars, and businesses forfeit another $100 million dollars in lost wages, sick leave, absenteeism and non - productivity; and WHEREAS, in response to the prevalence of domestic violence in this community, the Federal Way Domestic Violence Task Force members have been working toward promoting prevention, victim safety, community awareness and abuser accountability through organization, education and outreach; NOW, THEREFORE, we, the undersigned Mayor and City Councilmembers of the City of Federal Way, do hereby proclaim the month of October 2023 as "Domestic Violence Awareness Month", and urge our citizens to recognize this critical problem facing our entire community, work to prevent domestic violence, increase services to domestic violence victims and their children, and continue efforts to eliminate this crime which affects all of us in this community, our state, and our nation. SIGNED this 17th day of October, 2023 FEDERAL WAYMAYOR AND CITYCOUNCIL m Ferrell, Mayor Li da Kochmar, Codricil President v , UVL �-- Susan Honda, Deputy Mayor am-,.. L a Assefa-D son, Councilmember Hoan§ V. ran, Councilmember � V DovefQCo im member COUNCIL MEETING DATE: October 17, 2023 ITEM CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: CITY COUNCIL MEETING MINUTES POLICY QUESTION: Should the City Council approve the draft minutes for the October 3, 2023 Regular and Special Meetings? COMMITTEE: N/A MEETING DATE: N/A CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Stephanie Courtney, City Clerk DEPT: City Clerk Attachments: October 3, 2023 Regular Meeting Draft Minutes October 3, 2023 Special Meeting Draft Minutes Options Considered: 1. Approve the minutes as presented. 2. Amend the minutes as necessary. MAYOR'S RECOMMENDATION: N/A MAYOR APPROVAL: N/A N/A DIRECTOR APPROVAL: �!7 Committee Council Initial Ntc Initial/Date Initial/Date COMMITTEE RECOMMENDATION: N/A N/A N/A N/A Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: "I move approval of the minutes as presented. " (BELOW TO BE COWL ETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED - 4/2019 RESOLUTION # CITY OF � L Federal Way CITY COUNCIL SPECIAL MEETING MINUTES City Hall — Council Chambers October 3, 2023 — 5:00 p.m. 1. CALL MEETING TO ORDER Deputy Mayor Honda called the meeting to order at 5:02 p.m. '094�c9. City officials in attendance: Council President Linda Kochmar, Deputy Mayor Susan Honda, Councilmember Lydia Assefa-Dawson, Councilmember Paul McDaniel (joined the meeting at 5:30 p.m.), Councilmember Hoang Tran, Councilmember Jack Walsh, and Councilmember Jack Dovey (joined the meeting at 5:14 p.m.). City staff in attendance: City Attorney Ryan Call and City Clerk Stephanie Courtney. 2. PLEDGE OF ALLEGIANCE Council President Kochmar led the flag salute. 3. COMMISSION INTERVIEWS The Council interviewed four applicants for the Senior Advisory Commission, one applicant for the Youth Commission, and two applicants for the Human Services Commission. 4. ADJOURNMENT There being nothing further on the agenda; the special meeting was adjourned at 6:11 p.m. Attest: Stephanie Courtney City Clerk Approved by Council: Federal Way City Council Special Minutes Page 1 of 1 October 3, 2023 4% CITY OF V::� Federal Way Centered on Opportunity CITY COUNCIL REGULAR MEETING AGENDA City Hall - Council Chambers October 3, 2023 - 6:30 p.m. 1. CALL MEETING TO ORDER Mayor Ferrell called the meeting to order at 6:31 p.m. City officials in attendance: Mayor Jim Ferrell, Council President Linda Kochmar, Deputy Mayor Susan Honda, Councilmember Lydia Assefa-Dawson, Councilmember Paul McDaniel, Councilmember Hoang Tran, Councilmember Jack Walsh and Councilmember Jack Dovey. City staff in attendance: City Administrator Brian Davis, City Attorney Ryan Call and City Clerk Stephanie Courtney. 2. PLEDGE OF ALLEGIANCE Mayor Ferrell led the flag salute. 3. CEREMONIES & RECOGNITION Mayor's Key to the City Mayor Ferrell was pleased to present the Key to the City to Kristin Speakman, owner of Bella Red Salons. Ms. Speakman came to him with an idea to provide free haircuts to hundreds of school children. He thanked her for organizing an amazing event and further provided individual certificates of appreciation to each stylist who donated their time to the event. At 6:54 p.m. Mayor Ferrell announced the Council would take a brief recess to honor Ms. Speakman and the stylists; the meeting was reconvened at 7:09 p.m. Mayor Ferrell acknowledged State Representative Kristine Reeves who was in attendance. Mayor Ferrell recognized the passing of a very special community member Bob Kellogg, Sr. with a moment of silence. The Mayor and Councilmembers shared personal stories and remembrances of Mr. Kellogg. 4. MAYOR'S EMERGING ISSUES AND REPORT Steel Lake Status Surface Water Quality Program Supervisor Kevin Du provided an update on the health of Federal Way City Council Regular Minutes Page 1 of 7 October 3, 2023 Steel Lake. He provided information on the Steel Lake Management District (LMD), comprised of residents who live on the lake and are appointed by the City Council to monitor and manage the lake treatments. Day Center Update Community Development Director Keith Niven provided an update and answered City Council questions regarding the day center. He noted city staff continue to communicate concerns with the day center staff regarding overnight camping and trespassing issues. Director Niven provided additional information on meetings scheduled with Catholic Community Services (CCS) to discuss these concerns. The Mayors Day of Concern Annual Food Drive will be October 7 from 10:00 a.m. to 2:00 p.m. at the Twin Lakes Fred Meyer. This food drive is in collaboration with Waste Management who will collect curbside donations; all donations benefit the local food bank. Recent Events Mayor Ferrell reported on recent events including the Wal-Mart Grand Re -opening on September 22 and the Taste of Federal Way at the Farmers Market on September 23. Councilmember Dovey provided an update on the free financial literacy class that continues at the Federal Way Community Center. Councilmember Assefa-Dawson and Councilmember McDaniel also provided feedback on this beneficial class. Upcoming Events The Mayor noted Community Care Giving Network Souper Supper will be October 6 at 5:30 p.m. at Christian Faith Center; the Federal Way Arts Foundation "Enchante Celebration of the Arts" Event on October 14 at the Performing Arts and Event Center; and Multi -Service Center MSC Helps Luncheon on October 19 at 11:30 a.m. 5. PUBLIC COMMENT Wick shared about an upcoming event on October 151 at Celebration Park and extended an invitation to the Mayor and Council. John Long addressed the lack of lily pads, bullfrogs, crawdads and other native species in Steel Lake. Gary Smith lives on Steel Lake and is concerned with the health of the lake. Jerry Knutzen shared about the Historical Society of Federal Way's annual meeting and presentation taking place on October 7 at the Federal Way Library on 1 st Way South. Margaret Reyhner is a member of the Steel Lake Management District and supports the information presented by city staff in reference to the health of the lake. The- survey referenced took place in June and she feels even with the increased warm weather, the lake is doing well. Susan Strong shared about an emergency event that she witnessed take place at the Day Center. Anna Patrick announced a listening session taking place October 7 from 12:00-3:00 p.m. at Highline College regarding the closing of the youth jail. Melissa Hamilton thanked Diversity Commission for recommendations made at the previous council meeting. She also addressed the current state legislation that is resulting in an Federal Way City Council Regular Minutes Page 2 of 7 October 3, 2023 increased bout of crime. Katrina Dohn proposed a modified firework ban to allow for ground fireworks only in city limits. Geoffrey Tancredi addressed encampments and illegal activity taking place at the Day Center. Craig Patrick shared about a recent clean up event in the Hylebos Park that was sponsored by Nouveaux. 6. PRESENTATIONS a. Proclamation: National Hispanic Heritage Month — 2023 Councilmember Walsh read and presented the proclamation to Miquel Maestas, Associate Director of El Centro de la Raza who attended the meeting virtually. Mr. Maestas thanked the Council and provided an update on El Centro's work in the community. 7. COUNCIL COMMITTEE AND REGIONAL COMMITTEE REPORTS Parks/Recreation/Human Services/Public Safety Committee (PRHSPS): Councilmember Walsh reported the next meeting will be October 10 at 5:00 p.m. Land Use/Transportation Committee (LUTC): Councilmember Dovey reported on the meeting held last night and noted items coming up through Council at the next meeting on November 6. Finance, Economic Development Regional Affairs Committee (FEDRAC): Councilmember Tran reported the recent Committee meeting on September 27. The next regular meeting will be October 24 at 5:00 p.m. Lodging Tax Advisory Committee (LTAC): Councilmember Assefa-Dawson reported the Committee will meet to discuss the post event presentation from the Pacific Raceways grant. The next meeting is October 11 at 10:00 a.m. Deputy Mayor & Regional Committees Report: Deputy Mayor Honda provided meeting information on the Senior Advisory Commission and the new Senior Commission Connection meetings held at the Community Center. She reported attending the Board of Health meeting and the National League of Cities (NLC) Committee meeting. Council President Report: Council President Kochmar reminded of the curbside pickup of food donations by Waste Management and the food drive at Fred Meyer; she also encouraged monetary donations directly to the Multi -Service Center. She noted she would like to see the Neighborhood Connection meetings start back up. 8. CONSENT AGENDA a. Minutes: September 19, 2023 Regular and Special Meeting Minutes b. Monthly Financial Report — July 2023 c. Monthly Financial Report — August 2023 d. A/P Vouchers 07/15/2023 — 08/16/2023 & Payroll Vouchers 07/01/2023 — 07/31/2023 e. A/P Vouchers 08/15/2023 — 09/15/2023 & Payroll Vouchers 08/01/2023 — 08/31/2023 f. Replacement of Vandalized VMS Sign Federal Way City Council Regular Minutes Page 3 of 7 October 3, 2023 g. Purchase of Replacement Copiers h. Purchase of Replacement Computers Reclassification of Parks Maintenance Worker I COUNCIL PRESIDENT KOCHMAR MOVED APPROVAL OF THE CONSENT AGENDA ITEMS (A) THROUGH (1); SECOND BY COUNCILMEMBER DOVEY. The motion passed unanimously as follows. Council President Kochmar yes Councilmember Tran yes Deputy Mayor Honda yes Councilmember Walsh yes CouncilmemberAssefa-Dawson yes Councilmemberpovey yes Councilmember McDaniel yes 9. COUNCIL BUSINESS a. American Rescue Plan Act Grant Projects for Economic Development 8:34pm Economic Development Director Tanja Carter provided an overview of the fourteen (14) projects proposed to be funded with the ARPA Economic Development allocation which include: 1. Contract Grant Writer 2. Grant Writing Workshop 3. Fundraising Workshop Series 4. Proposed Top 100 People, Place, and Things in Federal Way History Project 5. Placemaking Strategy Project 6. Economic Development Website Audit Project 7. Economic Development Website Rebuild and Rebrand Project 8. Shop Federal Way Upgrade Project 9. Business Enterprise Start -Up Training Program 10. Business & CTE Partnership Program 11. Business Outreach Programs 12. Retail Attraction Strategy Project 13. Hotel Absorption Analysis 14. In -Home Childcare Business Incubator Project Mayor Ferrell asked Council to pull any specific projects that needed further discussion. Deputy Mayor Honda pulled projects (4) Proposed Top 100 People, Place, and Things in Federal Way History Project; (5) Placemaking Strategy Project; and (14) In -Home Childcare Business Incubator Project for additional questions, and asked if funds could be moved around to increase funding for the broken window fund in project (4). Councilmember Assefa-Dawson pulled projects (13) Hotel Absorption Analysis, (2) Grant Writing Workshop & (3) Fundraising Workshop Series; and (6) Economic Development Website Audit Project & (7) Economic Development Website Rebuild and Rebrand Project for additional clarification asking if items (2) & (3) could be combined with the same vendor, as well as combining (6) & (7). Councilmember McDaniel pulled items (7) Economic Development Website Rebuild and Rebrand Project and (8) Shop Federal Way Upgrade Project. He asked that item (6) be completed and provided to Council for review prior to engaging item (7). Mayor called for a vote regarding the remaining projects. Federal Way City Council Regular Minutes Page 4 of 7 October 3, 2023 COUNCIL PRESIDENT KOCHMAR MOVED APPROVAL OF THE PROPOSED PROJECT ITEMS (1) — (3); (6); AND (9) — (12) AS PRESENTED; COUNCILMEMBER DOVEY SECOND. The motion passed unanimously as follows: Council President Kochmar yes Councilmember Tran yes Deputy Mayor Honda yes Councilmember Walsh yes CouncilmemberAssefa-Dawson yes Councilmemberpovey yes Councilmember McDaniel yes Council continued to debate the merits of the remaining programs which included (4) Proposed Top 100 People, Place, and Things in Federal Way History Project; (5) Placemaking Strategy Project; (7) Economic Development Website Rebuild and Rebrand Project; (8) Shop Federal Way Upgrade Project; (13) Hotel Absorption Analysis; and (14) In -Home Childcare Business Incubator Project. Director Carter agreed the audit for program (6) could take place prior to item (7) the website rebuild. Point of Order called by City Attorney Call to clarify any of these projects die with lack of action. COUNCIL PRESIDENT KOCHMAR MOVED APPROVAL OF PROJECTS (4) AND (14); COUNCILMEMBER WALSH SECOND. The motion passed unanimously as follows: Council President Kochmar yes Councilmember Tran yes Deputy Mayor Honda yes Councilmember Walsh yes CouncilmemberAssefa-Dawson yes Councilmemberpovey yes Councilmember McDaniel yes Council continued to debate the remaining projects (5), (7), (8), and (13). COUNCILMEMBER DOVEY MOVED APPROVAL OF PROJECT (13); COUNCILMEMBER WALSH SECOND. The motion passed unanimously as follows: Council President Kochmar yes Councilmember Tran yes Deputy Mayor Honda yes Councilmember Walsh yes CouncilmemberAssefa-Dawson yes Councilmemberpovey yes Councilmember McDaniel yes The remaining projects died for a lack of motion: (5) Placemaking Strategy Project; (7) Economic Development Website Rebuild and Rebrand Project; and (8) Economic Development Website Rebuild and Rebrand Project Council direction to Director Carter was to bring these projects back to Council at a later date with additional information. b. Resolution: Interfund Loan for Community Development Block GrantIAPPROVED RESOLUTION NO. 23-847 Community Services Manager Sarah Bridgeford provided background information on the interfund loan for grant reimbursement. Finance Director Groom also spoke in support of the proposed resolution. COUNCILMEMBER TRAN MOVED APPROVAL OF THE PROPOSED RESOLUTION; SECOND BY COUNCILMEMBER ASSEFA-DAWSON. The motion passed unanimously as follows. Federal Way City Council Regular Minutes Page 5 of 7 October 3, 2023 Council President Kochmar yes Councilmember Tran yes Deputy Mayor Honda yes Councilmember Walsh yes CouncilmemberAssefa-Dawson yes Councilmember Dovey yes Councilmember McDaniel yes c. Senior Commission Appointment(s) DEPUTY MAYOR HONDA MOVED THE APPOINTMENT OF FRANK FIELDS, DAVID REYNOLDS, AND KENNETH PRATT TO VOTING POSITIONS WITH TERMS TO EXPIRE AUGUST 31, 2026; AND THE APPOINTMENT OF BISHOP GWENDOLYN PHILLIPS- COATES TO AN ALTERNATE POSITION WITH A TERM TO EXPIRE AUGUST 31, 2026; SECOND BY COUNCILMEMBER WALSH. The motion passed unanimously as follows. Council President Kochmar yes Councilmember Tran yes Deputy Mayor Honda yes Councilmember Walsh yes CouncilmemberAssefa-Dawson yes Councilmember Dovey yes Councilmember McDaniel yes d. Youth Commission Appointment COUNCILMEMBER WALSH MOVED THE APPOINTMENT OF MALEHA TASMIN TO A VOTING POSITION WITH A TERM TO EXPIRE AUGUST 31, 2025; SECOND BY COUNCILMEMBER TRAN. The motion passed unanimously as follows. Council President Kochmar yes Councilmember Tran yes Deputy Mayor Honda yes Councilmember Walsh yes CouncilmemberAssefa-Dawson yes Councilmember Dovey yes Councilmember McDaniel yes e. Human Services Commission Appointment(s) COUNCILMEMBER WALSH MOVED THE APPOINTMENT OF GORDON BOCK TO A VOTING POSITION WITH A TERM TO EXPIRE JANUARY 31, 2024; AND THE APPOINTMENT OF SANYU TUSHABE TO AN ALTERNATE POSITION WITH A TERM TO EXPIRE JANUARY 31, 2026; SECOND BY COUNCILMEMBER ASSEFA-DAWSON. The motion passed unanimously as follows. Council President Kochmar yes Councilmember Tran yes Deputy Mayor Honda yes Councilmember Walsh yes CouncilmemberAssefa-Dawson yes Councilmember Dovey yes Councilmember McDaniel yes 10. COUNCIL REPORTS Councilmember Assefa-Dawson, Councilmember Tran and Councilmember Walsh had no additional report. Councilmember McDaniel referenced a conversation with a homeless individual and stated his support for recovery programs. Councilmember Dovey referenced a request made to him regarding additional dog pick up bags at the Panther Lake walking trail. Deputy Mayor Honda spoke in support of the Historical Society and encouraged membership and attendance at the upcoming annual meeting and event. She provided information about a community shred, event on October 21. Federal Way City Council Regular Minutes Page 6 of 7 October 3, 2023 Council President Kochmar shared a.personal story and asked for people to consider being an organ donor. 11. ADJOURNMENT There being nothing further on the agenda; the regular meeting was adjourned at 9:31 p.m. Attest: Stephanie Courtney City Clerk Approved by Council: Federal Way City Council Regular Minutes Page 7 of 7 October 3, 2023 8b COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: ON -CALL SIDEWALK AND CURB REPLACEMENT CONTRACT- APPROVAL TO AWARD POLICY QUESTION: Should the Council authorize the award of the On -Call Sidewalk and Curb Replacement Contract to the lowest responsive, responsible bidder? COMMITTEE: Land Use and Transportation MEETING DATE: October 2, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Jarred Larson, Op erations Manager DEPT: Public Works Attachments: 1. LUTC Memorandum dated October 2, 2023. 2. Bid Tabulation Options Considered: 1. Authorize the award of the On -Call Sidewalk and Curb Replacement Contract to Asphalt Patch Systems, Inc., the lowest responsive, responsible bidder, in the amount not -to -exceed $350,000.00 for a three-year term with the option for one, one-year extension. 2. Do not authorize award of the On -Call Sidewalk and Curb Replacement Agreement and provide direction to staff. MAYOR'S RECOMMENDATION: Option 1_ MAYOR APPROVAL: DIRECTOR / q% APPROVAL: ,�/��' .incil Initial/Date COMMITTEE RECOMMENDATION: I move to forward Option I to the October 17, 2023 consent agenda for approval. " OA>� ( ��o _:�H�261e; hack D ve , Committee Chair 'W;flsllr, Committee Member Hoang Tran, 06mmittee Member PROPOSED COUNCIL MOTION: "I ik�/ approval of the proposed Agreement, and authorize the Mayor to execute said agreement. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # _ REVISED - 4/2019 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: October 2, 2023 TO: Land Use & Transportation Committee VIA: Jim Ferrell, Mayor FROM: EJ Walsh, P.E., Public Works Director Jarred Larson, Public Works Operations Manager SUBJECT: On -Call Sidewalk and Curb Replacement Contract — Approval to Award. Financial Impacts: The cost to the City for On -Call Sidewalk and Curb Replacement Contract was included within the approved budget under the Streets Operations and Maintenance budget (Fund 101). In accordance with the approved budget, this item is funded by a combination of city general fund revenue and Motor Vehicle Excise Tax (MVET). In addition, this Contract may be funded from the annual ADA Retrofit Project in the transportation capital budget (Fund 306). Fund 306 is funded from a combination of Real Estate Excise Tax (REST), MVET, and Traffic Impact Fees (TIF). There are no additional maintenance costs since this is replacement of existing infrastructure. Background Information: Sidewalks and curbs that are showing signs of deterioration are currently placed onto a maintenance repair list. Given the number of sidewalks.and curbs in need of repair/replacement and being a regular occurring maintenance item, the city is pursuing an on -call contract to complete some of this work. To save administrative time from annual bidding, staff requests bids for a multi -year unit priced contract that includes provisions for annual rate increases tied to the Puget Sound consumer price index (CPI). Request for bids was issued through the small works contract process. Three bids were received (See attached bid tabulations). Bid prices are for establishing unit -specific rates for typical work requested and provided a basis for determining the lowest responsive, responsible bidder. The Bid totals do not reflect the actual amount of work to be completed. The proposed award amount is the not -to -exceed amount of $350,000 which is the maximum dollar amount that can be paid under a small works contract. Estimated dollars spent on these services range from $20,000 to $100,000 per year. The initial term is proposed to be for three (3) years with an option to extend for one, one-year term. The Rev 7/l8 BID TABULATIONS ON -CALL SIDEWALK AND CURB REPAIR (RFB 23-013) Bid Review: September 15, 2023 Contractor Asphalt Patch Systems, Inc. Puyallup, WA Contractor AA Asphalting, LLC Sumner, WA Contractor T Stone Construction, LLC** Puyallup, WA # Description Qty Units Unit Price Total Unit Price Total Unit Price Total 1 Mobilization 1 LS N/A N/A N/A N/A N/A N/A 2 Traffic Control Supervisor 4 HR 150.00 600.00 $100.00 400.00 $105.00 420.00 3 Other Traffic Control Labor 10 HR 200.00 2,000.00 $85.00 850.00 $70.00 700.00 4 Flaggers 10 HR 75.00 750.00 $85.00 850.00 $70.00 700.00 5 Traffic Control Devices 1 FA 500.00 500.00 $500.00 500.00 $500.00 500.00 6 Sawcutting 30 LF 20.00 600.00 $20.00 600.00 $25.00 750.00 7 Remove Curb and Gutter 15 LF 40.00 600.00 $10.00 150.00 $25.00 375.00 8 Remove Extruded Curb 30 LF 30.00 900.00 $10.00 300.00 $25.00 750.00 9 Remove Concrete Sidewalk 8 SY 60.00 480.00 $10.00 80.00 $410.00 3,280.00 10 Remove HMA 1 CY 400.00 400.00 $10.00 10.00 $410.00 410.00 11 Crushed Surfacing Top Course 3 TON 100.00 300.00 $200.00 600.00 $150.00 450.00 12 Commercial HMA 2 TON 540.00 1,080.00 $1,000.00 2,000.00 $325.00 650.00 13 Cement Conc. Traffic Curb and Gutter 15 LF 125.00 1,875.00 $300.00 4,500.00 $125.00 1,875.00 14 Extruded Curb 30 LF 50.00 1,500.00 $100.00 3,000.00 $125.00 3,750.00 15 Cement Concrete Curb Ramp Type Perpendicular 1 EA 2,500.00 2,500.00 7,500.00 7,500.00 125.00 125.00 16 Cement Concrete Curb Ramp Type Parallel 1 EA 3,500.00 3,500.00 7,500.00 7,500.00 125.00 125.00 17 Detectable Warning Surface 20 SF 25.00 500.00 20.00 400.00 70.00 1,400.00 18 Cement Conc. Sidewalk 8 SY 275.00 2,200.00 375.00 3,000.00 250.00 2,000.00 A10% Mobilization to be added to each location TOTAL 1 20,285.00 32,240.00 18,260.00 *irregular bid price **Bid rejected due to irregular bid prices. -- - -- -- - COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: AMEND THE 2023 RIGHT-OF-WAY LANDSCAPE MAINTENANCE CONTRACT POLICY QUESTION: Should council amend the 2023 Right -of -Way Landscape Maintenance contract? COMMITTEE: Land Use and Transportation MEETING DATE: October 2, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ ' City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Jarred Larson DEPT: Public Works Attachments: 1. Staff Report Options Considered: 1. Approve amendment of the 2023 Right -of -Way Landscape Maintenance contract with Macmor, Inc. through December 31, 2025 for an additional not -to -exceed amount of $478,784.04, provided that contract authorization for 2025 is contingent upon budget approval. 2. Do not approve the proposed amendment and prop id direction to staff. MAYOR'S RECOMMENDATION: Option 1. MAYOR APPROVAL: DIRECTOR APPROVAL: anur q- z3 L Initial/Date COMMITTEE RECOMMENDATION: I move to forward the proposed contract amendment to the October 17, 2023 consent agenda far approval. ?64— J •ic 0V7 Ca mittee Chair c a1 , C MiLtee Hoang T an, Committee Memb - Member PROPOSED COUNCIL MOTION: "I rnov proval of the proposed amendment to the 2023 Right -of -Way Landscape Maintenance contract with lbacmar, Inc. through December 31, 2025, for an additional not -to - exceed amount of $478, 784.04, provided that contract authorization for 2025 is contingent upon budget approval. " (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) _ COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED - 4/2019 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: October 2, 2023 TO: Land Use & Transportation Committee VIA: Jim Ferrell, Mayor FROM: EJ Walsh, P.E., Public Works Director Jarred Larson, Public Works Operations Manager SUBJECT: Amend 2023 Right -of -Way Landscape Maintenance Contract Financial Impacts: The cost to the City for 2023 Right-of-way Landscape Maintenance Contract was included within the proposed 2023-2024 budget under the Public Works Street Operations Fund 101 and Solid Waste Fund 106. In accordance with the proposed budget, this item is funded annually by $135,000 from the General Fund and $80,000 from Solid Waste franchise fees. In addition, the City has received a grant from the WA State Department of Ecology for $60,000.00 for interstate ramp clean up. Background Information: The city performs landscape maintenance of its "formal" landscaping along the majority of the major arterials with a combination of contracted services (about 40%) and city staff (about 60%). In addition, the city contracts out semi-monthly litter pick-up along "non -landscaped" roads (including Dash Point Road and Hoyt Road) and weekly garbage container servicing (select locations). This maintenance contract was bid and awarded to Macmor, Inc. in October 2022 and contract executed for one calendar year with option to amend the contract including contract increases based on the June Puget Sound Consumer Price Index (CPI). Staff recommends amending the current contract for a two-year period (2024 and 2025) to include the "Base Bid" plus "Bid Alternate 1" plus $60,000 for the interstate ramp clean up. Continuation of the contract through 2025 is contingent upon the future adopted budget including these contract expenditures. Summary of the total award and available funding is shown below. Macmor, Inc. has been the city's contractor for landscape maintenance of the last six (6) years and has provided excellent level of service. Rev. 6/2019 October 2, 2023 Land Use and Transportation Committee Amend 2023 Right -of -Way Landscape Maintenance Page 2 2024-2025 Right -of -Way Landscape Maintenance - Costs 2024 — BASE BID — Landscape Maintenance $ 132,095.85 2024 — BID ALT 1 Litter Pick -Up — Garbage Containers and $ 72,947.66 2025 - BASE BID — Landscape Maintenance $ 137,437.27 2025 - BID ALT 1 — Litter Pick -Up Garbage Containers and $ 76,303.26 2023-2025 Interstate Ramp Cleanup $ 60,000.00 TOTAL 1 $ 478,784.04 2024-2025 Right -of -Way Landscape Maintenance - Budget 2024- Streets Operations (101 Fund)— $ 135,000.00 landscape maintenance 2024 - Solid Waste (106 Fund) — Garbage $ 80,000.00 Containers and Litter Pick -Up *2025 - Streets Operations (101 Fund) — $ 135,000.00 landscape maintenance *2025 - Solid Waste (106 Fund) — Garbage $ 80,000.00 Containers and Litter Pick -Up DOE — Interstate Ramp Clean -Up Grant $ 60,000.00 TOTAL $ 490,000.00 *estimated budget. a COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: RESOLUTION RENEWING THE LAKE MANAGEMENT DISTRICT NUMBER 1 ADVISORY COMMITTEE FOR STEEL LAKE AND ESTABLISHING THE DUTIES THEREOF. POLICY QUESTION: Should Council adopt a resolution renewing the Lake Management District Number l Advisory Committee for Steel Lake and establishing the duties thereof? COMMITTEE: LUTC MEETING DATE: October 2, 2023 CATEGORY: ❑ Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ® Resolution ❑ Other STAFF REPORT BY: Kevin Du, Water Quality Supervisol� DEPT: Public Works Attachments: 1. Staff Report 2. Resolution Options Considered: 1. Approve proposed resolution. 2. Do not approve proposed resolution and provide direction to staff. MAYOR'S RECOMMENDATION: Option 1. MAYOR APPROVAL: I DIRECTOR APPROVAL: q-w,; Initial/Date COMMITTEE RECOMMENDATION: "I move to forward the proposed resolution to the October 17, 2023, consent agenda for approval. " tee Chair Committee Member Commiffee Member PROPOSED COUNCIL MOTION: "I moVpproval of the proposed resolution." IBELOW TO BE COMPLETED BY CITY CLERKS OFFICE`) COUNCIL ACTION: L1 APPROVED COUNCIL BILL # © DENIED First reading © TABLED/DEFERRED/NO ACTION Enactment reading © MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED — It /2019 RESOLUTION # J CITY OF FEDERAL WAY MEMORANDUM DATE: October 2, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: EJ Walsh, P.E., Public Works Director V—,A� Kevin Du, Water Quality SupervisoKD SUBJECT: Resolution renewing the Lake Management District Number 1 Advisory Committee for Steel Lake and establishing the duties thereof. Financial Impacts: There is no cost to the City for the renewal of Steel Lake Management District Number 1 (SLMD). SLMD activities are funded through the collection of special assessments that will be collected annually. These assessments are collected from property owners having properties adjacent to Steel Lake with lakefront footage or with deeded lake access. All City of Federal Way staff activities related to the SLMD are funded through these assessments, and thus will have no direct financial impacts on the City. BackL-round Information: On August 8, 2023, City Council adopted Ordinande No. 23-965 renewing the Steel Lake Management District Number 1 (SLMD). Pursuant to RCW 36.61.120 and RCW 36.61.140, all notice and hearing requirements for establishing the roll of rates and charges for the SLMD have been satisfied. A Steel Lake Advisory Committee (SLAC) must now be established, which will represent the property owners of the district. The resolution creating an Advisory Committee for SLMD Number 1 will be established to: (1) discuss with the City each spring the proposed annual work program consistent with the Steel Lake Management District Plan (or its successors); (2) provide input and suggestions to the City regarding the implementation of the district's annual work program; (3) work with the City in the preparation of any educational materials related to Steel Lake and SLMD; (4) provide input to the City each winter on the preparation of an annual report regarding progress on the SLMD work program and the health of the lake; and (5) support'an annual public meeting to brief SLMD members on the contents of the annual report and related SLMD activities. Rev 7/l8 RESOLUTION NO. 23- A RESOLUTION of the City of Federal Way, Washington, renewing Lake Management District Number 1 Advisory Committee .for Steel Lake and establishing the duties thereof. WHEREAS, Lake Management District Number 1 for Steel Lake was created for the purpose of generating revenue to provide ongoing aquatic vegetation management, community education, and other related projects pursuant to Chapter 36.61 RCW; and WHEREAS, Resolution Number 23-838 states that, attendant to the renewal of the Lake Management District is the reestablishment of the Advisory Committee. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, RESOLVES AS FOLLOWS: Section 1. Creation and Purpose. There is hereby renewed the Steel Lake Management District Advisory Committee to represent the property owners of Lake Management District (LMD) Number 1 and advise the City Council. The purpose of the Advisory Committee is to represent the property owners of the LMD to the City Council and (1) each spring, discuss with the City the proposed annual work program consistent with Ordinance Number 23-965 and the 2024-2033 Steel Lake Management District Plan (or its successors); (2) provide input and suggestions to the City regarding the implementation of the district's annual work program; (3) work with the City in the preparation of any educational materials related to Steel Lake and the LMD; (4) each winter, review and provide input to the City on the preparation of an annual report regarding progress on the LMD work program and the health of the lake; and (5) support an annual public meeting to brief LMD members on the contents of the annual report and related LMD activities. Resolution No. 23- Page I of5 Section 2. Membership. A. Qualifications. Members of the Advisory Committee shall be selected from individuals who own property or represent government bodies that own property within the LMD. Intent of the selection process shall be to proportionally represent the various property types identified in the district assessment role. B. Number of Members and Terms. 1. Members. The Advisory Committee will be made up of seven members: four representing single family and vacant properties; one representing the Washington Department of Fish and Wildlife (public boat launch); one representing multifamily properties; and one representing the City of Federal Way (Park). 2. Term. Each private property owner shall be appointed for a term of two (2) years. C. Appointment. Members of the Advisory Committee shall be appointed by the City of Federal Way City Council following an open recruitment process approved by the City Council. Appointments shall be confirmed by a majority vote of the City Council. Committee members shall be selected without respect to political affiliations and shall serve without compensation. D. Removal. Members of the Committee may be removed by the Mayor, with the concurrence of the City Council; for neglect of duty, conflict of interest, malfeasance in office; or other just cause, or for unexcused absences for more than three (3) consecutive regular meetings. The decision of the City Council regarding membership on the Committee shall be final and there shall be no appeal. Members Resolution No. 23- Page 2 of 5 finding they are unable to attend regular meetings are expected to tender their resignation. E. Vacancies. Vacancies occurring other than through the expiration of terms shall be filled for the un-expired term in the same manner as for appointments as provided in this resolution. F. Conflicts of Interest. Members of the Committee shall fully comply with RCW 42.23, Code of Ethics for Municipal Officers; RCW 42.36, Appearance of Fairness; Federal Way Code of Ethics; and such rules and regulations as may be adopted by the City Council regulating the conduct of any person holding appointive office within the City. Section 3. Meeting. A. Officers and Quorum. The Committee shall organize and elect from its members a Chair, who shall preside at all meetings of the Committee, and a Vice -Chair. A majority of the Committee members shall constitute a quorum for the transaction of business, and a majority vote of those present shall be necessary to carry any proposition. B. Meeting Schedule. The Committee shall determine a regular meeting schedule (time, place and frequency), as necessary, approximately once every three (3) months. All meetings shall be open to the public. C. Procedures. The Committee shall adopt such rules and procedures as are necessary for the conduct of its business and shall keep summary notes of its proceedings. The written notes shall be a public record. Resolution No. 23- Page 3 of 5 Section 4. Staff Support. Administrative staff support to the Advisory Committee shall be provided by the City of Federal Way Public Works Director or his /her designee. Section 5. Sunset. The Advisory Committee shall terminate at the same time as the Lake Management District authorization expires. Section 6. Seyerability. If any section, sentence, clause or phrase of this resolution should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause, or phrase of this resolution. Section 7. Corrections. The City Clerk and the codifiers of this resolution are authorized to make necessary corrections to this resolution including, but not limited to, the correction of scrivener/clerical errors, references, resolution numbering, section/subsection numbers and any references thereto. Section 8. Ratification. Any act consistent with the authority and prior to the effective date of this resolution is hereby ratified and affirmed. Section 9. Effective Date. This resolution shall be effective immediately upon passage by the Federal Way City Council. RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON this day of , 20_. [signatures to follow] Resolution No. 23- Page 4 of 5 CITY OF FEDERAL WAY: JIM FERRELL, MAYOR ATTEST: STEPHANIE COURTNEY, CMC, CITY CLERK APPROVED AS TO FORM: J. RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO.: Resolution No. 23- Page 5 of 5 T• a COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: S 288TH ST ROAD DIET PHASE 1 KING COUNTY METRO INTERAGENCY AGREEMENT POLICY QUESTION: Should the City Council enter into an interagency agreement with King County Metro to have them pay for the construction of bus stop improvements to the City's S 288th Street Road Diet Phase 1 project? COMMITTEE: Land Use and Transportation Committee MEETING DATE: October 2, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Jonathan Strong, Civil Engineer DEPT: Public Works Attachments: 1. Staff Report 2. LUTC Memorandum dated July 10, 2023 3. King County Metro Interagency Agreement Options Considered: 1. Approve the proposed interagency agreement. 