Council PKT 05-16-2006
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,~ Federal Way Archive
City Council Meeting
AGENDA
COUNCILMEMBERS
Mike Park, Mayor
Jeanne Burbidge Jim Ferrell
Jack Dovey Linda Kochmar
Eric Faison Dean McColgan
CITY MANAGER
Derek Matheson,
Interim City Manager
OFFICE OF THE CITY CLERK
May 16, 2006 - Regular Meeting
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AGENDA
FEDERAL WAY CITY COUNCIL
REGULAR MEETING
Council Chambers - City Hall
May 16,2006 -7:00 PM
(www.cityoffederalway.com)
*****
1. CALL MEETING TO ORDER
2. PLEDGE OF ALLEGIANCE
. Federal Way Chorale
3. PRESENTATIONS
a. Proclamation - Don Barrows - Federal Way Chorale
b. Proclamation - Public Works Week
c. Presentation - Parks and Recreation Commission Certificates of Appointment
d. Presentation - Ceremonial Swearing in of Officer Justin Wilson
e. Presentation - King Co. DOT - Executive's Proposal for Transit Now!
f. City Manager -Emerging Issues:
. 21 st Avenue SW Neighborhood Traffic Safety Update
4. CITIZEN COMMENT
PLEASE COMPLETE THE PINK SLIP & PRESENT TO THE CITY CLERK PRIOR TO SPEAKING. Citizens
may address City Council at this time. When recognized by the Mayor, please come forward to the podium and state
your name for the record. PLEASE LIMIT YOUR REMARKS TO THREE (3) MINUTES. The Mayor may interrupt
citizen comments that continue too long, relate negatively to other individuals, or are otherwise inappropriate.
5. CONSENT AGENDA
Items listed below have been previously reviewed 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: Approval of the April 25, 2006 Special Meeting and May 2, 2006
Regular & Special Meetings
b. Enactment Ordinance: Council Bill #404 ....: Comcast Franchise Agreement
c. Interlocal Agreement - Use of Technical Rescue Trailer
d. Interlocal Agreement between Okanogan County, Washington and the City of
Federal Way, Washington for the Housing of Inmates in the Okanogan County Jail
e. Interlocal Agreement between the City of Fife, Washington and the City of
Federal Way, Washington for the Housing of Inmates in the Fife City Jail.
f. 26th Avenue SW Pipe Replacement Project
g. Joe's Creek Salmon Habitat Restoration Project Bid Award
h. Alternative Roadway Sections for South 348th Street HOV Lanes Project
1. Parks Maintenance Contract
6. INTRODUCTION ORDINANCE
a. Council Bill #405 - Transportation Concurrency Ordinance
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, CREATING CHAPTER 19, ARTICLE IV, "TRANSPORTATION
CONCURRENCY MANAGEMENT"
7. COUNCIL BUSINESS
a. Selection of Voting Delegates for A WC Annual Business Meeting
8. CITY COUNCIL REPORTS
9. CITY MANAGER REPORT
10. EXECUTIVE SESSION
a. Collective Bargaining pursuant to RCW 42.30.140(4)(a)
b. Potential Litigation pursuant to RCW 42.30.110(1 )(i)
11. ADJOURNMENT
** THE COUNCIL MAY ADD AND TAKE ACTION ON OTHER ITEMS NOT LISTED ON THE AGENDA **
THE COMPLETE AGENDA PACKET IS AVAILABLE FOR REVIEW AT CITY HALL AND ALSO ON THE CITY'S WEBSITE
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COUNCIL MEETING DATE: May 16,2006 ITEM #: 5...,a
w._ _~_______~....._.________~___.._._.._...~__.___~..__________~__._______.__
CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: CITY COUNCIL MEETING MINUTES
POLICY QUESTION: Should Council approve the draft minutes of the April 25, 2006 special and May 2, 2006
regular and special Council meetings as presented?
COMMITTEE: Not Applicable MEETING DATE: Not Applicable
CATEGORY:
[gI Consent D Ordinance D Public Hearing
D City Council Business D Resolution D Other
STAFF REpORT By: Not Applicable DEPT: Not Applicable
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Attachments:
Draft meeting minutes of the April 25, 2006 special and May 2,2006 regular and special Council meetings.
Options Considered:
1. Approve the minutes as presented.
2. Pull the minutes and make changes as necessary.
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STAFF RECOMMENDATION: Staff recommends a proving the minutes as presented.
CITY MANAGER APPROVAL: N/A DIRECTOR ApPROVAL: N/A N/A
Committee Committee Council
COMMITTEE RECOMMENDATION: Not Applicable
PROPOSED COUNCIL MOTION: "I move approval of the meeting minutes of the April 25, 2006 special and
May 2, 2006 regular and special Council meetings."
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACfION:
0 APPROVED COUNCIL BILL #
0 DENIED 1ST reading
0 T ABLEDIDEFERRED/NO ACTION Enactment reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REVISED - 02/06/2006 RESOLUTION #
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FEDERAL WAY CITY COUNCIL
Council Chambers - City Hall
April 25, 2006
Special Meeting
6:00 PM
MINUTES
******
I. CALL MEETING TO ORDER
Mayor Park called the meeting to order at 6:25 PM. Councilmembers Burbidge,
Dovey, Faison, Kochmar, McColgan, Deputy Mayor Ferrell and Mayor Park
present.
II. 2007/2008 PRELIMINARY BUDGET DISCUSSION
Interim City Manager Derek Matheson and Management Services Director Wang: :1:0
gave a 2007/2008 Preliminary Needs Assessment PowerPoint presentation>....'"
Council discussed high priority needs, 2007/2008 challenges, policy.questions, " :
base-line budget gap, 2007 Utility Tax and Real Estate Excise Ta:x revenue
projections, revenue options, and staff policy questions.
Interim City Manager. Matheson and Management Services Director Wang
reviewed additional needs identified by department directors that, while important,
did not meet the criteria for "High Priority". Interim City Manager Matheson
encouraged Councilmembers to review the one-time funded programs/projects
included as "additional needs" and to pass along any recommendation of continued
funding for any program they'd like included in the next budget.
Council directed staff to schedule a Special MeetinglBudget Study Session in late
May to further discuss funding options, election deadlines and carry forwards.
III. ADJOURN
Mayor Park adjourned the meeting at 8 :22 PM.
ATTEST:
Krystal Kelsey, Deputy City Clerk
Approved by Council on:
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FEDERAL WAY CITY COUNCIL
Council Chambers - City Hall
May 2, 2006
Special Meeting
5:00 PM
MINUTES
I. CALL MEETING TO ORDER
Deputy Mayor Ferrell called the meeting to order at 5:06 PM. Councilmembers Burbidge,
Dovey, Kochmar (arrived at 5:20), McColgan and Deputy Mayor Ferrell present.
Deputy Mayor Ferrell excused Councilmember Faison and Mayor Park.
II. CANDIDATE INTERVIEWS -PARKS AND RECREATION
COMMISSION : .. '.~ . <0-
. . , . '.
. 'The Council interviewed the following candidates for open positions' o.n the.Park and . ;;..~.J. '.: ~\~ ~:.... .;. ~..:.
. Recreation Commission: Charles Purdom, Carol Otto, David Talcott and Helen Stanwell. "~ ~~.
III. DISCUSSION/ACTION:
MOTION: Councilmember McColgan moved to appoint Charles Purdom and David
Talcott to full three-year terms on the commission and moved to appoint Carol Otto and
Helen Stanwell as alternates on the commission. Councilmember Kochmar second. The
motion carried 5-0.
IV. ADJOURN
Deputy Mayor Ferrell adjourned the meeting at 6: 15 PM.
ATTEST:
Laura K. Hathaway, City Clerk
Approved by Council on:
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FEDERAL WAY CITY COUNCIL
REGULAR MEETING
Council Chambers - City Hall
May 2, 2006 - 7 :00 PM
MINUTES
(www.cityoffederalway.com)
*****
1. CALL MEETING TO ORDER
j'
Deputy Mayor Jim Ferrell called the meeting to order at 7:06 PM. Councilmembers Burbidge,
Dovey, Kochmar, McColgan and Deputy Mayor Ferrell present. Mayor Park and Councilmember
Faison excused.
2. PLEDGE OF ALLEGIANCE - Margaret Nelson led the Pledge of Allegiance.
3. PRESENTATIONS
a. Proclamation - National Day of Prayer
Councilmember Dovey proclaimed May 4, 2006 as the National Day of Prayer and presented the
proclamation to Bob "Coach" Roach.
b. City Manager-Introduction of New City Employees
Interim City Manager Derek Matheson introduced Thomas Fichtner as a permanent employee in
the Management ServiceslIT Division.
c. City Manager -Emerging Issues:
1. Citizen Comments - PowerPoint Presentations
City Attorney Pat Richardson addressed stating that PowerPoint Presentations by citizens need to
be submitted to the City Clerk no later than noon on the day of meeting to allow the staff to check
for viruses and have ample time to set up the equipment.
2. Puget Sound Regional Council Update
PSRC Representative Rocky Piro updated the City Council on Vision 20/20, Destination 20/30
and the Regional Economic Strategy. Mr. Piro reviewed the four alternatives PSRC is discussing
that will effect the region, all of which will impact growth andjobs. Mr. Piro stated there will be
public meetings during the next year and a half to discuss the plan.
4. CITIZEN COMMENT
Elizabeth Hardison - spoke in opposition to the City's panhandling ordinance.
Gayla Hardison- spoke in opposition to the City's panhandling ordinance and presented Council
with copies of some proposed changes to the ordinance.
Frosty Hardison - spoke in opposition to the City's panhandling ordinance and stated that there is
a tent city in the City of Federal Way. He asked Council to consider the proposed changes to the
ordinance presented by Gayla Hardison.
Margaret Nelson - presented the last ofthe petitions opposing the relocation of the 320th Library
and again thanked the Council for their decision to oppose its relocation.
Evelyn Castellar - asked that the City's lO-year tax break to developers be repealed. She stated
that puts the tax burden on citizens and other businesses.
Nancy Combs - asked for extra patrols in the area of 21st Ave SW due to speeders.
H. David Kaplan - thanked the City Council for their decision regarding the 320th Library.
Tom Pierson- Federal Way Chamber of Commerce - submitted letter to the Council regarding the
preferred alternative for the Sound Transit Link Light Rail Phase II project. The Chamber
recommends the proposed route be a blending ofI-5 and Hwy 99 with three stops: Star Lake on I-
5, Sound Transit's Federal Way Station and the third stop in the area of 348th.
Luraine MacLeod - City Clerk Laura Hathaway read Ms. MacLeod's statement regarding the
320th Library relocation into the record.
Councilmember McColgan asked staff to review the panhandling ordinance at the next
Parks/Recreation/Public Safety Committee meeting and also asked staff to look into the
speeding/safety issue at 2rt Ave SW
Staff will report back on the safety/speeding issue on 2 rt A VE SWat the next Council Meeting
under emerging issues.
5. CONSENT AGENDA
a. Minutes: Approval of the April 18, 2006 Regular & Special Meetings - Passed
b. March 2006 Monthly Financial Report - Passed
c. Vouchers - Passed
d. 21st Avenue South Grid Road (S. 318th Street to South 320th Street) Project Bid
Award - Passed
e. Grant Funding for Transportation Improvement Projects - Passed
f SR 161 at SR 18 Intersection Improvement - Proj ect Bid Award - Passed
g. Transportation Concurrency Policy Framework- Passed
MOTION: Councilmember Burbidge moved approval of the Consent Agenda as presented.
Councilmember McColgan second. The motion carried 5-0.
6. PUBLIC HEARING
a. Comcast Cable Franchise Renewal -
Deputy Mayor Ferrell opened the Public Hearing at 8: 19 PM.
. Staff Report
Information Systems Manager Mehdi Sadri reviewed this agreement and gave a brief overview of
the benefits of the agreement. He introduced Terry Davis of Com cast. Mr. Davis addressed the
proposed ordinance and expressed Comcast's support of the agreement.
. Citizen Comment (3-Minute Limit)
Keith Tyler - spoke in support of the Comcast Cable Franchise renewal.
. Introduction Ordinance - Council Bill #404 - Comcast Franchise Agreement
Deputy Mayor Ferrell closed the Public Hearing at 8:29 PM and asked the City Clerk to read
the ordinance title into the record:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL
WAY, WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO
COMCAST OF PUGET SOUND, INC. AND COMCAST OF
WASHINGTON IV, INC. TO OCCupy RIGHTS-OF-WAY OF THE CITY
OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIFIED
FRANCHISE AREA FOR THE PURPOSES OF OPERATING AND
MAINTAINING A CABLE COMMUNICATIONS SYSTEM, AND SETTING
FORTH CONDITIONS ACCOMP ANYlNG THE GRANT OF FRANCHISE.
MOTION: Councilmember Kochmar moved to forward the proposed Ordinance regarding
Comcast Cable Franchise Agreement Renewal to the May 16th City Council meeting for
enactment. Councilmember McColgan second. The motion carried 5-0.
7. COUNCIL BUSINESS
a. Sound Transit Phase II - Light Rail Alignment
City Traffic Engineer Rick Perez introduced this item and reviewed the horizontal alignment
options and the cost estimates of each proposed alignment.
Councilmember Kochmar stated she liked the Chamber's recommendation: blending the route
between I-5 and Hwy 99 with three stops: Star Lake on 1-5, the Transit Center and the area of
348th.
Councilmember McColgan stated he didn't agree with the alignment along Hwy 99 nor does he
agree with an elevated railway. He wants the alignment strictly along 1-5.
Councilmember Dovey stated that whichever is the most cost effective alignment is the alignment
Sound Transit will take and the key for Federal Way is to pick the three stops for light rail within
the City.
Councilmember Burbidge - agrees that Federal Way needs three stops and believes that the three
stops should be the transit center and the general areas of 348th and 272nd.
Deputy Mayor Ferrell- stated the system needs to move people and agrees with an 1-5 alignment
with stops at 348th, 320th and 272nd.
Councilmember Dovey stated that the 1-5 alternative will also displace people and there will be
takes and wetland issues along that corridor as well. He agrees with the 3 stops.
MOTION: Councilmember Dovey moved to send a letter to Sound Transit stating the City of
Federal Way's position regarding Phase n by endorsing three stops in Federal Way, the Redondo
Park/Ride, the Regional Transit Center, and a site at 348th Street and indicating that it is Federal
Way's desire to move people to and from the City of Federal Way via the fastest route possible
with the least amount of impacts to the community and utilizing 1-5 as feasible. Councilmember
Kochmar second.
Discussion:
Councilmember McColgan wants to be clearer in preferences.
Councilmember Burbidge request additional conversations with Sound Transit throughout this
process
FRIENDLY AMENDMENT: Councilmember McColgan moved to change the words as
feasible to as the preferred alternative. Councilmember Kochmar second. Motion calried 4-1;
Councilmember Burbidge dissenting.
VOTE ON MAIN MOTION: The motion, as amended, carried 5-0.
8. CITY COUNCIL REPORTS
Councilmember McColgan updated the City Manager search process and stated the target date for
hiring is mid-June.
Councilmember Dovey stated the next Land Use Transportation Committee meeting is scheduled
for May 15, 2006.
Councilmember Kochmar stated the Council will hold a special meeting/study session on May 23,
2006 regarding the 2007/2008 preliminary budget. She also thanked those in the community
involved in various fundraisers. .
Councilmember Burbidge reported the next ParkslRecreation/Public Safety Committee meeting
will be on May 8th at 6:00 PM. On the agenda is the issue of dangerous dogs, and the six-year
park plan. She also stated that at an earlier special meeting this evening the Council interviewed
and appointed several applicants for positions on the City's Parks and Recreation Commission.
Those appointed to full-terms were c.T. Purdom and David Talcott. Helen Stanwell and Carol
Otto were appointed as alternates.
Deputy Mayor Ferrell thanked his fl:<llow councilmembers for their cooperation as he chaired his
first meeting and stated that on May 4th he will attend the National Day of Prayer Breakfast at the
Commons. He also encouraged people to attend the next ParkslRecreation/Public Safety
Committee meeting if they have concerns, pro or con, on the proposed dangerous dog issue.
9. CITY MANAGER REPORT
Interim City Manager Derek Matheson stated that on June 1st at 3:00 PM there will be a Press
ConferencelRecognition for those involved in obtaining federal funding for the triangle project.
The event will take place near the triangle site and more information will be forthcoming as plans .
progress. Mr. Matheson also read a thank you letter from Foundation House to Senior Planner Jim
Harris.
10. ADJOURNMENT
Deputy Mayor Ferrell adjourned the meeting at 9:40 PM.
ATTEST:
Laura K. Hathaway, City Clerk
Approved by Council on:
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. jU 5-b
.CO~JNCIL MEETING DATE: Ma'it,2oo6____ ITEM #:
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CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: COMCAST CABLE FRANcmSE RENEWAL
POLICY QUESTION: Should the City renew the cable TV franchise with Comcast based on the draft terms and
conditions contained in the attached ordinance and side letter!?
COMMITIEE: Finance, Human Services and Regional Affairs MEETING DATE: Apri125, 2006
,gTEGORV:
Consent [gI Ordinance ~ Public f1earing
o City Council Business 0 Resolution 0 Other
~TAFFREPORTBY: Iwen Wang, Mana$~ment S~rvices Director DEFT: Management Services
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ATIACHMENTS:
. Staff Report (Attachment A)
. Draft Franchise Ordinance and Exhibits (Attachment B)
OPTIONS CONSIDERED:
1. Approve the draft Franchise Ordinancel Agreement in substance and place the ordinance for public
hearing/firSt reading on May 2, i006.
2. Direct staff to prepare an ordinance extending the current franchise and negotiate specific changes to
the draft agreement. ----~._._-------_. ---~
STAFF RECOMMENDATION: S
CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL: ---1W-
Conmuttee
COMMI1TEE RECOMMENDA TlON: Forward Option 1 to the May 2, 2006 City Council Agenda for public.hearing
and a "do pass" recomme ation. ,
PROPOSED COUNCIL MOTION: "I move approval of the draft Franchise Ordinance/Agreement in substance
and place the ordinance on the May 16, 2006 Council Agenda for second reading/enactment. "
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION: 40+
0 APPROVED COUN<;IL BILL #
0 DENIED 1 ST reading ~pt'fo~
0 T ABLEDIDEFERREDINO ACTION Enactmen( reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REV/SED -l12J06I2006 RESOLUTION #
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A Federal Way
CITY OF FEDERAL WAY
STAFF REPORT
ATIACHMENTA
Date: Apri119, 2006
To: Finance, Human SelVices and Regional Affair:.:?mm3
From: Iwen Wang, Management Services Director .:..}{../
Via: Derek Matheson, Interim City Manage~ .
Subject: Comcast Cable Franchise Renewal
BACKGROUND
As set out in the FCC guidelines, the City and Comcast agreed to enter into an informal renewal proceSs in the
fall of 2004. In preparation for the negotiation, the City conducted a community needs assessment; inspected
the physical plant/system to identify any defidendes; and collected and compiled comparisons of all major
Comcast franchise agreements in Washington in recent years. Based on the data collected from these
processes, the City drafted the opening proposal and forwarded it to Comcast in December of 2004. The City
received Comcast's first counter proposal in March 2005 and has been engaged in the renewal discussion
since.
This rellewal has taken longer, and has been more contentious at times, primarily due to the changes in the
political and competitive environment for cable television operators. Since the Telecommunications Act of 1996
and emerging broadband communications, there have been many anticipations of an extensive rewrite of the
FCC rules governing the cable industry that would address the future direction of the technology. There have
been numerous attempts at the federal level to pass something, and some believe. that new legislation under ;
the current administration is imminent. Most of the proposed legislation reduces local franchise authority and ,
gives more authority to the FCC including. a proposal of a "national franchise" to replace the many local
franchises.
On the competition side, Comcast has historically managed their rates closely to compete with satellite
television services. The ability to now provide broadband internet selVices (both data and internet phones)
has allowed cable' operators to generate revenues from video, internet, and phone selVices using the same
fiber infrastructure. This change has enticed some local telcos (e.g. Verizon) to expand/upgrade their systems
to allow them to offer video services (most already offer data). These land-line based selVices would be in
direct competition with Comcast, and in Comcast's perspective, dramatically change their competitive
environment (end their monopoly status) and could seriously affect their market share and revenue.
,
With situations continuing to evolve, particul~rly during the latter part of our negotiation, we found it
increasingly difficult to get everything the City wanted. In the end, we believe this is a fair and reasonable
franchise for both sides.
KEY PROVISIONS AND HIGHUGHTS
1. ONE FRANCHISE
As staff had previously recommended to Council, this franchise combines and synchronizes the two
different franchises we had with two different operators into one. The operators are still two
different legal entities but both are subsidiaries of Comcast Inc., Philadelpliia.
2. FIVE-YEAR TERM WITH AUTOMATIC FIVE-YEAR EXTENSION AT COMCAST'S CHOICE
The City initially proposed the five-year term. Toward the end of negotiations, the staff pushed
hard to increase the length of the term to protect the Oty from the potential "national franchise".
FHSRAC 4/25/06
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However, because Comcast had already committed to the five year term, it was too late to
change.
Under the draft agreement, unless Comcast notifies the City in writing 12 months prior to the end
of initial term to not renew, the Franchise will be automatically renewed and Comcast will be
required to fulfill its capital contribution commitment at the beginning of the second term as
described below.
3. FRANCHISE FEES - 50/0 OF GROSS REVENUES
The new franchise preserves the 5% franchise fee and changes the remittance frequency from
quarterly to monthly.
4. STANDARDIZATION OF SENIOR/DISABLED DISCOUNT AT 300/0 OF BASIC TIER
(LIMITED SERVICE)
This discount amounts to around $4.50 per month per. eligible subscriber and is the st~ndard
discount Comcast provides in all their recent settlements (e.g. Seattle in February 06, and Spokane
in November 05).
Subscribers in the southern portion of the City currently receive a 20% discount if they subscribe
to limited Service (around $15/mo) or Basic Service (around $45/mo). Comcast has agreed to
grandfather those currently receiving the 20% discount on Basic Service as long as they continue
their subscriptions and meet eligibility tests.
5. CUSTOMER SERVICE CENTER YS. PAYMENT CENTER
A Customer Service Center is typically staffed by Comcast to address a multitude of customer
services needs, including the location to pick up and drop off equipment. A Payment Center is
typically a contracted location with banks, grocery stores, or other neighborhood convenience
stores to accept customer payments and equipment returns but will not be trained to provide
, additional services. Comcast has requested that the City change the minimum requirement from a
J
.. . Customer Service Center to a Payment Center.
In general the usage rates of Customer Service Centers throughout the country are in decline.
Today's customers are requesting alternative methods for equipment delivery and returns (e.g.
direct shipment and postage prepaid return boxes). Therefore, Comcast proposes that City allow
them to make their decision based on actual customer needs in the future.
Spedfically, Comcast agrees to continue the Customer Service Center during the initial five-year
term. However, if continuation of the Customer Service Center no longer makes business sense,
they would instead maintain a Payment Center in Federal Way. Before implementing any changes,
Comcast will provide such evidence and proposal and proVide the City an opportunity to conduct a
public hearing to determine the community impact.
6. CONSTRUCTION AND RIGHT OF WAY MANAGEMENT
The City agrees to allow Comcast ~ utilize an annual blanket permit for routine and emergency
maintenance currently available to all utilities. Permits are still required for all work other than
routine and emergency maintenance.
Comcast is required to relocate/underground their lines at their expense. This includes requiring
Comcast to pay their proportional share of design/construction costs related to the common trench.
Currently, the City pays for the common trench. Utilities, including Comcast, only pay for their
direct cost related to pipes/equipment/vaults.
7. I-NET AND PEG (PUBLIC EDUCATION AND GOVERNMENT)
Comcast is to provide $300,000 at the beginning of each of the five-year terms. Of the $300k,
$200k is restricted for PEG caoital and $100k unrestricted can be used for PEG operation. Comcast
will assess 354 per subscriber per month during the entire term to recover the $200k lump sum
FHSRAC 4/25/06
0-3
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contribution (approximately 2.25 years) an~ then directly remit future collections to the City for 1-
Net and PEG equipment (restricted for capital).
The Oty can designate programs on three PEG Access channels: Public (77), Education (26 or 28)
and Government (21). CUrrently the Public Channel (77) carries signals/programs broadcasted
from the Seattle public access studio located in North Seattle. Another possibility Is partidpating in
the puget Sound Access In Kent. Auburn, Surien, Kent, Renton, SeaTac, and Tukwila are current
members of the studio and their residents can become members (membership fee required) and
use the facility to produce and air their programs.