2. Do not approve the proposed interagency agreement and provide direction to staff. MAYOR MAYOR APPROVAL: DIRECTOR APPROVAL:r Council Initial/Date mia1117 COMMITTEE RECOMMENDATION: I move to forward the proposed interagency agreement to the October 17, 2023 consent agenda for approval Chair alsh, Committee Member Committee Member PROPOSED COUNCIL MOTION: I move tp oval of the proposed interagency agreement and authorize the Mayor to execute the agreement. (BELOA"To BE COMPLETED BYCITYCLEWS OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED- 4/2019 RESOLUTION# CITY OF FEDERAL WAY MEMORANDUM DATE: October 2, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: EJ Walsh, Public Works Director`s Jonathan Strong, Civil Engineer SUBJECT: S 288th St Road Diet Phase 1 King County Metro Interlocal Agreement Financial Impacts: The cost to the City for the S 288th Street Road Diet Phase 1 Project was included within the approved budget under the Public Works Department Capital Project #36238. King County Metro would like to include the construction of bus stop improvements as part of the project and in return has agreed to pay the City for the related bid items and construction costs. King County Metro's contribution to the project would be $16,428.66. The King County Metro contribution would not include removal and construction of sidewalks that would require repairs, and the cost to the City would be $1,768 which would be covered by the previously approved project budget. Background Inform-ation, The Interlocal Cooperation Act (RCW 39.34) permits local governmental units to make the most efficient use of their powers by enabling them to cooperate and provide services in a manner that best serves the needs and development of local communities. King County Metro proposes an interlocal agreement with the City to include the construction of bus stop improvements as part of the S 288th Street Road Diet Phase I Project, and to specify requirements and cost allocations regarding the bus stop improvements. By entering into the proposed interlocal agreement King County Metro would benefit by upgrading bus stops in the project area and the City of Federal Way and its residents will mutually benefit by having access to said upgraded bus stops. Rev 7/18 CITY OF FEDERAL WAY MEMORANDUM DATE: July 10, 2023 TO: Land Use & Transportation Committee VIA: Jim Ferrell, Mayor FROM: EJ Walsh, Public Works Director Jonathan Strong, Civil Engineer SUBJECT: S 2881 St Road Diet Phase 1 Authorization to Award Financial Impacts: The cost to the City for the S 288th Street Road Diet Phase I Project was included within the approved budget under the Public Works Department Capital Project #36238. In accordance with the approved budget, this item is funded by a $2 Million -dollar TIB grant, a $1 Million -dollar WSDOT Pedestrian & Bicycle Safety grant, the remainder with REET funds and Traffic Impact fees, and $702,400 provided by Sound Transit. Upon completion of the project, ongoing costg associated with operations and maintenance will be performed and funded through streets maintenance. Funding requirements for operations and maintenance of infrastructure is reviewed and adjusted during the budget process. Backeround Information: Seven Bids were received and opened on June 23, 2023 for the S 2881h St Road Diet Phase l project. See attached bid tabulation. The lowest responsive, responsive bidder is ICON Materials. Financial Summate: PHASE 1 ESTIMATED EXPENDITURES: Design $ 175,000.00 Construction Contract $ 910,899.50 Construction Contingency (10%) $ 91,089.95 Construction M m�spection $ 168.010.55 TOTAL ESTIMATED EXPENDITURES S 1,345,000.00 PHASE 1 FUNDING: Bike & Ped. Safety Grant (State) $ 900,000.00 Sound Transit $ 550,000.00 TOTAL AVAILABLE FUNDING $ 1,450,000.00 Rev 6/2019 288th St Road Diet PROJECT RFB No. 23-004 PROJECT #36238 BID OPENING DATE: June 23, 2023 Vendor Name ---> Location ----------> Bid 1 ICON Materials Pacific, WA Bid 2 Miles Resources, LLC Puyallup, WA Bid 3 ACI Puyallup, WA Bid 4 Northwest Cascade Inc. Puyallup, WA Bid 5 Sound Pacific Construction LLC Gig Harbor, WA Bid 6 Tucci and Sons Inc Tacoma, WA Bid 7 Engineer Laser Underground & Earthworks Estimate Snohomish, WA Item Amount Unit Price Total Price Total Price Total Price Total Price Total Price Total Price Total Price Total Schedule A - Roadway Improvement 1 Minor Change 1 FA $25,000.00 2 Roadway Surveying 1 LS $2,200.00 3 ADA Features Surveying 1 LS $8,500.00 4 Record Drawings 1 LS $5,300.00 5 Material Testing 1 LS $11,000.00 6 Mobilization 1 LS $43,000.00 7 Flaggers 900 HR $71.00 8 Traffic Control Supervisor 1 LS $27,500.00 9 Clearing and Grubbing 1 LS $2,200.00 10 Removal of Structures and Obstructions 1 LS $300.00 11 Sawcutting 1342 LF $4.00 12 Remove Sidewalk 294 SY $65.00 13 Remove Cement Conc. Curb and Gutter 586 LF $14.00 14 Gravel Borrow Incl. Haul 3 CY $35.00 15 Crushed Surfacing Top Course 292 TON $52.00 16 HMA CL. 1/21N. PG 58-22" 167 TON $147.00 17 Utility Adjustment 5 EA $500.00 18 Inlet Protection 7 EA $43.00 19 Seeding, Fertilizing, and Mulching 142 SY $7.00 20 Topsoil Type A 142 CY $19.00 217 Cement Conc. Traffic Curb and Gutter 637 LF $36.00 22 Extruded Curb 196 LF $35.00 237 Cement Conc. Pedestrian Curb 248 LF $33.00 24 Type C Block Traffic Curb 50 LF $110.00 25 Mountable Traffic Curb 54 LF $110.00 26 Cement Conc. Commercial Driveway 68 SY $107.00 27 Cement Conc. Residential Driveway 127 SY $82.00 28 Raised Pavement Marker Type 2 4 HUND $990.00 29 Chain Link Fence - Match Existing 36 LF $100.00 30 Cement Conc. Sidewalk 256 SY $64.00 -3T Cement Conc. Curb Ramp Type Parallel A 9 EA $3,080.00 32 Detectable Warning Surface 72 SF $55.00 33 KC Metro B21 Shelter Footing 4 EA $2,750.00 34 KC Metro 10'x11' Landing Pad w/ Thickened Edge 49 SY $330.00 35 KC Metro Wing Wall 60 LF $550.00 36 Solar Powered RRFB System, Complete 1 LS $36,800.00 37 Permanent Signing 1 LS $13,750.00 38 Flexible Delineator with Base 8 EA $150.00 39 Removing Plastic Line 1944 LF $2.25 40 Removing Plastic Traffic Marking 1 EA $715.00 41 Paint Bicycle Lane Symbol 11 EA $180.00 42 Paint Line 4242 LF $1.75 43 Profiled Plastic Line 7907 LF $6.00 44 Profiled Plastic Wide Line 5470 LF $10.50 45 Plastic Crosswalk Line 288 SF $12.00 46 Plastic Crosshatch Marking 104 LF $20.00 47 Plastic Traffic Arrow 16 EA $380.00 48 Temporary Pavement Marking 1 LS $2,600.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $25,000.00 $2,200.00 $10,000.00 $10,000.00 $12,000.00 $12,000.00 $2,350.00 $2,350.00 $4,800.00 $4,800.00 $2,300.00 $2,300.00 $12,000.00 $12,000.00 $27,000.00 $27,000.00 $8,500.00 $4,500.00 $4,500.00 $8,000.00 $8,000.00 $9,400.00 $9,400.00 $9,500.00 $9,500.00 $11,500.00 $11,500.00 $7,500.00 $7,500.00 $27,000.00 $27,000.00 $5,300.00 $5,000.00 $5,000.00 $7,500.00 $7,500.00 $500.00 $500.00 $1,000.00 $1,000.00 $1,800.00 $1,800.00 $2,500.00 $2,500.00 $27,000.00 $27,000.00 $11,000.00 $5,000.00 $5,000.001 $7,500.00 $7,500.00 $4,550.00 $4,550.00 $4,000.00 $4,000.00 $3,500.00 $3,500.00 $25,000.00 $25,000.001 $6,000.00 $6,000.00 $43,000.00 $70,600.00 $70,600.00 $88,928.00 $88,928.00 $76,250.00 $76,250.00 $75,000.00 $75,000.00 $35,000.00 $35,000.00 $125,000.00 $125,000.00 $68,000.00 $68,000.00 $63,900.00 $70.30 $63,270.00 $96.00 $86,400.00 $80.00 $72,000.00 $80.00 $72,000.00 $74.50 $67,050.00 $80.00 $72,000.00 $65.00 $58,500.00 $27,500.00 $40,000.00 $40,000.00 $2,500.00 $2,500.00 $24,800.00 $24,800.00 $55,000.00 $55,000.00 $62,000.00 $62,000.00 $15,000.00 $15,000.00 $20,500.00 $20,500.00 $2,200.00 $7,000.00 $7,000.00 $7,000.00 $7,000.00 $10,350.00 $10,350.00 $7,500.00 $7,500.00 $3,800.00 $3,800.00 $58,000.00 $58,000.00 $10,000.00 $10,000.00 $300.00 $1,000.00 $1,000.00 $7,500.00 $7,500.00 $27,500.00 $27,500.00 $10,000.00 $10,000.00 $1,100.00 $1,100.00 $5,000.00 $5,000.00 $15,000.00 $6.00 $50.00 $10.00 $50.00 $150.00 $200.00 $1,000.00 $150.00 $5.00 $10.00 $50.00 $45.00 $50.00 $15.00 $30.00 $150.00 $150.00 $50.00 $100.00 $3,000.00 $100.00 $5,000.00 $100.00 $200.00 $70,000.00 $30,000.00 $180.00 $5.00 $150.00 $300.00 $0.50 $3.00 $6.00 $25.00 $12.00 $500.00 $25,000.00 $15,000.00 $5,368.00 $4.00 $5,368.00 $5.00 $6,710.00 $5.75 $7,716.50 $6.00 $8,052.00 $8.00 $10,736.00 $5.00 $6,710.00 $8,052.00 $19,110.00 $60.00 $17,640.00 $26.50 $7,791.00 $13.50 $3,969.00 $22.00 $6,468.00 $64.00 $18,816.00 $30.00 $8,820.00 $14,700.00 $8,204.00 $45.00 $26,370.00 $9.00 $5,274.00 $6.00 $3,516.00 $7.00 $4,102.00 $13.00 $7,618.00 $15.00 $8,790.00 $5,860.00 $105.00 $150.00 $450.00 $127.00 $381.00 $125.00 $375.00 $125.00 $375.00 $250.00 $750.00 $100.00 $300.00 $150.00 $15,184.00 $30.00 $8,760.00 $87.00 $25,404.00 $73.00 $21,316.00 $65.00 $18,980.00 $60.00 $17,520.00 $60.00 $17,520.00 $43,800.00 $24,549.00 $320.00 $53,440.00 $195.00 $32,565.00 $268.00 $44,756.00 $220.00 $36,740.00 $225.00 $37,575.00 $300.00 $50,100.00 $33,400.05 $2,500.00 $1,750.00 $8,750.00 $725.00 $3,625.00 $650.00 $3,250.00 $1,250.00 $6,250.00 $1,000.00 $5,000.00 $500.00 $2,500.00 $5,000.00 $301.00 $80.00 $560.00 $105.00 $735.00 $92.00 $644.00 $100.00 $700.00 $100.00 $700.00 $100.00 $700.00 $1,050.00 $994.00 $20.00 $2,840.00 $16.00 $2,272.00 $7.00 $994.05 $7.00 $994.00 $10.00 $1,420.00 $35.00 $4,970.00 $710.00 $2,698.00 $15.00 $2,130.00 $75.00 $10,650.00 $25.50 $3,621.00 $17.00 $2,414.00 $20.00 $2,840.00 $15.00 $2,130.00 $1,420.00 $22,932.00 $45.00 $28,665.00 $55.00 $35,035.00 $50.00 $31,850.00 $60.00 $38,220.00 $48.00 $30,576.00 $100.00 $63,700.05 $31,850.00 $6,860.00 $35.00 $6,860.00 $34.00 $6,664.00 $38.00 $7,448.00 $38.00 $7,448.00 $37.00 $7,252.00 $30.00 $5,880.00 $8,820.00 $8,184.00 $40.00 $9,920.00 $40.00 $9,920.00 $47.00 $11,656.00 $55.00 $13,640.00 $43.00 $10,664.00 $90.00 $22,320.00 $12,400.00 $5,500.00 $100.00 $5,000.00 $130.00 $6,500.00 $118.00 $5,900.00 $120.00 $6,000.00 $115.00 $5,750.00 $120.00K$127,000.00 0.00 $750.00 $5,940.00 $100.00 $5,400.00 $58.00 $3,132.00 $183.00 $9,882.00 $110.00 $5,940.00 $115.00 $6,210.00 $90.000.00 $1,620.00 $7,276.00 $40.00 $2,720.00 $150.00 $10,200.00 $146.00 $9,928.00 $150.00 $10,200.00 $160.00 $10,880.00 $250.000.00 $10,200.00 $10,414.00 $120.00 $15,240.00 $154.00 $19,558.00 $119.00 $15,113.00 $125.00 $15,875.00 $135.00 $17,145.00 $1,000.00 $19,050.00 $3,960.00 $1,000.00 $4,000.00 $970.00 $3,880.00 $1,065.00 $4,260.00 $1,000.00 $4,000.00 $1,000.00 $4,000.00 $150.00000$1,000.00 $4,000.00 $3,600.00 $90.00 $3,240.00 $95.00 $3,420.00 $105.00 $3,780.00 $100.00 $3,600.00 $125.00 $4,500.00 $150.000.00 $1,800.00 $16,384.00 $95.00 $24,320.00 $106.00 $27,136.00 $86.00 $22,016.00 $110.00 $28,160.00 $120.00 $30,720.00 $125.00,0.00 $25,600.00 $27,720.00 $2,000.00 $18,000.00 $3,000.00 $27,000.00 $5,000.00 $45,000.00 $2,900.00 $26,100.00 $4,100.00 $36,900.00 $5,000.00 $45,000.00 $27,000.00 $3,960.00 $100.00 $7,200.00 $80.00 $5,760.00 $65.00 $4,680.00 $75.00 $5,400.00 $85.00 $6,120.00 $110.00 $7,920.00 $7,200.00 $11,000.00 $1,300.00 $5,200.00 $2,400.00 $9,600.00 $4,150.00 $16,600.00 $2,500.00 $10,000.00 $1,500.00 $6,000.00 $5,500.00 $22,000.00 $20,000.00 $16,170.00 $125.00 $6,125.00 $155.00 $7,595.00 $385.00 $18,865.00 $160.00 $7,840.00 $220.00 $10,780.00 $150.00 $7,350.00 $4,900.00 $33,000.00 $250.00 $15,000.00 $290.00 $17,400.00 $620.00 $37,200.00 $325.00 $19,500.00 $270.00 $16,200.00 $550.00 $33,000.00 $12,000.00 $36,800.00 $45,000.00 $45,000.00 $40,000.00 $40,000.00 $56,500.00 $56,500.00 $52,000.00 $52,000.00 $40,000.00 $40,000.00 $70,000.00 $70,000.00 $70,000.00 $13,750.00 $14,000.00 $14,000.00 $5,000.00 $5,000.00 $8,500.00 $8,500.00 $9,000.00 $9,000.00 $10,000.00 $10,000.00 $23,000.00 $23,000.00 $30,000.00 $1,200.00 $150.00 $1,200.00 $145.00 $1,160.00 $160.00 $1,280.00 $140.00 $1,120.00 $155.00 $1,240.00 $150.00 $1,200.00 $1,440.00 $4,374.00 $2.00 $3,888.00 $2.00 $3,888.00 $2.50 $4,860.00 $2.00 $3,888.00 $2.00 $3,888.00 $2.00 $3,888.00 $9,720.00 $715.00 $700.00 $700.00 $700.00 $700.00 $750.00 $750.00 $675.00 $675.00 $750.00 $750.00 $750.00 $750.00 $150.00 $1,980.00 $175.00 $1,925.00 $178.00 $1,958.00 $195.00 $2,145.00 $170.00 $1,870.00 $190.00 $2,090.00 $200.00 $2,200.00 $3,300.00 $7,423.50 $1.70 $7,211.40 $1.50 $6,363.00 $1.75 $7,423.50 $2.00 $8,484.00 $2.00 $8,484.001 $1.75 $7,423.50 $2,121.00 $47,442.00 $6.00 $47,442.00 $6.00 $47,442.00 $6.50 $51,395.50 $6.00 $47,442.00 $6.50 $51,395.50 $6.00 $47,442.00 $23,721.00 $57,435.00 $10.00 $54,700.00 $10.50 $57,435.00 $11.75 $64,272.50 $11.00 $60,170.00 $11.50 $62,905.00 $11.00 $60,170.00 $32,820.00 $3,456.00 $12.00 $3,456.00 $11.50 $3,312.00 $13.00 $3,744.00 $12.00 $3,456.00 $13.00 $3,744.00 $12.00 $3,456.00 $7,200.00 $2,080.00 $20.00 $2,080.00 $20.00 $2,080.00 $22.00 $2,288.00 $20.00 $2,080.00 $21.00 $2,184.00 $20.00 $2,080.00 $1,248.00 $6,080.00 $400.00 $6,400.00 $375.00 $6,000.00 $415.00 $6,640.00 $375.00 $6,000.00 $400.00 $6,400.00 $400.00 $6,400.00 $8,000.00 $2,600.00 $5,000.00 $5,000.00 $11,000.00 $11,000.00 $5,100.00 $5,100.00 $5,000.00 $5,000.00 $3,100.00 $3,100.00 $11,500.00 $11,500.00 $25,000.00 $636,148.50 $707,570.40 $726,873.00 $801,934.00 $751,983.00 $715,902.50 $1,089,079.50 $800,052.00 Schedule B - Roadway Resurfacing 1 Minor Change 1 FA 2 Roadway Surveying 1 LS 3 Mobilization 1 LS 4 Flaggers 300 HR 5 Traffic Control Supervisor 1 LS 6 Roadway Excavation Incl. Haul 175 CY 7 HMA CL. 1/21N. PG 58-22" 1076 TON 8 Planing Bituminous Pavement 9439 SY 9 Adjust Manhole or Catchbasin 7 EA 10 Utility Adjustment 13 EA 11 Inlet Protection 14 EA 12 Adjust Monument Case and Cover 1 EA 13 Restore Covered Monument Case and Cover 3 EA Total Listed on Bid Proposal Difference 000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $12,000.00 $15,000.00 $1 300.00 $4,300.00 $3,000.00 $3,000.00 $2,100.00 $2,100.00 $4,700.00 $4,700.00 $5,000.00 $5,000.00 $5,300.00 $5,300.00 $9,000.00 $9,000.00 $13,000.00 $1 000.00 $26,000.00 $30,500.00 $30,500.00 $1,000.00 $1,000.00 $28,000.00 $28,000.00 $3,000.00 $3,000.00 $3,500.00 $3,500.00 $25,000.00 $25,000.00 $26,000.00 $2 $71.00 $21,300.00 $70.30 $21,090.00 $96.00 $28,800.00 $80.00 $24,000.00 $80.00 $24,000.00 $74.50 $22,350.00 $80.00 $24,000.00 $65.00 $1 700.00 $11,700.00 $13,500.00 $13,500.00 $950.00 $950.00 $13,850.00 $13,850.00 $10,000.00 $10,000.00 $13,000.00 $13,000.00 $20,000.00 $20,000.00 $18,500.00 $1 115.00 $20,125.00 $100.00 $17,500.00 $112.00 $19,600.00 $57.00 $9,975.00 $55.00 $9,625.00 $125.00 $21,875.00 $80.00 $14,000.00 $50.00 3 101.00 $108,676.00 $113.00 $121,588.00 $117.00 $125,892.00 $132.00 $142,032.00 $115.00 $123,740.00 $120.00 $129,120.00 $140.00 $150,640.00 $150.00 $1E $6.00 $56,634.00 $5.00 $47,195.00 $9.00 $84,951.00 $5.00 $47,195.00 $5.00 $47,195.00 $6.00 $56,634.00 $8.00 $75,512.00 $5.00 $4 700.00 $4,900.00 $1,750.00 $12,250.00 $1,550.00 $10,850.00 $650.00 $4,550.00 $1,100.00 $7,700.00 $1,000.00 $7,000.00 $750.00 $5,250.00 $700.00 $ 500.00 $6,500.00 $1,750.00 $22,750.00 $1,325.00 $17,225.00 $650.00 $8,450.00 $900.00 $11,700.00 $1,000.00 $13,000.00 $800.00 $10,400.00 $500.00 3 $44.00 $616.00 $80.00 $1,120.001 $130.001 $1,820.001 $92.001 $1,288.001 $100.001 $1,400.001 $100.001 $1,400.00 $100.00 $1,400.00 $150.00 3 500.001 $500.00 $1,100.00 $1,100.00 $1,350.00 $1,350.00 $4,750.00 $4,750.00 $900.00 $900.00 $800.00 $800.00 $5,000.00 $5,000.00 $1,000.00 $ 500.00 $1,500.00 $274,751.00 $1,100.00 $3,300.00 $875.00 $2,625.00 $309,163.00 $4,750.00 $14,250.00 $315,040.00 $3,200.00 $9,600.00 $800.00 $2,400.00 $5,000.00 $15,000.00 $1,000.00 $ $32 $910,899.50 $1,014,463.40 $1,036,036.00 $1,116,974.00 $1,017,843.00 $1,004,281.50 $1,456,281.50 $1,12 $910,899.50 $1, 045,459.59 $1, 036,036.00 $1,116,974.00 $1, 017,843.00 $1, 004,281.50 $1, 354,431.50 $0.00-$30,996.19 $0.00 $0.00 $0.00 $0.00 $101,850.00 7,1 4,9 6,E 2.1 Page 1 of 1 VICINITY MAP 73 w L 7 �, 5i b 5 �S� cn � N - - &,28Sth. St,— N Vl v IA :.i n �i �S Ihui =5: I I 1 I After recording, return to City of Federal Way Public Works Department Attn: Jonathan Strong 33325 8th Avenue S Federal Way, WA 98003 INTERLOCAL AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND KING COUNTY, METRO TRANSIT DIVISION FOR THE S 288T" ST ROAD DIET PHASE 1 (Military Road to 34th Ave S) CFW PROJECT #36238 THIS AGREEMENT is made and entered into this day of 2023, by and between the City of Federal Way (hereinafter "City") and King County, acting through its Metro Transit Department (hereinafter "County"), collectively referred to herein as the "Parties." WHEREAS, the City has undertaken the S 288th St Road Diet Project Phase 1 (Military Road to 341h Ave S), hereinafter "Project;" and WHEREAS, with the City and its contractor making improvements to the road and sidewalks of South 288th Street within the scope of the Project, there is an opportunity to make improvements to King County Metro bus stops; and WHEREAS, the City and contractorwill construct bus stop improvements including a bus shelter foundation and a landing pad with thickened edge atthe eastbound bus stop, Metro stop ID 85892 according to the plans (STA. 51+95.99, 22.6' RT); and WHEREAS, the City and contractor will construct bus stop improvements including a landing pad with thickened edge at the eastbound bus stop, Metro stop ID 85974 according to the plans (STA. 52+79.75, 24' LT); and WHEREAS, the City and contractor will NOT construct bus stop improvements at the Metro stop ID 85890 and 85976 (STA. 43+17.15, 27.5' RT and STA. 44+02.69, 25.2' RT); and WHEREAS, Chapter 39.34 RCW (Interlocal Cooperation Act) permits local governmental units to make the most efficient use of their powers by enabling them to cooperate with other entities to provide services in a manner best serving the needs and development of their local communities; and WHEREAS, the County can achieve cost savings and other benefits in the public's interest by contracting with the City to perform certain services for the County, including letting a S. 288th Street Road Diet Phase 1 Page 1 King County Metro Interlocal Agreement public works construction contractor build bus stop improvements within the Project (hereinafter "County Work"), and providing construction management services in support thereof; and NOW, THEREFORE, it is hereby covenanted and agreed by and between the Parties hereto as follows: DESIGN AND PLANS, SPECIFICATIONS AND ENGINEER'S ESTIMATE. The City has reproduced drawings, special contract provisions, and other necessary documents which will sufficiently detail requirements for the County Work to become a part of the Contract Bid Documents and Engineer's estimate for the Project. BIDDING AND CONSTRUCTION. A. It is the intention of the Parties that the County plans and specifications be incorporated into the Contract Bid Documents for the Project in such manner as to allow, to the extent possible, identification of cost allocations between the Parties. B. The City had a bid opening for the Project on May, 19, 2023. At this opening, DPM Development Corporation DBA ICON Materials (hereinafter "ICON") was the lowest bidder. ICON was awarded the project for construction. III. CONTRACT ADMINISTRATION. A. The City shall provide the necessary administrative, construction observation, and clerical services necessary for the execution of the Project, exclusive of such construction observation, material review and ancillary construction administration support provided by the County incoordination with City staff. In providing such services, the City Public Works Director and/or his or her designee may exercise all the powers and perform all the duties vested by law in him or her. The County grants to the City Public Works Director and/or his or her designee authority to act on behalf of the County sufficient to carry out the provisions of this Agreement. B. The County shall notify the City, in writing, of any changes it wishes to make in the plans and specifications which affect the County Work, which changes shall be made, if feasible. The City shall notify the County, in writing, of any changes required of the County Work and shall obtain the County's approval of such changes. The County's approval shall not be unreasonably withheld. The County shall be responsible for all costs incurred, directly or indirectly, as a result of these or any other changes required or requested by the County. IV. PAYMENT. A. The County shall reimburse the City for all costs incurred by the City in performing the County Work, which costs shall include, but are not limited to, the County work performed by the City's Project contractor(s), the City's design consultant, and City staff S. 288t' Street Road Diet Phase 1 Page 2 King County Metro Interlocal Agreement time for design and construction management & inspection. The total cost and the total owed by the County is summarized in Exhibit A. B. The City will provide an invoice to the County after execution of this agreement. All payments shall be due from the County to the City within thirty (30) days after receipt by the County of said sums billed to the County. Amounts unpaid after said due date shall accrue interest at a rate of one (1) percent per month. The City will provide the backup to the invoice identifying actual costs incurred for the work and the County's item costs. If the payment is to exceed the estimate stated below, both the City and the County will have to agree on that change. C. The City shall make all disbursements to the Project contractors and consultants- V. INDEMNIFICATION AND HOLD HARMLESS. A. The City agrees to indemnify and hold the County, its elected officials, officers, employees and agents harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising or resulting from, or connected with, this Agreement to the extent caused by the negligent acts, errors or omissions of the City, its agents or employees, or by the City's breach of this Agreement. B. The County agrees to indemnify and hold the City, its elected officials, officers, employees and agents harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising or resulting from, or connected with, this Agreement to the extent caused by the negligent acts, errors or omissions of the County, its agents or employees, or by the County's breach of this Agreement. The provisions of this paragraph shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. VI. DURATION. This agreement shall become effective immediately upon execution by both parties, and shall continue in force until the City Council accepts the completion of the project. VII. OTHER PROVISIONS. A. The City shall retain ownership and usual maintenance responsibility for the roadway, storm drainage system, sidewalks, landscaping, traffic signals and all other appurtenances related thereto. B. The City Council's acceptance of this project shall, in effect, transfer ownership of these King County Metro Bus Stops to the County and the County shall thereafter S. 2881h Street Road Diet Phase 1 Page 3 King County Metro Interlocal Agreement be responsible for maintenance of such facilities. C. This Agreement contains the entire written agreement of the Parties and supersedes all prior discussion. This Agreement may be amended only in writing, signed by both Parties. D. This Agreement may be extended for additional periods of time upon mutual written agreement of the City and County. E. Adherence to deadline dates is essential to the performance of this Interlocal Agreement. F. Any provision of this Agreement, which is declared invalid, void or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and effect. G. Should any claims arise related to the County Work portion of the Project, the City shall handle and administer the claims in the same manner it would handle any other claims on the Project and the County shall reimburse the City for all expenses associated with handling such claims. The City shall immediately notify the County and keep it informed as to the progress of the claim. The County will provide guidance regarding proposed terms of settlement. Any decision regarding the settlement or prosecution of a claim shall be approved by the County prior to being finalized. If the County and the City cannot agree as to the prosecution or settlement of a claim, the County may prosecute or defend the claim and the City will assign such claims to the County. The County agrees to pay all costs of prosecution or defense if assigned such claims and defend, indemnify and hold harmless the City from all damages the City suffers from the County's prosecution or defense of the claim. IN CONSIDERATION of the mutual benefit accruing herein, the Parties hereto agree that the work, as set forth herein, will be performed by the City under the terms of this Agreement. IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the day and year first above written. (SIGNATURE PAGE FOLLOWS) S. 2881 Street Road Diet Phase 1 Page 4 King County Metro Interlocal Agreement CITY OF FEDERAL WAY KING COUNTY Jim Ferrell, Mayor Mark Ellerbrook, Director, Capital Division King County, Metro Transit Department APPROVED AS TO FORM J. Ryan Call, City Attorney ATTEST: Stephanie Courtney, CMC, City Clerk S. 288t' Street Road Diet Phase 1 Page 5 King County Metro Interlocal Agreement EXHIBIT A KING COUNTY METRO COSTS CONSTRUCTION COSTS The proportionate King County Metro percentage will be applied to the Schedule A Items listed below. The King County Metro percentage will be determined as follows: Construction — KC Metro Bid Items KC Metro B21 Shelter Footing ($2,750 * 1 EA) $ 2,750.00 KC Metro 10'x11' Landing Pad w/Thickened Edge ($330 * 26 SY) $ 8,580.00 KC Metro Bid Items $ 11,330.00 KC Metro % = KC Metro Bid Items Amt = $11.330.00 = 1.78% Schedule A Amt $910,89.50 Construction — Schedule A Bid Items Mobilization ($43,000 * 1.78%) $ 765.84 Roadway Surveying ($2,200 * 1.78%) $ 39.18 Record Drawings ($5,300 * 1.78%) $ 94.39 Traffic Control Supervisor ($27,500 * 1.78%) $ 489.78 Flaggers ($63,900 x 1.24%) $ 1,138.08 Inlet Protection ($301 x 1.78%) $ 5.36 Clearing and Grubbing ($2200 * 1.78%) $ 39.18 Sawcutting ($5,368 * 1.78%) $ 95.61 Schedule A Shared Bid Items $ 2,667.43 Subtotal — KC Metro Bid Items $ 11,330.00 Subtotal — Schedule A Shared Bid Items $ 2,667.43 Subtotal — Construction $ 13,997.43 Construction Management (15% of Subtotal) $ 2,099.61 Design (10% of Subtotal) $ 1,399.74 Project Administration (5% of Subtotal) $ 699.87 Total Cost $18,196.66 CITY OF FEDERAL WAY CONTRIBUTION The City of Federal Way contribution is equivalent to the removal and replacement of the sidewalk in the subject areas that would have been done if Metro bus stops were not installed Remove Sidewalk ($4.00 * 26 SY) $ 104.00 Cement Concrete Sidewalk ($64.00 * 26 SY) $ 1,664,00 City of Federal Way Contribution Total $ 1,768.00 S. 288th Street Road Diet Phase 1 Page 6 King County Metro Interlocal Agreement KING COUNTY METRO CONTRIBUTION Total Cost $ 18,196.66 City of Federal Way Contribution Total -$ 1,768.00 Amount to be Paid by KC Metro $ 16,428.66 S. 288t' Street Road Diet Phase 1 Page 7 King County Metro Interlocal Agreement • COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: VEHICLE PURCHASE FOR SPECIAL INVESTIGATIONS UNIT POLICY QUESTION: Should the City purchase a new vehicle for the Police Special Investigations Unit using State Asset Forfeiture Funds? COMMITTEE: PRHS&PSC MEETING DATE: Oct. 10, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: . �.�Y ...,,..�_ Attachments: Staff Report State Bid Quote Options Considered: 1. Accept the recommendation to approve the purchase. 2. Reject the recommendation to approve the purchase. MAYOR'S RECOMMENDATION: Option 1 MAYOR APPROVAL: �? DIRECTOR APPROVAL: �►o'L 3 + Cow illCe � Council �� initial [c lnitiafiOs[c lniliallpate COMMITTEE RECOMMENDATION: I move to forward the proposed Agreement to the October 17, 2023 consent agendgfm,approval. n nitte hair /'I Commltte erll er itommittee Womber qROPbSED COUNCIL MOTION: "I move approval of the Purchase Agreement, effective October 17, 2023, with a tal purchase amount of $39, 565.12 from seizure funds and authorize the Mayor to sign said purchase agreement. " BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED — 12/2017 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: October 10, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: Andy J. Hwang, Chief of Police SUBJECT: Vehicle Purchase for Special Investigations Unit Financial Impacts: The purchase of this vehicle will have no impact on the City of Federal Way budget as the purchase will be paid for using State Drug Asset Forfeiture funds. Ongoing costs for use and maintenance are already included within the Federal Way Police Department's (FWPD) Budget as the vehicle is replacing a vehicle already budgeted for. Background Information: In 2010, FWPD purchased a vehicle for use by the Special Investigations Unit using State Drug Asset Forfeiture funds for the purpose of conducting controlled substances enforcement. That vehicle now has over 130,000 miles on it and is nearing the end of its life cycle. The vehicle is suffering from numerous mechanical issues, including transmission problems, that would not be cost effective to repair. The new vehicle's primary use will be surveillance and covert operations conducted by the Special Investigations Unit (SIU). These operations often lead to the seizure of proceeds from criminal enterprise, which are auctioned with the proceeds deposited into the seizure fund account. Since the SIU is the primary source of these revenues, and maintaining an operable vehicle is necessary for SIU's operations and controlled substances enforcement, it is fitting that the funds from this account are used to purchase a new vehicle. The life expectancy, based on the existing vehicle proposed to be replaced, is approximately 10 years. The new vehicle will be purchased from the list of vehicles approved by the State bid at a price of $39,565.12 including tax. Rev. 7/18 Vehicle Quote Number: 2023-9-291 Create Purchase Request View organization purchase reAues This is a quote only, You must create a purchase request to order this vehicle(s) Contract & Dealer Information Contract #: 05916 Dealer: ALAN WEBB MAZDA (W59283) Dealer Contact: George Zumwalt 3608 NE Auto Mall Dr Dealer Phone: (360) 892-9004 Vancouver WA 98662 Dealer Email: georgez@alanwebbautogroup.com Organization Information - - - - - Organization: FEDERAL WAY, CITY OF - 21731 Email: cary.murphy@cityofrederalway.com Quote Notes: Vehicle Location: FEDERAL WAY Color Options & Qty DEEP CRYSTAL BLUE MICA - 1 Tax Exempt: N Vehicle Options Order Code Option Description Qty Unit Price Ext. Price 2023-0347-001 2023 MAZDA 0X-50 2.5 S 1 $30,005.00 $30,005.00 2023-0347-003 2023 MAZDA 0X-50 2.5 S PREFFERED - ADDS DUAL HEATED SIDE MIRRORS, REAR POWER LIFTGATE 1 $5,440.00 $5,440.00 WITH PROGRAMMABLE HEIGHT ADJUSTMENT, WINDSHIELD WIPER DE-ICER, 8-WAY POWER ADJUSTABLE DRIVER'S SEAT WITH POWER LUMBAR SUPPORT, HEATED FRONT SEATS WITH 3-LEVEL ADJUSTMENT, FRONT AND REAR CENTER ARMREST WITH STORAGE 2023-0347-OD4 1 EXTRA KEY 1 $425.00 $425.00 2023-0347-008 RETRACTABLE CARGO COVER 1 $275.00 $275.00 2023-0347-012 FRONT & REAR SPLASHGUARDS 1 $220.00 $220.00 Quote Totals Total Vehicles: 1 Sub Total: $36,365.00 8.8 % Sales Tax: $3,200.12 Quote Total: $39,565.12 8g COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: PURCHASE OF PORTABLE SURVEILLANCE CAMERA TRAILERS POLICY QUESTION: Should the City of Federal Way's Police Department purchase two additional surveillance camera trailers for criminal activity deterrence and investigation? COMMITTEE: PRHS&PSC MEETING DATE: October 10, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Cmdr, C�Murphy T _ ,_� DEPT: Police Department Attachments: 1. Staff Report 2. Recommendation memo for purchase of portable surveillance camera trailers 3. IV&C Equipment Proposal Options Considered: 1. Approve the proposed purchase. 2. Do not approve proposed purchase and provide direction to staff. MAYOR'S RECOMMENDATION: Option 1 MAYOR APPROVAL: 7 3 1 7 7DIRECTOR APPROVAL: Cu miuee Caul it � Inkial [3;:�e I. IWIDate Initial/Date COMMITTEE RECOMMENDATION: I move to forward approval of the purchase of the portable surveillance camera trailers to the October 17, 2023, consent agenda. omm� e hair Committee Irlb Committee Member COUNCIL MOTION: "I move approval of the purchase of the portable surveillance camera (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED - 4/2019 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: October 10, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: Chief Andy J. Hwang SUBJECT: Purchase of Portable Surveillance Camera Trailers Financial Impacts: The Federal Way Police Department (FWPD) seeks to purchase two additional portable surveillance camera trailers to be used in efforts to impact and reduce criminal activity in the city related to the trafficking and illegal use of controlled substances. There will be no cost impacts to the City as the purchase for two trailers will be approximately $103,063.00, funded by drug asset seizure funds. Ongoing costs are expected to be minimal and related to normal trailer maintenance or damage replacements as needed and will be incorporated into the Police Department Budget. Background Information: Consistent with its mission statement, FWPD is always looking for innovative and efficient ways to reduce criminal activity. In line with this spirit, FWPD proposes to purchase of two additional portable surveillance camera trailers. These trailers will be used in partnership with local businesses and property owners to address and reduce criminal activity related to controlled substances in various locations throughout the City, including known drug problem areas. The trailers will supplement the efforts of our police officers and be integrated into the Safe City video surveillance system to document and better identify possible suspects. This type of deployment is similar to other temporary surveillance installations that are occurring now. Our current crime deterrent camera operations have been well -received and welcomed by businesses and organizations in the City. The City currently owns two identical portable surveillance trailers that have been deployed nearly 24 hours a day, 7 days a week since their acquisition. Business owners and property managers regularly ask for surveillance assistance in the ongoing effort to mitigate criminal behavior. The need for these trailers by the business community far exceeds the capabilities we currently have with two trailers. Purchasing two additional trailers will allow us to double the amount of deployments currently utilized. Rev. 7/18 Federal Way PD Attn: Lt. B Klingele QUOTATION IPI Quotation Number: 260923-01 jo System Architecture: Industrial Video & Control /p/ntegrAt/an, /MC. Date: 26 September 2023 CONFIDENTIAL(Secor/ngroorConnection tothe Foturd) - IP Integration, Inc. - Authorized Federal GSA Reseller Company Information Name: IP Integration, Inc Contact: Tom Hurley Address: PO Box 28617 Phone: 714.557.5200 Santa Ana, CA 92799 Fax: 714.242.9094 Tax ID: 32-0073785 Email: thurley@ipi-1.com Industrial Video & Control Long Deployment Surveillance Trailer Solar Powered with Gas Generator (System #1) Unit GSA Extended Item Part No Description Qty Price GSA Price 1 IPI-MVT-3001- CCTV HEAVY DUTY SURVEILLANCE 1 $ 45,001.00 $ 45,001.00 2CGP-ORCR TRAILER WITH TWO CAMERAS, ONBOARD RECORDER & 3G/4G/LTE CELLULAR ROUTER (SOLAR POWERED with GAS GENERATOR BACKUP) Enclosed hybrid powered trailer system with (1) PTZ HD camera, (1) 3600 Multisensor camera, onboard storage including Video Management Software and Cummins Onan QG 2800i Quiet Gasoline Generator. 2 IPI-VMA-RPA-RGD- Avigilon ACC ES Rugged 8-Port 1 $ 9,887.20 $ 9,887.20 8P4 Appliance (Open Market) 3 IPI-LED-PKG Remotely Operated LED Lighting 1 $ 802.20 $ 802.20 Package (Open Market) 4 IPI-ACC-SPEAKER IP Horn Speaker (Open Market) 1 $ 1,083.66 $ 1,083.66 5 IPI FREIGHT FREIGHT CHARGES 1 $ 3,000.00 $ 3,000.00 Ground Service Greenville, SC to Federal Way, WA FTOTAL : $ 59,774.06 Industrial Video & Control Page 1 Quotation Proprietary Information not to be disclosed or reproduced without express permission of IP Integration, Inc Federal Way PD Attn: Lt. B Klingele QUOTATION IPI Quotation Number: 260923-01 System Architecture: Industrial Video & Control Date: 26 September 2023 CONFIDENTIAL /P/ategrAt/on, /nc. (Secur/ng Your Connectlon to the Future) — Notes — 1. To purchase the products or services noted above, please specify the vendor name and address on your purchase order as follows: IP Integration, Inc. PO Box 28617 Santa Ana, CA 92799-8617 2. IPI GSA Contract: Contract Number: GS-35F-0740P Contract Expiration: Aug 11, 2024 3. Please email Purchase Order to thurley@ipi-1.com 4. Delivery: 30-45 days ARO 5. Payment Terms: Net 30 Payment is required to be made within 30 days of the date of an IPI issued invoice Credit Card Purchase: 3.50Io transaction fees apply 6. Prices quoted are in U.S. Dollars. Freight, taxes and duties (if applicable) will be added to the invoice 7. FOB: Origin (Greenville, SC) Prepay and Add 8. Warranties: IVC warrants that the product will function substantially as detailed in the respective product specification. Hardware warranty is valid for a period of twelve (12) months from the date of delivery and software warranty is valid for a period of ninety (90) days from the date of delivery. 9. Sales Tax: Not Included, Tax Exemption required 10. Quote valid for 60 calendar days (Expires: 26 November 2023) 11. IPI is a Certified Small Business ACCEPTED BY Federal Way PD IP Integration, Inc. Thomas W Hurley Digitally signed by Thomas W Hurley Date: 2023.09.26 15:47:46-07'00' Authorized Signature Printed Name Date Authorized Signature Thomas Hurle Printed Name Date: September 26, 2023 - CONFIDENTIALITY - The data in this quotation is considered confidential and shall not be disclosed, duplicated, or used, in whole or in part without the express written consent of IP Integration, Inc. Industrial Video & Control Page 3 Quotation Proprietary Information not to be disclosed or reproduced without express permission of IP Integration, Inc 1VC MobileVision Products MVT-3001 Choose from our standard options or have IVC customize a solution that exactly meets your mobile surveillance needs. a i Room, I vac Industrial Video & Control I www.ivcco.com 1 617.467.3059 vio°eo a CONTROL of ► MVT-3001 Trailer Specifications Trailer Dimensions Width 1781 mm/5' 8" Length 4040mm/137' Height 3048mm/1 U' Weight 1270Kg/2800lbs Camera / Equipment Box Mounted at top of mast 2 CAT6 & 1.6mm/4 Electric Cables Trailer Details Axle A/T single axle Mast Raise/Extension 24VDC Electric winch Mast height 25ft Mast Wind Rating Speed 100kph Lighting Package USDOT-approved Anti -theft Measures Locking compartments & wheel locks Battery Batteries 6 x 150AH Capacity 900AH Voltage DC 12V Material Colloid Supplied Voltage 24V ►MVT-3001 Standard Options Power plant • 990 watt solar array • Combustion engine • 100 - 240 VAC • Storage battery array Cameras • 1 - 5 camera configurations • 30x HD PTZs with or without integrated illumination • HD fixed cameras • Standard and radiometric thermal cameras • LPR (license plate recognition) cameras Local audio/visual alarm indicators Local NVR for video storage and management Wireless connectivity • 4G LTE cellular w/WiFi • 2.4GHz, 5GHz radio 2-way audio IVC surveillance trailers are well - suited for use in a variety of security & monitoring applications. Remote Construction Monitoring Emergency Management Public Safety/Event Management rt Homeland Security/Crime Prevention , AL 'Aw"llp -T� _, Remote Facilities Monitoring MADE IN THE 330 Nevada St., Newton, MA 02460 www.ivcco.com 617-467-3059 USA © 2018, Industrial Video & Control Co. The Industrial Video & Control Co. logo is a registered trademark of vsc Industrial Video & Control Co.. All other company names and products are trademarks or registered trademarks J N D U 5 T R I A L of their respective companies. All information provided is subject to change without notice. 3/20/2018 VIDEO & CONTROL V60 COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: PARKING LOT SWEEPING SERVICES 2024-2026 POLICY QUESTION: Should City Council accept the lowest responsive bid and authorize the contract for parking lot sweeping services for 2024-2026? COMMITTEE: PRHSPS MEETING DATE: October 10, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Autumn Gressett, Contract Administrator DEPT: Parks Attachments: 1. Staff Report 2. Parking Lot Sweeping Contract Options Considered: 1. Approve the proposed contract. 2. Do not approve the proposed contract and provide direction to staff. MAYOR'S RECOMMEND i.I;]ON: Option 1. MAYOR APPROVAL: DIRECTOR APPROVAL: I } j Com ice Coln i[iallRate +� [niri 7llnlr fniriall nre COMMITTEE RECOMMENDATION: "I move to forward the proposed contract to the October 17, 2023, consent agenda for approval. " L Chair � Committee em er 74ComMember PROBED COUNCIL MOTION: "I move approval of the proposed contract and authorize the Mayor to execute said contract. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED— 11/2019 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: September 6, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: John Hutton, Parks Director 11:z,11 oy3 SUBJECT: Parking Lot Sweeping Services 2024-2026 Financial Impacts: The cost to the City for Parking Lot Sweeping 2024-2026 will be $69,632.79 and was included within the approved budget under the Parks Department, 001-7100-331-576-80- 480. In accordance with the approved budget, this item is funded by General Fund. Background Information: Historically, the City of Federal Way has retained a contract with a parking lot cleaning service to maintain the cleanliness, safety, and appearance of our parking lot facilities. Due to the current six -year contract for these services expiring at the end of 2023, staff solicited proposals in August 2023 for future services. There were two responsive bidders, and Whirlwind Services, Inc. was the lowest responsive bidder. Staff is recommending entering into a three-year contract with Whirlwind Services that would allow the City to maintain the current standards and level of professionalism that the public expects. Rev. 7/18 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalrvay. com GOODS AND SERVICES AGREEMENT FOR PARKING LOT SWEEPING This Goods and Services Agreement ("Agreement") is made between the City of Federal Way, a Washington municipal corporation ("City"), and Whirlwind Services, Inc., dba Whirlwind Clean and Green, a Washington corporation ("Contractor"). The City and Contractor (together "Parties") are located and do business at the below addresses which shall be valid for any notice required under this Agreement: WHIRLWIND SERVICES, INC. dba WHIRLWIND CITY OF FEDERAL WAY: CLEAN AND GREEN Krissy Wagoner 6801 216th St SW Mountlake Terrace, WA 98043 425-697-4373 (telephone) The Parties agree as follows: George Richen 33325 8th Ave. S. Federal Way, WA 98003-6325 (253) 261-3963 (telephone) George.richen@cityoffederalway.com 1. TERM. The term of this Agreement shall commence upon the effective date of this Agreement, which shall be the date of mutual execution, and shall continue until the completion of the Work, but in any event no later than December 31, 2026 ("Term"). This Agreement may be extended for additional periods of time upon the mutual written agreement of the City and the Contractor. 2. WORK. 2.1 Work. The Contractor shall provide goods, materials or services and otherwise perform the work more specifically described in Exhibit "A," attached hereto and incorporated by this reference ("Work"), performed to the City's satisfaction, within the time period prescribed by the City and pursuant to the direction of the Mayor or his or her designee. 