8. I-NET MAINTENANCE
The Oty entered into the I -Net Agreement with A T& T in 2000 to construct the private network for
government purpose. The network provided the City with a fast and reliable communication
system while eliminating expensive communication links between various City facilities. The
agreement provides that COmcast may bill the City for all maintenance and repairs associated with
I-Net fiber, although to date'they have not billed such costs to the City due to their oversight.
Most recent I-Net agreements are on a managed network basis (Vancouver); no I-Net (Spokane);
a fixed per strand mile cost of $500/yr (Kent); or on a time/material basis.
The new franchise limits the billable I-Net costs to actual repairs only and only when Comcast Is
repairing the I-Net fibers that are separated from those of Comcast in different sheath. Now that
Comcast is aware of this provision it is possible they will try to recover applicable costs in the
future. .
9. INSURANCE AND BOND
Insurance coverage amounts of $5 million for commerdal general liability, $3 million in autDmobile
coverage, and $1 million employer's liability. Worker's Compen~tlon coverage is consistent with'
State law.
i
A $250,000 Performance Bond for the term of Franchise covers all work and any construction '\ . .. /
below $100,000. For construction exceeding $100,000 Comcast will provide additional bonds at
120% of value of work consistent with City Code.
10. COMMUNITY SERVICES
Since. their acquisition of AT&T Cable, Comcast has placed more focus in their commuriity service
efforts. Locally, Comcast was one of the key sponsor:; of the Chamber's Youth Advancing
leadership Program. Another service they do is to provide public service announcements
(Comcast local Edition) for cities on CNN Headline' News (channel 45). They typically invite
elected offjdals and community leaders to talk about news In the communities that are not
otherwise known. They produce these messages at their Puyallup studio at their cost. Typically a
message is played throughout the day for two weeks.
Another service Comcast would provide is an annual insert or message with their bills. The mailing
will only reach City residents who subscribe to Comcast services (currently 21,500 households in
Federal Way), but again, they would pay for the cost of printing and mailing the insert.
11. BROADCASTING CITY PROGRAMS IN PM NOT ADDRESSED IN THE AGREEMENT
Comcast will not consider this request and the City. has no way to enforce it due tD a lack of
jurisdiction. There are a number of cities in King County interested in doing the same. Perhaps
the Suburban Cities Association could be the venue for the dtles to address this collectively with
King County who does have the jurisdiction in these areas.
\ ~
,
FHSRAC 4/25{06
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ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL
WAY, W ASHlNGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO
COMCAST OF PUGET SOUND, INe. AND COMCAST OF W ASHlNGTON
IV, INC. TO OCCUPY RIGHTS-OF-WAY OF THE CITY OF FEDERAL
WAY, W ASHlNGTON, WITHIN THE SPECIFIED FRANCHISE AREA FOR
THE PURPOSES OF OPERATING AND MAINTAINING A CABLE
COMMUNICATIONS SYSTEM, AND SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANT OF FRANCHISE.
WHEREAS, on August 6, 1995, the City of Federal Way (hereinafter, "City")
granted a non-exclusive cable franchise to Tele- Vue Systems, Inc., DBA Viacom Cable and said
franchise was subsequently transferred to Comcast ofPuget Sound, Inc., and extended, and will
expire at midnight on May 31, 2006; and
WHEREAS, on March 21, 1996, City granted a non-exclusive cable franchise to
TCI of Auburn and said franchise was subsequently transferred to Comcast.ofWashingtonJV, ,. .~i;:i': 1:
Inc., and extended, and will expire at midnight on May 31,2006; and
WHEREAS, Comcast ofPuget Sound, Inc. and Comcast of Washington IV, Inc.
(hereinafter, "Grantee") has requested the renewal of its current cable television franchise; and
WHEREAS, the City has reviewed Grantee's performance under the prior
Franchises and the quality of service during the prior Franchises' terms, has identified the future
cable-related needs and interests ofthe City and its citizens, has considered the financial,
technical and legal qualifications of Grantee, and has determined whether Grantee's plans for
constructing, operating and maintaining its Cable System are adequate, in a full public
proceeding affording due process to all parties; and
WHEREAS, the Grantee and City have agreed to be bound by the conditions
hereinafter set forth; and
ORD# , Page 1
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WHEREAS, the public has had adequate notice and opportunity to comment on
Grantee's proposal to provide Cable Service within the City; and
WHEREAS, the City has a legitimate and necessary regulatory role in ensuring
the availability of Cable Service, high technical capability and reliability of Cable Systems in its
jurisdiction, the availability of local programming (including educational and Governmental
Access programming), quality customer service, and management of City Rights-of-Way; and
WHEREAS, diversity in Cable Service and local and non-local programming is
an important policy goal and the Grantee's Cable System should offer a wide range of
programming services; and
WHEREAS, flexibility to respond to changes in technology, Subscriber interests
and,competitive factors within the Cable Service market is. an essential characteristic of this ._~.~: .. I'
" Fran(C.hise and both the City .and the Grantee stress:maximu.m Cable System fle.xibility to bike' :';.'" s. ,; y af
advantage of new technology to benefit Subscribers:and citizens as such technology becomes !
available; and
WHEREAS, the City is authorized by applicable federal law to grant one or more
non-exclusive Franchises to construct, operate and maintain a Cable Television System within
the boundaries of the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL
WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
This Cable Television Franchise is entered into in Federal Way, Washington, this
day of , , by and between Comcast ofPuget Sound, Inc., a corporation, and
Comcast of Washington IV, Inc., a corporation, and the City of Federal Way, Washington, a
municipal corporation. City and Grantee are sometimes referred to as the "parties."
ORD# , Page 2
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS...................................................................................................... ........................ 1
SECTION 2. GRANT OF FRANCHISE .......... ........... ........ .............. ........ .............. ...... ......... ....... .... ..... ............ 9
2.1 Grant. .... ........ ... .... ............ .................. .................................................................. 9
2.2 Use of Rights-of Way...................................... ................................................... 10
2.3 Term. ........... ... ............... .......... .............. ..... ........... ............................................. 11
2.4 Effective Date. ......... ...... ....... ..... ....... ..... ... .......... .... ... ......................... ..... ....... .... 12
2.5 Franchise Non-Exclusive............ ... ....... ... ........ ................................... ........... .... 12
2.6 Grant of Other Franchises ...................................... ..... ......... ........ ..................... 13
2.7 Familiarity with Franchise. ......................................................... ...................... 13
2.8 Effect of Acceptance.. ....... ... .... ..... ........... ....................... .................... ......... ..... ... 13
2.9 Police Powers ...... ............ ......... .......... .... ..................... ....... ............. ............ ...... 13
2.10 Renewal........... ........ ........... ..... ....... ........... .......... .............. .... ....... ...................... 14
-_ :'.'0."'. 2.11 Semce Area. ... ..... .., ..... ............ ..... ........... ... ............ ................. ................... .... ......... 14 .'
: .. t, ~.. 'i ,.r. ,~,_~ 2.12 Annf!xation. .. ...... ........,;~:... '.'C'; ........ .... :,.."(...,....:~ '::." .,.j.'..... ........ .,.,.. ..:.:..~.:... ..:..:......14.;,
1: ..~,.~t ~~: ...
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS..............................................................:.... 1 4 ::
3.1 Franchise Fee .... ... .....:.......:: ................ ............. ..................................... ............ 14
3.2 Payments and Reports.. ........... ....... ....... ...... '" ............ .............. ........ ....... ... ........ 14
3.3 Acceptance of Payment. .......................................... ........................................... 15
3.4 Annual Franchise Fee Reports .......................................................................... 15
3.5 Audits. ........... ....... ..... ..... ............ .... ........ ......................... ....... ....... ............. ...... ...15
3.6 Financial Records .... .... ......... ..... ........ ..... ..... '" ...... ........................ ..................... 16
3.7 Interest on Late Payments..... .......................... .......... .... ....... ......... ..... ...... .... ...... 16
3.8 Additional Commitments Not Franchise Fees ................................................... 16
3.9 Payment on Termination.......... .......... .......... ....... ...... ...... ........... ...... ....... .... ....... 16
3.10 Duty to Cooperate.. .......... ........... ................. ..... ....... ....................................... ... 17
SECTION 4. ADMINISTRA TION AND REGULA TION................................................................................ 17
4.1 General Provisions.;............................................................................ .............. 17
4.2 Changes in Law.... ............... .... ............ ....... ........ .......... .., ................ ............. ....... 17
4.3 Rates and Charges ........ ......... ........... ..... ...... .......... .......... ..... ...... ........ ...... ......... 17
4.4 Rate Discrimination .... ........ ........ ............. ............... ............ ........... .................... 18
ORD# , Page i
4.5 Filing of Rates and Charges........ ............. ..... .............................................. ...... 18
4.6 Late Fees ............... ....................... ............................... ...... ............................ ..... 19
4.7 Time Limits Strictly Construed. ....... ...................... ................ ........... ......... ........ 19
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS ................................................................ 19
5.1 Indemnification ...... ........,...................... .,... .... .... ........ ..................................... .... 19
5.2 Insurance Requirements............. ............ ...................... .,. ... ............. ......... .......... 20
5.3 Performance Bond. ... ....... ... ... .............. ............. ...... ........................................... 22
SECTION 6. CUSTOMER SERVICE....................................... ............. .......................................................... 23
6.1 Subscriber Contracts ............ .........:.......... .............. ....... ... ............ ....... ..... ...... '" 23
6.2 Subscriber Privacy. ............... ..... ....... ........................ ................. ............ ............ 23
6.3 Payment Center................. ....... ....... ............. ...... ........ ........ ... .... ....:...... ... ............ 23
6.4 Telephone Answering Standards... .................... .......... :..... ......... ...... ...... ............ 23
6.5 Service Calls, Installations, and Outages. ......................................................... 24
6.6 Notice Requirements. ... ... ...... ........... ....... ....... .... ........... ............... ... ..... .... .... ...... 26
'. .-.". . . .
6.7 //;pecial Notice Procedures.............. ...... ...... ...... .............. ........... ..... .i,........ ......... 26
'6.S; ...Billing......... .....'.: ......'...:.. .... ..:, ..... .:...:.. .... .:. ...: ...... ... ........... ..... ........... .;';.; ........ :....:; 27
.'