2.2 Warranties. The Contractor warrants that it has the requisite training, skill, and experience necessary to provide the Work and is appropriately accredited and licensed by all applicable agencies and governmental entities, including but not limited to obtaining a City of Federal Way business registration. The Contractor warrants it will provide services in a manner consistent with the accepted practices for other similar services within the Puget Sound region in effect at the time those services are performed. The Contractor warrants goods are merchantable, are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and Contractor's representations to City. The Contractor shall, at its sole cost and expense, correct all Work performed which the City deems to have defects in workmanship and material discovered within one (1) year after the City's final acceptance of the Work. This Agreement is subject to all warranty provisions established under the Uniform Commercial Code, Title 62A RCW. In the event any part of the goods are repaired, only original replacement parts shall be used; rebuilt or used parts are not acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) year from the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time as determined by GOODS AND SERVICES AGREEMENT - 1 - 4/2023 411 CITY OF Federal Way CITY MALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederahvay com the City, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 2.3 Time Documentation and Ins ection. Work shall begin immediately upon the effective date of this Agreement. Work shall be subject, at all times, to observation and inspection by and with approval of the City, but the making (or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the Work in accordance with this Agreement, notwithstanding the City's knowledge of defective or non -complying performance, its substantiality or the ease of its discovery. 2.4 Clean Up. At any time ordered by the City and immediately after completion of the Work, the Contractor shall, at its own expense, clean up and remove all refuse and unused materials of any kind resulting from the Work. In the event the Contractor fails to perform the necessary clean up, the City may, but in no event is it obligated to, perform the necessary clean up and the costs thereof shall be immediately paid by the Contractor to the City and/or the City may deduct its costs from any remaining payments due to the Contractor. 3. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party thirty (30) days' written notice at its address set forth on the signature block of this Agreement. The City may terminate this Agreement immediately if the Contractor fails to maintain required insurance policies, breaches confidentiality, or materially violates Section 12 and such may result in ineligibility for further City agreements. 4. COMPENSATION. 4.1 Amount. In return for the Work, the City shall pay the Contractor an amount not to exceed a maximum amount and according to a rate or method as delineated in Exhibit `B," attached hereto and incorporated by this reference. The Contractor agrees that any hourly or flat rate charged by it for its services contracted for herein shall remain locked at the negotiated rate(s) for the Term. Except as otherwise provided in Exhibit `B," the Contractor shall be solely responsible for the payment of any taxes imposed by any lawful jurisdiction as a result of the performance and payment of this Agreement. 4.2 Method of Payment. On a monthly basis, the Contractor shall submit a voucher or invoice in the form specified by the City, including a description of what Work have been performed, the name of the personnel performing such Work, and any hourly labor charge rate for such personnel. The Contractor shall also submit a final bill upon completion of all Work. Payment shall be made on a monthly basis by the City only after the Work has been performed and within thirty (30) days after receipt and approval by the appropriate City representative of the voucher or invoice. If the Work does not meet the requirements of this Agreement, the Contractor will correct or modify the work to comply with the Agreement. The City may withhold payment for such work until the work meets the requirements of the Agreement. 4.3 Defective or Unauthorized Work. If any goods, materials, or services provided under this Agreement are either defective, unauthorized, or otherwise do not meet the requirements of this Agreement, the Contractor will correct or modify the work to comply with the Agreement and the City reserves the right to withhold payment from the Contractor until the goods, materials, or services are acceptable to the City. If Contractor is unable, for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services from other sources, and Contractor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Agreement price specified above. The City further reserves its right to deduct these additional costs incurred to complete this Agreement with other sources, from any and all amounts due or to become due the Contractor. GOODS AND SERVICES AGREEMENT - 2 - 4/2023 CITY 4F ANFederal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway com 4.4 Non -Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City will not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 4.5 Final Pa ent: Waiver of Claims. Contractor's acceptance of final payment shall constitute a waiver of any and all claims, except those previously and properly made and identified by Contractor as unsettled at the time request for final payment is made. 5. INDEMNIFICATION. 5.1 Contractor Indemnification. The Contractor agrees to release indemnify, defend, and hold the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties expenses, attorney's fees, costs, and/or litigation expenses to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or in connection with this Agreement or the performance of this Agreement, except for that portion of the claims caused by the City's sole negligence. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. Contractor shall ensure that each sub -contractor shall agree to defend and indemnify the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers to the extent and on the same terms and conditions as the Contractor pursuant to this paragraph. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 5.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. The Parties further acknowledge that they have mutually negotiated this waiver. 5.3 City Indemnification. The City agrees to release, indemnify, defend and hold the Contractor, its officers, directors, shareholders, partners, employees, agents, representatives, and sub- contractors harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, losses, fines, fees, penalties expenses, attorney's fees, costs, and/or litigation expenses to or by any and all persons or entities, including without limitation, their respective agents, licensees, or representatives, arising from, resulting from or connected with this Agreement to the extent solely caused by the negligent acts, errors, or omissions of the City. 5.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 6. INSURANCE. The Contractor agrees to carry insurance for liability which may arise from or in connection GOODS AND SERVICES AGREEMENT - 3 - 4/2023 CITY OF . - Federal Way CITY HALL 33325 8th Avenue South Federa[ Way, WA 98003-6325 (253) 835-7000 mm cityoffederahvay com with the performance of the services or work by the Contractor, their agents, representatives, employees or subcontractors for the duration of the Agreement and thereafter with respect to any event occurring prior to such expiration or termination as follows: 6.1. Minimum Limits. The Contractor agrees to carry as a minimum, the following insurance, in such forms and with such carriers who have a rating that is satisfactory to the City: a. Commercial general liability insurance covering liability arising from premises, operations, independent contractors, products -completed operations, stop gap liability, personal injury, bodily injury, death, property damage, products liability, advertising injury, and liability assumed under an insured contract with limits no less than $2,000,000 for each occurrence and $2,000,000 general aggregate. b. Workers' compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; C. Automobile liability insurance covering all owned, non -owned, hired and leased vehicles with minimum combined single limits in the minimum amounts required to drive under Washington State law per accident for bodily injury, including personal injury or death, and property damage. 6.2. No Limit of Liability. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. 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. 6.3. Additional insured. Verification. The City shall be named as additional insured on all commercial general liability insurance policies. Concurrent with the execution of this Agreement, Contractor shall provide certificates of insurance for all commercial general liability policies attached hereto as Exhibit "C" and incorporated by this reference. At City's request, Contractor shall furnish the City with copies of all insurance policies and with evidence of payment of premiums or fees of such policies. If Contractor's insurance policies are "claims made," Contractor shall be required to maintain tail coverage for a minimum period of three (3) years from the date this Agreement is actually terminated or upon project completion and acceptance by the City. 6.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement. 7. CONFIDENTIALITY. All information regarding the City obtained by Contractor in performance of this Agreement shall be considered confidential subject to applicable laws. Breach of confidentiality by the Contractor may be grounds for immediate termination. All records submitted by the City to the Contractor will be safeguarded by the Contractor. The Contractor will fully cooperate with the City in identifying, assembling, and providing records in case of any public records disclosure request. 8. WORK PRODUCT. All originals and copies of work product, including plans, sketches, layouts, designs, design specifications, records, files, computer disks, magnetic media or material which may be produced or modified by Contractor while performing the Work shall belong to the City upon delivery. The Contractor shall make such data, documents, and files available to the City and shall deliver all needed or contracted for work product upon the City's request. At the expiration or termination of this Agreement, all originals and copies of any such work product remaining in the possession of Contractor shall be delivered to the City. 9. BOOKS AND RECORDS. The Contractor agrees to maintain books, records, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Work and maintain GOODS AND SERVICES AGREEMENT - 4 - 4/2023 CITY OF CITY HALL I� 33325 8th Avenue South e d a Y Federal Way, WA 98003-6325 (253) 835-7000 vvww. cityoffederalway com such accounting procedures and practices as may be deemed necessary by the City to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times, to inspection, review or audit by the City, its authorized representative, the State Auditor, or other governmental officials authorized by law to monitor this Agreement. 10. INDEPENDENT CONTRACTOR / EMPLOYEE CONDITIONS. 10.1 Independence. The Parties intend that the Contractor shall be an independent contractor and that the Contractor 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. The City shall be neither liable nor obligated to pay Contractor sick leave, vacation pay or any other benefit of employment, nor to pay any social security, income, or other tax which may arise as an incident of employment, except as specifically provided in Section 4. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. If the Contractor is a sole proprietorship or if this Agreement is with an individual, the Contractor agrees to notify the City and complete any required form if the Contractor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Contractor's failure to do so. 10.2 Safety. Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors at the work site and in the performance of the contract work and shall utilize all protection necessary for that purpose. Contractor shall comply with all applicable provisions of federal, state and municipal safety and health laws and codes, including without limitation, all OSHA/WISHA requirements, Safety and Health Standards for Construction Work (Chapter 296-155 WAC), General Safety and Health Standards (Chapter 296-24 WAC), and General Occupational Health Standards (Chapter 296-62 WAC). Contractor shall erect and properly maintain, at all times, all necessary guards, barricades, signals and other safeguards at all unsafe places at or near the site for the protection of its employees and the public, safe passageways at all road crossings, crosswalks, street intersections, post danger signs warning against known or unusual hazards and do all other things necessary to prevent accident or loss of any kind. Contractor shall protect from damage all water, sewer, gas, steam or other pipes or conduits, and all hydrants and all other property that is likely to become displaced or damaged by the performance of the Work. The Contractor shall, at its own expense, secure and maintain a safe storage place for its materials and equipment and is solely responsible for the same. 10.3 Risk of Work. All work shall be done at Contractor's own risk, and Contractor 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. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. Even though Contractor is an independent contractor, 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. 11. CONFLICT OF INTEREST. It is recognized that Contractor may or will be performing professional services during the Term for other parties; however, such performance of other services shall not conflict with or interfere with Contractor's ability to perform the Services. Contractor agrees to resolve any such conflicts of interest in favor of the City. Contractor confirms that Contractor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the Contractor's selection, negotiation, drafting, signing, administration, or evaluating the Contractor's performance. 12. EQUAL OPPORTUNITY EMPLOYER. In all services, programs, activities, hiring, and employment GOODS AND SERVICES AGREEMENT - 5 - 4/2023 CITY OF CITY HALL Fe d e ra I Way Feder l Avenue South edera4 Way, WA 98003-6325 (253) 835-7000 www cityoffederalway com made possible by or resulting from this Agreement or any subcontract, there shall be no discrimination by Contractor or its subcontractors of any level, or any of those entities' employees, agents, subcontractors, or representatives against any person because of sex, age (except minimum age and retirement provisions), race, color, religion, creed, national origin, marital status, or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment. This requirement shall apply to, but not be limited to, the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Contractor shall comply with and shall not violate any of the terms of Chapter 49.60 RCW, Title VI of the Civil Rights Act of 1964, the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973, 49 CFR Part 21, 21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non-discrimination. 13. GENERAL PROVISIONS. 13.1 Interpretation and Modification. This Agreement, together with any attached Exhibits, contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior statements or agreements, whether oral or written, shall be effective for any purpose. Should any language in any Exhibits to this Agreement conflict with any language in this Agreement, the terms of this Agreement shall prevail. The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement. Any provision of this Agreement that is declared invalid, inoperative, null and void, or illegal shall in no way affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. Any act done by either Parry prior to the effective date of the Agreement that is consistent with the authority of the Agreement and compliant with the terms of the Agreement, is hereby ratified as having been performed under the Agreement. No provision of this Agreement, including this provision, may be amended, waived, or modified except by written agreement signed by duly authorized representatives of the Parties. 13.2 Assignment and Beneficiaries. Neither the Contractor nor the City shall have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the other Parry. If the non -assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. Subject to the foregoing, the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto. No other person or entity shall have any right of action or interest in this Agreement based on any provision set forth herein. 13.3 Compliance with Laws. The Contractor shall comply with and perform the Services in accordance with all applicable federal, state, local, and city laws including, without limitation, all City codes, ordinances, resolutions, regulations, rules, standards and policies, as now existing or hereafter amended, adopted, or made effective. If a violation of the City's Ethics Resolution No. 91-54, as amended, occurs as a result of the formation or performance of this Agreement, this Agreement may be rendered null and void, at the City's option. 13.4 Enforcement. Time is of the essence in this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Services is essential to the Contractor's performance of this Agreement. Any notices required to be given by the Parties shall be delivered at the addresses set forth at the beginning of this Agreement. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth above. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. Any remedies GOODS AND SERVICES AGREEMENT - 6 - 4/2023 CITY of _ - Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 vvww. cityoffederalway com provided for under the terms of this Agreement are not intended to be exclusive, but shall be cumulative with all other remedies available to the City at law, in equity or by statute. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. Failure or delay of the City to declare any breach or default immediately upon occurrence shall not waive such breach or default. Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. This Agreement shall be made in, governed by, and interpreted in accordance with the laws of the State of Washington. If the Parties are unable to settle any dispute, difference or claim arising from this Agreement, the exclusive means of resolving that dispute, difference, or claim, shall be by filing suit under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative process. If the King County Superior Court does not have jurisdiction over such a suit, then suit may be filed in any other appropriate court in King County, Washington. Each party consents to the personal jurisdiction of the state and federal courts in King County, Washington and waives any objection that such courts are an inconvenient forum. If either Party brings any claim or lawsuit arising from this Agreement, each Parry shall pay all its legal costs and attorney's fees and expenses incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, however nothing in this paragraph shall be construed to limit the Parties' rights to indemnification under Section 5 of this Agreement. 13.5 Execution. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individual is duly authorized to execute and deliver this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and with the same effect as if all Parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart. The signature and acknowledgment pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature and acknowledgment pages. The date upon which the last of all of the Parties have executed a counterpart of this Agreement shall be the "date of mutual execution" hereof. [Signature page follows] GOODS AND SERVICES AGREEMENT - 7 - 4/2023 CITY OF CITY HALL AoNb-,, Fe d e ra I WayFeder l Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www.Wyoffederalway. com IN WITNESS, the Parties execute this Agreement below, effective the last date written below. CITY OF FEDERAL WAY: Jim Ferrell, Mayor DATE: ATTEST: Stephanie Courtney, CMC, City Clerk APPROVED AS TO FORM: J. Ryan Call, City Attorney WHIRLWIND SERVICES, INC. dba WHIRLWIND CLEAN AND GREEN: By: Printed Name: Title: DATE: STATE OF WASHINGTON ) ss. COUNTY OF On this day personally appeared before me ' to me known to be the of Whirlwind Services Inc. dba Whirlwind Clean and Green that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this day of 2023. Notary's signature Notary's printed name Notary Public in and for the State of Washington. My commission expires GOODS AND SERVICES AGREEMENT - 8 - 4/2023 CITY OF CITY HALL ,. Federal Way Feder l Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cifyoffederalway com EXHIBIT A SERVICES The Contractor shall provide parking lot sweeping services for the City as provided in this Agreement and this Exhibit A. The following specifications are intended to cover the cleaning and sweeping operations of the various surface parking lots, entrances and plaza areas of the City's public parking facilities with routine frequency schedules as listed in Table 1 below. Table 1: Parking lot cleaning frequency schedule Location Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec BPA Trail Lot — 324th 1 1 1 1 1 1 BPA Trail Lot - 356th 1 1 1 1 1 1 Celebration — Main and lower lots 1 1 1 1 1 1 City Hall 1 1 1 1 1 1 1 1 1 2 2 1 City Hall North Lot 1 1 1 1 1 1 Dumas Bay Centre 1 1 1 1 Dumas Bay Sanctuary Park 1 1 1 1 1 1 Federal Way Community Center 1 1 1 1 French Lake Park 1 1 1 1 1 1 Lakota Park 1 1 1 1 1 1 Palisades Park 1 1 1 1 1 1 Panther Lake Trailhead 1 1 1 1 1 1 Performing Arts and Event Center 1 1 1 1 Sacajawea — Main and upper lots 1 1 1 1 1 1 Saghalie - upper lot only 1 1 1 1 1 1 Steel Lake Annex 1 1 1 1 1 1 Steel Lake Park 1 1 1 1 1 1 Town Square Park 1 1 1 1 1 1 West Hylebos Wetlands 1 1 1 1 1 1 Each instance of cleaning provided in Table 1 shall constitute a complete cleaning, which shall include: a. Blowing, sweeping, vacuum, pick-up, and removal by whatever means necessary of all trash, debris, dirt, mud, and any other foreign material (except snow and ice) from the paved portions of each parking lot, entrance, and plaza. b. The standard for a complete cleaning shall be no visible evidence of said trash, debris, dirt, mud, or other foreign materials in comers, associated curbs, and the respective portion of the completion of each cleaning. c. All materials removed shall be disposed of at a site designated or approved by the City. d. The Parks & Facilities Manager, Director, or other designated Parks Department representative shall be the final authority on whether standards have been met. GOODS AND SERVICES AGREEMENT - 9 - 4/2023 CITY OF �k_ Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway com 2. The Contractor will furnish all labor, tools, specialized equipment, materials, and disposal of waste material generated by the work (disposed of per subsection l .c., above), unless other arrangements have been made with the Parks & Facilities Manager or Parks Department representative or appointed designee. 3. All fieldwork shall be performed under the supervision of a qualified employee. Laborers will be skilled working with equipment and cleaning products. 4. The Contractor will ensure its employees comply with all applicable City of Federal Way and Washington State laws, regulations, and practices with respect to work performed for the City of Federal Way. 5. The Contractor's personnel will conduct themselves in a professional manner at all times while performing the services under this contract. 6. The Parks & Facilities Manager or Parks Department representative or appointed designee will inspect work performed by the Contractor. In the event of work performance deficiencies, the Parks & Facilities Manager or Parks Department representative will promptly notify the Contractor. As part of the notification, the City may choose to require the Contractor to rectify the deficiency within 48 hours or withhold payment until the corrections are completed. Notification may be verbal or written. 7. Immediately report any damage, potential hazard, or non -life -threatening situations involving City property such as, but not limited to, broken water lines, vandalism, graffiti, etc., to the City of Federal Way Parks Department at (253) 835-6901. After-hours emergencies should be reported to the Police/Fire Communications Center by calling 911. Any after-hours emergencies shall also be reported to the Parks & Facilities Manager or Parks Department representative or appointed designee within 24 hours or the following business day, whichever is soonest. The Contractor shall immediately report any damage to City property or private property caused by the Contractor or Contractor's employees and, at Contractor's expense, will remedy any damage to public or private structures in a timely manner and as agreed to in writing with the City. 8. Hazardous conditions shall be immediately remedied or secured to prevent further damage and/or protect public from injury and shall be reported to Police/Fire Communications Center by calling 911 and the Parks Department notified as appropriate. It is the Contractor's responsibility to provide close supervision of operations and management of the work areas. 9. Incidents, altercations, or accidents involving the public shall be reported to the Contract Administrator within 24 hours. The Contract Administrator, at their discretion, may require a written report from the Contractor describing the incident or accident. As a part of the resulting Agreement from this RFP, the Contractor will agree to participate in any investigation resulting from any such incident. 10. Contractor will coordinate with the Parks Department when all work is to be performed. Routine work shall be planned for and performed at times when few to no vehicles will be present in the GOODS AND SERVICES AGREEMENT - 10 - 4/2023 CITY OF CITY HALL �� I ■ A ■� 33325 8th Avenue South Fe d e Way Federal Way, WA 98003-6325 (253)835-7000 www cityoffederalway. com parking lot. Blow around vehicles prior to clean. 11. All technicians, operators, and supervisors who will be on secured properties must be in a company identifiable uniform when performing work pursuant to this Agreement and must be able to pass a background check. 12. Managers and support personnel shall be available 24/7. 13. All company vehicles must bear signage, logos, or other clearly visible information identifying the Contractor's company when performing work under this Agreement. GOODS AND SERVICES AGREEMENT - 11 - 4/2023 A%CITY OF �. Federal Way EXHIBIT B COMPENSATION CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway. com 1. Total Compensation: In return for the Services, the City shall pay the Contractor an amount not to exceed Sixty -Three Thousand Two Hundred Forty -Five and 04/100 Dollars ($63,245.04) and Washington State sales tax equal to Six Thousand Three Hundred Eighty -Seven and 75/100 Dollars ($6,387.75) for a total of Sixty -Nine Thousand Six IIundred Thirty -Two and 79/100 Dollars ($69,632.79). 2. Method of Compensation: Unit price plus sale tax In consideration of the Contractor performing the Services, the City agrees to pay the Contractor an amount, calculated on the basis of the per visit charge rate schedule for Contractor's personnel as shown below, plus Washin-aton State Sales Tax. Location BPA Trail Lot - 324th Estimated Annual Visits 8 2024 Prue Per Visit 102.92 2024 Estimated Annual' Amount 823.36 BPA Trail Lot - 356th 8 57.00 456.00 E Celebration Park - main and lower lot 10 $ 308-75 3,087.50 City Hall 16 $ 197.92 $ 3,166.72 J City Hall North Lot 8 $ 83.31 $ 666.48 Dumas Bay Centre 6 $ 102.92 $ 617.52 Dumas Baer Sanctuary{ Park 8 $ 57..00 $ 456.00 Federal Way Community Center 8 $ 126.67 $ 1.013.36 French Lake Park 8 $ 116.55 $ 932.40 Lakota Park 8 $ 93.28 $ 666.24 Palisades Park 8 $ 57.00 456.00 Panther Lake Trailhead 8 $ 57.00 $ 456.00 Performing Arts and Event Center 8 $ 126.67 1,013.36 Sacajawea - main and upper lots 8 $ 95.00 S 760.00 Saghalie Park - upper lot only 8 $ 88-68 $ 709.44 1Steel Lake Annex 8 $ 79.22 $ 633.76 Steel Lake Park 10 $ 197.92 S 1,979-20 Town Square Park 10 $ 74.09 $ 740.90 (West Hylebos Wetlands 8 $ 60.03 $ 480.24 'Additional Hourly Service 10 $ 95.00 $ 950.00 Whirlwind 2024 Subtotal $ 20,064.48 GOODS AND SERVICES AGREEMENT - 12 - 4/2023 CITY OF �,.,. Federal CITY HALL ■ � ■�� 33325 8th Avenue South �Vlllil■ Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway. com Location: BPA Trail Lot - 324th Estimated Annual Visits 8 $ 2025 Prise Per Visit 108.06 .2025 Estimated Annual Amount $ 964.48 BPATrail Lot- 356th 8 $ 59.85 $ 478.80 Celebration Park - main and lower lot 10 $ 324.18 $ 3,241.80 4 City Hall 16 $ 207.81 $ 3,324.96 � City Hall North Lot 8 $ 97.47 $ 699-76 Dumas, Bay Centre 6 $ 08.06 $ 648.36 Dumas Bay Sanctuary Park 8 $ 59.85 479-80 Federal Way Community Center 8 $ =3C0 $ 1,064.00 French Lake Park 8 $ 122.37 $ 978.96 Lakota Park 8 $ 87.44 $ 699.52 Palisades Park 8 $ 59.85 $ 478.80 Panther Lake Trailhead 8 $ 59-95 $ 478.80 Performing Arts and Event Center 8 $ 133.00 $ 1,064.00 lSacajawea - main and upper lots 8 $ 99.75 $ 798.00 Saghalie Park - upper lot only 8 $ 93.11 $ 744.88 Steel Lake Annex 8 $ 83.18 $ 665.44 Steel Lake Park 10 $ 207.1,8 $ 2,071.80 ;Town Square Park 10 $ 77.79 $ 777.90 West Hylehos Wetlands 8 $ 63.03 $ 504.24 Additional Hourly Service 10 $ 99.75 $ 997.50 Whirlwind 202.5 Subtotal $ 21,060.80 GOODS AND SERVICES AGREEMENT - 13 - 4/2023 CITY OF 4= Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cltyoffederalway. com Location BRA Trail Lot - 324th Estimated Annual Visits 8 2026 Price Per iJi-sit 11.3.46 2026 Estimated Annual Amount $ 907.68 BPATrail Lot- 356th 8 62,84 502.72 Celebration Park.- main and lower lol 10 340.38 3,403.80 City Hall 16 218.20 $ 3,491.20 City Hall North Lot 8 91.84 $ 734.72 Dumas Bay Centre 6 11.3.46 $ 680.76 Dumas Bay Sanctuary Park 8 62-94 $ 502.72 Federal Way Community Center 8 $ 13-9.65 $ 1,117.20 French Lake Park 8 $ 128.48 $ 1,027.94 Lakota Park 8 $ 91.81 $ 734.48 Palisades Park 8 $ 62.84 $ 502.72 Panther Lake TraiIhead 8 $ 62.84 $ 502.72 Performing Arts and Event Center 8 $ 139.65 $ 1,117.20 Sacajawea - main and upper lots. 8 $ 104.73 $ 937.94 Saghalie Park - upper lot only 8 $ 97.76 $ 782.08 Steel Lake Annex 8 $ 87,33 $ 698.64 Steel Lake Park 10 $ 218.20 $ 2,192.00 Town Square Park 10 $ 81-67 $ 816.70 West Hylebos Wetlands 8 $ 66AS $ 529.44 Additional Hourly Service 10 $ 104.73 $ 1,047.30 Whirlwind 2026 Subtotal 22,119.76 GOODS AND SERVICES AGREEMENT - 14 - 4/2023 A�kCITY OF Federal Way EXHIBIT C MAPS Y CITY HALL 33325 8th Avenue South Federal V'Jay. V%fA 98003-6325 (253) 835-7000 ,-,-V w Ci?yoff?dMr JNway Corn ,0a *• X 4d d �. L lr 44 GOODS AND SERVICES AGREEMENT - 15 - 4/2023 ............... ......................... ......................................... CITY OF ,�I CITY HALL �. South Fe d e ra I Way ay Feder l Avenue 8003 Federal Way, WA 98003-6325 (253) 835-7000 t•nvLvcityoffedernAraycom �4r1ri *.. �I�'� `Li. * s n { ' • +at•' �` �'' T, r 4 31 �. `,�•,s�'� '.i 46 PL .1i•�es�R.r Y#. rA W IND Y fJ 1 r f r ,t• • : ti r I .r (•�.. r r � aa�. �' �'•M _ :T _ol l Oil Y • 1 �. • L T �ti' •�' r � wr;_ . f - r14 =-'�---� � * i�f�, A - . �: rr+,.n _ram -,... - . ~ y. r III bw GOODS AND SERVICES AGREEMENT - 16 - 4/2023 CITY Or Federal Way or L:, A .xIrk 3-24t,' j ebration Pair' I T1 ot, wouier.J IF k 4., ire r lot A --r V CITY HALL 33315 8th Avenue South Federal 10.1ay. V\-'A 98003-6325 (253) 835-7000 Coll) GOODS AND SERVICES AGREEMENT -17- 4/2023 CITY OF CITY HALL Federal W33315 8th Avenue SOLIth Way Federal 1rVay. VVA 98003-6325 (253 835-7000 u t Nv; 4�v Of X, - fe4 ew 46 Y. t IV ri go A At r. TN ICU"- A... GOODS AND SERVICES AGREEMENT -18 - 4/2023 CITY OF CITY HALL 33325 8th Avenue South Federal Way Federal Way, WA 98003-6325 (253) 835-7000 www clyoffederahmy com fat z Q r ao k..P, .01 I Elk 41 Nk mw ccc, UV i t:j AnN. 1, wj� 9 7d ft. LW 0 GOODS AND SERVICES AGREEMENT _19- 4/2023 �- CITY OF r I V�l� Fed a y CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www.. ciryoffederahvay. com I GOODS AND SERVICES AGREEMENT - 20 - 4/2023 A�kCITY OF Federal Way U Y 'P r' 9 A CITY HALL 33325 8th Avenue South Federal 1,'Jay. WA 98003-6325 (253) 835-7000 tvi-vu, cityoffederalwray corn 1 ,� +Oil GOODS AND SERVICES AGREEMENT - 21 - 4/2023 CITY OF FederaI Way rQQ CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cilyoffederalway. com GOODS AND SERVICES AGREEMENT - 22 - 4/2023 ............... ......................... ......................................... CITY OF Federal Way ClTYHALL 33325 8t'l Avenue South Federal ',; day, V.',!� 98003-6325 '253',, 835-7000 w GOODS AND SERVICES AGREEMENT -23 - 4/2023 Vol L rdhc': h 31531z 1.1 NOW 4 0 . 44. MOW king oi I lion gite, ------- .... CITY OF CITY HALL 33325 8th Avenue South Federal Way Federal Way, WA 98003-6325 (253) 835-7000 v,AvL.v.cityoffedet-,Ili.v.7ycoti) j lie IL L CA N GOODS AND SERVICES AGREEMENT - 25 - 4/2023 CITY OF Ate. Federal Way b P Ir CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www. cityoffedera&ay com GOODS AND SERVICES AGREEMENT - 26 - 4/2023 CITY of CITY HALL Fe d e ra 1 Way Feder l Avenue South Federal Way, WA 9803-6325 (253) 835-7000 wwwcilyof(e6gralway com '+�'' '' ' r . , - ! •i� '� 'tea ~ * r _ �► f ll r. ... - � A�-q , Az� GOODS AND SERVICES AGREEMENT - 27 - 4/2023 CITY OF �. Federal CITY HALL ■ � ��� 33325 8th Avenue South V�Y■ Federal V`Jay. WA 98003-6325 (253) 835-7000 t•vtivov cityoffederalsv�)y corn GOODS AND SERVICES AGREEMENT - 28 - 4/2023 CITY OF _.' . Federal Way CITY HALL 33325 Sth Avenue South Federal Way. WA 98003-6325 (253) 835-7000 tgi. GOODS AND SERVICES AGREEMENT - 29 - 4/2023 CIT A4%s. Federal Way �r'�y� R► ...' `�. wry �. � , CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253)835-7000 4V1 ,Lvcityoffedero way corn GOODS AND SERVICES AGREEMENT - 30 - 4/2023 CITY ❑ F CITY HALL Fe d e ra I ■ � ■� Feder 8th Avenue South Way Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway com '-� L 1 i f M � • WW GOODS AND SERVICES AGREEMENT - 31 - 4/2023 CITY OF AN�. Federal Way CITY MALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www_cityoffederalway com GOODS AND SERVICES AGREEMENT - 32 - 4/2023 CITY OF Federal CITY HALL ■ � 1�� 33325 8th Avenue South ■Y■ Federal Way, WA 98003-6325 (253) 835-7000 vvmr vcityoffeder lwaycon) -A n-! �1 YYY 1 . �i I- '•� � `t k�. r� -ice � GOODS AND SERVICES AGREEMENT - 33 - 4/2023 ANCITY OF §t- Federal Way l�J (N) CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www. crtyoffederalway com r .. T4( - � •. - `_ .tier � GOODS AND SERVICES AGREEMENT - 34 - 4/2023 Y Or . cFederal Way y EXHIBIT C CERTIFICATE OF INSURANCE CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www 01yo fladeral way_ com GOODS AND SERVICES AGREEMENT - 35 - 4/2023 COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: PERFORMING ARTS AND EVENT CENTER VENUE MANAGEMENT CONTRACT POLICY QUESTION: Should the City Council authorize staff to execute a renewed contract with Global Spectrum, L.P. for venue management of.the Federal Way Performing Arts and Events Center? COMMITTEE: PRHSPS MEETING DATE: October 10, 2023 CATEGORY: Consent ❑ Ordinance ❑ Public Hearing City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Autumn Gressett DEPT: Parks Attachments: 1. Staff Report 2. PAEC Venue Management Contract Options Considered: 1. Approve the proposed agreement and authorize staff to execute. 2. Do not approve proposed agreement and provide direction to staff. MAYOR'S RECOMMENDATION: Option 1. MAYOR APPROVAL: a DIRECTOR APPROVAL: iN 10/a /.:1 q053 Al� COMMITTEE RECOMMENDATION: I move to forward the proposed Global Spectrum, L.P. agreement to the October 17, 2023e agenda for approval. bws►,,.,�sS :7a mill, / inmittee Chair Committee MjRnbeCormittee Member PkOPQ ED COUNCIL MOTION: "I move approval of the proposed Global Spectrum, L.P agreement and auah brae the Mayor to sign said agreement. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED - 4/2019 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: October 10, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: John Hutton, Parks Director SUBJECT: PAEC Venue Management- Contract Financial Impacts: The cost to the City for PAEC Venue Management will be $75,000 annually and was included within the approved budget under the Parks Department, 115 Fund. In accordance with the approved budget, this item is funded by the General Fund. BackLyround Information: In June 2018, the City formalized a venue management agreement with Global Spectrum, L.P. (Global Spectrum) for comprehensive oversight and management of the operations at the Federal Way Performing Arts and Event Center (PAEC). Over the course of the ensuing five-year period, Global Spectrum has worked collaboratively with the City and consistently demonstrated its proficiency in managing the PAEC by successfully reducing the overall City subsidy, increasing ticket sales, diversifying and enhancing the quality of bookings and productions, facilitating expanded accessibility, and navigating a venue closure while still finding creative ways to use the facility and bring in revenue during the global COVID pandemic. Based upon the successful track record of Global Spectrum at the PAEC, staff recommends that City renew Global Spectrum's contract for a ten year term. In consideration for this contract term, Global Spectrum will make a $200,000 contribution to the City which may be used for any purpose at the City's discretion, so long as the City agrees to give due consideration to using the contribution to develop an event fund geared toward attracting events to the Facility. In accordance with the Qualitative Performance Incentive, and consistent with feedback from the City Council, the following five performance metrics are proposed to be added to the agreement to assist the City in its annual evaluation of Global Spectrum's performance: Rev. 7/18 1. Revenue Generation Metric. Each eligible to earn up to $500 a. Increase F&B Rev YOY by 2.5% b. Increase Theater Rental Rev YOY by 2.5% c. Increase Event Space Rental Rev YOY by 2.5% d. Increase Ticket Rev YOY by 2.5% 2. Attendance Metric. Eligible to earn $2,000 a. Increase Venue Attendance by 5% 2024 and 2.5% every year after 3. Usage Days Metric. Eligible to earn $2,000 a. Increase Venue Usage Days by 2.5% every year (includes all contractual usage days including rehearsals, setup and event day) 4. Host Free Community Events (paid for by local sponsorships acquired by Manager). Each event is worth $400, with a maximum benefit of $2,000 a. 5 annually in 2024, 2025 and 2026 (minimum 1 per quarter) b. Increase by 1 each year starting in 2027 5. Types of Events Metric. Each eligible to earn $500, with a maximum benefit of $2,000 a. Weddings — minimum 4 annually b. Banquets/meetings/conferences — minimum 50 annually c. Non-profit —minimum 10 annually d. Arts4youth — minimum 6 annually Based upon the successful track record of Global Spectrum, which encompassed many substantial achievements, staff is confident in the recommendation for ongoing collaboration for venue management services at the PAEC. Rev. 7/18 CITY OF CITY HALL Federal ay 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 vvww cilyoffederalway com MANAGEMENT AGREEMENT FOR PERFORMING ARTS AND EVENTS CENTER (PAEC) This Management Agreement is entered into on _ , 2023 and made effective as of January 1, 2024 ("Effective Date"), by and between the City of Federal Way, Washington, a Washington State municipal corporation ("City"), and Global Spectrum, LP, a Delaware limited partnership ("Manager"). RECITALS WHEREAS, City owns the Performing Arts and Events Center of Federal Way ("PAEC"), a 716 seat performing arts center, approximately 8,400 square feet event space, kitchen, and associated office space (the "Facility"), located in Federal Way, Washington; and WHEREAS, the City has the right and authority to engage Manager to manage and operate the Facility; and WHEREAS, the City desires to engage Manager to manage and operate the Facility on behalf and for the benefit of the City, and Manager desires to accept such engagement, pursuant to the terms and conditions contained herein. NOW THEREFORE, for and in consideration of the foregoing, the mutual covenants and promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: 1. DEFINITIONS Section 1.1. Definitions. For purposes of this Agreement, the following terms have the meanings referred to in this Section: Affiliate: A person or company that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a specified person or company. Capital Expenditures: All expenditures for building additions, alterations, repairs or improvements and for purchases of additional or replacement furniture, machinery, or equipment, where the cost of such expenditure is greater than $5,000 and the depreciable life of the applicable item is, according to generally accepted accounting principles, in excess of five (5) years. Commercial Rights: Naming rights, pouring rights, advertising, sponsorships, the branding of food and beverage products for resale, premium seating (including suites, club seats and parry suites), and memorial gifts at or with respect to the Facility. Contribution: shall have the meaning given to such term in Section 11.3 herein. CPI: The "Consumer Price Index" for the local Federal Way, Washington area, as published by the United States Department of Labor, Bureau of Labor Statistics or such other successor or similar index. MANAGEMENT SERVICES AGREEMENT - 1 - 4/2023 CITY OF CITY HALL Federal Way Feder 8th Avenue South Federal Way, WA 98003-6325 4W SN" (253) 835-7000 www cityoffederalway com Effective Date: shall have the meaning given to such term in the opening paragraph of this Agreement. Emergency Repair: The repair of a condition which, if not performed immediately, creates an imminent danger to persons or property and/or an unsafe condition at one or both of the Facility threatening persons or property. Event Account: A separate interest -bearing account in the name of the Manager and under the Manager's Federal ID number in a local qualified public depository, where advance ticket sale revenue is deposited by Manager. Event of Force Majeure: An act of God, fire, earthquake, hurricane, flood, riot, civil commotion, terrorist act, terrorist threat, storm, washout, wind, lightning, landslide, explosion, epidemic, inability to obtain materials or supplies, accident to machinery or equipment, any law, ordinance, rule, regulation, or order of any public or military authority stemming from the existence of economic or energy controls, hostilities or war, a labor dispute which results in a strike or work stoppage affecting the Facility or services described in this Agreement, or any other cause or occurrence outside the reasonable control of the party claiming an inability to perform and which by the exercise of due diligence could not be reasonably prevented or overcome. Facility: shall have the meaning given to such term in the Recitals to this Agreement, and shall be deemed to include the entire PAEC (theater and event spaces), including but not limited to, as applicable, the seating areas, dressing rooms, meeting rooms, box office, common areas, kitchen areas, lobby areas, executive and other offices, storage and utility facilities, the entrances, ground, sidewalks and parking areas immediately surrounding the Facility, and outdoor areas, all as specifically identified on Schedule 1 hereto. FF&E: Furniture, fixtures, and equipment to be procured for use at the Facility. Fixed Management Fee: The fixed monthly fee the City shall pay to Manager under this Agreement, as more fully described in Section 3.1 of this Agreement. General Manager: The employee of Manager acting as the full-time on -site general manager of the Facility. Incentive Fee: The contingent fee the City shall pay to Manager under this Agreement, if earned, as more fully described in Section 3.2 below. Initial Term: "Term" shall have the meaning given in Section 4.1 of this Agreement. Laws: Federal, state, local and municipal laws, statutes, rules, regulations and ordinances. Management -Level Employees: The General Manager, Assistant General Manager, Business Manager, and Food and Beverage Manager (or employees with different titles performing similar functions), and any department head employed by Manager to perform services at the Facility (including, if applicable, employees performing the function of the Director of Operations, Director of Sales and Marketing, Director of Security, Finance Director, and Event Manager). Marketing Plan: A plan for the advertising and promotion of the Facility and Facility events, which may contain but not be limited to the following elements, as applicable: (i) market research, (ii) market position, (iii) MANAGEMENT SERVICES AGREEMENT - 2 - 4/2023 Clrr OF CITY HALL Federal flay Feder 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www. cityoffederalway com marketing objectives, (iv) marketing strategies, (v) booking priorities, (vi) targeted events - local, regional, national and international, (vii) targeted meetings, conventions and trade shows, (viii) industry advertising campaign, (ix) internal and external support staff, (x) advertising opportunities at the local, regional and national level, (xi) attendance at various trade shows, conventions and seminars, (xii) incentive formulas for multiple event presenters, (xiii) suite and club seat sales, (xiv) merchandising and retail, (xv) food and beverage, (xvi) a plan for the sale of commercial rights, including without limitation naming rights, pouring rights, advertising signage, sponsorships (including event sponsorships), branding of food and beverage products for resale, premium seating (including but not limited to suites and club seats), and memorial gifts, (xvii) a plan regarding national, regional -and local public relations and media relations, (xviii) development of an in-house advertising agency, and (xix) policies regarding the use of trade/barter. Net Operating Income/Loss: shall mean the amount by which Revenue at the Facility exceeds Operating Expenses at the Facility, resulting in Net Operating Income, or by which Operating Expenses at the Facility exceeds Revenue at the Facility, resulting in Net Operating Loss, for the period in question. Net Operating Income/Loss Benchmark: shall be mutually agreed on annually, prior to December 1, and confirmed in writing. If for any reason the Parties are unable to mutually agree on such figure prior to such date, the Parties shall submit such determination to a mutually agreed upon third -parry arbitrator who shall be an independent industry expert, without any conflicts of interest. City and Manager shall each submit to such third parry their proposed figure for the Net Operating Income/Loss Benchmark, and such third Parties' determination shall be final and binding on the City and Manager, provided that such determination shall be made consistent with the terms of this Agreement, and shall not be outside of the range of the figures submitted by the City and Manager. The cost of such third -party arbitrator shall be shared equally between the Parties. Operating Account: A separate interest -bearing account in the name of the Manager and under the Manager's Federal ID number in a local qualified public depository, where Revenue is deposited and from which Operating Expenses are paid. Operating Budget: A line item budget for the Facility that includes a projection of Revenues and Operating Expenses, presented on a monthly and annual basis. Operating Expenses: All expenses incurred by Manager in connection with its operation, promotion, maintenance and management of the Facility, including but not limited to the following: (i) employee payroll, benefits, relocation costs, severance costs, bonus and related costs, (ii) cost of operating supplies, including general office supplies, (iii) advertising, marketing, group sales, and public relations costs, (iv) cleaning and landscaping expenses, (v) data processing costs, (vi) dues, subscriptions and membership costs, (vii) the Fixed Management Fee, (viii) printing and stationary costs, (ix) postage and freight costs, (x) equipment rental costs, (xi) minor repairs, maintenance, and equipment servicing, not including expenses relating to performing capital improvements or repairs, (xii) security expenses, (xiii) telephone and communication charges, (xiv) travel and entertainment expenses of Manager employees, (xv) cost of employee uniforms and identification, (xvi) exterminator, snow and trash removal costs, if applicable (xvii) computer, software, hardware and training costs, (xviii) parking expenses, (xix) utility expenses, (xx) office expenses, (xxi) ) audit and accounting fees, (xxii) legal fees, (xxiii) all bond and insurance costs, including but not limited to personal property, liability, and worker's compensation insurance, (xxiv) commissions and all other fees payable to third parties; (xxv) cost of complying with any Laws, (xxvi) costs incurred by Manager to settle or defend any claims asserted against Manager arising out of its operations at the Facility on behalf of City; (xxvii) amount of any deductible or self -insured retention under insurance policies; (xxviii) costs incurred under Service Contracts and other agreements relating to Facility' operations, (xxix) all costs MANAGEMENT SERVICES AGREEMENT - 3 - 4/2023 CITY OF CITY HALL Fe d e ra I Way Feder l Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cltyoffederalway. corn relating to provision of the Food and Beverage Services, including labor, cost of goods, and cost of permits/licenses; and (xxx) Taxes. The term "Operating Expenses" does not include debt service on the Facility, Capital Expenditures, property taxes, insurance on the Facility of contents within the Facility owned by City, or the Incentive Fee, all of which costs shall be borne by the City. Operating Year: Each twelve (12) month period during the Term, commencing on January 1 and ending on the following December 31. Operations Manual: Document to be developed by Manager that shall contain terms regarding the management and operation of the Facility, including detailed policies and procedures to be implemented in operating the Facility, as agreed upon by both the City and the Manager. Revenue: All revenues generated by Manager's operation of the Facility, including but not limited to event ticket proceeds income, rental and license fee income, merchandise income, gross food and beverage income, gross income from any sale of Commercial Rights, gross service income, equipment rental fees, box office income, and miscellaneous operating income, but shall not include event ticket proceeds held by Manager in trust for a third party and paid to such third party. Revenue Generating Contracts: Vendor, concessions and merchandising agreements, user/rental agreements, booking commitments, licenses, and all other contracts or agreements generating revenue for the Facility and entered into in the ordinary course of operating the Facility. Service Contracts: Agreements for services to be provided in connection with the operation of the Facility, including without limitation agreements for ticketing, web development and maintenance, computer support services, FF&E purchasing services, engineering services, electricity, steam, gas, fuel, general maintenance, HVAC maintenance, telephone, staffing personnel including guards, ushers and ticket -takers, extermination, elevators, stage equipment, fire control panel and other safety equipment, snow removal, and other services that are deemed by Manager to be either necessary or useful in operating the Facility. Taxes: Any and all governmental assessments, franchise fees, excises, license and permit fees, levies, charges and taxes, of every kind and nature whatsoever, which at any time during the Term may be assessed, levied, or imposed on, or become due and payable out of or in respect of, (i) activities conducted on behalf of the City at the Facility, including without limitation the sale of concessions, the sale of tickets, and the performance of events (such as any applicable sales and/or admissions taxes, use taxes, excise taxes, occupancy taxes, employment taxes, and withholding taxes), or (ii) any payments received from any holders of a leasehold interest or license in or to the Facility, from any guests, or from any others using or occupying all or any part of the Facility. Term: shall have the meaning ascribed to such term in Section 4.1 of this Agreement. 2. SCOPE OF SERVICES Section 2.1 Engagement. (a) City hereby engages Manager during the Term to act as the sole and exclusive manager and operator of the Facility, subject to and as more fully described in this Agreement. MANAGEMENT SERVICES AGREEMENT - 4 - 4/2023 Federal Way CITY OF CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway. com (b) Manager hereby accepts such engagement, and shall perform the services described herein, subject to the limitations expressly set forth in this Agreement and in the Operations Manual. Section 2.2 Limitations on Manager's Duties. Manager's obligations under this Agreement are contingent upon and subject to the City making available, in a timely fashion, the funds budgeted for and/or reasonably required by Manager to carry out such obligations during the Term. Manager shall not be considered to be in breach or default of this Agreement, and shall have no liability to the City or any other party, in the event Manager does not perform any of its obligations hereunder due to failure by the City to timely provide such funds. Section 2.3 Standard of Care. Subject to the limitations of the Operating Budget, Manager shall exercise reasonable commercial, good faith efforts in managing and operating the Facility so as to minimize Operating Expenses and maximize Operating Revenues, provided that Manager shall be permitted to book events at no or reduced rental fees as required and approved by the City pursuant to the terms of Section 5.4. Section 2.4 Duty. Manager shall owe to the City a duty to perform its obligations under this pursuant to the terms in Exhibit A and to conduct the management and operation of the Facility at all times with integrity and good faith and in a manner that is in the best interests of the Facility and the City and consistent with the terms of this Agreement. Manager shall not engage in any act that not within the scope of its authority under this Agreement, that is not in good faith or from which the Manager derives an improper personal benefit. 3. COMPENSATION Section 3.1 Fixed Mang ement Fee. In consideration of Manager's performance of its services hereunder, City shall pay Manager a Fixed Management Fee. Beginning on the Effective Date and continuing through December 31, 2033, the Fixed Management Fee shall be Six Thousand Two Hundred Fifty Dollars ($6,250.00) per month. The Fixed Management Fee shall be payable to Manager in advance, beginning on the Effective Date, and payable on the first (1 st) day of each month thereafter (prorated as necessary for any partial months). Manager shall be entitled to pay itself such amount from the Operating Account. Section 3.2 Incentive Fee. In addition to the Fixed Management Fee, Manager shall be entitled to receive an Incentive Fee each full or partial Operating Year of the Term. The Incentive Fee shall be comprised of a qualitative component as described in subpart (a) below ("Qualitative Component") and a quantitative component as described in subpart (b) below ("Quantitative Component"). (a) Qualitative Component. Manager shall be eligible to earn up to ten thousand dollars ($10,000) in each Operating Year (pro -rated for any Operating Years of less than a full 12 months based on the actual number of days elapsed in such Operating Year out of 365). The Qualitative Component shall be determined by the City, in its reasonable and good faith discretion based on its evaluation of Manager's performance each Operating Year in each of the following five (5) performance areas: Revenue Generation Metric. Each eligible to earn up to $500 1. Increase F&B Rev YOY by 2.5% 2. Increase Theater Rental Rev YOY by 2.5% 3. Increase Event Space Rental Rev YOY by 2.5% 4. Increase Ticket Rev YOY by 2.5% ii. Attendance Metric. Eligible to earn $2,000 MANAGEMENT SERVICES AGREEMENT - 5 - 4/2023 CITY OF �. Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 vvww cityoffederahvay. com 1. Increase Venue Attendance by 5% 2024 and 2.5% every year after iii. Usage Days Metric. Eligible to earn $2,000 1. Increase Venue Usage Days by 2.5% every year (includes all contractual usage days including rehearsals, setup and event day) iv. Host Free Community Events (paid for by local sponsorships acquired by Manager). Each event is worth $400, with a maximum benefit of $2,000 1. 5 annually in 2024, 2025 and 2026 (minimum 1 per quarter) 2. Increase by 1 each year starting in 2027 v. Types of Events Metric. Each eligible to earn $500, with a maximum benefit of $2,000 1. Weddings — minimum 4 annually 2. Banquets/meetings/conferences — minimum 50 annually 3. Non-profit — minimum 10 annually 4. Arts4youth — minimum 6 annually (b) Quantitative Component. Manager shall be paid twenty percent (20%) of the amount by which the actual Net Operating Income/Loss in each Operating Year exceeds the Net Operating Income/Loss mutually agreed upon Benchmark. For any Operating Years of less than a full 12-months, the Net Operating Income/Loss Benchmark shall be prorated based on the actual number of days elapsed in such Operating Year out of 365. There shall be no cap or maximum limit on the amount of the Quantitative Fee earnable by Manager. The mutually agreed upon Benchmark shall be determined during each Biennium budget. The Incentive Fee earned by Manager shall be paid to Manager no later than one -hundred eighty (180) days following the end of each Operating Year. Section 3.3 Commercial Rights Fee. In addition to the other fees due Manager hereunder, the City shall pay Manager fifteen percent (15%) of the Revenue from Commercial Rights ("Commercial Rights Fee"), as set forth below. For the sake of clarity, the Parties acknowledge that the Commercial Rights Fee shall be paid on all gross revenue from the sale of advertising signage, sponsorships, naming/title rights, sub-naming/title rights, pouring rights, branding rights, and other Commercial Rights at the Facility. For purposes of this paragraph, Revenue shall include trade/barter, with such trade/barter valued at its retail price in an arms -length transaction. The Commercial Rights Fee shall be paid for the full duration of all contracts for such Commercial Rights, including any period that extends after the end of this Agreement. Notwithstanding the foregoing, the Commercial Rights Fee shall not be paid on Revenue from Commercial Rights secured prior to the Effective Date. Payments due under this paragraph shall be made to Manager on an annual basis, within sixty (60) days of the end of each Operating Year, with respect to Revenue received in that year from the applicable Commercial Rights contracts. The provisions of this paragraph shall survive expiration or termination of this Agreement, and such settlements shall continue on an annual basis following the end of the term with respect to Revenue from Commercial Rights received in such years until such time as all Commercial Rights Commissions due Manager under this paragraph are fully paid. Manager shall engage one (1) person to serve as an on -site sales person, the costs of whom shall be considered an Operating Expense of the Facility. Section 3.4 Naming Rights. In addition to the other fees due Manager hereunder, the City shall pay Manager twenty percent (20%) of the Revenue from Naming Rights ("Naming Rights Fee"), as set forth below. For the sake of clarity, the Parties acknowledge that the Naming Rights Fee shall be paid on all gross revenue from the sale of naming/title rights and sub-naming/title rights at the Facility. For purposes of this paragraph, Revenue shall not include trade/barter, with such trade/barter valued at its retail price in an arms -length transaction. The Naming Rights Fee shall be paid for the full duration of all contracts for such Naming Rights, including any period that extends after the end of this Agreement. Notwithstanding the foregoing, the Naming Rights Fee shall not be paid on MANAGEMENT SERVICES AGREEMENT - 6 - 4/2023 CITY OF CITY HALL South Fe d e ra l Vila Feder 8th Avenue 8003 Federal Way, WA 98003-6325 (253) 835-7000 www 64o(federaf way com Revenue from Naming Rights secured prior to the Effective Date and/or solely secured by the City. Payments due under this paragraph shall be made to Manager on an annual basis, within one -hundred eighty (180) days of the end of each Operating Year, with respect to Revenue received in that year from the applicable Naming Rights contracts. The provisions of this paragraph shall survive expiration or termination of this Agreement, and such settlements shall continue on an annual basis following the end of the term with respect to Revenue from Naming Rights received in such years until such time as all Naming Rights Commissions due Manager under this paragraph are fully paid. Section 3.5 Late Payments. Manager shall have the right to assess interest on any payments of the fees described in this Section that are not made when due. Such interest shall accrue at the rate of twelve percent (12%) per annum. 4. TERM; TERMINATION Section 4.1 Term. The initial term of this Agreement (the "Initial Term") shall begin on the Effective Date, and, unless sooner terminated pursuant to the provisions of Section 4.2 below, shall expire on December 31, 2033. Following the Initial Term, the City may extend this Agreement for an additional five (5) years, to end on December 31, 2038, by providing written notice of such extension to Manager no later than August 31, 2033. The Initial Term plus any such extension periods is referred to as the "Term" hereunder. Section 4.2 Termination. This Agreement may be terminated: (a) by either party upon thirty (30) days written notice, if the other party fails to perform or comply with any of the material terms, covenants, agreements or conditions hereof, and such failure is not cured during such thirty (30) day notification period, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period, then a longer period of time shall be afforded to cure such breach, up to a total of ninety (90) days, provided that the party in default is diligently seeking a cure and the non -defaulting party is not irreparably harmed by the extension of the cure period; or (b) by either party immediately by written notice upon the other party being judged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of the other party shall be appointed and shall not be discharged within one hundred twenty (120) days after appointment, or if either parry shall make an assignment of its property for the benefit of creditors or shall file a voluntary petition in bankruptcy or insolvency, or shall apply for bankruptcy under the bankruptcy or insolvency Laws now in force or hereinafter enacted, Federal, State or otherwise, or if such petition shall be filed against either party and shall not be dismissed within one hundred twenty (120) days after such filing. Section 4.3 Effect of Expiration or Termination (a) Upon expiration or termination of this Agreement, the City shall reimburse Manager for any actual ordinary and necessary expenses incurred by Manager in withdrawing from the provision of services hereunder following such termination. Such ordinary and necessary expenses shall include costs associated with (i) severance pay, not to exceed three (3) months, for each of Manager's Management -Level Employees who are not retained by Manager following termination of this Agreement; (ii) reasonable household relocation expenses for Management -Level Employees at the Facility who are retained by Manager following termination to work at another Manager -managed Facility, but only to the extent any of such individuals had previously relocated to the Facility (or its surrounding areas) in connection with this Agreement; and (iii) other reasonable costs actually incurred by MANAGEMENT SERVICES AGREEMENT - 7 - 4/2023 CITY OF CITY HALL 4 33325�._. Fe d e ra [ Way Feder 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway cam Manager in withdrawing from the provision of services hereunder, such as those incurred in connection with the termination and/or assignment of Service Contracts, Revenue Generating Contracts, or other contracts or leases entered into by Manager pursuant to this Agreement. The City's payment of such expenses will occur only after Manager has provided reasonable evidence of the incurrence of such expenses. (b) Upon expiration or termination or this Agreement, the following shall also apply: (i) Manager shall promptly discontinue the performance of all services hereunder; (ii) City shall promptly pay Manager all fees due Manager up to the date of termination or expiration (subject to proration if the Term ends other than at the end of the Operating Year); (iii) the City shall pay to Manager all Operating Expenses incurred by Manager through the end of the Term that have not previously been paid, including costs of accrued but unused vacation time and other end of employment payments due to Manager's employees whose employment is being terminated Manager; (iv) Manager shall make available to the City all data, electronic files, documents, procedures, reports, estimates, summaries, and other such information and materials with respect to the Facility as may have been accumulated by Manager in performing its obligations hereunder, whether completed or in process; and (iv) without any further action on part of Manager or City, the City shall, or shall cause the successor Facility manager to, assume all obligations arising after the date of such termination or expiration, under any Service Contracts, Revenue Generating Contracts, booking commitments and any other Facility agreements entered into by Manager in furtherance of its duties hereunder. Any obligations of the Parties that are specifically intended to survive expiration or termination of this Agreement shall survive expiration or termination hereof. 5. OWNERSHIP; USE OF THE FACILITY Section 5.1 Ownership of Facility, Data, Equipment and Materials. The City will at all times retain ownership of the Facility, including but not limited to real estate, technical equipment, furniture, displays, fixtures, and similar property, including improvements made during the Term. Any data, equipment or materials furnished by the City to Manager or acquired by Manager as an Operating Expense shall remain the property of the City, and shall be returned to the City when no longer needed by Manager to perform under this Agreement. Notwithstanding the above, City shall not have the right to use any third -parry software licensed by Manager for general use by Manager at the Facility and other facilities managed by Manager, the licensing fee for which is proportionately allocated and charged to the Facility as an Operating Expense; such software may be retained by Manager upon expiration or termination hereof. Furthermore, the City recognizes that the Operations Manual to be developed and used by Manager hereunder is proprietary to Manager, and shall belong to Manager at the end of the Term; City shall not use or maintain copies thereof upon the end of the Term except as may be required by the Washington State Public Records Act per Section 18.17 below. Section 5.2 Riaht of Use by_Manage r. The City hereby gives Manager the right and license to use the Facility, and Manager accepts such right of use, for the purpose of performing the services herein specified, including the operation and maintenance of all physical and mechanical Facility necessary for, and related to, the operation, maintenance and management of the Facility. The City shall provide Manager with a sufficient amount of suitable office space in the Facility and with such office equipment as is reasonably necessary to enable Manager to perform its obligations under this Agreement. In addition, the City shall make available to Manager, at no cost, parking spaces adjacent to the Facility for all of Manager's full-time employees and for the Facility's event staff. The City will retain the use of one (1) office with a door in the Facility for use by City staff. Section 5.3 Observance of Agreements. The City agrees to pay, keep, observe and perform all payments, terms, covenants, conditions and obligations under any leases, bonds, debentures, loans and other financing and security agreements to which the City is bound in connection with its ownership of the Facility. MANAGEMENT SERVICES AGREEMENT - 8 - 4/2023 CITY OF CITY HALL &6, F� a ra Y Y a� 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www. cityoffederahvay com Section 5.4 Use by the City. Subject to availability, the City shall have the right to use the Facility or any part thereof without paying rent for meetings, seminars, training classes or other non-commercial uses, provided that the City shall promptly reimburse Manager, for deposit into the Operating Account, for any out-of-pocket expenses incurred by Manager (such as the cost of ushers, ticket -takers, set-up and take -down personnel, security expenses, and other expenses) in connection with such use. Such non-commercial use of the Facility by the City shall: (i) not compete with or conflict with the dates previously booked by Manager for paying events, (ii) not consist of normally touring attractions (such as concerts and family shows), and (iii) be booked in advance upon reasonable notice to Manager pursuant to the Facility' approved booking policies. Upon request of the City, Manager shall provide to the City a list of available dates for City use of the Facility. To the extent that Manager has an opportunity to book a revenue -producing event on a date that is otherwise reserved for use by the City, Manager may propose alternative dates for the City's event, and the City shall use best efforts to reschedule its event to allow Manager to book the revenue -producing event, provided, that the City shall not be obligated to reschedule its event. For purposes of calculating Manager's Incentive Fee, Manager shall receive a "paper" credit for an amount equal to the difference between the published Facility rate and the rate (if any) charged to the City for such use of the Facility, when such City use precludes rental of the facility to an available paying customer. Section 5.5 Right ofingress and Egress. Manager acknowledges that the City shall have the right to enter the Facility and to grant to others the right of ingress and egress to and from the Facility for the purpose of inspection thereof, the conduct of capital improvements, or other purposes. The City agrees to use reasonable commercial efforts to coordinate such entry with the Manager to minimize interference with scheduled activities at the Facility. 6. PERSONNEL Section 6.1 Generally. All Facility staff and other personnel shall be engaged or hired by Manager, and shall be employees, agents or independent contractors of Manager (or an Affiliate thereof), and not of the City. Subject to the remainder of this paragraph, Manager shall select, in its sole discretion but subject to City's right to approve the Operating Budget, the number, function, qualifications, and compensation, including salary and benefits, of its employees and shall control the terms and conditions of employment (including without limitation termination thereof) relating to such employees. Manager agrees to use reasonable and prudent judgment in the selection and supervision of such personnel. The City specifically agrees that Manager shall be entitled to pay its employees, as an Operating Expense, bonuses and benefits in accordance with Manager's then current employee manual, which may be modified by Manager from time to time in its sole discretion. A copy of Manager's current employee manual shall be provided to the City upon request. City shall pay all accrued but unused vacation time to its employees whose employment with City is terminating and whose employment with Manager is commencing. Section 6.2 General Manager. Personnel engaged by Manager will include an individual with experience managing facilities similar to the Facility to serve as a full-time on -site General Manager of the Facility. Hiring of the General Manager by Manager shall require the prior approval of the City, which approval shall not be unreasonably withheld or delayed; provided, however, in the event of a vacancy in the General Manager position, Manager may, upon notice to the City, temporarily fill such position with an interim General Manager for up to ninety (90) days without the necessity of obtaining the City's approval. The General Manager will have general supervisory responsibility for Manager and will be responsible for day-to-day operations of the Facility, supervision of employees, and management and coordination of all activities associated with events taking place at the Facility. Section 6.3 On -Site Sales Person. Manager shall engage one (1) person to serve as an on -site sales person MANAGEMENT SERVICES AGREEMENT - 9 - 4/2023 .. Federal Way Way CITY OF CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 wmv cityoffederalway com for commercial and naming rights, the costs of whom shall be considered an Operating Expense of the Facility. Section 6.4 Non-Solicitation/Non-Hiring. During the Term and for a period of one (1) year after the end of the Term, neither City nor any of its Affiliates shall solicit for employment, or hire, any of Manager's Management -Level Employees unless Management agrees to such solicitation or employment in writing. The City acknowledges that Manager will spend a considerable amount of time identifying, hiring and training individuals to work in such positions, and that Manager will suffer substantial damages, the exact amount of which would be difficult to quantify, if the City were to breach the terms of this Section by hiring, or soliciting for employment, any of such individuals. Accordingly, in the event of a breach or anticipated breach of this Section by the City, Manager shall be entitled (in addition to any other rights and remedies which Manager may have at law or in equity, including money damages) to equitable relief, including an injunction to enjoin and restrain the City from continuing such breach, without the necessity of posting a bond. 7. OPERATING BUDGET Section 7.1 Operating Budget. Manager agrees that at least 180 days prior to the commencement of each subsequent Operating Year in respect of such year, it will prepare and submit to the City a proposed Operating Budget for the for such year for the City's review and approval as provided in Section 7.2. Each such annual Operating Budget shall include Manager's good faith projection of Revenues and Operating Expenses, presented on a monthly and annual basis, for the upcoming Operating Year. The City agrees to provide Manager with all information in its possession necessary to enable Manager to prepare each Operating Budget. Manager agrees to cooperate with the City and make presentations to the City council as part of the City's own internal budgeting process. Section 7.2 Approval of Operating Bud et. Each of the annual Operating Budgets shall be subject to the review and approval of the City, which approval may be withheld or granted in its sole discretion. In order for the City to fully evaluate and analyze such budgets or any other request by Manager relating to income and expenses, Manager agrees to provide to the City such reasonable financial information relating to the Facility as may be requested by the City from time to time. If extraordinary events occur during any Operating Year that could not reasonably be contemplated at the time the corresponding Operating Budget was prepared, Manager may submit an amendment to such budget for review and approval by the City, which approval may be withheld or granted in its sole discretion. If the City fails to approve any annual Operating Budget (or any proposed amendment thereto), the City shall promptly provide Manager the specific reasons therefor and its suggested modifications to Manager's proposed Operating Budget or amendment in order to make it acceptable. The Parties shall then engage in good faith discussions and use reasonable commercial efforts to attempt to resolve the matter to the mutual satisfaction of the Parties, including, if applicable, negotiation of a mutually acceptable modification to the economic terms of this Agreement to enable the Manager to achieve the compensation contemplated by its proposed Operating Budget. Section 7.3 Adherence to Operating Bud et. Manager shall use all reasonable efforts to manage and operate the Facility in accordance with its Operating Budget. However, City acknowledges that notwithstanding the Manager's experience and expertise in relation to the operation of facilities similar to the Facility, the projections contained in each Operating Budget are subject to and may be affected by changes in financial, economic and other conditions and circumstances beyond the Manager's control, and that Manager shall have no liability if the numbers within the Operating Budget are not achieved. Manager agrees to notify the City within 30 days of any significant change or variance in the bottom line number in the Operating Budget, and any material increase in total Facility expenses from that provided for in the Operating Budget. In either such case Manager agrees to work with City to develop and implement a plan (or changes to the then current plan) to limit Operating MANAGEMENT SERVICES AGREEMENT - 10 - 4/2023 CITY OF �. Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway. com Expenses to be incurred in the remaining months of such Operating Year with the goal of achieving the Operating Budget. 8. PROCEDURE FOR HANDLING INCOME Section 8.1 Event Account. Manager shall deposit as soon as practicable following receipt, in the Event Account for the Facility, all revenue received from ticket sales and similar event -related revenues that Manager receives in contemplation of, or arising from, an event at the Facility, pending completion of the event. Such monies will be held in trust for the protection of ticket purchasers, City, and Manager, and to provide a source of funds as required for payments to performers and for payments of direct incidental expenses in connection with the presentation of events that must be paid prior to or contemporaneously with such events. Promptly following completion of such events, Manager shall transfer all funds remaining in the Event Account, including any interest accrued thereon, into the Operating Account for the Facility. Section 8.2 Operating Account. Except as provided in Section 8.1, all Revenue derived from operation of the Facility shall be deposited by Manager into the Operating Account as soon as practicable upon receipt. The specific procedures (and authorized individuals) for making deposits to and withdrawals from such account shall be set forth in the Operations Manual, but the Parties specifically agree that Manager shall have authority to sign checks and make withdrawals from such accounts, subject to the limitations of this Agreement. 