6.9 Rate Discounts. ...... ........... ........... .......: ................ ........ ........... ... ..... ...... ..... ........ 28
SECTION 7. REpORTS AND RECORDs.............................................................................. ......................... 28
7.1 Open Records......... ........................ ...... ....... ......... ........... ................ .......... ......... 28
7.2 Proprietary and Confidential Records...............................................................29
7.3 File for Public Inspection ..... ............................................................................. 30
7.4 Records Available ....... ...... ....... ......... ...... ................ ..... ............ ................ ...... .... 30
7.5 Annual Reports...................... ................:............................................................ 31
7.6 Submittal of Documents .. ......... ........... .... ...... .......... ...... ........... ........... ............... 31
7.7 False Statements ............. ........... ..................... ................................................... 32
7.8 Penalties for Noncompliance ........ ................ ...... .... ........ ... ........ ........... ............. 32
7.9 Report Expense ................. ........... ............................................................... ....... 32
SECTION 8. PROGRAMMING AND CHANNEL CAPACITY ....... ............................................................... 32
8.1 Required Programming Categories..... ............ ... .... ........ ........... ........... ...... ....... 32
8.2 Obscenity............................................................................................................. 32
8.3 Parental Control Device .......... .... ........ .................. ...... ............. ..... ................. ". 33
ORD# , Page ii
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8.4 Connection to Public F acUities.............. .............. ... ............... ..... ....... ..... .......... 33
8.5 Continuity of Service.......... ......... ................................................ ........ .......... ..... 34
SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS ..............................................34
9.1 PEG Capital Support. ................. ........ ............................... ............ .................... 34
9.2 Access Reporting... .... ........................... ..... ." .......... ....... ....... ..................... ... ...... 35
9.3 Management and Control of Access Channels. .................................................35
9.4 Access Channels........ ...... .... ...................................... ....... .............. ........... ......... 35
9.5 Changes in Technology.. ......................... ..... ...................... ............. ........ ........... 37
9.6 Access Channels on Basic Service. .................................................................... 37
9.7 Access Channel Location/Relocation and Bill Insertions......................~........... 37
9.8 Return Lines. ....... ........ '" ........... ............ ..... ......................... ........ ...... ... .............. 38
9.9 Technical Quality............. ............... ............. ................ ......... ... ...... ......... ........... 38
9.10 Access Channel Interconnections........ ... ......... ............ ...... ...... ......... ... ..... ......... 38
SECTION 10. RIGHT -OF- WAY AND CONSlRUCTION STANDARDS ........................................................ 39
.10.1 Permitting.. .:". .............. ................. ...... ................ .......... ... ..... .... ............ ........ ...... 39:
." 10.2 Construction........ .......... ...:.....:.... ........ .... .............. .................... ...... .....;.. ............ 41,
10.3 Standards of Peiformance .....~...................... .... ......... .......... ...... .... ........... ...... ... 42
10.4 Maintenance and Workmanship. ..... .... ..... ................... ........ ......... .... ..... ............ 44
10.5 Repair and Restoration of Rights-of-Way and City-Owned Property ...............45
10.6 Location of Facilities. ,.... ..... ......... ....... ....... ............. ...... ............... ................ ..... 46
10.7 Relocation ....... ........ ............. ....... .... .... .......... .... ........ ..... ... ... ...... ...... ... .......... ..... 46
10.8 Undergrounding of Cable ......... ........... ......... .... .......... ......... ............ .................. 47
10.9 Trimming of Trees and Shrubbery ..................................................................... 48
10.10 Use of Poles ............ .......... ........ ............. ......... ............... ...... .................... .......... 48
10.11 Stop Work........... ..................................................................................... .......,... 49
10.12 Work of Contractors and Subcontractors .......................................................... 49
10.13 Acquisition of Facilities. ................. .......... ........... .......... ...... ............ ................. 50
10.14 Reservation of City Rights-of-Way Use Rights .................................................. 50
10.15 Discontinuing Use of Facilities ......................................................................... 50
10.16 Street Vacation..... ..... ............. ... ...... ....... ..... .............. .................... ................ ..... 51
SECTION 11. CABLE SYSTEM DESIGN AND CAPACITY.......................................................................... 51
ORD# , Page iii
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11.1 Equal and Uniform Service................... ..................... ..................... ....... ........ .... 51
11.2 Cable System Upgrade..................................... ....... ...... .... .......... .... ..... ...... ........ 51
11.3 Technical Performance.......................................................... .......... .... ........... ... 51
11.4. Inspection of Facilities.............................. ..... .............. ...... ............................ .... 52
11.5 Cable System Performance Testing. .................................................................. 52
SECfION 12. INSTITUTIONAL NETWORK. ....... ...... ..... .......... ....... ...................... ........................................ 53
12.1 I-Net History........ ................. ". ................ ............ ...... .......... ...... ...... ...... ............ 53
12.2 I-Net Use ....... ..... .... ..... ................... ....... .......... ........................ ....................... .... 54
12.3 I-Net Terms and Conditions ............. ... ............ ..... ................ ........ .......... .... ......... 54
SECfION 13. SERVICE A V AILABILIlY. ............... .............. .'. ........................................... ........................... 54
13.1 Service Request. .... ..... ................ ................ ..... .......... ............. ... ...... ................... 54
13.2 Service Extensions. ......... ........ ........... ............. ......... .... ....... ...... ..... .... ...... .......... 54
SECfION 14. STANDBY POWER AND EMERGENCY ALERT SySTEM................................................... 55
14.1 Standby Power .......... ...... ............... ......... ....... ......... ........ .... ..... ...... ...... ......... ..... 55
14.2 Emergency Alert Service (EAS) Capability. .....................................'.L............. 56 ! t.' .
SECfION'15. ENFORCEMENT; TERMINA nON OFFRANCHISE. ......................................,!.~.;.................. 56
15.1 Informal Dispute Resolution ............ ......... ............. ............ .... .......... ..:............ '.' 56
15.2 Procedure for Remedying Franchise Violations................................................ 56
15.3 Alternative Remedies... .............. ...... ................ ....... ........ ......... .... ........ .............. 58
15.4 Assessment of Liquidated Damages. ............................................ ...................... 59
15.5 Revocation.......................................................................................................... 61
15.6 Removal................................................................................. ............................. 63
15.7 Non-Enforcement by City........ ..... ... ....... ..... ..... ....... .................... ............... ........ 63
15.8 Bankruptcy Procedures... ................................................................................... 64
SECTION 16. ABANDONMENT ...... ................. .......... .......... ........ .... ....... ...... .......... ...... ....... ..... ....... ..... .......... 64
16.1 Effect of Abandonment................... .... ...... ..... ................ ............ ................. ........ 64
16.2 What Constitutes Abandonment..... ..... .......... ............. ......... ...... ......................... 64
SECTION 17. TRANSFER OF OWNERSHIP OR CONTROL ......................................................................... 65
SECTION 18. FRANCHISE REVIEW ....... .............. ..................... ..... ............ ......... ....... ............... ................ .... 67
18.1 Performance Evaluation. ..... ... ........... .......... ............ ..... ..... ..... .... ......................,. 67
18.2 Topics to be Addressed at Performance Reviews .............................................. 68
ORD# , Page iv
SECTION 19. MISCELLANEOUS PROVISIONS ... ........ ...... .... ........ .......... ........ .... ........ .... ............................. 69
19.1 Equal Employment Opportunity Requirements ................................................. 69
19.2 Notices...... ........ ..... ...................... ........ ..... ...... .................... ......... ............ ........... 69
19.3 Costs to be Borne by Grantee............. ............. ........................ .................. ........ 70
19.4 Binding Effect.............................. ................................................... .................... 70
19.5 Authority to Amend. ....... ........... ................................... ...................................... 70
19.6 Venue.. ...... ........ ....................... ............................... ........................ .... ......... ....... 70
19.7 Governing Law............... ....... ............. ... ..... ...................... ...... ...... ........ .............. 70
19.8 Guarantee ............... ........ ........................... ...... ........... '" ............. ..... ... ....... ........ 70
19.9 Captions ........... ..... ........ ........................................................ ........... .......... ........ 70
19.10 Construction of Franchise .............................. ..... ....................... .......................70
19.11 No Joint Venture ......................... ............................ ............ ............................... 70
19.12 Waiver... .............. ......... ............ ............................... ........ ...... .... ..... .................... 71
19.13. Severability .... ....... ..................... ... ....................... .......... ............ ... ............... ..... 71
19.14 Entire Agreement ... .....f...... ........ ........... ................... ......i.;:.. ........... ...i5::'... ..:..... :~'... 71, :., ..,...:, ..
19.15 . Compliance withPederal; State, and Local Laws .........;..................:;;l....(.....::~;'.. 7L: ;:.., I;'
...
19.16 Force Majeure. .... ................. ......... ........... ....... ............. :...... .............. ..:.... ..... ....... 71'
SECTION 20. RA TIFICA TION . ........ ................................................................ .................... ................... ..........72
SECTION 21. EFFECTIVE DATE.............. ...................................................... ....................... ............. ............ 72
EXHIBIT A - ACCEPT ANCE .................................................................................................................... 73
EXHIBIT B - INSTITUTIONAL NETWORK AGREEMENT ......................................................... 74
ORD# , Page v
Section 1. Definitions
For all purposes ofthis Franchise, the following terms, phrases, and words have the
following meanings. When not inconsistent with the context, words used in the present tense
include the future, words in the plural include the singular, and words in the singular include the
pluraL Words not defined have their common and ordinary meaning. The word "must" is always
mandatory and not merely directory.
1.1 "Access" means the availability. for Non-Commercial use by various agencies,
institutions, organizations, groups and individuals in the community including City and its
designees, of particular Channels on the Cable System to receive and distribute Video
Programming and information to Subscribers, as required under applicable law and this
Franchise, including:
{" .... ... . :
(a) , . "Educational Access" means Access where Schools are the primaFyusers ; ':".::' ,.,
. .:.~ :r .i. ,.' :':}.;\":-:" i:'.~.:.:' -.';: .!~.... :. . : ~ .:.,:.~.': '.' ....:. .:'-::.
l1aving editorial control over programming and services;
(b) "Governmental Access" means Access where governmental institutions or
their designees are the primary users having editorial control over programming and services;
(c) "Access" means Educational Access and Governmental Access,
collectively; and
(d) "Public Access" means Access where organizations, groups or individual
members of the general public, on a nondiscriminatory basis, are the primary users.
1.2 "Access Center" means a facility or facilities where Public, Educational, or
Governmental use signals are managed and delivered to the Grantee for downstream
transmission to Subscribers or to other Access Centers via a dedicated Connection.
ORD# , Page 1
1.3 "Access Channel" means a Channel, designated for Non-Commercial Access
purposes or otherwise made available to facilitate or transmit Access programming.
1.4 "Access Fees" means the capital contribution paid to the City by the Grantee
under Section 9.1.
1.5 "Activation" or "Activated" means the status of any part of the Cable System, in
which any Cable Services requiring use of that part is available without further installation of
Cable System equipment other than Subscriber premise equipment, whether hardware or
software.
1.6. "Affiliated Entity" or "Affiliate" when used in connection with Grantee means
any corporation, Person who owns or controls, is owned or controlled by, or is under common
ownership or control with, Grantee and its successors.
,. o .:.iL7 "Bad De?t" 1J1eans amounts lawfullYoowed by a Subscriber and accrued as ;-1,. . .,
revenues on the books of Grantee, but not collected after reasonable efforts by Grantee.
1.8 "Basic Service" means any Cable Service Tier that includes, at a minimum, the
re-transmission of local television Broadcast Signals and Public, Educational, and Governmental
Access Channels, or such service Tier as may be further defined by federal law.
1.9 "Broadcast Signal" means a television or radio signal transmitted over the air to a
wide geographic audience, and received by a Cable System by antenna, microwave, satellite
dishes, or any other means.
1.10 "Cable Act" means the Cable Communications Policy Act of 1984 (47 U.S.C.
~521 to ~653), as amended.
1.11 "Cable Operator" means any Person or group of Persons, including Grantee, who
provides Cable Service over a Cable System and directly or through one or more Affiliates owns
ORD# , Page 2
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a significant interest in such Cable System or who otherwise controls or is responsible for,
through any arrangement, the management and operation of such a Cable System.
1.12 "Cable Service" means the one-way transmission to Subscribers of Video
Programming or other programming service and Subscriber interaction, if any, that is required
for the selection or use of such Video Programming or other programming service.
1.13 "Cable System" means the Grantee's facility, consisting of a set of closed
transmission paths and associated signal generation, reception and control equipment that is
designed to provide Cable Service which includes Video Programming and which is provided to
multiple Subscribers within a community, but such term does not include (1) a facility that serves
only to retransmit the television signals of one or more television broadcast stations; (2) a facility
that serves Subscribers without using any public Right-of-Way; (3) a facility ofa.c.ommon
.~r , .:.carrierwhich is~subject, in whole or inpart;:to:the provisions of Title II of.the federal: I
Communications Act (47 U.S.C ~ 201 et seq.), exceptthat such facility will be considered a
Cable System (other than for purposes of Section 621(c) (47 V.S.C. ~ 541(c)) to the extent such
facility is used in the transmission of Video Programming directly to Subscribers, unless the use
is solely to provide interactive on-demand services; (4) an open video system that complies with
federal statutes; or (5) any facilities of any electric utility used solely for operating its electric
utility systems
1.14 "Channel" means ~ portion of the frequency band capable of carrying a Video
Programming service or combination of Video Programming services, whether by analog or
digital signal.
1.15 "City" means the City of Federal Way, Washington, a municipal corporation of
the State of Washington.
ORD# , Page 3
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1.16 "Complaint" means a Subscriber contact with the Grantee to express a grievance
or dissatisfaction concerning Cable Service. For purposes of enforcement ofthis Franchise by
the City, Complaints do not include matters not within the scope of the Franchise. A Complaint
may be verbal or in writing, but need not include initial contacts where an issue is promptly
resolved to the Subscriber's satisfaction. Nothing in this definition prohibits the City from
communicating with Subscribers concerning Grantee's services.
1.17 "Connection" with regard to Connections to public buildings, means installation
of Fiber Optic or coaxial cable or other system-related facilities through the outer wall of the
building.
1.18 "Designated Access Provider" means the entity or entities designated by the City
to manage or co-manage Public, Educational or Governmental Access Channels and facilities. "^., '. .'
, " : '..;The City may be a Designated Access'Provider;.; '.. ,; ~, .'. r
1.19 "Designated Distributor" means an entity authorized by the City to distribute I
Access programming.
1.20 "Downstream Channel" means a Channel capable of carrying a transmission from
the Headend to remote points on the Cable System or to Interconnection points on the Cable
System.
1.21 "Dwelling Unit" means any residential building, or a portion thereof, that has
independent living facilities, including provisions for cooking, sanitation and sleeping, designed
for residential occupancy and includes "household" as that term is used in the federal Cable Act,
47 U.S.C. ~ 521, et seq. Buildings containing more than one set of facilities for cooking are
multiple unit buildings unless the additional facilities are clearly accessory.
ORD# , Page 4
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-----
1.22 "Expanded Basic Service" means the Tier of optional Video Programming
services not included in the Basic Service and excluding premium or pay-per-view services.
1.23 "FCC" means the Federal Communications Commission or its successor.
1.24 . "Fiber Optic" means a transmission medium of optical fiber cable, along with all
associated equipment capable of carrying Cable Services or Institutional Network service by
means of electric light-waves.
1.25 "Franchise" means this document and any amendments and modifications thereto
executed between City and Grantee that contains specific provisions granting authorization and
the contractual and regulatory agreement between the parties.
1.26 "Franchise Area" means the area within the jurisdictional boundaries of the City,
. . ., including any areas annexedby,Cityduring the term of this Franchise. !,.o..,
.'. 1.27 . "Franchise F e.e~,~. includes>any tax, fee or assessment of any. kind impOsed by the i, r .f
City on the Grantee or Subscribers, or both solely because of their status as such. Franchise' Fee
does not include:
(a) Any tax, fee, or assessment of general applicability;
(b) Capital costs which are required by the Franchise to be incurred by the
Grantee for Public, Educational, or Governmental Access facilities, including the support
required in Section 9.1;
(c) Requirements or charges incidental to the awarding or enforcing of the
Franchise, including payments of bonds, security funds, insurance, indemnification, penalties, or
liquidated damages.
1.28 "Grantee" means Comcast of Comcast ofPuget Sound, Inc., and Comcast of
Washington N, Inc., and its successors.
, ORD# , Page 5
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1.29 "Gross Revenues" means all amounts derived, consistent with federal and State
law, either by the Grantee from the operation of Grantee's Cable System to provide Cable
Services within the Franchise Area, or by any Affiliate only to the extent such amounts are
derived from the operation of Grantee's Cable System to provide Cable Services within the
Franchise Area. Gross Revenues includes, without limitation, amounts for Basic Cable service,
tiers of service and premium services, audio services, Subscriber installations, disconnection,
. reconnection, change-in-service fees, late fees, administrative fees, revenues received from
programmers for carriage of programming on the Cable System, leased access, advertising,
equipment rentals and sales, commissions on sales from home shopping channels, and an other
revenues derived from the operation of Grantee's Cable System to provide Cable Services within
. the Service Area. Revenues.not directly attributable to specific customers (such as advertising .'.>'-" ;.
" revenue and home shopping Gommissions) will be .allocated to systems and jurisdictions on: a per.' i:k"~' ,
." Subscriber-basis measured in a consistent manner from period to period. Gross Revenues will ..
not be net of: (1) any operating expense; (2) any accrual, including without limitation, any
accrual for commissions; or (3) any other expenditure, regardless of whether such expense,
accrual, or expenditure reflects a cash payment. Gross Revenues, however, will not be double
counted. Revenues of both Grantee and an Affiliate that represent a transfer of funds between
Grantee.and the Affiliate, and that would otherwise constitute Gross Revenues of both the
Grantee and Affiliate, will be counted only once for purposes of determining Gross Revenues.
Similarly, operating expenses ofthe Grantee which are payable from Grantee's revenues to an
Affiliate and which may otherwise constitute revenue of the Affiliate, will not constitute
additional Gross Revenues for the purpose of this Franchise. Gross Revenues will include
amounts earned by an Affiliate only to the extent that Grantee could have earned such types of
ORD# , Page 6
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-- -------
revenue in connection with the operation of Grantee's Cable System to provide Cable Services
within the Service Area and recorded such types of revenue in its books and records directly, but
for the existence of Affiliates. Gross Revenues will not include (i) to the extent consistent with
GAAP, Bad Debt; provided, however, that all or part of any such Bad Debt that is written offbut
subsequently collected will be included in Gross Revenues in the period collected; or (ii) any
taxes on services furnished by the Grantee which are imposed directly on any Subscriber or user
by the State, City, or other governmental unit and which are collected by the Grantee on behalf
of said governmental unit. The franchise fee is not such a tax. The City acknowledges that
Grantee shall maintain its books and records in accordance with GAAP and ~ubject to applicable
laws.
'\'.. 1.30 "Headend"_ or "Hub" means Grantee~ s facilities for signal. reception and ~. .-.
~::! .~ ,':~ dissemination on' .its.Gable:Systein, including cable,;~antenrias, wires, satellite:dishes, monitors,'.:~:; :: :.;
. lasers, switchers, modulators, processors for Broadcast Signals, and all other related equipment
and facilities.
1.31 "Institutional Network" or "I-Net" means that part of the Cable System facilities
or capacity owned by the Grantee, designed for Non-Commercial use by non-residential
Subscribers including communications to, from, and among government agencies, Schools,
libraries, and other public agencies.
1.32 "Leased Access Channel" means any Channel or portion of a Channel
commercially available for programming in accordance with Section 612 of the Cable Act.
1.33 "Non-Commercial" means, in the context of Access Channels, that particular
products and services are not promoted or sold. This term will not be interpreted to prohibit an
Access Channel operator or programmer from soliciting and receiving financial support to
ORD# , Page 7
---------------~---------- -- -
produce and transmit Video Programming on an Access Channel, or from acknowledging a
contribution, in the manner ofthe Corporation for Public Broadcasting. In the context of an
Institutional Network, Non-Commercial means private network communications from and
among government agencies, Schools, libraries, and other public agencies and excludes any
other actions, such as the leasing or reselling Institutional Network capacity to a third party for
any purpose.
1.34 "Normal Business Hours" means those hours during which most similar
businesses in the community are open to serve customers.
1.35 "Normal Operating Conditions" means those service conditions that are within the
control of the Grantee. Those conditions do not include natural disasters, civil disturbances,
I... power outages, telephone network outages, and severe or unusual weather conditions.
_,' . ..; i 'J.;J :[, Condition!.:; ordinarily within the control of the' Grantee include, :but are not limited,to; speciah~' ;.... .:::,
promotions, rate increases, and maintenance or upgrade of the Cable System.
1.36 "Pay Service" or "Premium Service" means Video Programming or other
programming service choices (such as movie Channels or pay-per-view programs) offered to
Subscribers on a per-Channel, per-program, or per-event basis.
1.37 "Person" means an individual, partnership, association, joint-stock company,
trust, corporation, or governmental entity.
1.38 "Rights-of- Way" means land acquired or dedicated for public Streets or roads,
highways, avenues, lanes, alleys, bridges, sidewalks, including easements and rights to similar
public property located within the Franchise Area.
ORD# , Page 8
1.39 "School" means any State-accredited educational institution including, for
example, primary and secondary Schools (K-12), colleges and universities, and excluding home
schools, residential facilities, and prison/jail populations.
1.40 "Service Interruption" means the loss of picture or sound on one or more cable
Channels.
1.41 "Service Tier" means a category of Cable Service or other services provided by
the Grantee and for which the. Grantee charges a separate rate.
1.42 "State" means the State of Washington.
1.43 "Street" means Rights-of-Way.
1.44 "Subscriber" means any Person who receives Cable Services provided by Grantee
by means of the Cable System and whose premises are lawfully activated to receive Cable . ......: .~.
,.~.. .;:':; ge.rvice..ftioiil Grantee's Cable System:', .. . . . .
...'". }. ,~ .-'. .Y" , :.,."S .~.~: ":,.\ t'. j' I..~'~~ff:~ -.~ '.\i '..(
1.45 "Upstream Channel" means carrying a transmission to the Headend from remote ,
'.
points on the Cable System.
1.46 "Video Programming" means programming provided by, or generally considered
comparable to programming provided by a television broadcast station or cable programmer.
Section 2. Grant of Franchise
2.1 Grant.
(a) City grants to Grantee a non:-exc1usive and revocable authorization to
make reasonable and lawful use of the Rights-of-Way within the Franchise Area to construct,
operate, maintain, reconstruct and upgrade the Cable System for the purpose of providing Cable
Services, subject to the terms and conditions of this Franchise and applicable law. This
ORD# , Page 9
Franchise constitutes both a right and an obligation to provide the Cable Services and fulfill the
obligations required by this Franchise.
(b) Grantee has the right to operate its Cable System using City Rights-of-
Way within the Franchise Area in compliance with all City construction codes and regulations.
This Franchise does not waive the requirements of any other City ordinances to the extent that
they do not materially limit the benefits or expand the obligations of Grantee under this
Franchise. The Grantee specifically agrees to comply with all generally applicable City
ordinances. If there is a conflict between the provisions of another City ordinance and this
Franchise, the specific provisions of this Franchise prevail. Grantee has the right to challenge
any City ordinance or decision that conflicts with its rights under this Franchise.
. .'~ (c) Grantee guarantees that any Affiliate of the Grantee involved in offering ,J I" ~...
i. ():[:Cable S.ervice in the Franchise Area, or,in.the management or operation; oftlie Cable;System 'L , .,'
in the Franchise Area will also comply with the terms and conditions of this Franchise. ;.~.
(d) Grantee receives no rights by implication.
(e) This Franchise conveys limited rights and interests only in the Rights-of-
Way in which the City has legal interests. It is not a warranty oftitleor other legal interest in
any Rights-of-Way. It does not provide Grantee with any interest in any particular location
within the Rights-of-Way. It does not confer rights other than as expressly provided in this
Franchise.
I.
2.2 Use of Rights-of- Way.
(a) Subject to the terms and conditions of this Franchise and applicable
Grantor regulations, Grantee may erect, install, construct, repair, replace, reconstruct, and retain
. in, on, over, under, upon, across, and along the Rights-of-Way within the Franchise Area, such
ORD# , Page 10
wires, cables (both coaxial and Fiber Optic), conductors, ducts, conduit, vaults, manholes,
amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary
and connected with the operation of a Cable System for the provision of Cable Services within
the Franchise Area.
(b) Grantee must install Cable System facilities in a manner that minimizes
interference with the use of the Rights-of-Way by others, including others that may be installing
communications facilities. City may require that Cable System facilities be installed ata
particular time, at a specific place or in a particular manner as a condition of access toa
particular right-of-way. City may deny access if Grantee is not willing to comply with City's
requirements. City may remove, or require removal of, any facility that is not installed in
compliance with the requirements established by City, or which is installed without prior. City '. ...
.;.."'':.. approval ofthe time, place or manner.ofinstallation and charge Grantee for allthe costsi '\ . "'1
associated with removal. Grantee agrees when economically and technically feasible, as. ~
mutually determined by the City and the Grantee, to cooperate with others to minimize adverse
impacts on the Rights-of-Way through joint trenching and other arrangements. Grantee must pay
all costs associated with any requirement of City in the exercise of its police powers to move its
Cable System located in the Right-of-Way.
2.3 Term. The initial term of this Franchise and all its rights, privileges, obligations
and restrictions shall be five (5) years from the effective date ofthe Franchise, with an automatic
five (5) year extension, including fulfillment of the additional PEG capital support stipulated in
Section 9.1. Should Grantee not wish to accept the Franchise extension, Grantee shall give City
written notice at least twelve (12) months in advance of the end of the initial term. Such notice
ORD# , Page 11
--~
will not be given for the purpose of renegotiating the terms of this Franchise during the extension
and such renegotiation will not occur.
2.4 Effective Date.
(a) This Franchise and its rights, privileges, and the contractual relationship it
establishes take effect from the effective date of this Franchise as specified in this section.
(b) This Franchise and its terms and provisions must be unconditionally
accepted by the Grantee by the submission of a written instrument, in substantially the form
attached as Exhibit A executed and sworn to by a corporate officer of the Grantee before a
Notary Public, and filed with the City within sixty (60) days after the City's passage and
approval of this Franchise. Such instrument shall evidence the unconditional acceptance ofthis
Franchise and the promise to comply with and abide byall.its provisions, terms, and conditions. . ,'''' .'~ ~.t 'J ; ~
(c) '. The grantiofthisFranchis.e has no:' effect on the Grantee's duty under the ; .:. '.. .::" ~:~.: .:;":." t .:
prior Franchise or any ordinance or agreement ofthe parties in effect prior to the effective date ,
ofthis Franchise to indemnify or insure the City against acts and omissions occurring during the
period that the prior Franchise was in effect. Nor does it have any effect upon liability to pay all
Franchise Fees that were due and owed under prior Franchises and ordinances.