9. FUNDING Section 9.1 Source of Funding. Manager shall pay all items of expense for the operation, maintenance, supervision and management of the Facility from the funds in the Operating Accounts for the Facility. The Operating Accounts shall be funded with amounts generated by operation of the Facility (as described in Article 8 above), or otherwise made available by the City. To ensure sufficient funds are available in the Operating Accounts, City will deposit in the Operating Accounts, on or before the Effective Date, the budgeted or otherwise approved expenses for the Facility for the three (3) month period beginning on the Effective Date. The City shall thereafter, on or before the 1 St day of each succeeding month following the Effective Date, deposit (or allow to remain) in the Operating Accounts the budgeted or otherwise approved expenses for each such month, retaining at all times in the accounts funding for the upcoming 3-month period. Manager shall have no liability to the City or any third party in the event Manager is unable to perform its obligations hereunder, or under any third -party contract entered into pursuant to the terms hereof, due to the fact that sufficient funds are not made available to Manager to pay such expenses in a timely manner. If the City appropriates funds at (or reduces appropriated funds to) a level that, in the Manager's good faith reasonable judgment, renders the management of the Facility as contemplated in the Agreement not feasible, Manager and the City shall meet as necessary to formulate a plan to continue management of the Facility at a reduced level of services consistent with anticipated Operating Revenues and available funding. Section 9.2 Advancement of Funds. Under no circumstances shall Manager be required to pay for or advance any of its own funds to pay for any Operating Expenses. In the event that, notwithstanding the foregoing, Manager agrees to advance its own funds to pay Operating Expenses, City shall promptly reimburse Manager for the full amount of such advanced funds, plus interest at 12% per annum. 10. FISCAL RESPONSIBILITY; REPORTING Section 10.1 Records. Manager agrees to keep and maintain, at its office in the Facility, separate and independent records, in accordance with generally accepted accounting principles, devoted exclusively to its MANAGEMENT SERVICES AGREEMENT - 11 - 4/2023 CITY 4F CITY HALL `6� Federal Way a� 33325 Avenue South Federall Way, WA 98003-6325 (253) 835-7000 www diyoffederalway com operations in connection with its management of the Facility. Such records (including books, ledgers, j ournals, and accounts) shall contain all entries reflecting the business operations of Manager under this Agreement. The City or its authorized agent shall have the right to audit and inspect such records from time to time during the Term, upon reasonable notice to Manager and during Manager's ordinary business hours. Section 10.2 Monthly Financial Reports. Manager agrees to provide to the City, within thirty (30) days after the end of each month during the Term, financial reports for the Facility including a balance sheet, aging report on accounts receivable, and statement of revenues and expenditures (budget to actual) for such month and year to date in accordance with generally accepted accounting principles. In addition, Manager agrees to provide to the City a summary of bookings for each such month, and separate cash receipts and disbursements reports for each event held at the Facility during such month. Additionally, Manager shall submit to the City, or shall cause the applicable public depository utilized by Manager to submit to the City, on a monthly basis, copies of all bank statements concerning the Event Account and the Operating Account. Section 10.3 Annual Plan. Simultaneously with the submission of each annual Operating Budget referenced in Section 7 of this Agreement, Manger shall also submit an annual plan (the "Annual Plan") for the City's review and approval. The Annual Plan will include information regarding Manger's anticipated operations for the coming Operating Year, including planned operating maintenance activities (including a preventive maintenance schedule), expense control initiatives, requested capital improvements and capital equipment purchases, anticipated events at the Facility, anticipated advertising and promotional activities, and planned equipment and furnishings purchases. The Annual Plan shall be subject to review, revision and approval by the City. Section 10.4 Audit. Manager agrees to provide to the City, within one hundred twenty (120) days following the end of each Operating Year, a certified audit report on the accounts and records as kept by Manager for the Facility. Costs associated with obtaining such certified audit report shall be an Operating Expense of the Facility. Such audit shall be performed by an external auditor approved by the City, and shall be conducted in accordance with generally accepted auditing standards and those procedures required by applicable state law. Manager agrees that it will cooperate fully with the Auditor's Office of the State of Washington and provide it and its agents with all information that it may request in connect with a state audit of the Facility. Costs associated with a state audit shall be an Operating Expense of the Facility. Section 10.5 Federal Pro ram Re ortin . Facility construction costs were partially funded by the federal Section 108 program as well as the New Market Tax Credit program, both of which require recording and reporting of performance metrics on established subjects. Manager agrees to record those metrics required by the City to facilitate the City's obligation to report to the federal government. 11. CAPITAL IMPROVEMENTS; MANAGER CONTRIBUTION Section 11.1 Schedule of Capital Expenditures. Manager shall annually, at the time of submission of the annual Operating Budget to the City, provide to the City a schedule of proposed capital improvements to be made at the Facility, for the purpose of allowing the City to consider such projects and to prepare and update its long-range Capital Expenditure budget. Section l l .2 Res]2onsibili!y for Coital Expenditures. The City shall be solely responsible for all Capital Expenditures at the Facility; provided, however, the City shall be under no obligation to make any Capital Expenditures proposed by Manager, and provided further that Manager shall have no liability for any claims, costs or damages arising out of a failure by the City to make any Capital Expenditures. Notwithstanding the foregoing, MANAGEMENT SERVICES AGREEMENT - 12 - 4/2023 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 635-7000 wwwc "ffederalway.cvm Manager shall have the right (but not the obligation), upon notice to the City, to make Capital Expenditures at the Facility for Emergency Repairs. In such event, the City shall promptly reimburse Manager for the cost of such Capital Expenditure. Section 11.3 Manager Contribution. Manager hereby agrees to make a contribution of Two Hundred Thousand Dollars ($200,000) to the City (the "Contribution"). The Contribution shall be paid to the City no later than February 1, 2024, and may be used for any purpose in the City's discretion, but the City agrees to give due consideration to using such funds to develop an event fund to attract events to the Facility. The Contribution shall be amortized on a straight-line basis over a one hundred twenty (120) month period (at the rate of 1/120 per month), beginning on the Effective Date and ending on January 31, 2033. Upon the expiration or termination (for any reason whatsoever, including without limitation if due to a breach, default or bankruptcy event by or affecting Manager, or if the City elects not to renew this Agreement beyond the Initial Term) of this Agreement, the City shall immediately pay to Manager the unamortized amount of the Contribution, without deduction or setoff of any kind. 12. FOOD AND BEVERAGE SERVICE Section 12.1 Generally. Manager shall have the sole and exclusive right to manage and perform, and Manager hereby agrees to manage and perform all food and beverage concession and catering service at the Facility ("Food and Beverage Service"). Manager may engage sub -contractors to sell food and beverages at the Facility. Section 12.2 Concession and Catering Areas. Manager shall have the exclusive right to use, or permit a third -party to use, as applicable, the concession stands, novelty stands, customer serving locations, banquet facility, catering facility, exhibition space, food preparation areas, vendor commissaries, kitchen and storage facilities, and other food service related areas of the Facility, together with the improvements, equipment and personal property upon or within such areas, for the purpose of providing the Food and Beverage Service (and providing other duties required of Manager hereunder). Manager shall acquire all smallwares and equipment reasonably required by Manager to perform the Food and Beverage Service and such costs shall be an Operating Expense or Capital Expenditure, as applicable, of the Facility. Section 12.3 Food and Beverage Duties. In connection with its management and provision of the Food and Beverage Service, Manager shall: (a) Develop and implement all necessary policies and procedures for food and beverage operations; (b) Manage the Food and Beverage Service in compliance with and subject to all federal, state and local laws, ordinances and regulations (including, without limitation, health and sanitation codes and regulations with respect to the sanitation and purity of the food and beverage products for sale); (c) Engage and oversee employees necessary to perform the Food and Beverage Services; (d) Arrange for all minor repairs and routine maintenance to the equipment used in the operation of the Food and Beverage Service; (e) Keep the Food and Beverage Facility and equipment in a neat, clean, and sanitary condition; (f) Undertake appropriate advertising, marketing, and promotion of the food and beverage offerings at the Facility; MANAGEMENT SERVICES AGREEMENT - 13 - 4/2023 CITY OF CITY HALL Federal �� 8th Avenue South Feder Federal Way, WA 98003-6325 -x - (253) 835-7000 www crtyoffederalway cam (g) Develop menus, portions, brands, prices, themes and marketing approaches. Manager shall be entitled to set the prices for such items for sale, but Manager agrees to confer with the City's Contract Administrator and take the City's views into account prior to setting (or changing) such prices; and (h) Order, stock, prepare, pay for (as an Operating Expense) and sell appropriate foods and beverages. Section 12.4 Alcohol Licenses and Permits. Manager agrees to apply for all appropriate alcohol licenses and permits, subject to applicable law. The City shall provide reasonable assistance to Manager in such regard. At the end of the Term, Manager shall without charge to City relinquish its rights in, or terminate (as applicable), the alcohol licenses and permits for the Facility. Section 12.5 Food and Beverage Revenue and Expenses. All revenue from operation of the Food and Beverage Service shall be deemed Revenue, and shall be deposited by Manager into the Operating Account. All expenses incurred in connection with the provision of the Food and Beverage Service shall be Operating Expenses, payable by Manager with funds from the Operating Account. 13. FACILITY CONTRACTS; TRANSACTIONS WITH AFFILIATES Section 13.1 Execution of Contracts. Excluding any contract for a "public work" as defined in Chapter 39.04 RCW, Manager shall have the right to enter into Service Contracts, Revenue Generating Contracts, and other contracts related to the operation of the Facility, as agent on behalf of the City. Any such material agreements shall contain standard indemnification and insurance obligations on the part of each vendor, licensee, or service provider, as is customary for the type of services or obligations being provided or performed by such parties and consistent with other provisions in this Agreement relating to indemnification and insurance requirements for vendors, licensees, or service providers. Manager shall obtain the prior approval of the City (which approval shall not be unreasonably withheld or delayed) before entering into any such contract with a term that expires after the Term of this Agreement, unless such contract, by its express terms, can be terminated by Manager or City following expiration of the Term without any penalty. Section 13.2 Transactions with Affiliates. In connection with its obligations hereunder relating to the purchase or procurement of services for the Facility, Manager may purchase or procure such services, or otherwise transact business with, an Affiliate of Manager, provided that the prices charged and services rendered by such Affiliate are competitive with those obtainable from any unrelated parties rendering comparable services. Manager shall, at the request of the City, provide reasonable evidence establishing the competitive nature of such prices and services, including, if appropriate, competitive bids from other persons seeking to render such services at the Facility. 14. AGREEMENT MONITORING AND GENERAL MANAGER Section 14.1 Contract Administrator. Each party shall appoint a contract administrator who shall monitor such parry's compliance with the terms of this Agreement. Manager's contract administrator shall be its General Manager at the Facility, unless Manager notifies City of a substitute contract administrator in writing. City shall notify Manager of the name of its contract administrator within thirty (30) days of execution hereof. Either party may change its contract administrator by providing written notice of such change to the other party. Any matters in this Agreement requiring Manager's participation or approval shall mean the participation or approval of the Manger's contract administrator, who to the extent such contract administrator has authority delegated from Manager, shall MANAGEMENT SERVICES AGREEMENT - 14 - 4/2023 CITY OF CITY HALL _ Federal Fe d e ra l '111J'ay F8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www.ct"fWeralway. com have the authority to act for and bind Manager with respect to any such matter. The City acknowledges that Manager's contract administrator does not have the authority to amend or modify this Agreement in any manner. Any matters in this Agreement requiring the City's participation or approval shall be directed to the City's contract administrator. The City's contract administrator may, to the extent such contract administrator has authority delegated from the City, act for and bind the City. When the City's contract administrator must present an issue to the City mayor or City council in order to authorize a request or bind the City, the City contract administrator will notify Manager promptly. 15. INDEMNIFICATION Section 15.1 Indemnification by Manage . Manager agrees to defend, indemnify and hold harmless the City and its officials, directors, officers, employees, agents, successors and assigns against any claims, causes of action, costs, expenses (including reasonable attorneys' fees) liabilities, or damages (collectively, "Losses") suffered by such parties and caused by any (a) negligent act or omission, or intentional misconduct, on the part of Manager or any of its employees or agents in the performance of its obligations under this Agreement, or (b) breach by Manager of any of its representations, covenants or agreements made herein. Section 15.2 Indemnification by the City. City agrees to defend, indemnify and hold harmless Manager, its parent, subsidiary and affiliate companies, and each of their respective directors, officers, employees, agents, successors and assigns, against any Losses suffered by such parties, arising out of or in connection with (a) any negligent act or omission, or intentional misconduct, or failure to comply with Laws, on the part of City or any of its employees or agents (excluding Manager and its employees) in the performance of its obligations under this Agreement, (b) a breach by City of any of its representations, covenants or agreements made herein, including without limitation City's obligation to pay any budgeted or otherwise approved expenses in a timely manner, (c) failure by City to pay any amounts due by City or to otherwise perform any obligations of City under any third -parry contracts, licenses or agreements entered into by Manager in furtherance of its duties hereunder as authorized hereby; (d) any environmental condition at the Facility or on or under the premises on which the Facility is located not caused by Manager, its employees or agents, (e) any structural defect with respect the Facility, (f) the fact that any time prior to, as of, or after the effective date of this agreement the Facility is not or has not been in compliance with all Laws, including, but not limited to, the Americans With Disabilities Act as it now exists and as it may be amended in the future by statute or judicial interpretation, (g) any act or omission carried out by Manager at or pursuant to the written direction or instruction of City, its agents or employees, (h) any claims relating to the Facility or their operations accruing or caused by occurrences prior to the Effective Date or following termination or expiration of this Agreement, and (i) any withdrawal liability for a share of unfunded vested benefits under multiemployer plans (as that term is defined in 4001(a)(3) of the Employee Retirement Income Security Act of 1974, as amended). Section 15.3 Conditions to Indemnification. With respect to each separate matter brought by any third party against which a party hereto ("Indemnitee") is indemnified by the other party ("Indemnitor".) under this Article 15, the Indemnitor shall be responsible, at its sole cost and expense, for controlling, litigating, defending and/or otherwise attempting to resolve, through counsel of its choice, any proceeding, claim, or cause of action underlying such matter, except that (a) the Indemnitee may, at its option, participate in such defense or resolution at its expense and through counsel of its choice; (b) the Indemnitee may, at its option, assume control of such defense or resolution if the Indemnitor does not promptly and diligently pursue such defense or resolution, provided that the Indemnitor shall continue to be obligated to indemnify the Indemnitee hereunder in connection therewith; and (c) neither Indemnitor nor Indemnitee shall agree to any settlement without the other's prior written consent (which shall not be unreasonably withheld or delayed). In any event, Indemnitor and Indemnitee shall in good faith cooperate with each MANAGEMENT SERVICES AGREEMENT -15 - 4/2023 CITY OF CITY HALL Federal ■ V■V■ � ■ay Feder 8th Avenue South Federal Way, WA 98003-6325 -_ (253) 835-7000 www crfyoffederal way. con) other and their respective counsel with respect to all such actions or proceedings, at the Indemnitor's expense. With respect to each and every matter with respect to which any indemnification may be sought hereunder, upon receiving notice pertaining to such matter, Indemnitee shall promptly give reasonably detailed written notice to the Indemnitor of the nature of such matter and the amount demanded or claimed in connection therewith. Section 15.4 Survival. The obligations of the Parties contained in this Article 15 shall survive the termination or expiration of this Agreement. Section 15.5 Legal Costs. Notwithstanding the other provisions of this Agreement, if legal costs are being incurred by the Manager or the City for a third -party claim in respect of which the City is claiming indemnity from the Manager, such legal costs will be considered an Operating Expense unless and until liability of the Manager pursuant to this Agreement is established by a court of competent jurisdiction with respect to the underlying claim on which the Manager's obligation to indemnify is based. In the event that the liability of the Manager is so determined, then such legal costs shall be considered as costs of the Manager (and not Operating Expenses) in proportion to the comparative degree established by the court and covered by the indemnity given by the Manager to the City hereunder and the Parties shall adjust between them in respect of such legal costs. 16. INSURANCE Section 16.1 Types and Amount of Coverage. Manager agrees to obtain insurance coverage in the manner and amounts as set forth in Exhibit C, attached hereto, and shall provide to the City promptly following the Effective Date a certificate of certificates of insurance evidencing such coverage. Manager shall maintain such referenced insurance coverage at all times during the Term, and will not make any material modification or change from these specifications without the prior approval of the City. Each insurance policy shall include a requirement that the insurer provide Manager and the City at least thirty (30) days written notice of cancellation or material change in the terms and provisions of the applicable policy. The cost of all such insurance shall be an Operating Expense. Section 16.2 Ratin • Additional Insureds. All insurance policies shall be issued by insurance companies rated no less than A VIII in the most recent "Bests" insurance guide, and licensed in the State of Washington or as otherwise agreed by the Parties. All such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. The commercial general liability policy, automobile liability insurance policy, and umbrella or excess liability policy to be obtained by Manager hereunder shall name City as an additional insured. The workers compensation policy to be obtained by Manager hereunder shall contain a waiver of all rights of subrogation against the City. Manager shall require that all third -party users of the Facility, including, without limitation, third -party licensees, ushers, security personnel, and concessionaires provide certificates of insurance evidencing insurance appropriate for the types of activities in which such user is engaged. If Manager subcontracts any of its obligations under this Agreement, Manager shall require each such subcontractor to secure insurance that will protect against applicable hazards or risks of loss as and in the minimum amounts designated herein, and name Manager and the City as additional insureds. Section 16.3 Crime Insurance. Those employees of Manager who have access to or are responsible for the funds generated under this Agreement shall be covered by a crime insurance policy to be obtained by Manager consistent with the requirements of Exhibit C hereto. MANAGEMENT SERVICES AGREEMENT - 16 - 4/2023 CITY OF CITY HALL ��. 1lll� 8th Avenue South Feder Q Federal Way, WA 98003-6325 Feral F y (253) 835-7000 vvww cityoffederalway coin 17. REPRESENTATIONS, WARRANTIES AND COVENANTS Section 17.1 Manager Representations and Warranties. Manager hereby represents, warrants and covenants to City as follows: (a) that it has the full legal right, power, and authority to enter into this Agreement and to grant the rights and perform the obligations of Manager herein, and that no third -parry consent or approval is required to grant such rights or perform such obligations hereunder; and (b) that this Agreement has been duly executed and delivered by Manager and constitutes a valid and binding obligation of Manager, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or similar Laws affecting creditors' rights generally or by general equitable principles. (c) that Manager will comply with all Laws applicable to its management of the Facility, provided that Manager shall not be required to undertake any compliance activity, nor shall Manager have any liability under this Agreement therefor, if such activity requires any Capital Expenditure. Section 17.2 City Representations. Warranties and Covenants. City represents, warrants and covenants to Manager as follows: (a) that it has the full legal right, power and authority to enter into this Agreement and to grant the rights and perform the obligations of City herein, and that no other third -party consent or approval is required to grant such rights or perform such obligations hereunder. (b) that this Agreement has been duly executed and delivered by City and constitutes a valid and binding obligation of City, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. (c) that the Facility is, as of the Effective Date, in compliance in all respects with all applicable Laws relating to the construction, use and operation of the Facility (including, without limitation, Title III of the American with Disabilities Act), and that the City has no knowledge of any existing structural defects or unsound operating conditions at the Facility. 18. MISCELLANEOUS Section 18.1 PCI Campliance. Manager agrees to comply with all current Payment Card Industry Data Security Standards ("PCI Standards") and guidelines that may be published from time to time by Visa, MasterCard or other associations' as they relate to the physical storage of credit card data. For PCI Standards compliance purposes, City will provide on a segmented network, an appropriate number of wired data connections to the Internet for point of sale devices to be used by Manager and any contractors at the Facility. City shall be responsible for the security of its network, including, without limitation, applicable PCI-DSS compliance, and for procuring and installing point of sale ("POS") payment systems that are compliant with the latest PCI-DSS requirements. If at any time either party determines that card account number or other information has been compromised, such party will notify the other immediately and assist in providing notification to the proper parties as deemed necessary. MANAGEMENT SERVICES AGREEMENT - 17 - 4/2023 CITY OF Federal way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway com Section 18.2 No Discrimination. Manager agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, religion, color, sex, disability, national origin, ancestry, physical handicap, age, sexual orientation, gender identity, or veteran or military status and will take affirmative steps to ensure that applicants are employed, and employees are treated during employment, without regard to race, religion, color, sex, disability, national origin, ancestry, physical handicap, age, sexual orientation, gender identity, or veteran or military status. Section 18.3 Use of Facili1y Names and Lo os. Manager shall have the right to use throughout the Term (and permit others to use in furtherance of Manager's obligations hereunder), for no charge, the name and all logos of the Facility, on Manager's stationary, in its advertising of the Facility, and whenever conducting business of the Facility; provided, that Manager shall take all prudent and appropriate measures to protect the intellectual property rights of the City relating to such logos. All intellectual property rights in any Facility logos developed by the Manager or the City shall be and at all times remain the sole and exclusive property of the City. Manager agrees to execute any documentation requested by the City from time to time to establish, protect or convey any such intellectual property rights. Section 18.4 Facility Advertisements. The City agrees that in all advertisements placed by the City for the Facility or events at the Facility, whether such advertisements are in print, on radio, television, the internet or otherwise, it shall include a designation that the Facility is managed by Global Spectrum L.P. The specific logos and branding details to be include in any designations shall be set forth in the Operations Manual. Section 18.5 Force Majeure; Casualty Loss. (a) Neither party shall be liable or responsible to the other party for any delay, loss, damage, failure or inability to perform under this Agreement due to an Event of Force Majeure, provided that the party claiming failure or inability to perform provides written notice to the other party within thirty (30) days of the date on which such party gains actual knowledge of such Event of Force Majeure. Notwithstanding the foregoing, in no event shall a party's failure to make payments due hereunder be excusable due to an Event of Force Majeure. (b) In the event of damage or destruction to a material portion of the Facility by reason of fire, storm, or other casualty loss that renders the Facility (or a material portion thereof) uninhabitable, the City shall use reasonable efforts to remedy such situation. If notwithstanding such efforts, such damage or destruction is expected to render the Facility (or a material portion thereof) untenantable for a period estimated by an architect selected by the City at Manager's request, of at least one hundred eighty (180) days from the date of such fire, storm, or other casualty loss, either party may terminate this Agreement upon written notice to the other, provided that (i) the City shall pay to Manager its costs of withdrawing from services at the Facility hereunder, as described in Section 4.3(a) above, and (ii) the Parties shall negotiate appropriate adjustments to the compensation terms herein to account for the reduction in duties of Manager hereunder (and any such changes shall be mutually agreed). Section 18.6 _Assignment, Binding on Successors and Assigns. Neither party may assign this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that either party may, without the prior written consent of the other party but upon at least 30 days' written notice to the other party, assign this Agreement in connection with a sale, merger, or other business combination involving all or substantially all of its assets or equity interests, and Manager may further assign this Agreement to an Affiliate where such assignment is intended to accomplish an internal corporate purpose of Manager as opposed to materially and substantially altering the method of delivery of services to City. Any purported assignment in contravention of this Section shall be void. This Agreement is binding on successors and permitted assigns of the Parties. MANAGEMENT SERVICES AGREEMENT - 18 - 4/2023 CITY OF �. Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederafway com Section 18.7 Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services, to the address and individual set forth below. All such notices to either party shall be deemed to have been provided when delivered, if delivered personally, three (3) days after mailed, if sent by registered or certified mail, or the next business day, if sent by generally recognized, prepaid, overnight air courier services. If to the City: City of Federal Way 33325 81" Avenue South Federal Way, WA 98003 Attn: Parks Department With a copy to: City of Federal Way 33325 81" Avenue South Federal Way, WA 98003 Attn: City Attorney's Office If to Manager: Global Spectrum L.P. 3601 S. Broad Street Philadelphia, PA 19148 Attn: Chief Operating Officer With a copy to: Global Spectrum L.P. 3601 South Broad Street Philadelphia, Pennsylvania 19148-5290 Attn: General Counsel The designation of the entities to be so notified and the addresses of such Parties set forth above may be changed from time to time by written notice to the other party in the manner set forth above. Section 18.8 Severabili . If a court of competent jurisdiction determines that any term of this Agreement is invalid or unenforceable to any extent under applicable law, the remainder of this Agreement (and the application of this Agreement to other circumstances) shall not be affected thereby, and each remaining term shall be valid and enforceable to the fullest extent permitted by law. Section 18.9 Entire Agreement. This Agreement (including the exhibits attached hereto) contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior negotiations, correspondence, conversations, agreements, and understandings concerning the subject matter hereof. Accordingly, the Parties agree that no deviation from the terms hereof shall be predicated upon any prior representations, agreements or understandings, whether oral or written. Section 18.10 Governing Law. The Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Washington without regard to its conflict of laws principles. Section 18.11 Amendments. Neither this Agreement nor any of its terms maybe changed or modified except by an instrument in writing signed by an authorized representative of both of the Parties to this Agreement. Section 18.12 Waiver, Remedies. No failure or delay by a party hereto to insist on the strict performance of any term of this Agreement, or to exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every term of this Agreement shall continue in full force and MANAGEMENT SERVICES AGREEMENT - 19 - 4/2023 C17y OF CITY HALL AN Federal Way 33325 Sth Avenue South 4S Federal Way, WA 98003-6325 (253) 835-7000 www crtyoffederalway.com effect with respect to any other then existing or subsequent breach thereof. The remedies provided in this Agreement are cumulative and not exclusive of the remedies provided by law or in equity. Section 18.13 Relationshi of Parties. Manager and City acknowledge and agree that they are not joint venturers, partners, or joint owners with respect to the Facility, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or similar relationship between City and Manager. In operating the Facility, entering into contracts, accepting reservations for use of the Facility, and conducting financial transactions for the Facility, Manager acts on behalf of and as agent for City (but subject to the limitations on Manager's authority as set out in this Agreement), with the fiduciary duties required by law of a party acting in such capacity. Section 18.14 No Third -Party Beneficiaries. Other than the indemnitees listed in Sections 15.1 and 15.2 hereof (who are third party beneficiaries solely with respect to the indemnification provisions in such sections), there are no intended third party beneficiaries under this Agreement, and no third party shall have any rights or make any claims hereunder, it being intended that solely the Parties hereto (and the aforementioned indemnitees with respect to the indemnification provisions hereof) shall have rights and may make claims hereunder. Section 18.15 Limitation on Damages. In no event shall either party be liable or responsible for any consequential, indirect, incidental, punitive, or special damages (including, without limitation, lost profits) whether based upon breach of contract or warranty, negligence, strict tort liability or otherwise, and each party's liability for damages or losses hereunder shall be strictly limited to direct damages that are actually incurred by the other party, provided that the foregoing shall not limit or restrict any claim by Manager for the management fees described herein upon a breach or default of this Agreement by City. Section 18.16 Counte arts• Facsimile and Electronic Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document. This Agreement may be executed by the Parties and transmitted by facsimile or electronic transmission, and if so executed and transmitted, shall be effective as if the Parties had delivered an executed original of this Agreement. Section 18.17 Public Records Act. To the extent the Washington Public Records Act (Chapter 42.56 RCW) or equivalent or successor statute is applicable to the City, Manager shall cooperate, coordinate with, and assist the City in the disclosure, or non -disclosure in the event of an exemption to such disclosure, of any information requested under the Public Records Act, as determined by the City, in its sole discretion. Section 18.18 Gratuities and Kickbacks. It shall be a breach of the Manager's obligations hereunder to offer, give, or agree to give any person, entity or any employee of the City (or former employee of the City) a gratuity, success fee, commission, anything else of value, or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of any purchase request, influence in the consent of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity, in any proceeding or application, request for ruling, determination, claim or controversy or other particular matter, pertaining to or solicitation of, any contract or proposal therefor by the manager from the City. MANAGEMENT SERVICES AGREEMENT - 20 - 4/2023 CITY OF Federal Way [Signature page to follow] CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 Wwwat)uffaderalm ray com MANAGEMENT SERVICES AGREEMENT - 21 - 4/2023 CITY OF CITY HALL �. Fe d e ra I Way Feder l Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www. cityoffederalway com IN WITNESS WHEREOF, each party hereto has caused this Management Agreement to be executed on behalf of such party by an authorized representative as of the date first set forth above. CITY OF FEDERAL WAY: Jim Ferrell, Mayor DATE: ATTEST: Stephanie Courtney, CMC, City Clerk APPROVED AS TO FORM: J. Ryan Call, City Attorney MANAGEMENT SERVICES AGREEMENT - 22 - 4/2023 CITY OF L Federal Way GLOBAL SPECTRUM, L.P: By: Printed Name: Title: DATE: STATE OF ) ss. COUNTY OF 1 CITY HALL 33325 Sth Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffedet-alsvay. com On this day personally appeared before me , to me known to be the of GLOBAL SPECTRUM, L.P. that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited partnership company, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument. GIVEN my hand and official seal this day of Notary's signature Notary's printed name Notary Public in and for the State of My commission expires 20 MANAGEMENT SERVICES AGREEMENT - 23 - 4/2023 CITY OF �.. Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffedera4vay. com SCHEDULE 1 MAP DEFINING OUTDOOR AREAS UNDER MANAGER'S MANAGEMENT .j1p— eaa�H�e1+Ha+fu�i+►� w��ItiN+F,,Rw►A� �— '" RLL i..� .f + �c' k MANAGEMENT SERVICES AGREEMENT - 24 - 4/2023 CITY 4F CITY HALL Federal ay Sth Avenue South Federal Way, WA 98003-6325 Feder (253) 835-7000 www. cltyoi(ederalway. com EXHIBIT A MANAGER DUTIES Manager's obligations under the Agreement shall consist of the following obligations, all of which are subject to the terms hereof and the controls and restrictions in the Operations Manual: (a) Manage all aspects of the Facility in accordance with the Operations Manual and the terms of this Agreement, including but not limited to managing food and beverage service, purchasing, Manager's payroll, fire prevention, security, crowd control, routine repairs, preventative maintenance, janitorial services, promotions, advertising, energy conservation, security, box office, admission procedures, parking (if applicable), and general user services. (b) Establish and adjust prices, rates and rate schedules for user, license, concessions, occupancy, and advertising agreements, and booking commitments. Manager may deviate from the established rate schedule when entering into any such agreements if the Manager, using reasonable business judgment, determines it necessary or appropriate with respect to the specific situation. (c) Procure, negotiate, execute, administer and assure compliance with Service Contracts, Revenue Generating Contracts, and other contracts related to the operation of the Facility. (d) Require that all material vendors and licensees of the Facility execute vendor/license agreements containing standard indemnification and insurance obligations, in compliance with current City insurance requirements, on the part of each such vendor/licensee. Parties (e) Provide standard form advertising and sponsorship contracts and user/rental agreements for use at or with respect to the Facility. The Manager shall submit such form agreements to the City for review and comment, and the Parties shall work together to finalize such forms. Once finalized, the Manager shall use such forms in furtherance of its duties hereunder, and shall not materially deviate from the terms contained in such forms without obtaining the prior approval of the City, which shall not be unreasonably withheld. The Manager's sole responsibility with regard to providing legal advice or assistance hereunder shall be to provide such standard form contracts. (f) Operate and maintain the Facility, including the equipment utilized in connection with its operation and any improvements made during the term of this Agreement, in the condition received, normal wear and tear excepted. Arrange for and otherwise book events at the Facility in accordance with booking schedules to be developed by Manager. (g) Arrange for and otherwise book events at the Facility in accordance with booking schedules to be developed by Manager. (h) Hire or otherwise engage, pay, supervise, and direct all personnel Manager deems necessary for the operation of the Facility and conduct staff planning, retention, and training MANAGEMENT SERVICES AGREEMENT - 25 - 4/2023 CITY OF CITY HALL Fe d e ra I Way Federal l Avenue South al Way, WA 98003-6325 "� =r• (253) 835-7000 www cityoffederalway com programs as determined to be necessary by Manager in its sole discretion. (i) Maintain detailed, accurate, and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles, which records shall be made available to the City upon request. 