2.5 Franchise Non-Exclusive. This Franchise is non-exclusive and is subject to all
prior rights, interests, agreements, permits, easements or licenses granted by City to any Person
to use any property, Rights-of-Way, easement, right, interest, or license for any purpose. This
includes the right of City to use same for any purpose it deems fit, including the same or similar
purposes allowed Grantee. Subject to Section 2.6, City may at any time grant authorization to
use the Rights-of-Way for any purpose not incompatible with Grantee's authority under this
Franchise and for such additional Franchises for Cable Systems as City deems appropriate.
ORD# , Page 12
--
2.6 Grant of Other Franchises. If City enters into a Franchise, permit, license,
authorization or any other agreement with any other Person or entity to enter into the City's
Rights-of- Way or Streets to construct or operate a Cable System or provide Cable Service to any
part ofthe Franchise Area, the terms and conditions will not, taken together as a whole, be
materially either more favorable or less burdensome than those ofthis Franchise, in order that
one operator not be granted an unfair competitive advantage over another, and to provide all
, parties equal protection under the law.
2.7 Familiarity with Franchise. The Grantee acknowledges and warrants by
acceptance of the rights, privileges and agreement granted that it has carefully read and fully
comprehends the terms and conditions of this Franchise. Grantee accepts all reasonable risks of
""'."' the meaning. of the provisions, terms and conditions. Grantee further. acknowledges that ithas,. '...
" . ..~ fully studied aild.:considered the requifementsand.prov.isioils of this Franchise, and finds theyane::r:..::i . ,'.1~
commercially practicable and consistent with all local, State and federal laws and regulations' .:
currently in effect, including the Cable Act.
2.8 Effect of Acceptance. By accepting this Franchise, the Grantee: (1)
,
acknowledges and accepts the City's legal right to.issue and enforce the Franchise; (2) agrees
that it will not oppose the City's lawful intervention in any legal or regulatory proceeding
affecting the Cable System; (3) accepts and agrees to comply with all provisions of this
Franchise; and (4) agrees that the Franchise was granted under processes and procedures
consistent with applicable law, and that it will not raise any claim to the contrary.
2.9 Police Powers. Grantee's rights are subject to the police powers of City to adopt
and enforce ordinances necessary to the safety, health and welfare of the public. Grantee agrees
to comply with all applicable laws, ordinances and regulations adopted under the police powers
ORD# , Page 13
of City. Any conflict between the provisions of this Franchise and any other present or future
lawful exercise of City's police powers will be resolved in favor of the latter.
2.10 Renewal. Any renewal ofthis Franchise shall be governed by and comply with
the provisions of Section 626 of the Cable Act, as amended. The five (5) year extension in
Section 2.3 is not a renewal as defined herein.
2.11 Service Area. Grantee will provide the Cable Service authorized under this
Franchise throughout the Franchise Area.
2.12 Annexation. Upon the addition or annexation for any area in which Grantee or an
Affiliate owns or operates any facilities, such facilities will immediately be subject to this
franchise, unless a conflict exists based on ownership by a legal entity other than Grantee. In the
.... event of such conflict, all parties will meet to resolve in good.faith. All administrative changes
.r; related to tbe'annexation, including;ibutJlot limited.to payment. of franchise fees, ,b-illing,~i .:'.1:. ; } ><.;;;,Je... :
, reporting, and recordkeeping, will be made by Grantee within one hundred twenty{120) days of
the annexation or as mutually agreed upon by all parties.
Section 3. Franchise Fee and Financial Controls
3.1 Franchise Fee. As compensation for the use of City's Rights-of-Way or Streets,
Grantee will pay as a Franchise Fee to City throughout the duration ofthis Franchise an amount
equal to five percent (5%) of Grantee's Gross Revenues. Accrual of such Franchise Fee begins
on the effective date of this Franchise. Disputes concerning the provisions of this Section will be
resolved under the dispute resolution procedures in Section 15.
3.2 Payments and Reports. Grantee's Franchise Fee payments to City will be
computed at the end of each month and shall be due and payable for the preceding month no later
than 30 (thirty) days after the last day of the preceding month. Each payment must be
ORD# , Page 14
accompanied by a written report to Grantor, verified by Grantee and in a form reasonably
acceptable to Grantor.
3.3 Acceptance of Payment. Acceptance of any payment will not be construed as an
accord by City that the amount paid is the correct amount. Acceptance of any payment will not
be construed as a release of any claim City may have for further or additional sums payable, or
for the performance of any other obligation of Grantee.
3.4 Annual Franchise Fee Reports. Grantee must, no later than one hundred twenty
(120) days after the end of each calendar year, furnish to City an audited statement stating the
total amount of Gross Revenues and all payments, deductions, and computations for the period
covered by the payments.
.';.,. ...<. '" .3.5. Audits. On an annual basis, no more frequently than every twelve (12) months, ...." ..~ ..:
,~ ,fuld:with thirtY (30) days'prior:'Writtenmotice, City has the right to annually coriductan :' J;:.,L.,'::, ; .f. ,I':'" . .
~
independent audit of Grantee's records related to this Franchise and to re-compute any amounts
payable under this Franchise. Grantee must cooperate in making all relevant records available
upon request as allowed under Section 7 of this Franchise. City will in good faith attempt to
complete each audit within six (6) months. The audit period will not be longer than the previous
three (3) years unless City has information relating to previous years that raises doubt as to the
accuracy of previous payments, but in which case the audit period may be no longer than six (6)
years. Any additional amounts due to City as a result of the audit must be paid within 60 (sixty)
days following written notice to the Grantee that includes a copy of the audit findings. If the
audit shows that Franchise Fees were underpaid by three percent (3%) or more in a calendar
year, Grantee must pay the first $25,000 of the total cost of the audit. Disputes concerning the
ORD# , Page 15
----- ------------- ------~--------
provisions of this Section will be resolved under the dispute resolution procedures in Section
15.I.
3.6 Financial Records. Grantee will meet with City upon request to review Grantee's
method of record-keeping, financial reporting, the computing of Franchise Fee obligations and
other procedures. This obligation applies to all information and understanding the City deems
necessary for reviewing reports and records consistent with Section 7 ofthis Franchise.
3.7 Interest on Late Payments. If a Franchise Fee payment or other sum is not
received by the City on or before the due date, or is underpaid, the Grantee must pay in 'addition
to the payment, or sum due, interest from the due date at a rate of twelve percent (12%) per
annum.
:.... .. ., 3.8 AdditionalCommitments Not.Franchise Fees. No term or.cDndition in this ....... ,..... ..
.- .' :'c: "Eranchisewill)nany way modify or affect Grantee's. obligation t6:pay:Franchise Fees;"Gonsistent.\,~: ; ~~
..:l
with federal law. The total sum of Franchise Fee payments and additional commitments in this
Franchise may total more than five percent (5%) of Grantee's Gross Revenues in any twelve (12)
month period. Grantee agrees that the additional commitments are not Franchise Fees, nor will
they be offset or credited against any Franchise Fee payments due to City. They do not represent
an increase in Franchise Fees to be passed through to Subscribers under any federal law. Access
Fees are not Franchise Fees and will not be offset against Franchise Fees.
3.9 Payment on Termination. If this Franchise terminates for any reason, Grantee
must file with City within one hundred twenty (120) calendar days of the date of the termination
a financial statement certified by an independent certified public accountant showing the Gross
Revenues received by Grantee since the end ofthe previous period for which Franchise Fees
were paid. Within sixty (60) days of the filing ofthat statement with the City, Grantee must pay
ORD# , Page 16
any unpaid amounts. If Grantee fails to satisfy its remaining financial obligations required by
this Franchise, City may use the funds available in security provided by the Grantee to satisfy
those obligations.
3.10 Duty to Cooperate. City agrees to exercise prompt and diligent efforts to verify
whether billing addresses are in or outside the Franchise Area upon the written request of
Grantee.
Section 4. Administration and Ref!ulation
4.1 General Provisions. City has the power and right to administer and enforce the
requirements of this Franchise, in accordance with the requirements of applicable law, including
the Cable Act. City may delegate administrative r.esponsibilities to any agent in its sole
discretion and will provide notice to Grantee on any such delegation.
. ,. > d: :! .. . ..' ..4.2-, :'.Changes in Law. The'Grantee andCityareentitledto all rights.arrdare:.bounc:i by:;
all applicable changes in local, State, :and federal law that:occur subsequent to the effective date
of this Franchise, However, if such changes in law substantially reduce Franchise Fees, modify
Grantee's I-Net obligations, reduce Franchise Access support, or authorize any facilities-based
entity to provide Cable Services or comparable video programming within the franchise area
without a franchise granted by the City, the City and Grantee agree at the request of either party
to enter into good faith negotiations for up to six (6) months to resolve the issues. If resolution is
not reached within this period, and the period is not extended by mutual agreement, the term of
this Franchise will be reduced by three (3) years and the parties will commence the renewal
process in accordance with the Cable Act.
4.3 Rates and Charges. All Grantee rates and charges related to or regarding Cable
Services are subject to regulation by City to the full extent authorized by applicable law.
,
ORD# , Page 17
~--~- ----
4.4 Rate Discrimination. All Grantee rates and charges must be published (in the
form of a publicly-available rate card), made available to the public, and must be non-
discriminatory as to all Persons of similar classes, under similar circumstances and conditions.
Grantee must apply its rates in accordance with governing law. Grantee must permit Subscribers
to make any in-residence connections the Subscriber chooses without additional charge and
without penalizing the Subscriber. However, if any in-home connection requires service from
Grantee due to signal quality, signal leakage or other factors, caused by improper installation of
such in-home wiring or faulty materials of such in-home wiring, the Subscriber may be charged
appropriate service charges by Grantee. This does not prohibit:
(a) The temporary reduction or waiving of rates or charges in conjunction
with valid promotional campaigns; d. : I . i. ,..,:
.;! j'i':~:' ~.i; ,,(b) The offering of reasonable;discountsto senior citizens andloL .: .~,;, '.,
economically disadvantaged citizens;
(c) The offering of bulk discounts for multiple Dwelling Units.
4.5 Filing of Rates and Charges.
(a) Throughout the term of this Franchise, Grantee must provide every six (6)
months, and upon request, an updated rate card to the City detailing applicable rates and charges
for Cable Services provided under this Franchise. This does not require Grantee to file rates and
charges under temporary reductions or waivers of rates and charges in conjunction with
promotional campaigns.
(b) Upon request, Grantee will provide a complete schedule of current rates
and charges for all Leased Access Channels, or portions of such Channels, provided by Grantee
and the terms and conditions for lease established by the Grantee.
ORD# , Page 18
-----------
----~
4.6 Late Fees. If the Grantee assesses any kind of penalty fee for late payment, such
fee will comply with applicable law.
4.7 Time Limits Strictly Construed. Whenever this Franchise sets forth a time for any
act to be performed by Grantee, such time is of the essence, and any failure of Grantee to
perform within that time allows the City to initiate the enforcement procedures of this Franchise.
Section 5. Financial and Insurance Requirements
5.1 Indemnification.
(a) General Indemnification. Grantee must, at its own cost and expense,
indemnify, hold harmless, and defend City and its officers, officials, boards, commissions,
authorized agents and employees against any action or claim for injury, damage, loss, liability,
cost or expense, including court and appeal costs and attorneys' fees and expenses, arising.. from ..
.; ,;: I.... :J~~_ any casualty or .accident to PerSCim "orproperty;. This includes withoutlimitation copyrighh' .;.~ ~' '.
infringement, defamation, and all other damages in any way arising out of, or by reason of,~:any.;
construction, excavation, operation, maintenance, reconstruction, or any other act done under this
Franchise, by or for Grantee, its agents, or its employees, or by reason of any neglect or omission
of Grantee its agents or its employees. Grantee will consult and cooperate with the City while
conducting its defense of the City.
(b) Duty to Give Notice and Tender Defense. If a claim or action arises, City
or any other indemnified party will tender the defense of the claim to Grantee and the defense
will be at Grantee's expense. City may participate in the defense of a claim. Grantee may not
agree to any settlement of claims affecting City without City's written approval. The City will
give the Grantee timely written notice of any claim or of the commencement of any action, suit
or other proceeding covered by the indemnity in this section. City will cooperate fully.