0) Submit financial and other reports detailing Manager's activities in connection with the Facility to the City in a timely manner on a regular schedule as mutually agreed to by the Parties. (k) Prepare proposed annual Operating Budgets and submit such proposed budget to the City for approval in accordance with Section 7.1. (1) Pay all Operating Expenses and other expenses incurred in connection with the operation, maintenance, supervision, and management of the Facility from the applicable Operating Account or with funds otherwise made available by the City. (m)Apply for (or direct any other third party, as applicable, to apply for) and obtain all licenses and permits necessary for the operation and use of the Facility for the specific events to be held therein, and for the general occupancy of the Facility, including without limitation all necessary food and liquor licenses, and renewals thereof. The City shall cooperate in this process to the extent reasonably required. All costs associated with this process shall be classified as Operating Expenses. (n) Collect, deposit and hold in escrow in the Event Accounts any ticket sale revenues which it receives in the contemplation of or arising from an event pending the completion of the event, as more fully described in Section 8.1 of the Agreement. (o) Collect in a timely manner and deposit in the Operating Accounts all Revenue, as more fully described in Section 8.2 of the Agreement. (p) Subject to the City making available sufficient funds in a timely manner, pay all Taxes. (q) Plan, prepare, implement, coordinate, and supervise all public relations and other promotional programs for the Facility. (r) Prepare, maintain, and implement a Marketing Plan for the Facility subject to the City's approval, which shall be updated on a regular basis. (s) Market and sell Commercial Rights at or in connection with the Facility. Manager intends to employ one (1) individual at the Facility to be responsible for marketing and selling Commercial Rights. The cost of such individual (salary, commission, and benefits) shall be an Operating Expense. MANAGEMENT SERVICES AGREEMENT - 26 - 4/2023 CITY OF CITY HALL 1 33325 Federal Wa y Feder 8th Avenue South Federal Way, WA 98003-8325 (253) 835-7000 www..ci yoffederalway.corn (t) On an annual basis, take a written inventory of all furniture, fixtures, office equipment, supplies, tools, and vehicles at the Facility, and deliver a written report of the foregoing to City. Manager shall document all major damage to, or loss in, such inventory during the Term as soon as such damage or loss is discovered by Manager, and Manager shall promptly notify City of any such damage or loss. (u) Purchase, on behalf of the City and with City funds, and maintain during the Term, all materials, tools, machinery, equipment and supplies necessary for the operation of the Facility. (v) As agent for the City, manage risk management and Facility insurance needs. (w) Make and be responsible for all routine and minor repairs, maintenance, preventative maintenance, and equipment servicing. Manager shall be responsible for ensuring that all repairs, replacements, and maintenance shall be of a quality and class at least equal to that of the item being repaired, replaced or maintained. Any replacement of an item in inventory, or any new item added to the inventory, which is paid for by the City, shall be deemed the property of the City. (x) Cause such other acts and things to be done with respect to the Facility, as determined by Manager in its reasonable discretion to be necessary for the management and operation of the Facility following the Effective Date. MANAGEMENT SERVICES AGREEMENT - 27 - 4/2023 CITY 01: CITY HALL Federal y Feder l Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www r, ilyoAederahway com EXHIBIT B OPERATING BUDGET This Exhibit shall be updated annually with the approved Operating Budget. MANAGEMENT SERVICES AGREEMENT - 28 - 4/2023 CITY Or CITY HALL 33325 8th Avenue South �_ Fe d e ra l Way Federal Way, WA 98003-6325 `�-= w-' (253) 835-7000 www cityoffederalway com EXHIBIT C INSURANCE At all times during this Agreement, Manager shall maintain insurance coverage at commercially reasonable levels and in compliance with state law where applicable. Minimum insurance coverage shall be as follows: (a) commercial general liability insurance, including products and completed operations, bodily injury and property damage liability, contractual liability, independent contractors' liability and personal and advertising injury liability against claims occurring on, in, or about the Facility, or otherwise arising under this Agreement; (b) umbrella or excess liability insurance; (c) commercial automobile liability insurance, including coverage for the operation of owned, leased, hired and non -owned vehicles; (d) workers compensation and employer's liability insurance as shall be required by and be in conformance with the laws of the State of Washington; (e) professional liability insurance and self -insured employment practices liability coverage; (f) employment practices liability insurance; (g) pollution liability; and (h) crime coverage. Such liability insurance shall be maintained in the following minimum amounts throughout the Term: Commercial General Liability $2,000,000 per occurrence $2,000,000 personal and advertising injury $2,000,000 products -completed operations aggregate Umbrella or Excess LiabUity $5,000,000 per occurrence and aggregate Automobile Liability $2,000,000 per accident (PI and PD combined single limit) MANAGEMENT SERVICES AGREEMENT - 29 - 4/2023 CITY OF CITY HALL 4W Federal ■ �y r�� Feder 8th Avenue South V fY■ Federal Way, WA 98003-6325 (253) $35-7000 VVMV.C;iy0{feder01way can $2,000,000 uninsured/underinsured motorist Workers Compensation Workers Compensation: Statutory Employer's Liability: $100,000 each accident -bodily injury by accident $500,000 policy limit -bodily injury by disease $100,000 each employee -bodily injury by disease Professional LiabilitylEnors & Omissions (Claims Made basis) $1,000,000 each occurrence/aggregate Employment Practices Liability Insurance Claims Made basis $1,000,000 Pollution Liability (Claims Made basis $1,000,000 Crime Insurance Coverage on all on -site Manager employees. Limit: $500,000.00 MANAGEMENT SERVICES AGREEMENT - 30 - 4/2023 1.,_ ......... ........................... _ 9b COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: REQUEST FOR AUTHORIZATION TO APPLY FOR CLIMATE PLANNING GRANT POLICY QUESTION: Should City Council authorize staff to submit an application to the Washington State Department of Commerce for a Climate Planning Grant? COMMITTEE: N/A MEETING DATE: N/A CATEGORY: ❑ Consent ❑ Ordinance ❑ Public Hearing ® City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Evan Lewis, Senior Planner DEPT: Community Development Attachments: 1. Staff Report 2. Overview of grant program Options Considered: 1. Authorize the proposed grant application. 2. Do not authorize the proposed grant application and provide direction to staff. MAYOR'S RECOMMENDATION: Option 1 MAYOR APPROVAL: A DIRECTOR APPROVAL: `O -13 titntnitm; -- I I Initial/Date Initial/Date Inilcilil7atc COMMITTEE RECOMMENDATION: N/A Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: 'I move approval of the proposed grant application. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED - 4/2019 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: October 17, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: Evan Lewis, Senior Planner SUBJECT: Request for Authorization to Apply for WA Commerce Climate Grant Financial Impacts: There is no local match requirement under this Commerce Climate Planning grant. The resulting grant contract with the Department of Commerce, which will come before Council for approval if awarded, will be performance -based and cities will be paid upon satisfactory completion of grant deliverables. Background Information: The Federal Way Community Development and Emergency Management Departments are collaborating on an application for the Climate Planning Grant, from the WA State Department of Commerce, to support the development of Federal Way's Hazard Mitigation Plan (HMP). The City will develop the HMP by 2025 as an `annex' to King County's Regional HMP in cooperation with King County Office of Emergency Management and in sequence with King County's 5-year update of the Regional HMP. In addition to making Federal Way eligible for federal hazard mitigation grants, a FEMA- approved HMP will help Federal Way comply with new climate change resiliency planning requirements from the WA Climate Commitment Act, passed in 2023 as House Bill 1181. The City's Climate Planning Grant request would be for only a portion of $700,000 in grant money the state has reserved for Federal Way to support the City's required compliance with HB 1181 by the year 2029. While the state does not consider Federal Way among the `priority' group of cities to receive a Climate Planning Grant this biennium (2023-2025) and there will be future opportunities to request the remaining amount of our reserved funding when Federal Way is a `priority' city, non -priority cities are still eligible to apply for the Climate Planning Grant this biennium to support early compliance with HB 1181 requirements. The City's HMP update is an eligible project for this grant, and the serendipitous timing of the City's upcoming HMP update with this grant opportunity makes it worthwhile for Federal Way to apply. Rev. 7/18 1. Grant Overview.,, The Climate Commitment Act (Senate Bill 5187 (Sec. 130 (21)) directs the Department of Commerce (Commerce) to administer grants and provide technical assistance to cities and counties to plan for climate change. Commerce will make approximately $30 million (as appropriated) in statewide grants to implement House Bill 1181 (Chapter 228, Laws of 2023) supporting the development of climate change and resiliency elements. These new regulations must be first implemented by those jurisdictions with a June 30, 2025 due date. Each fully planning city and county is eligible for funding based on applicability (RCW 36.70A.040 (4)). Grant applications are due on October 31, 2023, 5:00pm. C o +, +� C � v u v E c °1 w E E E v w M a)N oC 41 1 ` L N E N � C U d C J GJ ` L1 H Due 2029 Due 2029 Due 2029 Due in 2034 X X X X X* X* X* Jurisdictions not subject to GHG Optional X ** Only X* X* X* Emissions Reduction (all yeai See RCW counties 36.70A.0 over 20k 70(9)(e) POP. Table notes: 'r indicates a GMA update requirement. One asterisk (*) indicates jurisdictions should make a good faith effort to update their elements to be consistent; refer to HB 1181 (Chapter 228, Laws of 2023) for specifics. Two asterisks (**) indicates 22 cities that need to update their transportation element based on population, not whether or not their county is among those that must develop a GHG emissions element. CLIMATE GRANT APPLICATION INSTRUCTIONS I Date Updated: August 28, 2023 2. Eligible Grant Activities The following activities are eligible for funding during this round: • Eligible activities may be claimed from July 1, 2023 until June 30, 2025. • Adopting comprehensive plan policy and development regulation amendments to implement HB 1181 (Chapter 228, Laws of 2023) as applicable. This may include, but is not limited to, preparing informational materials for the public, conducting public outreach,' preparing staff reports and conducting public meetings and public hearings. • Jurisdictions required to adopt a GHG Emission Reduction Sub -element, may also include the following activities: developing a local emission inventory; Vehicle Miles Traveled Per Capita (VMT) studies; and GHG emission reductions projections to inform the adopted comprehensive plan goals and policies. • For those jurisdictions required to adopt a Climate Resilience Sub -element, activities may also include: utilizing the University of Washington's Climate Mapping, for a Resilient Washington web tool and other resources, as needed, to explore expected local climate impacts; auditing existing plans and policies for climate resilience opportunities, gaps, and barriers; assessing local assets' climate vulnerability and risk; and, developing science -based climate resilience goals and policies for comprehensive plans. Other planning activities related to implementing HB 1181: A jurisdiction could propose both to adopt a climate element and conduct an implementation activity related to the adopted plan. If planning activities extend beyond the current biennium, they should be labeled "future activities." Implementation activities must be climate planning related and not capital or infrastructure projects. Examples of implementation activities include (but not limited to): development of EV infrastructure plan; municipal building decarbonization plan; urban heat resilience strategy; or, native & climate - resilient planting plans for municipal projects. 3.Grant Funding Amounts and Criteria Grant Eligibility and Amounts Grants are available to local governments across the state that are subject to the requirements of HB 1181 during their next periodic review update cycle2. All local governments that are subject to HB 1181 may apply for funding for activities related to implementing climate change planning; I HB 1181 (E2SHB) amended State Planning Goal 11 to include reference to vulnerable and overburdened communities as follows, "(11) Citizen participation and coordination. Encourage the involvement of citizens in the planning process including the participation. v_f_VttlnierabtepopuiOolls and oveA-u_rde1 gCc;ommul3Mes, and ensure coordination between communities and jurisdictions to reconcile conflicts." 2 For periodic update cycle deadlines, refer to Commerce's Growth Management Services yyebpage. CLIMATE GRANT APPLICATION INSTRUCTIONS 2 Date Updated: August 28, 2023 however, priority for grant funding in this round will go to those local governments required to implement in 2025 and 2026. The table below, provides the maximum grant award for all jurisdictions, using Washington State Office of Financial Management (OFM) population data for the year 2021, as stipulated in HB 1181. For information on the due date of for updates, please refer to the Commerce's Growth Management Services webpage *Note.- One asterisk (*) indicates jurisdictions should make a good faith effort to update their elements to be consistent; refer to HB 1181(Chapter 228, Laws of2023) for specifics. Two asterisks (**) applies to 22 cities that need to update their transportation element based on population. Pop. >50k Bellingham Clark County Lacey Olympia Skagit County Thurston County Vancouver Whatcom County Clallam County Island County Lewis County Mason County Benton County Franklin County Kennewick Pasco Richland Spokane Spokane County Spokane Valley Chelan County Walla Walla County Yakima** Yakima County Grant County Auburn Bellevue c O d U c •0 M v fn y N ai O C7 V f0 N ++ •�, CU y ro CD y - to U O CL cn c O co J U U ca Y fD U 0_ 0= Ca LL � H $800k $700k X X X X X X $300k $242.5k X X X X X $800k $700k X X X X X X X $300k $242.5k X X X X X $300K - X f X X X X $800k $700k X X X I Due in 2034 CLIMATE GRANT APPLICATION INSTRUCTIONS 3 Date Updated: August 28, 2023 Burien Everett Federal Way Kent King County Kirkland Kitsap County Lakewood Marysville Pierce County Redmond Renton Sammamish Seattle Shoreline Snohomish County Tacoma Pop. 49k to 6k Anacortes Battle Ground Burlington Camas Ferndale Lynden $800k Mount Vernon Ridgefield Sedro-Woolley Tumwater Washougal Yelm Centralia** Chehalis** Oak Harbor** Port Angeles** Port Townsend** $300k Sequim** San Juan County Shelton** Woodland** Jefferson County $300k Douglas County $800k Kittitas County c O O d V N N 31 y 0a O 0V � y -- 4J N 3 E d -C aJ cc YCU CD N W U = N ccU m L � li $500k I X I X I X I X I X I X j X $150k I- -I--X X X X CLIMATE GRANT APPLICATION INSTRUCTIONS 4 Date Updated: August 28, 2023 Cheney Liberty Lake Prosser West Richland College Place** East Wenatchee** Ellensburg** Grandview** Longview Selah** Sunnyside** Toppenish** Union Gap** Walla Walla** Wenatchee** Stevens County Pacific County Ephrata** Moses Lake** Quincy** Arlington Bainbridge Island Bonney Lake Bothell Bremerton Brier Covington Des Moines DuPont Duvall Edgewood Edmonds Enumclaw Fife Fircrest Gig Harbor Issaquah Kenmore Lake Forest Park Lake Stevens Lynnwood Maple Valley Mercer Island O W U C o f�0 N N y 0a O a r r 2 E- Oco ai V y to co U U to } cp U _ m u- � - $500k X X X X X X X - $150k X X X X $300K - X X X X X - $150K X X X X X X X Due in 2034 $800k $500k CLIMATE GRANT APPLICATION INSTRUCTIONS Date Updated: August 28, 2023 Mill Creek Milton Monroe Mountlake Terrace Mukilteo Newcastle Normandy Park North Bend Orting Pacific Port Orchard Poulsbo Puyallup SeaTac Snohomish Snoqualmie Stanwood Steilacoom Sumner Tukwila University Place Woodinville Population <6k Blaine Bucoda Concrete Coupeville Everson Forks Hamilton La Center La Conner Langley Lyman Morton Mossyrock Napavine Nooksack Pe Ell Rainier Sumas Tenino Toledo Vader Winlock Yacolt $300k CLIMATE GRANT APPLICATION INSTRUCTIONS c a x O d U (a u) 06 O CD--p , y % 8 +�+ 41 N . 2 E - -p a ' *' i N 0 "O '— fA coC fa V — C L OC CL cu J L. 1= F— $100k I I X Lo Date Updated: August 28, 2023 Chewelah Columbia County Colville Coulee City Coulee Dam Dayton Electric City George Grand Coulee ` r • rV ITO O O V c o (0 V7 fA Ca O 0 i CU � i d Y � 0 U� v .__ U w C (- _ U f° D a LL. H - $100K X X X X $800k $100k X X X $300k $100k X X X ,. CLIMATE GRANT APPLICATION INSTRUCTIONS Date Updated: August 28, 2023 Note: This list is intended as a reference and does not supersede state law. CLIMATE GRANT APPLICATION INSTRUCTIONS Date Updated: August 28, 2023 Commerce will prioritize grants as follows: 1. Jurisdictions that are required to implement HB 1181 by June 30, 2025. 2. Jurisdictions that are required to implement HB 1181 by June 30, 2026. 3. Other jurisdictions that are required to implement HB 1181 that are due after 2026. Grant Deliverables The deliverables specified in the Scope of Work must be completed before the end of the grant period. Joint Applications Joint applications from two or more jurisdictions are encouraged where regional groups may collaborate to implement HB 1181. Joint applicants may apply for funding per jurisdiction based on the grant amounts noted above. However, where work can be shared, funding requests should reflect these savings. Each joint city may have a separate grant agreement through Commerce, due to the need for a separate legislative action by each grantee, in order to receive their portion of the grant funding. Note: Commerce cannot combine funding from other grant programs into a singular grant contract, such as combining Periodic Update Funding with Climate Grant funding. The climate grants are funded through the Climate Commitment Act, not by the state's general fund. Interaction with Other Grants If you have or intend to apply for other grants from Commerce, such as periodic update grants (PUG), the agency cannot pay for the same work item more than once. If you think you may use non commerce funds for some of the work, but are unsure about funding from another source such as a FEMA hazard mitigation grant, you can include the work in the scope of this grant and reprogram funds later if needed. The total amount of funds available to you from this grant will stay the same./fsimilar oroverlapping activities are in more than one grant, the work Items must be carefully defined so they do not duplicate workpaid for byanother Commerce grant or another source of funding. 4. Grant Timeline ■ August 2023: Grant applications available Application information posted on the Commerce website: https:l/www.commerce.wa.gov/serviM- comm un itieslgrowth-managem a titlg rowth-management-grantsL. • August 24, 2023 (10AM): Pre -application Zoom conference for grantees. Zoom Meeting Registration https://wastatecommerce.zoom.us • October 31, 2023, 5:00pm: Grant applications due to Commerce Applications must be submitted online through this Smart Sheet link. Please, note that required attachments submitted in Word will be easier to process into a contract agreement. Letters of commitment may be submitted by PDF. CLIMATE GRANT APPLICATION INSTRUCTIONS 0 Date Updated: August 28, 2023 10a COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: ORDINANCE: HIGHLINE WATER DISTRICT FRANCHISE ORDINANCE POLICY QUESTION: Should an ordinance be adopted granting Highline Water District a franchise with the city? COMMITTEE: LUTC MEETING DATE: October 2, 2023 CATEGORY: ❑ Consent ® Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Cole Elliott, P.E. cz- DEPT: Public Works Attachments: 1. Staff Report 2. Ordinance Options Considered: 1. Adopt the proposed ordinance. 2. Do not adopt the proposed ordinance and provide direction to staff. MAYOR'S RECOMMENDATION: Option 1. MAYOR APPROVALcif dq DIRECTOR APPROVAL: r 'T r9 laitrauD:dc COMMITTEE RECOMMENDATION: I move to forward the proposed ordinance to First Reading on October 17, 2023. flack , Committee Chair Ja alsh. C mniittee Member Hoang Tran, Committee Member PROPOSED COUNCIL MOTION(S): FIRST READING OF ORDINANCE OCTOBER 17, 2023: "1 move to forward the proposed ordinance to the November 8, 2023 Council Meeting for second reading and enactment. " SECOND READING OF ORDINANCE NOVEMBER 8, 2023: "I move approval of the proposed ordinance. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE_) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED — 11/2019 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: September 6, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: EJ Walsh, P.E., Public Works Director Cole Elliott, P.E., Development Services Manager Ce SUBJECT: Highline Water District Franchise Ordinance Financial Impacts; Highline Water District paid a fee of Five Thousand Dollars ($5,000.00) to cover the administrative expenses incurred by the City that are directly related to preparing and approving this Franchise. Highline Water District will be required to pay additional permitting fees for installation, operation and maintenance of their facilities, including, but not limited to right-of-way permits, annual maintenance blanket permits and work hour variances. Any additional fixture revenue will be based upon Federal Way Revised Code (FWRC) 3.10.040(9). Background Information: Highline Water District provides water service to approximately 263 connections located at the north end of the City of Federal Way. Highline does not have a franchise agreement with the City, the proposed ordinance will bring the water district into conformance with FWRC Chapter 3.10. Rev 7/18 ORDINANCE NO. AN ORDINANCE of the City of Federal Way, Washington, granting Highline Water District, a nonexclusive franchise to occupy rights -of - way in the City of Federal Way, Washington, within the specified franchise area for the purposes of constructing, maintaining, operating, replacing, and repairing a public water system within and throughout the City of Federal Way. WHEREAS, the City of Federal Way requires Highline Water District to obtain a franchise in order to operate and maintain a water service distribution system within the rights -of -way; and WHEREAS, the City Council of Federal Way finds it is in the public interest to grant such a franchise, which will specify the rights and duties of Highline Water District; and WHEREAS, RCW 35A.47.040 permits the City of Federal Way to grant nonexclusive franchises for the use of public streets, bridges or other public ways for utilities, inter alia, pipes, hydrants, services and appurtenances thereof for water service; and for other publicly and privately owned and operated facilities for public services; and WHEREAS, in granting such a nonexclusive franchise, the City of Federal Way reserves such other powers and authorities granted to Washington code cities by general law and specifically reserves its right to adopt further regulations under its police powers. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Definitions Where used in this Franchise the following terms shall be defined as follows: 1.1 "City" means the City of Federal Way, Washington, a municipal corporation of the State of Washington, and its respective successors and assigns. Ordinance No. 23- Page I of 37 1.2 "Council" means the City of Federal Way Council acting in its official capacity. 1.3 "Director" means the Public Works Director, or designee, of the City of Federal Way Public Works Department. 1.4 "Facilities" means Franchisee's water distribution system and appurtenances located or to be located within the public right-of-way. 1.5 "Franchise Area" means that portion of the rights -of -way located in the City of Federal Way and shown in Exhibit A attached hereto, and/or any other areas approved by the Federal Way City Council and incorporated into this Ordinance via amendment. 1.6 "Franchisee" means Highline Water District, a Washington special purpose municipal corporation, and its respective successors and assigns if consented to by the City of Federal Way as provided in Section 27.3 herein. 1.7 "FWRC" means the Federal Way Revised Code. 1.8 "Public Project" means City initiated capital improvement project as listed in the City's Capital Improvement Plan, including, but not limited to, roadway improvement, pedestrian improvement projects, and City -owned utility, that is undertaken by or on behalf of the City and is funded by the City (either directly with its own funds or with other public funds obtained by the City). 1.9 "Rights -of -way" means the surface of and space along, above, and below any street, road, highway, freeway, lane, sidewalk, alley, court, boulevard, parkway, drive, and/or unimproved right-of-way now or hereafter be laid out, platted, dedicated, acquired, or improved within the present or extended limits of the City. Ordinance No. 23- Page 2 of 37 1.10 "Services" means public service business (as such term is defined in RCW 82.16.010), gas, steam, liquid fuels, water, sewer, and private and public owned and operated facilities for public services. 1.11 "Utility Easement" means a property right concerning a designated parcel(s) of land giving utility companies the permitted use of all or a portion of the private property for the good of the community. Section 2. Grant/Acceptance 2.1 Grant of Franchise. The City hereby grants to Franchisee the nonexclusive right to enter upon the Franchise Area for the limited purpose of constructing, excavating, installing, maintaining, restoring, and repairing Facilities within the Franchise Area. This Franchise is specifically limited to the right for Franchisee to install and maintain Facilities owned and operated by Franchisee. Nothing contained within this Franchise shall be construed to grant or convey any right, title, or interest in the Rights -of -Way of the City to Franchisee other than for the purpose of providing the Services, nor to subordinate the primary use of the Rights -of -Way as a public thoroughfare. If Franchisee desires to expand the Services provided within the City, it shall provide written notification of the addition of such services prior to the addition of the service. This Section does not restrict the Franchisee's ability to utilize telemetric devices to monitor and operate its water distribution system or to monitor and control the usage. 2.2 Acceptance by Franchisee. Franchisee shall have no rights under this Franchise, nor shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee shall, within thirty (30) days after the effective date of this Franchise, file with the City its written acceptance of this Franchise and all of its terms and conditions. In addition, Franchisee shall submit Ordinance No. 23- Page 3 of 37 proof of insurance obtained and additional insured endorsement pursuant to Section 24. The administrative fee authorized in Section 22.1 is due within thirty (30) days of receipt of the invoice from the City. Section 3. City Prnnei-ty/Non-Exclusive Franchise 3.1 City Property. This Franchise does not and shall not convey any right to Franchisee to install its Facilities on, under, over, across, or to otherwise use City -owned or leased properties of any kind outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use any City -owned or leased property within the Franchise Area other than the Rights -of -Way unless an easement is granted. 3.2 Non -Exclusive Franchise. This Franchise is not an exclusive Franchise and shall not be construed to in any manner prohibit the City from granting other and further Franchises in, under, over, upon, and along the Franchise Area, nor from exercising such other powers and authorities granted to the City by the Washington State Constitution and general law, including the City's right to adopt future regulations under its police powers. Such Franchise shall in no way prevent or prohibit the City from using any of said roads, streets, or other public properties or affect its jurisdiction over them or any part of them, and the City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of same as the City may deem fit, including the dedication, .establishment, maintenance, and improvement of all new Rights -of -Way, thoroughfares, and other public properties of every type and description. 3.3 No Impairment of Easement Rights. The terms of this Franchise shall not impair or interfere with Franchisee's rights under any Utility Easements that cover areas within any existing or Ordinance No. 23- Page 4 of 37 future City Rights -of -Way. The Franchisee's easement rights shall remain in effect unless formally relinquished by the Franchisee or condemned by the City. 3.4 Relinquishment of Easements. The City may request that Franchisee relinquish its easements on current or formerly private property that has or will become City property pursuant to a public or private project. Within fourteen (14) days of such request, the City and Franchisee shall meet, confer, and negotiate with respect to the appropriate relocation or adjustment costs to be paid to Franchisee by City in exchange for relinquishment of said easements. If, following the negotiation, the City and Franchisee are able to agree to the appropriate relocation or adjustment costs, then the Franchisee shall relinquish said easements and the City shall pay Franchisee the negotiated relocation or adjustment costs. 3.5 Operation Costs. To the extent permitted by law and as otherwise expressed in this Franchise, Franchisee shall be solely responsible for the operation, maintenance, repair, and construction of its Facilities. Section 4. Term Subject to Franchisee filing its acceptance pursuant to Section 2.2, the term of this Franchise shall be for a period of ten (10) years commencing on the effective date of this Franchise, unless terminated earlier pursuant to this Franchise or other applicable law. The Franchise will automatically extend for up to two (2), five (5) year periods, unless either party, not less than one hundred eighty (180) days prior to the expiration of the Franchise, provides the other party of its intent to terminate the Franchise at the end of the current Franchise term. Section 5. Hydrants and Fire Suppression System Costs In exchange for other good and valuable considerations in the Franchise, the parties agree that during the term of the Franchise, Franchisee shall be responsible for costs to operate and maintain all Ordinance No. 23- Page 5 01-37 portions of the water system, including fire hydrants and those components of the water system that provide fire suppression benefits (collectively the Fire Suppression System) within Franchisee's corporate boundary inside the Franchise Area. Section 6. Location of Facilities 6.1 Location. The Facilities permitted by this Franchise shall be installed underground, except for features required to be above ground (e.g. hydrants, air releases, valve boxes, meter boxes). The location of the Facilities, their depths below the surface of ground or grade of a right-of- way, if available, and any related existing equipment to which the Facilities are connected shall be depicted on a map and submitted within fifteen (15) days upon written request of the City. Franchisee shall update such map to reflect actual or anticipated improvements to the water system. Any such map (or update thereof) so submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. 6.2 WSDOT. To the extent that any Rights -of -Way within the Franchise Area are part of the state highway system ("State Highways") these parts of the Franchise Area are considered managed access by the City and are governed by the provisions of Chapter 47.24 RCW and applicable Washington State Department of Transportation ("WSDOT") regulations, Franchisee shall comply fully with said WSDOT requirements in addition to this Franchise, local ordinances and other applicable regulations. Without limitation of the foregoing, Franchisee specifically agrees that: 6.2.1 Any pavement trenching and restoration performed by Franchisee within State Highways shall meet or exceed applicable WSDOT requirements; Ordinance No. 23- Page 6 g1'37 6.2.2 Any portion of a State Highway damaged or injured by Franchisee shall be restored, repaired, and/or replaced by Franchisee to a condition that meets or exceeds applicable WSDOT requirements; and 6.2.3 Without prejudice to any right or privilege of the City, WSDOT is authorized to enforce in an action brought in the name of the State of Washington any condition of this Franchise with respect to any portion of a State Highway. 6.3 GIS Data. At such time as Franchisee develops or employs Geographic Information System ("GIS") technology, Franchisee shall submit the information required in Section 6.1 above in digital GIS format, showing the location of its Facilities within the Franchise Area. 6.4 Design Markings. In the event the City desires to design a Public Project, Franchisee shall at the City's request, provide the location of Franchisee's underground Facilities within the Franchise Area by either field markings or by locating the Facilities on the City's design drawings, and shall provide all other reasonable cooperation and assistance to the City. 6.5 One Call Locator Service. Prior to doing any work in the Franchise Area, the Franchisee shall follow established procedures, including contacting the Utility Notification Center in Washington and comply with all applicable State statutes regarding the One Call Locator Service pursuant to Chapter 19.122 RCW. Further, upon request from a third party or the City, Franchisee shall locate its Facilities consistent with the requirements of Chapter 19.122 RCW. The City shall not be liable for any damages to Franchisee's Facilities or for interruptions in service to Franchisee's customers that are a direct result of Franchisee's failure to locate its Facilities within the prescribed time limits and guidelines established by the One Call Locator Service regardless of whether the City issued a permit. Ordinance No. 23- Page 7 of '37 Section 7. Noninterference of Facilities 7.1 Maintenance of Facilities. Franchisee agrees to maintain its Facilities and perform any and all activities authorized by this Franchise: (1) so as not to unreasonably interfere with the free passage of traffic; (2) in accordance with the laws of the State of Washington and City Code requirements, Franchise provisions, regulations, resolutions and rules, as now existing or as hereafter amended; and (3) as required by the Director. This requirement applies whether the work is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. 7.2 Franchisee shall provide routine maintenance a minimum of three (3) feet in all directions to ensure visibility of above ground Facilities. Any damage to the Franchisee facilities due to the inability of the City to reasonably "see" such facilities during the course of City shoulder maintenance work shall be the responsibility of the Franchisee. The Franchisee shall not be responsible for damages caused by the negligent, willful acts or by a failure of the City to utilize reasonable care in their maintenance work. 7.3 Interference with Useyfthe Streets. When installing, locating, laying, or maintaining Facilities, apparatus, or improvement, Franchisee shall not interfere with the use of any street to any greater extent than is necessary, and shall leave the surface of any such street in as good condition as it was prior to performance by Franchisee of such work. Any Facility, apparatus, or improvement shall be laid, installed, located, or maintained in conformance with instructions given by, and to the satisfaction of the City. In any event, Franchisee shall, at its own expense, and to the satisfaction of the City in accordance with the terms of the right-of-way permit, restore to City standards and Ordinance No. 23- Page 8 of 37 specifications any damage or disturbance caused to streets as a result of Franchisee's construction or operations. Section S. Requirement to Obtain Permits & Work in the Rights -of -Way 8.1 Permits and Permit Appl ications. Franchisee shall, at its expense, obtain all permits, including rights -of -way permits, and pay all permit fees required by applicable City ordinances, regulations, resolutions, and rules prior to commencing any work within the Franchise Area. The manner of excavation, construction, installation, backfill, and temporary structures such as, but not limited to, traffic turnouts and road obstructions shall meet the standards of the FWRC and be satisfactory to the Director. All traffic control shall be in accordance with the right-of-way permit, and shall be in accordance with the Manual on Uniform Traffic Control Devices ("MUTCD"). 8.2 Emergency Exception to Permit Requirement. In the event of an emergency in which Franchisee's Facilities within the Franchise Area are in a condition as to immediately endanger the property, life, health, or safety of any individual, Franchisee may take action immediately to correct the dangerous condition without first obtaining any required permit so long as: (1) Franchisee informs the City of the nature and extent of the emergency, and the work to be performed, as soon as reasonably possible relative to such emergency activity; and (2) such permit is obtained by Franchisee as soon as practicable following cessation of the emergency. 8.3 Routine Maintenance. Franchisee shall have the right to conduct routine maintenance to repair, modify, supplement, replace or upgrade Franchisee's Facilities, provided the Franchisee shall obtain any necessary right-of-way use permit and any other permits or authorizations required by all applicable federal, state and local laws, rules, and regulations prior to performance of any said routine maintenance. The following non -emergency related activities such as water main flushing, Ordinance No. 23- Page 9 of 37 valve exercising, fire hydrant exercising and other activities as approved shall be allowed to occur under the annual maintenance blanket permit. 8.4 Work in the Rights -of -Way. During any period of relocation, construction or maintenance, all work performed by Franchisee or its contractors and subcontractors shall be accomplished in a safe and workmanlike manner, so to minimize interference with the free passage of traffic and the free use of adjoining property, whether public or private. Franchisee shall at all times post and maintain proper barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of Washington, including RCW 39.04.180 for the construction of trench safety systems. 8.5 Coordination of Activities. Franchisee shall meet with the City and other franchise holders and users of the Rights -of -Way upon written notice as determined by the City, to schedule and coordinate construction in the Rights -of -Way. All construction locations, activities, and schedules shall be coordinated, as ordered by the City to minimize public inconvenience, disruption or damages. 8.6 Public Notification of Activities. At least three (3) days prior to its intended construction of Facilities, except those activities that impact the use of the adjacent property for less than an eight (8) hour period, Franchisee shall inform all residents in the immediately affected area that a construction project will commence, the dates and nature of the project, and provide a toll -free or local phone number which the resident may call for further information. A pre-printed door hanger may be used for this purpose. Ordinance No. 23- Page 10 of 37 Section 9. Standard of Performance 9.1 Backfilling Requirements. The Franchisee shall not excavate for a distance of more than one hundred feet (100') without immediately backfilling and compacting to surface grade and City standards. Backfilled trench areas within a driving lane must be patched, either temporarily or permanently, before the end of the workday in which they have been opened. Trench areas within the Rights -of -Way, but not within a driving lane, must also be patched within the time limits specified by the City on the right-of-way use permit. 9.2 Restoration Standards. Final surface restoration shall be completed within thirty (30) days after completion of the work and shall be equal to or better than the surface condition prior to permit issuance in accordance with the City of Federal Way Development Guidelines. 9.3 Asphalt Overlay. Any asphalt overlay completed within the Franchise Area performed by the City or other third -party during the five (5) year -period immediately prior to the date of permit issuance shall not be open cut by Franchisee unless required by an emergency and subject to the provisions of Section 9.2 above. Franchisee shall install new asphalt overlay on any street that is open cut, whether in an emergency or otherwise, for a minimum of one (1) block (approximately 500 feet) in length from the open cut, unless determined otherwise by the Director. 9.4 As -Built Maps. Within fifteen (15) days of a written request by the City, Franchisee shall submit to the Director plans, stamped by a Professional Engineer licensed by the State of Washington, showing the "as -built" location of the Facilities. 9.5 Joint Trench. If Franchisee shall at any time plan to make excavations in any area covered by this Franchise, Franchisee shall afford the City, upon receipt of a written request to do so, an opportunity to share such excavation, PROVIDED THAT: Ordinance No. 23- Page 11 of 37 9.5.1 Such joint use shall not unreasonably delay the work of the Franchisee causing the excavation to be made; 9.5.2 Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and 9.5.3 Franchisee may deny such request for safety reasons. 9.6 Oven Utility Trenches. Franchisee shall be entitled to reasonable access to open utility trenches when the City is constructing new utility trenches, provided that such access does not interfere with the City's placement of utilities or increase the City's costs. Franchisee shall pay to the City the actual cost to the City resulting from providing Franchisee access to an open trench, including without limitation the pro rata share of the costs of access to an open trench, additional costs, as determined by the City, attributed to Franchisee due to Franchisee's request to access the utility trenches, and any costs associated with the delay of the completion of a Public Project. Further, the City may deny such requests if: 9.6.1 Such joint use unreasonably delays the work of the City; 9.6.2 The parties cannot agree on terms and conditions; or 9.6.3 Granting access to the utility trench creates a safety concern. 9.7 Safety. Franchisee shall, at all times, employ professional care and shall install and maintain and use industry -standard methods for preventing failures and accidents that are likely to cause damage, injuries, or nuisances to the public. All structures and all lines, equipment, and connections in, over, under, and upon the Rights -of -Ways, wherever situated or located, shall at all times be kept and maintained in a safe condition. Franchisee shall comply with all federal, state, and Ordinance No. 23- Page 12 of 37 City safety requirements, rules, regulations, laws, and practices, and employ all necessary devices as required by applicable law during the construction, operation, maintenance, upgrade, repair, or removal of its Facilities. Upon reasonable notice to Franchisee, the City reserves the general right to inspect the Facilities to evaluate if they are constructed and maintained in a safe condition. 9.8 Additional Safety Standards. 9.8.1 Franchisee shall endeavor to maintain all equipment and Facilities in an orderly manner, including, but not limited to, the removal of all unused pipe and appurtenances within Rights -of -Way. 9.8.2 All installations of equipment, and Facilities shall be installed in accordance with industry -standard engineering practices and shall comply with all federal, state, and local regulations, ordinances, and laws. 9.8.3 Any opening or obstruction in the Rights -of -Way or other public places made by Franchisee in the course of its operations shall be protected by Franchisee at all times by the placement of adequate barriers, fences, or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly marked and visible. 9.9 Stop Work Order. On notice from the City that any work is being performed contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as determined by the City, or in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the City. The stop work order shall: 9.9.1 Be in writing; 9.9.2 Be given to the person doing the work or posted on the work site; Ordinance No. 23- Page 13 of'37 9.9.3 Be sent to Franchisee by overnight delivery; 9.9.4 Indicate the nature of the alleged violation or unsafe condition; and 9.9.5 Establish conditions under which work may be resumed. Section 10. Survey Markers and Monuments 10.1 Survey Markers and Monuments. Franchisee shall, using a licensed surveyor, immediately replace all markers or monuments disturbed during any work by Franchisee within the Franchise Area. Franchisee shall pay all costs associated with such lost, destroyed or disturbed monuments or markers. 10.2 Surface .Markings/Stakes. Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall reference all monuments and markers relating to subdivisions, plats, highways, and other surveys. The reference points shall be located so that they shall not be disturbed during the Franchisee's operations under this Franchise. The method of referencing these monuments or other points shall be approved by the City before placement. The construction shall be made as expeditiously as conditions permit, and as directed by the City. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement of the monuments, shall be borne solely by the Franchisee. A complete set of reference notes for monuments and other ties shall be filed with the City. Section 11. Work of Subcontractors and Contractors Franchisee's contractors and subcontractors shall be licensed and bonded in accordance with State law and the City's ordinances, regulations, and requirements. Work by contractors and subcontractors are subject to the same restrictions, limitations, and conditions as if the work were performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors Ordinance No. 23- Page 14 of 37 and subcontractors and others performing work on its behalf as if the work were performed by Franchisee and shall ensure that all such work is performed in compliance with this Franchise and applicable law. Section 12. Right of City to Complete Work 12.1 Non-Compliance/Work Performed by Cit . In the event Franchisee fails to comply with any applicable federal, state or City laws, ordinances, rules, regulations, or standards or with any of the terms of this Franchise, or if such work by Franchisee endangers property or the public and such noncompliance continues for a period of ten (10) days after Franchisee receives written notice from the City regarding the noncompliance, the City may, but in no event is the City obligated to, order any work completed, including without limitation Franchisee's obligation to repair pursuant to Section 14 herein and Franchisee's obligation to remove or relocate facilities pursuant to Section 13 herein. If the City causes such work to be done by its own employees or by any person or entity other than Franchisee, Franchisee shall, upon the City's written request, immediately reimburse the City for all reasonable costs and expenses incurred by the City in having such work performed, which costs may include the City's reasonable overhead expenses and attorneys' fees; however, the City shall not have any water work accomplished by any person or entity other than Franchisee or a qualified and licensed water utility contractor. 12.2 Emergency Work Ferfonued by City. The City retains the right and privilege to cut or move any Facilities located within the Rights -of -Way of the City, as the City may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. Consistent with Section 22.2, Franchisee shall reimburse the City for the costs associated with the repair. Ordinance No. 23- Page 15 of 37 12.3 No Liability_ for Damage. The City shall not be liable for any damage to or loss of Facilities within the Rights -of -Way as a result of or in connection with any public works, public improvements, construction, grading, excavation, filling, or work of any kind in the Rights -of -Way by or on behalf of the City, except to the extent directly and proximately caused by the negligence or willful acts of the City, its employees, contractors, or agents. The City shall further not be liable to Franchisee for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section 12 except to the extent caused by the negligence or willful acts of the City, its employees, contractors, or agents. Section 13. Required Relocation of Facilities 13.1 Cily Reservation of Rights. The City reserves the right to use, occupy and enjoy all or any part of the Franchise Area, either above, below, or adjacent to the Facilities, for any purpose that is not inconsistent with the terms and conditions of this Franchise. The rights reserved herein include, without limitation, the construction, installation, and/or maintenance of any electrical, sewer or storm drainage line, traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects. 13.2 City's Duties. In the event the City undertakes any work, Public Project, or necessary maintenance within the Rights -of -Way in which Franchisee's facilities are located, and such work necessitates the relocation of Franchisee's then existing Facilities within the Franchise Area, the City shall: 13.2.1 Pursuant to RCW 35.21.905, or as amended, consult with the Franchisee in the predesign phase of any such Public Project in order to coordinate the project's design with Franchisee's Facilities within the project area. Ordinance No. 23- Page 16 of '3 13.2.2 Provide the Franchisee, at least one hundred twenty (120) days prior to the advertisement for bid of construction of such Public Project, written notice that a project is expected to require the relocation of Franchisee's Facilities, together with reasonably accurate and specific plans and specifications for such grading, widening, or construction and a proposed new location within the Franchise Area for the Franchisee's Facilities. 13.2.3 Coordinate and work diligently with the Franchisee to minimize conflicts between existing Facilities and the project improvements where possible, and to avoid having the Franchisee relocate its Facilities, whenever possible. The Franchisee acknowledges that there may be situations and circumstances where no other feasible alternatives are available. 13.2.4 Nothing in this section shall be construed as to relieve Franchisee of its duty and obligation to relocate its Facilities, at Franchisee's sole cost, for any improvement project undertaken by, or on behalf of, the City in the interest of public health, safety, welfare, or necessity, as adjudged in the sole discretion of the City. 13.3 Franchisee's Duties. Within one hundred twenty (120) days of receipt of the City notice under Section 13.2.2 requiring relocation and receipt of the plans and specifications pursuant to Section 13.2.2, Franchisee shall raise, lower, or move such Facilities within the Franchise Area at its sole cost and expense to the location or position directed by the City, to cause the least interference with the improvement, repair, or alteration contemplated by the City and to conform to such new grades as may be established. If the City improves a Right -of -Way, Franchisee shall, at its sole cost and expense, upon receipt of notice, replace the Facilities located in the improved subgrade of the improvement with substitute Facilities conforming to the specifications for the improvement of the Right -of -Way. Ordinance No. 23-. Page 17 of 37 13.4 Relocation Alternatives. After receipt of such notice and such plans and specifications, Franchisee may submit to the City written alternatives to such relocations within thirty (30) days. The City shall within a reasonable time evaluate such alternatives and advise the Franchisee in writing whether one or more of the alternatives is suitable to accommodate work that would otherwise necessitate relocation of the Facilities. If so requested by the City, Franchisee shall submit such additional information as is reasonably necessary to assist the City in making such evaluation. The City shall give each alternative full and fair consideration. If the City reasonably determines that none of the alternatives is suitable, the City shall provide the Franchisee with further written notice to that effect, and the Franchisee shall then relocate its Facilities by its own forces, by separate public works contract or by participating in the City's Public Project. The City shall cooperate with the Franchisee to designate a substitute location for its Facilities within the Franchise Area. The City will establish a date by which Facilities will be relocated, which date will be not less than one hundred twenty (120) days after further written notice to the Franchisee as to the Facilities to be relocated. Franchisee must finish relocation of each such Facility by the date so established. 13.5 Delay. Upon a notification of a relocation delay due to Franchisee, Franchisee agrees to work cooperatively with the City, other franchisees and utilities and the City's third -party contractor to resolve any such issues. If the Franchisee is unable to informally resolve the claims of a City contractor, subcontractor, and/or a third -party claim that arises from Franchisee's relocation delays, the Franchisee shall indemnify, defend and hold harmless the City pursuant to Section 23 from costs, claims or liability arising from such delay. The delay claim of a City utility whose funding and operations are required by Washington state law to be kept separate from those of the City's general fund shall be considered a third party claim for the purposes of this resolution process Ordinance No. 23- Page 18 of 37 and the indemnity. The parties acknowledge and agree that Franchisee shall not be responsible for these indemnifications, defense or hold harmless requirements and/or costs, claims, liability and/or damages due to delays caused by circumstances beyond the control of Franchisee; the negligence, willful misconduct, unreasonable delay of the City, or failure of the City to give timely notice(s); or the negligence, willful misconduct or delay of any unrelated third party. In the event that the acts of a third party as set forth in the preceding sentence contribute to the delay, the Franchisee may be liable for its proportionate share of the costs, claims or liability. Circumstances beyond the control of Franchisee is defined for purposes of this Franchise as strikes, lockouts, sit-down strike, unusual transportation delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather (including inclement weather which prevents construction), acts of the public enemy, wars, terrorism, insurrections, pandemics, government orders or mandates, and any other similar act of God event. 13.6 Locate. Upon request of the City and in order to facilitate the design of City street and Rights -of -Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and if reasonably determined necessary by the City, to excavate and expose its Facilities for inspection so that the Facilities' location may be taken into account in the improvement design. The decision as to whether any Facilities need to be relocated in order to accommodate the City's improvements shall be made by the City upon review of the location and construction of Franchisee's Facilities; and in compliance with Section 13.3 The City shall provide Franchisee at least fourteen (14) days' written notice prior to any request for excavation or exposure of Facilities. The City will issue to the Franchisee any required permits to locate the Franchisee's Facilities at no cost to the Franchisee. 13.7 Third Party Relocations. Whenever any person or entity, other than the City, requires the relocation of Franchisee's Facilities to accommodate the work of such person or entity within the Ordinance No. 23- Page 19 of 37 Franchise Area, the City agrees not to use its authority to require the Franchisee to relocate the existing Facilities. Section 14. Damage Repair In case of damage caused by the Franchisee, its agents or employees, or by the Franchisee's Facilities to Rights -of -Way, or to public and private improvements within or adjacent to Rights -of - Way, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, upon discovery of any such damage, immediately notify the City. The City will inspect the damage and set a time limit for completion of the repair. If the City discovers damage caused by the Franchisee to Rights -of -Way, or to public and private improvements within or adjacent to Rights -of - Way, the City shall give the Franchisee notice of the damage and set a time limit in which the Franchisee must repair the damage. In the event the Franchisee does not repair a right-of-way or an improvement as required in this section, the City may repair the damage pursuant to Section 12 of this Agreement. Notwithstanding the foregoing, Franchisee shall not be responsible for damages caused by third parties or resulting from other utility facilities or conditions. Section 15. Default 15.1 Remedies. The City may elect, without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling Franchisee to comply with the provisions of the Franchise and to recover damages and costs incurred by the City by reason of Franchisee's failure to comply. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Provided, further, that by entering into this Franchise, it is not the intention of the City or 01-&IM117ce No. 23- Page 20 of 37 Franchisee to waive any other rights, remedies, or obligations as otherwise provided by law equity, or otherwise, and nothing contained herein shall be deemed or construed to effect any such waiver. 15.2 Notice and Cure; Damages. If Franchisee shall violate, or fail to comply with any of the provisions of this Franchise, or should it fail to heed or comply with any notice given to Franchisee under the provisions of this Franchise, the City shall provide Franchisee with written notice specifying with reasonable particularity the nature of any such breach and Franchisee shall undertake commercially reasonable efforts to cure such breach within thirty (30) days of receipt of notification. If the parties reasonably determine the breach cannot be cured within (30) thirty days, the City may specify a longer cure period, and condition the extension of time on Franchisee's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or Franchisee does not comply with the specified conditions, City may, at its discretion, (1) commence revocation proceedings pursuant to Section 15.3, or (2) pursue other remedies as described in Section 15.1 above. 15.3 Revocation of Franchise. If Franchisee willfully violates or fails to comply with any of the provisions of this Franchise, or through willful misconduct or gross negligence fails to heed or comply with any notice given Franchisee by the City under the provisions of this Franchise, then Franchisee shall, at the election of the Federal Way City Council, forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the Council after a hearing held upon notice to Franchisee. Ordinance No. 23- Page 21 of 37 Section 16. Limited Rights This Franchise is intended to convey only a limited right and interest to Franchisee in the Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest in or to the Franchise Area to Franchisee. The City reserves the right to limit or exclude Franchisee's access to a specific route, public Rights -of -Way or other location when, in the judgment of the Director there is inadequate space (including but not limited to compliance with ADA clearance requirements and maintaining a clear and safe passage through the Rights -of -Way), a pavement cutting moratorium, unnecessary damage to public property, public expense, inconvenience, or interference with City utilities; provided that Franchisee shall be granted reasonable access to existing Facilities. Section 17. Eminent Domain The existence of this Franchise shall not preclude the City from acquiring by condemnation, in accordance with applicable law, all or a portion of Franchisee's Facilities within the Franchise Area for the fair market value thereof. In determining the value of such Facilities, no value shall be attributed to the right to occupy the Franchise Area conferred by this Franchise. Section 18. Non Assum tion In consideration of the Franchisee bearing all costs for Fire Suppression Systems as described in Section 5, and for other terms and conditions of this Franchise, the City agrees not to exercise and to forbear its statutory authority pursuant to chapter 35.13A RCW or other statutes to attempt to assume jurisdiction over all or part of the Franchisee or any Franchisee's responsibilities, property, facilities, equipment or utility customers located within or without the City's corporate limits during the term of this Franchise. The City's agreement and forbearance includes not facilitating or cooperating with any other city or town to attempt pursuant to RCW 35.13A.060 or as such statute Ordinance No. 23- Page 22 of 37 may be amended or superseded to assume jurisdiction over the Franchisee or any Franchisee's responsibilities, property, facilities, equipment or utility customers located within or without the City's corporate limits during the term of this Franchise. Section 19. Vacation If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the City shall notify Franchisee in writing not less than thirty (30) days before vacating all or any portion of the Franchise Area, if Franchisee has Facilities within such area planned for vacation. The City may, after thirty (30) days written notice to Franchisee, terminate this Franchise with respect to any such vacated area. At Franchisee's request, the City will, if practicable, reserve an easement for Franchisee's existing facilities to continue to use the vacated area. Franchisee must provide to the City information necessary for the City to reserve such easement within the thirty (30) day period. The City will not be liable for any damages or loss to the Franchisee by reason of such vacation provided notice was properly given in accordance with this Section. Section 20. Compliance with Laws 20.1 General. Franchisee shall comply with all applicable federal, state and City laws, franchises, resolutions, regulations, standards, policies and procedures, as now existing or hereafter amended or adopted, including without limitation the State Environmental Policy Act; provided, however, that if any term or condition of this Franchise and any term or condition of any City law, code, franchise, resolution, regulation, standard, procedure, permit, or approval are in conflict, the term or condition of this Franchise will control. 20.2 Future Cily of Federal Way Regulation. Franchisee acknowledges that the City may pursuant to the City's legitimate police power to protect the safety and welfare of the general public, develop rules, regulations, ordinances, and specifications for the use of the Rights -of -Way which Ordinance No. 23- Page 23 gf'37 shall govern Franchisee's Facilities and activities hereunder, provided that the City shall not unreasonably affect or modify any portion of this Franchise without the Franchisee's written approval. Section 21. Guarantee Franchisee shall guarantee work completed by the Franchisee under this Franchise for a period of ten (10) years after completion by the Franchisee against settlement or repair including Facilities and Rights -of -Way restoration, except for settlement and repairs caused by the actions of the City or third parties, or conditions beyond the control of the Franchisee. Section 22. Charge for Administrative Costs 22.1 Administrative Fee. Franchisee shall pay a one-time fee for the actual administrative expenses incurred by the City that are directly related to receiving and approving this Franchise, including the costs associated with the City's legal costs incurred in drafting and processing this Franchise. Such administrative fee shall be offset against the fee deposit required pursuant to FWRC 4.22.040; provided, however, if the administrative fee exceeds the fee deposit, then the Franchisee shall remit such additional amounts within thirty (30) days of receipt of an invoice from the City. No construction permits shall be issued for the installation of Facilities authorized until such time as the City has received payment of this fee. Franchisee shall further be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise or under the laws of the City. Where the City incurs costs and expenses for review, inspection, or supervision of activities, including but not limited to reasonable fees associated with attorneys, consultants, City Staff and City Attorney time, undertaken through the authority granted in this Franchise or any ordinances relating to the subject for which a permit fee is not established, Franchisee shall pay such costs and expenses directly to the City in accordance with the provisions of Section 22.3. Ordinance No. 23- Page 24 of 37 22.2 Emergency Repair Costs. In addition to Section 22.1, Franchisee shall promptly reimburse the City in accordance with the provisions of Section 22.3 and Section 22.4 for any and all costs the City reasonably incurs in response to any emergency situation involving Franchisee's Facilities, to the extent said emergency is not the fault of the City or other third party. 22.3 Reimbursemetit of Expenses. Franchisee shall reimburse the City within sixty (60) days of submittal by the City of an itemized billing for reasonably incurred costs, itemized by project, for Franchisee's proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing, altering, or maintaining any City facility as the result of the presence of Franchisee's Facilities in the Rights -of -Way. Such costs and expenses shall include but not be limited to Franchisee's proportionate cost of City personnel assigned to oversee or engage in any work in the Rights -of -Way as the result of the presence of Franchisee's Facilities in the Rights -of -Way. Such costs and expenses shall also include Franchisee's proportionate share of any time spent reviewing construction plans in order to either accomplish the relocation of Franchisee's Facilities or the routing or rerouting of any City utilities so as not to interfere with Franchisee's Facilities. 22.4 Calculation of Costs. The time of City employees shall be charged at their respective rate of salary, including overtime if applicable, plus benefits and reasonable overhead. Any other costs will be billed proportionately on an actual cost basis. All billings will be itemized so as to specifically identify the costs and expenses for each project for which the City claims reimbursement. A charge for the actual costs incurred in preparing the billing may also be included in said billing. At the City's option, the billing may be on an annual basis, but the City shall provide the Ordinance No. 23- Page 25 cif 37 Franchisee with the City's itemization of costs, in writing, at the conclusion of each project for information purposes. Section 23. Indemnification 23.1 General. Franchisee agrees to indemnify and hold harmless and defend the City, its elected officials, officers, employees, agents, and volunteers from any and all claims, demands, losses, actions, and liabilities (including costs and all attorneys' fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Franchise to the extent caused in part or in whole by the acts, errors or omissions of the Franchisee, its officials, agents, or employees, or by the Franchisee's breach of any provisions of this Franchise; provided, however, that this section shall not be construed as requiring Franchisee to indemnify, hold harmless or defend the City against claims or damages arising from the negligence or intentional misconduct of the City, its agents or employees. These indemnification obligations shall extend to claims that are not reduced to a suit and any claims that may be compromised, with Franchisee's prior written consent, prior to the culmination of any litigation or the institution of any litigation. 23.2 Notification. In the event any claim, demand, suit or action is commenced against the City that gives rise to Franchisee's obligation pursuant to this Section 23, the City shall promptly notify Franchisee thereof. The City's failure to so notify and request indemnification shall not relieve Franchisee of any liability that Franchisee might have, except to the extent that such failure prejudices Franchisee's ability to defend such claim or suit. Franchisee's selection of an attorney to defend any such claim, demand, suit, or action shall be subject to the City's approval, which shall not be unreasonably withheld. Franchisee shall not settle or compromise any such suit or action except Ordinance No. 23- Page 26 of 37 with prior written consent of the City, which shall not be unreasonably withheld. The City shall have the right at all times to participate through its own attorney in any suit or action which arises pursuant to this Franchise when the City determines that such participation is required to protect the interest of the City or the public. In the event that Franchisee refuses the tender of defense in any suit or any claim, as required pursuant to the indemnification provisions within this Franchise, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Franchisee, Franchisee shall pay all of the City's reasonable costs for defense of the action, including all expert witness fees, costs, and attorney's fees, and including costs and fees incurred in recovering under this indemnification provision. 23.3 Limits -on Indemnity. In the event it is determined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold harmless and indemnify the City to the maximum extent permitted thereunder, to the full extent of Franchisee's negligence. It is further specifically and expressly understood that the indemnification provided constitutes Franchisee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification, relating solely to indemnity claims made by the City directly against the Franchisee for claims made against the City by Franchisee's employees. This waiver has been mutually negotiated by the parties. 23.4 Inspection or Acceptance of Work. Inspection or acceptance by the City of any work performed by Franchisee at the time of completion of construction shall not be grounds for avoidance by Franchisee of any of its obligations under this Section 23. Notwithstanding any other provisions of this Section 23, Franchisee assumes the risk of damage to its Facilities located in the Rights -of - Way and upon City -owned property from activities conducted by the City, its officers, agents, Ordinance No. 23- Page 27 of 37 employees, volunteers, elected and appointed officials, and contractors, except to the extent any such damage or destruction is caused by or arises from any negligent, willful, or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Franchisee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages, lost profits and consequential damages, brought by or under users of Franchisee's Facilities as the result of any interruption of service due to damage or destruction of Franchisee's Facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors, except to the extent any such damage or destruction is caused by or arises from the negligence or any willful, or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Section 24. Insurance 24.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following insurance, in such forms and with such carriers as are satisfactory to the City. 24.1.1 Workers' compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; 24.1.2 Commercial general liability insurance with combined single limits of liability not less than $5,000,000 for bodily injury, including personal injury or death, products liability, contractual coverage, operations, explosion, collapse, underground and property damage; and 01•dinanre No. 23- Page 28 of 37 24.1.3 Automobile liability insurance with combined single limits of liability not less than $5,000,000-for bodily injury, including personal injury or death, and property damage. 24.1.4 Umbrella liability policy with limits not less than $1,000,000 per occurrence and $5,000,000 in the aggregate. 24.1.5 If Franchisee maintains umbrella insurance (primary, excess, or a combination thereof) that exceeds the above insurance limits, such insurance shall constitute compliance with this Section. 24.2 Mandatory Insurance Provisions. The comprehensive general liability insurance and automobile liability insurance policies shall be endorsed to contain the following provisions: 24.2.1 The City, its officers, elected officials, employees, and volunteers are to be named as additional insured; 24.2.2 Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; coverage shall be primary as to the City, its officers, officials, employees, and volunteers. Any insurance or self- insurance by the City, its officers, officials, employees, or volunteers shall be in excess of Franchisee's required insurance. 24.3 Verification of Coverage. Franchisee shall furnish the City with certificates of insurance and original endorsements evidencing the coverages required by this Section. The certificates and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be received and approved by the City prior to the commencement of any work. At the City's request, Franchisee shall deliver certified copies of all required insurance policies. Ordinance No. 23- Page 29 of 37 24.4 Cancellation of Polic . Upon receipt of notice from its insurer(s) Franchisee shall use commercially reasonable efforts to provide the City with thirty (30) days prior written notice of any such cancellation. Within fifteen (15) days prior to said cancellation or intent not to renew, Franchisee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section 24. Failure to provide the insurance cancellation notice and to furnish to the City replacement insurance policies meeting the requirements of this Section 24 shall be considered a material breach of this Franchise and subject to the City's election of remedies described in Section 15.1 and above. Notwithstanding the cure period described in Section 15.2, the City may pursue its remedies immediately upon a failure to furnish replacement insurance. 24.5 No Limitation on Liability. Franchisee's maintenance of insurance as required by this Section 24 shall not be construed to limit the liability of Franchisee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or equity. Further, Franchisee's maintenance of insurance policies required by this Franchise shall not be construed to excuse unfaithful performance by Franchisee. 24.6 Self -Insurance. As of the effective date of this Franchise, Franchisee is not self - insured. Should Franchisee wish to become self -insured at the levels outlined in this Franchise at a later date, Franchisee must provide the City with thirty (30) days advanced written notice of its intent to self -insure. In order to self -insure, Franchisee shall comply with the following: (i) provide a written attestation that Franchisee possesses the necessary amount of unencumbered financial assets to support the financial exposure of self-insurance, as evidenced by an outside auditor's review of Franchisee's financial statements; (ii) the City, upon request, may review Franchisee's financial statements; (iii) Franchisee is responsible for all payments within the self -insured retention; and (iv) Ordinance No. 23- Page 30 of 3 Franchisee assumes all defense and indemnity obligations as outlined in the indemnification section of this Franchise. These requirements may be modified by written amendment executed by both parties. Section 25. Bond The Franchisee, as a public agency, shall not be required to comply with the City's standard bonding requirement for working in the City's Rights -of -Way. Section 26. Abandonment 26.1 In the event that the use of any part of the Facilities are discontinued for any reason for a continuous period of six (6) months or more, or in the event such system or property has been installed in any Rights -of -Way or other public place without complying with the requirements of this Franchise or other City ordinances, Franchisee shall, upon being given thirty (30) days' notice, remove at its expense all such discontinued Facilities other than any which the City may permit to be abandoned in place, with approval not to be unreasonably withheld. In the event of such removal, Franchisee shall promptly restore the Rights -of -Way or other areas from which such property has been removed to a condition satisfactory to the City. 26.2 Any property of Franchisee remaining in place ninety (90) days after such notice, termination or expiration of this Franchise shall be considered permanently abandoned. The City may extend such time not to exceed an additional ninety (90) days. Any costs incurred by the City in safeguarding such Facilities or removing the Facilities shall be reimbursed by Franchisee. Nothing contained within this Section 26 shall prevent the City from compelling Franchisee to remove any such Facilities through judicial action when the City has not permitted Franchisee to abandon said Facilities in place. Ordinance No. 23- Page 31 of 37 26.3 Any property of Franchisee to be abandoned in place shall be abandoned in such manner as the City shall prescribe. Upon permanent abandonment of the property of Franchisee in place, the property shall become that of the City, and Franchisee shall submit to the City Clerk an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property. 26.4 The provisions of this Section 26 shall survive the expiration, revocation, or termination of this Franchise. Section 27. General Provisions 27.1 Entire Agreement. This Franchise contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Franchise and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. 27.2 Modification. No provision of this Franchise maybe amended or added to except by agreement in writing signed by both of the Parties. 27.3 Assignment. All of the provisions, conditions, and requirements herein contained shall be binding upon the Franchisee, and no right, privilege, license or authorization granted to the Franchisee hereunder may be assigned or otherwise transferred without the prior written authorization and approval of the City, which the City may not unreasonably withhold, condition or delay, provided that a merger or consolidation of Franchisee with or into another Title 57 water - sewer district shall not be considered an assignment for the purposes of this provision and shall not be subject to the City's approval. 27.4 Governing Law. This Franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. Venue for any dispute related to Ordinance No. 23- Page 32 of 37 this Franchise shall be the United States District Court for the Western District of Washington, or King County Superior Court. 27.5 Authori . Each individual executing this Franchise on behalf of the City and Franchisee represents and warrants that such individual is duly authorized to execute and deliver this Franchise on behalf of the Franchisee or the City. 27.6 Notices. Any notices required to be given by the City to Franchisee or by Franchisee to the City shall be delivered to the parties at the following addresses: CITY OF FEDERAL WAY Attn: Public Works Director 33325 8th Avenue South Federal Way, WA 98003 with a copy to: CITY OF FEDERAL WAY Attn: City Attorney 33325 8th Avenue South Federal Way, WA 98003 HIGHLINE WATER DISTRICT Attn: General Manager 23828 30th Ave S Kent, WA 98032 Any notices shall be delivered personally to the addressee of the notice or sent by United States certified mail, postage prepaid, to the address set forth herein. Any notice so sent shall be deemed received three (3) business days after the date of mailing. 