ORD# , Page 19
---------
(c) Non-waiver. The fact that Grantee carries out any activities under this
Franchise through independent contractors does not constitute an avoidance of or defense to
Grantee's duty of defense and indemnification under this Section.
(d) If separate representation to fully protect the interests of both parties is
necessary, such as a conflict of interest between the City and the Grantee, Grantee will pay
expenses incurred by the City in defending itself. The City's expenses include all out-of-pocket
expenses, such as consultants' fees.
5.2 Insunince Requirements.
(a) General Requirement. Grantee must have adequate insurance during the
entire term of this Franchise to protect the City against claims for injuries to Persons or damages
to property which in any wayr;elate.to, arise from or are connected with this Fr~chise,_or . ,. . ...
involve Grantee, its agents, repr~entatives; contractors'~ subcontractors and theiremployees..~ ','\ . -...,',!.; 'c
: (b) Initial InsUrance Limits~ Grantee must keep insurance in effect in
accordance with the minimum insurance limits set by the City from time to tinie. The Grantee
must obtain policies for the following initial minimum insurance limits:
(1) Commercial General Liability: $5,000,000 combined single limit
per occurrence for bodily injury, personal injury and property damage, and for those policies
with aggregate limits, a $5,000,000 aggregate.
(2) Automobile Liability: $3,000,000 combined single limit per
person for bodily injury and property damage and $5,000,000 aggregate in anyone (1) accident
or occurrence;
(3) Employer's Liability: $1,000,000; and
(4) Worker's Compensation coverage consistent with State law.
ORD# , Page 20
n~
(c) Endorsements.
I
I (1) All policies must contain, or be endorsed so that:
(i) The City is designated as additional insured;
(ii) As it relates to this Franchise, the Grantee's insurance
coverage is the primary insurance with respect to the City, its officers, officials, boards,
commissions, employees and duly authorized agents. Any insurance or self-insurance
maintained by the City, its officers, officials, boards, commissions, employees and agents will be
in excess of the Grantee's insurance and will not contribute to it; and
(iii) Grantee's insurance must apply separately to each insured
against whom a claim is made or lawsuit is brought, except with respect to the limits of the
. insurer'.s liability. .. . "......
'.. :~ "... (2).>..::'F.he insurancemusLprovide <that it may not be cancelled. or :', ~ ')'
;., '..
. materially altered so as to be out of compliance with the requirements of this section without 30
days' written notice first being given to City.
(d) Acceptability of Insurers. The insurance obtained by Grantee must be
placed with insurers with an A.M. Best's rating of no less than "A" and authorized to transact
business within the State.
(e) Verification of Coverage. The Grantee must furnish the City with
certificates of insurance or a copy of the page of the policy reflecting blanket additional insured
status. The certificates for each insurance policy are to be signed by a Person authorized by that
insurer to bind coverage oil its behalf. The certificates for each insurance policy are to be on
standard forms or such forms as are consistent with standard industry practices, and are to be
received by the City prior to the commencement of activities associated with this Franchise.
ORD# , Page 21
5.3 Performance Bond.
(a) Within sixty (60) days of the Effective Date of this Franchise, Grantee will
provide a performance bond to the City, in the total sum of $250,000.00 which will remain in
effect for the term ofthis Franchise in a form acceptable to the City. The performance bond is to
ensure the faithful performance of Grantee's obligations under the Franchise including the
paymen~ by the Grantee of any penalties, claims, liens, fees, or taxes due the City which arise by
reason of the operation, maintenance, or construction of the Cable System within the Franchise
Area, except as otherwise provided herein. In the event Grantee undertakes construction, the
cost ofwhich exceeds $100,000, the City shall have the'option of requesting the Grantee provide
and maintain, at its sole cost and expense, an additional performance bond. The amount of the
bond shall be one-hundred twenty percent (1 20% } of the cost of the work or improvements '.
I. >covered by the bond based on estimated cdstsiinmediately following theexpiratibnotf"the,boI'lcit.:<: ... , . !~",:" ~:;)
Grantee will pay all premiums or other costs associated with maintaining the bond. The City may
reduce the amount of the performance bond consistent with Grantee's performance of its
responsibilities under this Franchise and applicable law.
(b) The performance bond will be from a major financial institution or surety.
The performance bond will not require the consent of the Grantee prior to the collection by the
City of any amounts covered by the performance bond. The City will provide to Grantee
reasonable written notice and opportunity to cure any alleged non-compliance of any provision
of the Franchise or any penalties, claims, liens, fees or taxes due the City.
(c) If the Franchise is terminated, or upon expiration or transfer of the
Franchise, the City will return the original bond or sign the necessary documentation to release
the bond promptly if Grantee does not have any unexpired obligations with respect to right of
ORD# , Page 22
way work and does not owe funds to the City or is not in default of a material provision of the
Franchise.
Section 6. Customer Service
City and Grantee recognize the importance of customer service in the grant of this
Franchise. Grantee agrees to comply with all of the provisions in this Franchise, with FCC
Customer Service Standards as they may be amended, and with any customer service rules
adopted by City.
6.1 Subscriber Contracts. Grantee will not enter into a contract with any Subscriber
that is in any way inconsistent with the terms of this Franchise.
6.2 Subscriber Privacy. Grantee will comply with privacy rights of Subscribers in
accordance. with applicable law. . .. ,",. . .
;. .63;'": ,Payment Center.! Throughout the Franchise term, the Grantee rhust ;Iilaint3.in,~t Ci.: ':."., . .,~,
minimum, one payment center located in the Franchise Area. It must be open during Normal
Business Hours to allow Subscribers to return Subscriber equipment and to pay bills.
6.4 Telephone Answering Standards.
(a) Trained company representatives will be available to respond to telephone
inquiries during Normal Business Hours. Outside Normal Business Hours, the access line may
be answered by a service or an automated response system, including an answering machine. A
trained company representative must respond to inquiries that are received by Grantee's
answering service or automated response system before the end of the next business day.
(b) Under Normal Operating Conditions, telephone answer time by a
customer representative including wait time, must not exceed thirty (30) seconds from when the
connection is made. If the call needs to be transferred, transfer time must not exceed thirty (30)
ORD# , Page 23
seconds. These standards must be met for no less than ninety (90) p~rcent of all calls under
Normal Operating Conditions, measured quarterly.
(c) Under Normal Operating Conditions, no more than three percent (3%) of
all callers will receive a busy signal, measured quarterly.
(d) Failure to meet these standards subjects Grantee to enforcement actions set
forth in Section 15.
6.5 Service Calls. Installations. and Outages.
(a) Service calls and response time. Under Normal Operating Conditions,
each of the following standards will be met in no fewer than ninety-five percent (95%) of
applicable events, as measured on a quarterly basis. For purposes of calculating compliance with
,; and determining enforcement of these standards, each request for service or installation will be
. "counted asoneevent:: ',' ~. . : : : ~ .:, ~.: '.. i. :"'. ~.~~ .:: '. ".: .. . '-, ...
.". .,' .' ~..I .
(1) Installations to locations' that are located within one hundred
twenty-five feet (125') ofthe existing distribution Cable System will be performed within seven
(7) business days after an order has been placed.
(2) Under Normal Operating Conditions, if Grantee cannot perform
Installations within the times specified above, the Grantee shall offer the Subscriber a credit
equal to the charge for a Standard Installation or other compensation of equal or greater value.
(3) For installations to locations that are more than one hundred
twenty-five feet (125') from the existing distribution Cable System, in accordance with Section
13.2, service must be provided within thirty (30) days ofthe date the Person requesting service
agrees to pay the charges associated with the installation. The Grantee may charge for extending
service in an area where the Grantee is required to provide service under Section 13.2.
ORD# , Page 24
(4) The "appointment window" alternatives for installations, service
calls, and other installation activities will be either a specific time or, at maximum, a four (4)
hour time block during Normal Business Hours. The Grantee may schedule service calls and
other installation activities outside of Normal Business Hours for the express convenience of the
customer.
(5) Grantee may not cancel an appointment with a Person after the
close of business on the business day prior to the scheduled appointment.
(6) If Grantee's representative is running late for an appointment with
a Subscriber and will not be able to keep the appointment as scheduled, Grantee will contact
Subscriber. The appointment will be rescheduled at a time that is convenient for the Subscriber
.. "-. and as soon as practical. .~., J .'
, ,..', '(7)',. Excluding conditions beyond the control of the Grantee,the ~
" ", ".,.;. .. ....
Grantee will begin working on Service Interruptions promptly and in no event later than twenty-
four (24) hours after the interruption becomes known to the Grantee. The Grantee must begin
actions to correct other service problems the next business day after notification of the service
problem.
(b) Service interruptions shall occur only during periods of minimal use of
system and shall not occur except for good cause. Under Normal Operating conditions, if after
twenty-four (24) hours service is not restored to a Subscriber, the Grantee shall provide a refund
or credit or other compensation of equal or greater value.
ORD# , Page 25
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6.6 Notice Requirements.
(a) The Grantee will provide written information on each of the following
areas at the time of installation of service, at least annually to all Subscribers, and at any time
upon request:
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming and other services. To apprise Subscribers of the charges they may ,
incur, Grantee must note that advertised rates are subject to additional taxes and fees;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the Cable Service;
(5) Channel positions of programming carried on the Cable System; .....
:(6) Billing and complaint procedures;includingthe City's address and "
~, ., .
. -. . ~ . ,'. ~
telephone number.
(b) Comcast shall provide copies of all such materials to the City concurrent
with their distribution to Subscribers.
(c) Failure to meet these standards subjects Grantee to enforcement action
under Section 15.
6.7 Special Notice Procedures.
(a) At any time a Person subscribes to any service, the Person must be
specifically informed whether there will be a charge to drop the service.
(b) Subscribers must be notified thirty (30) days in writing in advance of any
changes in rates, programming services, or Channel positi~ns unless otherwise expressly
provided by federallaw.
ORD# , Page 26
(c) The City must be notified of any change in rates, programming services,
Channel position, or policy at least thirty (30) days in advance of such change by letter delivered
to the City. When such notification is impossible because the change is beyond the control of
Grantee or any Affiliate, the notice must be given as quickly as possible. The Grantee must make
its best efforts to submit the content of notices to Subscribers regarding such changes to the City
for review and comment at least ten (10) days prior to its printing.
(d) . Failure to meet these standards subjects Grantee to enforcement action
under Section 15.
6.8 Billing.
(a) Bills will be clear, concise and understandable. Bills must be fully
. itemized, including basic and Premium Service charges, and equipment charges.. Bills will also
.' !, !... clearly. delineate all activity during the billing;period, including optional charges, discounts,
'.: i....,.
rebates and credits.
(b) In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
(c) Refund checks will be issued promptly, but no later than either:
(1) The Subscriber's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier, or
(2) The return of the equipment supplied by the Grantee if service is
terminated.
(d) Credits for service will be issued no later than the customer's next billing
cycle following the determination that a credit is warranted.
ORD# , Page 27
-~--------------
(e) For purposes of billing, a request for disconnection will be effective
immediately upon the Subscriber's oral or written request. The Subscriber may not be charged
for any service provided after the request, and is entitled to refunds on any prepaid period.
(f) Subscriber bills from Grantee will include the name, address, and
telephone number designated by the City.
(g) Failure to meet these standards will subject Grantee to enforcement
actions under Section 15.
6.9 Rate Discounts.
Grantee shall offer a discount to those low income subscribers, as determined by
the City, consistent with Federal standards, for individuals permanently disabled or sixty-five
'. . (65) years of age or older who are the legal owner or lessee/tenantoftheir residence. Such.
',' ..., .discounts shall consist of a thirty percent (3,0%) redUction> in the cost of the'Basic Servicetier or " '. .\
the Basic Service portion of Expanded Basic Service tier. .,
Section 7. Reports and Records
7.1 Open Records. The City has the right to inspect books and records of Grantee,
which are reasonably necessary to monitor Grantee's compliance with the provisions of Cable
Services under this Franchise. .Grantee may not deny City access to any of Grantee's records on
the basis that Grantee's records are under the control of any parent corporation, Affiliated entity,
or a third party. Within ten (10) days or a mutually agreeable date and time, of receiving written
notice from the City to inspect the Grantee's books and records under this provision, the Grantee
shall accommodate the City's request at the Grantee's local business office, during normal
business hours, and without unreasonably interfering with Grantee's business operations. The
City has the right to request a copy of the books and records that are not identified as proprietary
ORD# , Page 28
or confidential as described under Section 7.2. If the requested books and records are
voluminous or identified as proprietary and confidential or for security reasons cannot be copied
or removed, then Grantee shall continue to make the books and records available at the Grantee's
local business office until the City has completed their examination.