27.7 Captions. The respective captions of the sections of this Franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Franchise. 27.8 Remedies Cumulative. Any remedies provided for under the terms of this Franchise are not intended to be exclusive but shall be cumulative with all other remedies available to the City at law, in equity or by statute. 01-dil7ance No. 23- Page 33 of 37 27.9 Hazardous Substances. Franchisee shall not introduce or use any hazardous substances (chemical or waste), in violation of any applicable law or regulation, nor shall Franchisee allow any of its agents, contractors or any person under its control to do the same. Franchisee will be solely responsible for and will defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from and against any and all claims, costs and liabilities including reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration of the property associated with Franchisee's use, storage, or disposal of hazardous substances, whether or not intentional, and the use, storage, or disposal of such substances by Franchisee's agents, contractors or other persons acting under Franchisee's control, intentional or not. Section 28. Severability If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause, or phrase of this Franchise. Section 29. Ratification Any act consistent with the authority and prior to the effective date of this Franchise is hereby ratified and affirmed_ Section 30. Effective Date This Franchise shall take effect and be in full force five (5) days after its passage and publication, according to law (see Effective Date below). PASSED by the City Council of the City of Federal Way this day of 2023. Ordinance No. 23- Page 34 of 37 CITY OF FEDERAL WAY: JIM FERRELL, MAYOR ATTEST: STEPHANIE COURTNEY, CMC, CITY CLERK APPROVED AS TO FORM: J. RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: Ordinance No. 23- Page 35 of 37 ACCEPTANCE: The undersigned hereby accepts all the rights and privileges of the above granted License and acknowledges that such rights and privileges are subject to and limited by all of the terms, conditions and obligations contained therein. DATED this day of , 20 HIGHLINE WATER DISTRICT: Its: Ordinance No. 23- Page 36 of'37 COS266 LL <> cn CL- c S 268 ST v -S 27;..S 5 PL &!'27 S 276 ST EGfST - S27 EXHIBIT A N 268 ST S 26 S269 0 ST w 2 S271 5 ST S 27 OS273 PL,; t 274 S s. . . . . . . C\l CA ;. 71— s R JA cl, 1p m CL Ca 6 271 8 280 PL s 280 281 ST WY 4p cli s '282 282 ST :ST Ul. 12 S A >< 282 7-283 -- n� `!� 11L szln- -, - cn- I co En t S282 10b COUNCIL MEETING DATE: October 17, 2023 CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL ITEM #: SUBJECT: ORDINANCE ESTABLISHING THE TIME OF PAYMENT, INTEREST, AND PENALTIES TO BE IMPOSED ON DELINQUENT ANNUAL SPECIAL ASSESSMENTS FOR LAKE MANAGEMENT DISTRICT NUMBER 1 FOR STEEL LAKE POLICY QUESTION: Should Council adopt an ordinance to establish the time of payment, interest, and penalties to be imposed on delinquent annual special assessments for Lake Management District Number 1 for Steel Lake? COMMITTEE: Land Use & Transportation Committee MEETING DATE: October 2, 2023 CATEGORY: ❑ Consent N Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Kevin Du, Water Quality Supervisor /0D _ DEPT: Public Works Attachments: 1. Staff Report 2. Ordinance Options Considered: 1. Adopt the proposed ordinance. 2. Do not adopt the proposed ordinance and provide direction to staff. MAYOR'S REC0m MAYOR APPROVAL: : Oution 1. DIRECTOR APPROVAL: ,��.` y Xe" 3 V r lninal Owe COMMITTEE RECOMMENDATION: I move to forward the proposed ordinance to First Reading on October 17, 2023. �1 ittee Chair 1a / a[s , Committee Member Itoan�. Tra Committee Member PROPOSED COUNCIL MOTION(S): FIRST READING OF ORDINANCE OCTOBER 17, 2023: "7 move to forward the proposed ordinance to the November 8, 2023 Council Meeting for second reading and enactment. " SECOND READING OF ORDINANCE NOVEMBER 8, 2023: "I move approval of the proposed ordinance. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: ❑ APPROVED ❑ DENIED ❑ TABLED/DEFERRED/NO ACTION ❑ MOVED TO SECOND READING (ordinances on1}) REVISED— 11/2019 COUNCIL BILL # First reading Enactment reading ORDINANCE # RESOLUTION# M T D b J CITY OF FEDERAL WAY MEMORANDUM DATE: October 2, 2023 TO: Land Use & Transportation Committee VIA: Jim Ferrell, Mayor r FROM: EJ Walsh, P.E., Public Works Director Kevin Du, Water Quality SupervisorKD SUBJECT: Ordinance establishing the time of payment, interest, and penalties to be imposed on delinquent annual special assessments for Lake Management District Number l for Steel Lake Financial lm aets: There is no cost to the City for the renewal of Steel Lake Management District Number 1 (SLMD). SLMD activities are funded through the collection of special assessments that will be collected annually. These assessments are collected from property owners having properties adjacent to Steel Lake with lakefront footage orwith deeded lake access. All City of Federal Way staff activities related to the SLMD are funded through these assessments, and thus will have no direct financial impacts on the City. Background Informatiow- On August 8, 2023, City Council adopted Ordinance No. 23-965 renewing the Steel Lake Management District Number 1 (SLMD). Pursuant to RCW 36.61.120 and RCW 36.61.140, all notice and hearing requirements for establishing the roll of rates and charges for the SLMD have been satisfied. In addition to establishing the roll of rates and charges, an ordinance must be put into place to establish the time of payment, interest and penalties to be imposed on delinquent annual special assessments for SLMD. The proposed ordinance will establish May 315t of each year as the due date for all annual assessments, and establish the penalty for late payment as the minimum allowed by RCW 36.61.200, which is five -percent (5%) of the delinquent special assessment. The ordinance also allows for a lien to be placed upon the lots, tracts, parcels of land and other properties in the special assessment roll that fail to pay their special assessments, penalties and interest. Rev 7/18 ORDINANCE NO. AN ORDINANCE of the City of Federal Way, Washington, establishing the time of payment, interest, and penalties to be imposed on delinquent annual special assessments for Lake Management District Number 1 for Steel Lake WHEREAS, on August 8, 2023, the City Council of the City of Federal Way adopted Ordinance No. 23-965 renewing Steel Lake Management District Number 1 ("District"); and WHEREAS, on September 19, 2023, the City Council of the City of Federal Way passed Resolution No. 23-846 confirming and approving a special assessment roll for the purpose of imposing annual special assessments within Steel Lake Management District Number 1; and WHEREAS, pursuant to RCW 35.21.403 and RCW 36.61.200, the City Council of the City of Federal Way must establish by ordinance interest and penalties to be imposed on delinquent annual assessments. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Due Date and Interest Penalties on Delinquent AnilMll Special Assessments. Annual special assessment payments are due on the thirty first (31) day of May of each year. Interest in the amount of one -percent (1%) per month shall be imposed on the balance of delinquent special assessments. Monthly interest shall be charged on the first day of June and each subsequent month. The penalty for late payment shall be the minimum allowed by RCW 36.61.200. Section 2. Lien. Pursuant to RCW 35.21.403 and RCW 36.61.230, special assessments, including penalties and interest, imposed within Steel Lake Management District No. 1 shall be Ordinance No. 23- Page 1 q1'3 liens upon the respective lots, tracts, parcels of land, and other property in the special assessment roll, which lien shall be paramount and superior to any other lien or encumbrance theretofore or thereafter created except a lien for general taxes. The cost associated with filing a lien and any other collection effort will be borne by the property owner. No lien shall extend to public property subjected to special assessments. Section 3. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to any other persons or circumstances. Section 4. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 5. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 6. Effective Date. This ordinance shall be effective thirty (30) days after passage and publication as provided by law. PASSED by the City Council of the City of Federal Way this day of 2023. [signatures to follow] Ordinance No. 23- Page 2 of 3 CITY OF FEDERAL WAY: JIM FERRELL, MAYOR ATTEST: STEPHANIE COURTNEY, CMC, CITY CLERK APPROVED AS TO FORM: RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: Ordinance No. 23- Page 3 of 3 10C COUNCIL. MEETING DATE October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: ORDINANCE: DEVELOPMENT AGREEMENT CODE AMENDMENTS POLICY QUESTION: Should the City Council amend Title 19 of the Federal Way Revised Code to update the processes and provisions relating to development agreements? COMMITTEE: Land Use & Transportation MEETING DATE: Oct. 2, 2023 CATEGORY: ❑ Consent ® Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Keith Niven 64 DEPT: CD Attachments: 1. Staff Report 2. Ordinance Options Considered: 1. Adopt the proposed ordinance. 2. Do not adopt the proposed ordinance and provide direction to staff. MAYOR'S RECUMMI TION: Option 1. MAYOR APPROVAL: DIRECTOR APPROVAL: 9/22/23 Co n . cr � Caurir �� lnitiisl'BatC . Ini I Date Initial ate COMMITTEE RECOMMENDATION: I move to forward the proposed ordinance to First Reading on October 17, 20233 S{riV-rnt ant'. Qrovis(onS J'of iyne, Aoloy- 4-o 1m(-Kate_.. 2 JwVDovev. droknittee Chair Jac a s sir Wee Member [-loam Tr n, Committee Member PROPOSED COUNCIL MOTION(S): FIRST READING OF ORDINANCE (10/17/23): "7 move to forward the proposed ordinance to the November 8, 2023 Council Meeting for second reading and enactment. " SECOND READING OF ORDINANCE (11/8/23): "1 move approval of the proposed ordinance. (BELOFf-Ta BL COMPLETED 85' CITY CLERKS OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED— 1/2022 RESOLUTION # J CITY OF FEDERAL WAY MEMORANDUM DATE: September 22, 2023 TO: Land Use & Transportation Committee VIA: Jim Ferrell, Mayor FROM: Keith Niven, CD Director SUBJECT: Proposed code amendments to FWWRC 19.85 Development Agreements Financial Impacts: There are no costs to the City for adopting the proposed code amendments. Background Information: The City periodically proposes amendments to the City Code to keep the Code relevant and up to date with changing conditions. The proposed code amendments to FWRC 19.85 are intended to improve the clarity of what can be included in a development agreement; clarify when a development agreement may be processed; and, remove certain Sections that should not be part of City Code. Procedural Summary: 8/4/23: Issuance of Determination of Nonsignificance (DNS) pursuant to the State Environmental Policy Act (SEPA) (23-103774-SE) 8/4/23: Public Notice of SEPA Decision published in Federal Way Mirror and posted (website) 8/18/23: End of SEPA Comment Period 9/8/23: End of SEPA Appeal Period 9/20/23: Planning Commission Public Hearing 10/2/23: LUTC Council Committee (anticipated date) 10/17/23: City Council 1st Reading (anticipated date) " 11/8/23: City Council 2nd Reading (anticipated date) Plannin Commission Recommendation: The Planning Commission conducted a Public Hearing on September 20, 2023. There were no public comments regarding the proposed code amendments. Following Commission discussion and deliberations, consistent with 19.80.240(1)(c), the Planning Commission forwarded the proposed code amendments to the City Council with a recommendation of approval. Decision Criteria: FWRC 19.80.130 provides criteria for zoning text amendment. The following section analyzes compliance of the proposed zoning text amendments with the criteria provided by this chapter. The City may amend the text of the FWRC only if it finds that: 1. The proposed amendments are consistent with the applicable provisions of the comprehensive plan. Rev. 6/2020 October 2, 2023 Land Use and Transportation Committee View Protection Code Amendment 2 Page 2 Staff Response: The proposed FWRC text amendments are consistent with the following Federal Way Comprehensive Plan (FWCP) text: LUG2 Develop an efficient and timely development review process based on a public/private partnership. LUP6 Conduct regular reviews of development regulations to determine how to improve upon the permit review process. 2. The proposed amendments bear a substantial relationship to public health, safety, or welfare. Staff Response: The proposed code amendments are intended to improve the use of development agreements within the City. Development agreements were added to State statute because the lack of certainty in the approval of development projects can result in a waste of public and private resources, escalate housing costs for consumers and discourage the commitment to comprehensive planning which would make maximum efficient use of resources at the least economic cost to the public. Assurance to a development project applicant that upon government approval the project may proceed in accordance with existing policies and regulations, and subject to conditions of approval, all as set forth in a development agreement, will strengthen the public planning process, encourage private participation and comprehensive planning, and reduce the economic costs of development. 3. The proposed amendments are in the best interest of the residents of the city. Staff Response: The proposed amendments are in the best interest of the public and the residents of the City of Federal Way because: 1) they provide for permitting efficiencies that reduce the staffing costs for permitting activities; and, 2) they provide clarifications for currently -ambiguous code sections thereby reducing the need for director interpretations and the potential for appeals and/or litigation. ORDINANCE NO.23- AN ORDINANCE of the City of Federal Way, Washington, relating to amendments to Chapter 19.85 FWRC, Development Agreements; amending FWRC 19.85.010,19.85.020,19.85.030,19.85.050; 19.85.060; 19.85.070; 19.85.080; 19.85.090; 19.85.110; 19.85.120; 19.85.130; 19.85.140; 19.85.150; 19.85.160; 19.85.180; 19.85.190; 19.85.200; and 19.85.210 (Amending Ordinance Nos. 02-426 and 09-594). WHEREAS, the City of Federal Way ("City") recognizes the need to periodically modify Title 19 of the Federal Way Revised Code ("FWRC"), "Zoning and Development Code," in order to conform to state and federal law, codify administrative practices, clarify and update land use and zoning regulations as deemed necessary, and improve the efficiency of the regulations and the development review process; and WHEREAS, the Washington Growth Management Act requires that development regulations be subject to continuing evaluation and review; and WHEREAS, the City has initiated code amendments to Chapter 19.85 FWRC, Development Agreements, intended to clarify the permissible scope of development agreements in the City; and WHEREAS, State agencies received 60-day notice of the proposed amendments on July 28, 2023 (2023-S-6290); and WHEREAS, this ordinance, containing amendments to development regulations and the text of Title 19 FWRC, has complied with Process VI review, Chapter 19.80 FWRC, pursuant to Chapter 19.35 FWRC; and WHEREAS, an Environmental Determination of Nonsignificance ("DNS") was properly issued for the proposed code amendments on August 4, 2023, no comments were received and the Ordinance No. 23- Page I of 18 DNS was finalized on August 18, 2023, and no appeals were filed and the appeal period has expired; and WHEREAS, the Planning Commission properly conducted a duly noticed public hearing on these code amendments on September 20, 2023, and forwarded a recommendation of approval with minor modifications to the City Council; and WHEREAS, the Land Use & Transportation Committee of the Federal Way City Council considered these code amendments on October 2, 2023, and recommended adoption of the text amendments. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Findings. The City Council of the City of Federal Way makes the following findings with respect to the proposed amendments. (a) The recitals set forth above are hereby adopted and restated as findings of fact. (b) These code amendments are in the best interest of the residents of the City and will benefit the City as a whole by providing clearer code provisions. (c) ' These code amendments comply with Chapter 36.70A RCW, Growth Management. (d) These code amendments are consistent with the intent and purpose of its title under FWRC and will implement and is consistent with the applicable provisions of the Federal Way Comprehensive Plan. (e) These code amendments bear a substantial relationship to, and will protect and not adversely affect, the public health, safety, and welfare. (f) These code amendments have followed the proper procedures required under the FWRC. Ordinance No. 23- Page 2 of 18 Section 2. Conclusions. Pursuant to Chapter 19.80 FWRC and Chapter 19.35 FWRC, and based upon the recitals and the findings set forth in Section 1, the Federal Way City Council makes the following Conclusions of Law with respect to the decisional criteria necessary for the adoption of the proposed amendments: (a) The proposed FWRC amendments are consistent with, and substantially implement, the following Federal Way Comprehensive Plan goals and policies: LUG2 Develop an efficient and timely development review process based on a public/private partnership. LUP4 Maximize efficiency of the development review process. LUP6 Conduct regular reviews of development regulations to determine how to improve upon the permit review process. EDP10 Continue to implement a streamlined permitting process consistent with state and federal regulations to reduce the upfront costs of locating businesses or redeveloping businesses in the City. (b) The proposed FWRC amendments bear a substantial relationship to the public health, safety, and welfare as they are intended to improve and clarify the use of development agreements within the City. Development agreements are authorized under state law because the lack of certainty in the approval of development projects can result in wasting of public and private resources, escalation of housing costs for consumers, discouraging the commitment to comprehensive planning, and failing to maximize efficient use of resources at the least economic cost to the public. These amendments help to provide assurance to a development project applicant that upon government approval the project may proceed in accordance with existing policies and regulations as set forth in the city's development code and in the development agreement. As a Ordinance No. 23- Page 3 of 18 result, these amendments will strengthen the public planning process, encourage private participation and comprehensive planning, and reduce the economic costs of development. (c) The proposed amendments are in the best interest of the public and the residents of the City of Federal Way because they streamline permitting efficiency, reduce staffing costs for permitting activities, and provide clarity to currently -ambiguous code sections thereby reducing the need for director interpretations and the potential for appeals and/or litigation. Section 3. FWRC 19.85.010 is hereby amended to read as follows: 19.85.010 Purpose. Development agreements ehange may be used at the city's Tdiscretion. Development agreements ante -may be used where the project is larger in scope and/or has potentially larger impacts than normal, or where the city eouneil-may desire to place certain restrictions or permissions on the proposal_ or in other circumstances the city deems appropriate. The intent of a development agreement is not to waive requirements normally associated with a proposed use, rather to provide greater flexibility and predictability to the applicant while providing a benefit to the city of equal or greater value relative to any departure provided. Section 4. FWRC 19.85.020 is hereby amended to read as follows: 19.85.020 Authority_ Scene - Consistency. (1) Authoriny. Pursuant to RCW 36.70B.170, the city may enter into a development agreement with a person having ownership or control of real property within its jurisdiction as part of The execution of a development agreement is a proper exercise of city police power and contract authority. A development agreement may obligate a party to fund or provide services, infrastructure, or other facilities. A Ordinance No. 23- Page 4 of 18 development agreement shall reserve authority to impose new or different regulations to the extent required by serious threat to public health and safety. (2) Scope. Development agreements shall not be allowed for proposals that are smaller than 5 acres, or where the majority of the properties subject to the proposal are single-family residential in use. (3) Consistency vi ith comprehensive plan. Development agreements shall be consistent with the city comprehensive plan. If a comprehensive plan amendment is needed in order to snake a proposed devela ment agreement consistent with Chapter 3 Trans ortation of the com p rebensive plan, such comprehensive plan amendment must be considered and approved by the city council at a city council meeting prior to the city council meeting at which final action is taken on the development agreement. Section 5. FWRC 19.85.030 is hereby amended to read as follows: 19.85.030 Content of development agreement. (1) A development agreement must set forth the development standards and other provisions that apply to and govern and vest the development, use, and mitigation of the development of the real property for the duration specified in the agreement. " development ^^ o en! sliall be consistenk (2) A development agreement shall be consistent with all applicable city development regulations except where modified by. or in conflict with, the development standards specified in the development agreement. In the case of such a modification or conflict. the development standards specified in the development agreement shall control. Modifications to. or departures from. otherwise -applicable city development regulations in the development agreement shall. in the Ordinance No. 23- Page 5 of 18 iudgment of the city, be off -set by providing a benefit to the city of equal or greater value relative to the departure provided. (3) A development agreement shall not modify or waive the provisions of Chapter 19.91 FWRC. Transportation Impact Fees, and/or vest to traffic impact fee except a development agreement may provide for vesting, to the traffic impact fee in effect at the time of approval of the development agreement for a period of up to ten years. For each year after the first, the amount of the vested traffic impact fee shall be adjusted by the annual change in the .tune Consumer Price Index ( for the Seattle area. 4 A development agreement shall not modif y or waive the provisions of Chapter 19.90 FWRC. Transportation Concurrency Management. (5) A development agreement shall not modify, waive, or vest to buiIding, plumbing, fire, or other construction codes adopted pursuant to RCW Ch. 19.27 or 19.27A. (6) A development agreement shall not modify, waive, or vest to development regulations or other enacted requirements adopted pursuant to state or federal mandates such as the city's NPDES municipal stormwater permit. . (27) For the purpose of this section, "development standards" may include, but is not limited to: (a) Project elements such as permitted uses, residential densities, and nonresidential densities and intensities or building sizes; (b) The amount and payment of impact fees imposed or agreed to in accordance with any applicable provisions of state law, any reimbursement provisions, other financial contributions by the property owner, inspections fees, or dedications; Ordinance No. 23- Page 6 of 18 (c) Mitigation measures, development conditions, and other requirements under Chapter 43.21C RCW. Design standards such as maximum heights, setbacks, drainage, and water quality requirements, landscaping, and other development features; (d) Affordable housing; (e) Parks and open space preservation; (f) Phasing; (g) Review procedures and standards for implementing decisions; (h) A build -out or vesting period for applicable standards; and (i) Any other appropriate development requirement or procedure. Section 6. FWRC 19.85.050 is hereby amended to read as follows: 19.85.050 Preparation of development agreement. (1) Based on council direction, and subsequent to wtion to to I RG 1 n.` 0.260(3)(e)T after consultation with the applicant, the city shall determine the parameters of the development agreement in accordance with FWRC 19.85.030, Content of development agreement. (2) if a development plan under FWRC 19.95.100 is required by the city or Rrovided by the applicant, it shall accompany the development agreement for review and action by the city council. The applicant shall prepares any such development plan, which must berms consistent with the parameters of the development agreement. The development plan may vary in the amount of detail to be included. depending On City couneed. idepAified in F3WRG 19.80.260(3)(e). .a�r�nrr .erss�n Section 7. FWRC 19.85.060 is hereby amended to read as follows: 19.85.060 Applications. Ordinance No. 23- Page 7 of 18 (1) Who may apply. Any person may, personally or through an agent, apply for a decision regarding property he or she owns. (2) How to apply. The applicant shall file the following information with the department of community development—ser,��: (a) A completed application, with supporting affidavits, on forms provided by the department of community development iee-s; (b) Two sets of stamped envelopes, and a list of the same, labeled with the name and address of all current owners of real property, as shown in the records of the county assessor for the subject property, within 300 feet of each boundary of the subject property; (c) A copy of the county assessor's map identifying the properties specified in subsection (2)(b) of this section; (d) A vicinity map showing the subject property with enough information to locate the property within the larger area; (e) Any information or material that is specified in the provision of this title that describes the applied -for decision; (f) All information specified in FWRC 19.15.040. The detail to be included in the development plan is based on the eetincil's and -shall be related to the nature and scope of the project and its potential impacts; and (g) Any additional information or material that the director of community development ser-viees determines is reasonably necessary for a decision on the matter. (3) Fee. With the application the applicant shall submit the fee established by the city. The application will not be accepted unless it is accompanied by the required fee and meets the Ordinance No. 23- Page 8 of 18 requirements of FWRC 19.15.040 and this section relating to what constitutes a complete application. Section 8. FWRC 19.85.070 is hereby amended to read as follows: 19.85.070 Official file. (1) Contents. The city shall compile an official file on the application containing the following: (a) All application materials submitted by the applicant. (b) The staff report. (c) All written comments received on the matter. (d) The electronic recording of the city council on the matter. (e) The decision on the development agreement by the city council. (f) Any other information relevant to the matter. (2) Availability. The official file is a public record. It is available for inspection and copying in the department of community development ems -during regular business hours. Section 9. FWRC 19.85.080 is hereby amended to read as follows: 19.85.080 Preapplications required. All applicants seeking approval of a development agreement YPa^'ed to '^ must apply for a preapplication conference with the city's development review committee (C-DRC). Section 10. FWRC 19.85.090 is hereby amended to read as follows: 19.85.090 Compliance with State Environmental Policy Act. The State Environmental Policy Act applies to some of the decisions that will be made using this chapter. The director of community development ser-viees shall evaluate each proposal and; where Ordinance No. 23- Page 9 q118 applicable, comply with the State Environmental Policy Act and with state regulations and city ordinances issued under authority of the State Environmental Policy Act. Any appeal of the threshold determination must be consolidated with any appeal of the administrative decision on community design guidelines and with any hearing on an application for process IV approval. Section 11. FWRC 19.85.110 is hereby amended to read as follows: 19.85.110 Timing of public hearings. Any requests associated with the ^r-ejeet spee development plan requiring a public hearing by the hearing examiner shall be heard by the hearing examiner prior to the public hearing by the city council on the development agreement and development plan. The hearing examiner's review shall follow the provisions of Chapter 19.70 FWRC, Process IV — Hearing Examiner, and shall be limited to that particular aspect under his or her purview and shall not extend to either the development agreement or development plan. Section 12. FWRC 19.85.120 is hereby amended to read as follows: 19.85.120 Factors to be considered in review of a development agreement. The city may consider, but is not limited to, the following factors when considering a development agreement: (1) Compatibility with and impact on adjacent land uses and surrounding neighborhoods; (2) Adequacy of and impact on community facilities including utilities, roads, public transportation, parks, recreation, and schools; (3) Potential benefits of the proposal to the community; and (4) Effect upon other as.,eet the comprehensive plan. Section 13. FWRC 19.85.130 is hereby amended to read as follows: 19.85.130 Notice. Ordinance No. 23- Page 10 q/18 Notice provisions under this section shall be followed for the public hearing held by the city council. (1) Contents. The director of community development Tshall prepare a notice of the proposal, for which a public hearing will be held, containing the following information: (a) Description of purpose of hearing. (b) The name of the applicant and the project name (if applicable). (c) A statement of what comprehensive plan and zoning designation will be directly affected or changed by the proposal. (d) The street address of the subject property or, if this is not available, a description of the location of the proposal in nonlegal language. Except for notice published in the newspaper of general circulation in the city, the notice must also include a vicinity map that identifies the subject property. (e) The date, time, and place of the public hearing. (f) A statement of the availability of the official file. (g) A statement of the right of any person to submit written comments to the council and to appear at the public hearing of the council to give comments orally. (h) A statement that only persons who previously submitted comments to the planning commission or city council during the comprehensive plan amendment process or at this time, participates in the public hearing on the development agreement by submitting written comments to the city council or by participating in the public hearing or specifically requested a copy of the city council's decision on the development agreement and plan may appeal the city council's decision. Ordinance No. 23- Page 11 of 18 (i) The identification of existing environmental documents that evaluate the proposed project and the location where the application and any studies can be reviewed. (2) Distribution. The director of community development ser-vieesshall distribute this notice at least 14 calendar days before the public hearing as follows: (a) A copy will be sent to the persons receiving the property tax statements for all property within 300 feet of each boundary of the subject property. (b) A copy will be published in the newspaper of general circulation in the city. (c) A copy will be posted on each ofthe official notification boards of the city. (3) Public notification sign. The applicant shall erect at least one public notification sign, which complies with standards developed by the department of community developments. This sign shall be located on or near the subject property facing the right-of-way or vehicle access easement or tract providing direct vehicle access to the subject property. The director of community development sefviee-s-may require the placement of additional public notice signs on or near the subject property if he or she determines that this is appropriate to provide notice to the public. (a) Timing. The applicant shall be responsible for installing the public notification sign or signs at least 10 calendar days before the public hearing and removing them within seven calendar days after the final decision of the city on the matter. Section 14. FWRC 19.85.140 is hereby amended to read as follows: 19.85.140 Staff report. (1) Contents. The director of community development sus shall prepare a staff report for the public hearing by the city council containing the following information: (a) All pertinent application materials. Ordinance No. 23- Page 12 of 18 (b) All comments regarding the matter received by the department of community development seFvie€,prior to distribution of the staff report. (c) An analysis of the application under the relevant provisions of this title and the comprehensive plan. (d) A statement of the facts found by the director of community development ser-vieesand the conclusions drawn from those facts. (e) A recommendation on the matter. (2) Distribution. At least seven calendar days before the hearing, the director of community development ser-vieesshall distribute the staff report as follows: (a) A copy will be sent to the members of the city council. (b) A copy will be sent to the applicant. (c) A copy will be sent to each person who has specifically requested it. Section 15. FWRC 19.85.150 is hereby amended to read as follows: 19.85.150 Public hearing and city council action. (1) Generally. The city council shall consider the application for approval of the development agreement and any associated development plan in a public hearing. If there are any appeals of a hearing examiner's decision of an appeal of a threshold determination, an appeal of a community design guidelines decision, or a process IV request, these appeals shall be heard in a closed record appeal hearing, as defined in RCW 36.7013.020(1) at the same time as the public hearing on the development agreement and any associated development plan. (2) City council decision on appeals. In making a decision on the appeals, the council shall follow the procedures in process IV_ P:3AL C- ' 9.70.210 tlffeugh ' 9.7n 25-0 Ordinance No. 23- Page 13 of 18 (3) Scope of review of development agreement and development plans. The city council shall consider the request for approval of the development agreement and any associated development plan based on the decisional criteria of this title describing the proposal. (4) City council action. After consideration of the entire matter and upon approval by a majority of the total membership, the city council shall take one of the following actions: (a) The city council has the option to: (i) Grant the application as proposed, or modify and grant the application. In either case, it shall give effect to this decision by adopting an ordinance, whieh approves (ii) Deny the application. The city council shall give effect to a denial by adopting a resolution. (iii) Findings of fact and conclusions. The city council shall include in the ordinance or resolution: (A) A statement of the facts that support the decision, including any conditions and restrictions that are imposed; and (B) The city council's conclusions based on those facts. (5) Effect. The decision of city council r-eheflsive--plat degigiiation and aplan-is the final decision of the city. Section 16. FWRC 19.85.160 is hereby amended to read as follows: 19.85.160 Notice of final decision. Ordinance No. 23- Page 14 of 18 (1) General. Following the final decision by the city council, the director of community development servieershall prepare a notice of the city's final decision on the application. (2) Distribution. After the city council's decision is made, the director of community development services shall distribute a copy of the notice of the final decision as follows: (a) A copy will be mailed to the applicant. (b) A copy will be mailed to any person who submitted written or oral comments to the city council. (c) A copy will be mailed to each person who has specifically requested it. (d) A copy will be mailed to the King County assessor. Section 17. FWRC 19.85.180 is hereby amended to read as follows: 19.85.180 Term of agreement. Unless amended or terminated, a development agreement is enforceable during its term by a party to the agreement. A development agreement and the development standards in the agreement govern during the term of the agreement, or for all or part of build out period specified in the agreement, and may not be subject to an amendment to a zoning ordinance or development standard or regulation adopted after the effective date of the agreement unless specificalIxprovided far in the agreement. A permit or approval issued by the city after the execution of the development agreement must be consistent with the development agreement. Section IS. FWRC 19.85.190 is hereby amended to read as follows: 19.85.190 Recording. A development agreement shall be recorded vvitliin 90 days of the final decision by the city council with the King County department of records. During the term of the. development agreement, the agreement is binding on the parties and their successors. Ordinance No. 23-. Page 15 gf'18 Section 19. FWRC 19.85.200 is hereby amended to read as follows: 19.85.200 Amendment of development agreement. Amendments to the terms of the development agreement shall be done only by a written instrument executed by all parties pursuant to the procedures of this chapter, or as may be amended, or as otherwise provided for in the agreement. The city will process and decide upon an application for an amendment as if it were an application for a new development agreement, unless otherwise provided for in the agreement. Section 20. FWRC 19.85.210 is hereby amended to read as follows: 19.85.210 Minor modification of development plan. The director of community development seF4ee-s—may approve minor modifications to the development plan on a case -by -case basis using process III described in Chapter 19.65 FWRC Criteria for approving minor modifications include but are not limited to the following guidelines: (1) Modifications shall conform to the terms of the development agreement; (2) The change will not result in reducing the total landscaped area, buffer areas, or the amount of open space on the project; (3) The change will not result in increasing the residential density or gross floor area of the project; (4) The change will not reduce any required yard; (5) The change will not result in any increase in height of any structure; (6) The change will not result in a change in the location of any access point to the project; (7) The change will not increase any adverse impacts or undesirable effects of the project; and (8) The change in no way significantly alters the project. Any modification to the development plan not deemed to be minor shall be considered major and shall be decided upon as if it were an application for a new development agreement. Ordinance No. 23- Page 16 of 18 Section 21. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to any other persons or circumstances. Section 22. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 23. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 24. Effective Date. This ordinance shall be effective five (5) days after passage and publication as provided by law. PASSED by the City Council of the City of Federal Way this day of 2023. [signatures to follow] Ordinance No. 23- Page 17 of 18 CITY OF FEDERAL WAY: JIM FERRELL, MAYOR ATTEST: STEPHANIE COURTNEY, CMC, CITY CLERK APPROVED AS TO FORM: J. RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: Ordinance No. 23- Page 18 of 18