7.2 Proprietary and Confidential Records. Grantee shall not be required to disclose
information that it reasonably deems to be proprietary or confidential in nature, nor disclose
books and records of any affiliate of Grantee that is not providing Cable Service in the Franchise
Area. In the event the Grantee asserts that certain information is proprietary or confidential in
nature, the Grantee shall identify generally the information which it deems propriety and
confidential and the reasons for its confidentiality in writing to the City. Grantee shall be
required. to show the docmnentsto the appropriate City staff, but shall not be required to provide ....; ,
copies of -records or information, it asserts are proprietary orco:hfidential. Subjectto thei1imits of' ;,." f .'
Washington law, the City agrees to treat any information disclosed by the Grantee as confidential ..
and only to disclose it to those employees, representatives, and agents of the City that have a
need to know in order to enforce this Franchise and who agree to maintain the confidentiality of
all such information. The Grantee shall not be required to provide Subscriber information in
violation of Section 631 of the Cable Act or any other applicable federal or state privacy law.
For purposes ofthis Section, the terms "proprietary or confidential" include, but are not limited
to, information relating to the Cable System design, customer lists, marketing plans, financial
information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other'
information that is reasonably determined by the Grantee to be competitively sensitive. If City
receives a demand from any Person for disclosure of any information designated by Grantee as
confidential, City consistent with applicable law will advise Grantee and provide Grantee with a
ORD# , Page 29
--------~------ ---------- -----
copy of any written request by the party demanding access to such information. If Grantee
believes that the disclosure of such documents by City would interfere with Grantee's rights
under federal or State law, Grantee will institute an action in the King County Superior Court to
prevent the disclosure by City of such documents. Grantee will join the Person requesting the
documents to such an action. Grantee will defend, indemnify and hold City harmless from any
claim or judgment including any penalties or costs under RCW 42.17.
7.3 File for Public Inspection. Throughout the term of this Franchise, the Grantee
will maintain a file at its business office that is available for public inspection during normal
business hours, including those documents required pursuant to the FCC's rules and regulation.
7.4 Records Available. Grantee must at all times maintain:
. .. (a) A route map that depicts the general location of the Cable System facilities .. .... o.
.placed in the.Right-of-Ways.. The route map sp-all:identify;Cable System facilities as aerial.or; '-, ;'. ..' . J' ..::
underground and is not required to depict cable types, number of cables, electronic equipment,
and service lines to individual Subscribers. The Grantee shall also provide the map, if requested,
in electronic format ofthe aerial/underground facilities in relation to the Right-of-way centerline
reference to allow the City to add this information to City's GIS program;
(b) A copy of all FCC filings on behalf of Grantee, its parent corporations or
Affiliates that relate to the operation of the Cable System in the Franchise Area;
(c) A copy of Grantee's published rates and Channel line-up for Cable
Service in the Franchise Area;
(d) A summary report of all Complaints received and Grantee's actions in
response to those complaints in a manner consistent with the privacy rights of Subscribers.
ORD# , Page 30
--
------------------- ----
7.5 Annual Reports. Upon written request by the City, within ninety (90) days of
receipt ofthe City's request, Grantee shall submit to the City a written report, which shall
include the following information:
(a) The most recently completed annual corporate report;
(b) A gross revenue statement for the preceding year and all deductions and
computations for the period. Such statement shall be reviewed by a certified public accountant,
who may also be the chief financial officer or controller of Grantee, prior to submission to the
City;
(c) A summary ofthe previous year's activities regarding the development of
the Cable System, including, but not limited to, beginning and ending plant miles constructed,
any technological changes occurring.in the Cable System; ." ~' -;
, . 't' .~.. . ::_ ": (d) " A summaryoreport of all Complaints received and Grantee's actions':in . .~.\~~:..~'.'
. . . , .
'response to those complaints in a manner consistent with the privacy rights of Subscribers.
7.6 . Submittal of Documents. Upon written request, Grantee will provide City with
copies of any pleading, notifications, communications and documents of any kind submitted by
Grantee or its Affiliates to any federal, State, or local court, regulatory agency or other
government agency if such documents relate to the operations of Grantee's Cable System within
the Franchise Area. Grantee will submit such documents to City no later than thirty (30) days
after receipt of City's request. Grantee will not claim confidential, privileged or proprietary
rights to such documents unless under federal, State, or local law such documents have been
determined to be confidential, privileged, or proprietary by a court of competent jurisdiction, or a
federal or State agency.
ORD# , Page 31
----------- ---
7.7 False Statements. Any intentional false or misleading statement or representation
in any report required by this Franchise will be a material breach of this Franchise and may
subject Grantee to all remedies available to City under this Franchise or otherwise.
7.8 Penalties for Noncompliance. The ability for City to obtain records and
information from Grantee is critical to the administration ofthis Franchise. Therefore, Grantee's
failure to comply with the requirements of this Section may result in enforcement action as
prescribed in Section 15.
7.9 Report Expense. All reports and records required under this or any other Section
must be furnished without cost to City.
Section 8. Prot!rammint! and Channel Capacity
8.1 Required Programming Categories. Grantee will provide broad categories of " :' .~,
. <programming requirediin;.this Franchise, and under alLfederal, State, and'localdaws amdrH'" .' .~... ;:C'<:" . -
regulations. Grantee will enable provision ofa:t least the following initial broad categories of
prograinming to the extent such categories are reasonably available:
(a) News, weather and information programming;
(b) Sports programming;
(c) General entertainment programming;
(d) Children, education, and family oriented programming;
(e) Arts, culture and performing arts.
(t) Science/documentary;
(g) Programming for diverse ethnic and minority interests.
8.2 Obscenity. Grantee will not transmit or permit to be transmitted over any
Channel subject to its editorial control any programming that is obscene.
ORD# , Page 32
---------
8.3 Parental Control Device. Upon request by any Subscriber, Grantee will make
parental control or lockout device .traps or filters available to enable a Subscriber to control
access to both the audio and video portions of any or all Channels. Grantee reserves the right to
charge the Subscriber a fee that does not exceed Grantee's actual costs.
8.4 Connection to Public Facilities.
Upon request Grantee must provide without charge, a standard installation and
one outlet of basic and Expanded Basic Service to public use buildings, as designated by the
City. This shall include fire station(s), police station(s), libraries, School(s), etc., but portions of
buildings housing prison/jail populations shall be excluded from this requirement. The recipient
ofthe service will secure any necessary right of entry. The Cable Service will not be used for
commercialp.urposes, and the outlets will not be 10Gated in .areas open to the public .excep.ting ..
'. . ..' .,:bne outlettobe.located, in a public lobby in City Hallwhich will be used by the p'ublic:for .;";,
..
viewing City Council meeting broadcasts. The City will take reasonable precautions to prevent -
any use of the Grantee's Cable System in any manner that results in inappropriate use, loss or
damage to the Cable System. The City will hold the Grantee harmless from any and all liability
or claims arising out of the provision and use of the Cable Service required by this section. The
Grantee is not required to provide service where a non-standard installation is required unless the
City or other agency agrees to pay the incremental cost of any necessary Cable System extension
or non-standard installation. If additional outlets of Cable Service are provided to such
buildings, the building occupant will pay the usual installation and service fees. If a competing
Cable System, including a Direct Broadcast Satellite provider, is providing complimentary cable
video service, there is no obligation for Grantee to provide like services.
ORD# , Page 33
8.5 Continuity of Service.
(a) It is the right of all Subscribers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are satisfied. Subject to the
force majeure provisions of this Franchise, Grantee will use its best efforts to ensure that all
Subscribers receive continuous, uninterrupted Cable Service regardless ofthe circumstances.
(b) In the event of a change in ownership, or in the event a new Cable
Operator acquires the Cable System in accordance with this Franchise, Grantee will cooperate
with City and such new Cable Operator in maintaining continuity of service to all Subscribers.
Section 9. Public. Educational and Governmental Access
9.1 PEG Capital SuPPort.
(a) Not later than ninety (9.0) days from the effective date ,of this Franchise,>...
. _,i. :;;the.Grantee will remit to the City:, r 1; .,.: ; " . ~ ,.0..; f.. t
.'.. ..:," ,
(1),' An initial capital contribution payment of $200,000. Grantee will'
recover the capital contribution from Subscribers at $0.35 per month per Subscriber. When
Grantee has recovered the initial capital contribution, without discount for the time value of
money, Grantee will remit to the City on a monthly basis an amount equal to $0.35 per
Subscriber per month for the remaining initial term of the Franchise.
(2) Unrestricted technology grant of $100,000.
(b) On the commencement of the extension term, Grantee will remit to the
City:
(1) An additional capital contribution payment of $200,000. Grantee
will recover capital contribution from Subscribers at $0.35 per month per Subscriber, and when it
ORD# , Page 34
is fully recovered, without discount for the time value of money, Grantee will remit to the City
an amount equal to $0.35 per Subscriber per month for the remaining life of the Franchise; and
(2) An unrestricted technology grant of$IOO,OOO.
(c) The City agrees that all capital contribution amounts, excluding
technology grants, paid by the Grantee may be added to the price of Cable Services and collected
from Subscribers as "external costs," as such term is used in 47 C.F.R. ~76.922 on the date of
this Franchise.
9.2 Access Reporting. Within one-hundred twenty (120) days of Grantee's written
request, City will submit a report on the use of Access Channels and capital contribution.
Grantee may review the records of the City regarding the use ofthe capital contribution after a
written request is.received by City. .... .' . . . ........ ~ ... ,.,
93 Management iand Control of Access Channels; .l. :.~, :
'.i '.
(a) City may authorize Designated Access Providers to control, operate, and .., .
manage the use of all Access facilities provided by Grantee under this Franchise, including the
operation of Access Channels. The City or its designee may formulate rules for the operation of
the Access Channels consistent with this Franchise. The City may be a Designated Access
Provider.
(b) Grantee will cooperate with City in the use of the Cable System and for
the provision of Access Channels.
9.4 Access Channels.
(a) As of the effective date of this Franchise, the City is individually.
programming one (I) Government Access Channel, currently available on Channel 21. Two (2)
channels are available and be~g used for Educational and Public Access programming.
ORD# , Page 35
(b) Under the terms of this Franchise, the Grantee shall continue to make
available a total ofthree (3) Access Channels to facilitate the City's needs for Access
Programming. Notwithstanding anything to the contrary set forth herein, if City desires to
program Government, Educational, or Public Access Channels above and beyond their existing
Government Access Channel, the Grantee will implement the City's request within the existing
Access Channels currently airing the local Educational and Public Access programming.
(c) The City acknowledges that the Grantee's Cable System provides
additional benefit to the City's Access Programming needs beyond the requirements listed
above. This is accomplished through the inclusion of other regional Access programming within
the regional Channel line-up that services the Franchise Area, for example the University of
Washington TV and Community.college educational programming. The Grantee will prov.ide '. .,' ,. " .
the Subscribers in the.Franchise Areawith the other regional Access Chann'els, so long as the~' '::',:;: .
pr0grammers offer them for use on the Cable System.
(d) The City may partner with other neighboring communities, serviced by the
Grantee, to use the Government, Educational, or Public Access Channels for multi-jurisdictional
government programming.
(e) All assigned Access Channels can be used to transmit programmIng in any
format that is technically compatible with the Cable System, including video, audio only,
secondary audio or text (character generated) messages.
(f) Grantee will facilitate the listing of City's Government Access
programming on an interactive programming guide (such as TV GUIDE) on Tiers of service in
which it is available. This requirement will only be enforceable so long as the service is
ORD# , Page 36
- --------
available on Grantee's Cable System and City agrees to pay for all costs associated with the
servIce.
9.5 Changes in Technology. If Grantee makes changes in Grantee's signal delivery
technology that directly affects the signal quality or transmission of Access programming,
Grantee will at its own expense take necessary technical steps and/or provide necessary technical
assistance, including acquisition of all necessary equipment and full training of Access Center
personnel, to ensure that the capabilities of Access Channels are not diminished or adversely
affected by such change and shall match the standards of the rest of the Cable System.
9.6 Access Channels on Basic Service. All Access Channels provided to Subscribers
under this Franchise must be included by Grantee as a part of it Basic Service.
.'... 9.7. Access Channel LocationlRelocation and Bill Insertions. .
'.., -( a) , Grantee wil1icarryCity~s :programming on the Channel designatedJor ': <,;' ..' . ..' .
. '.~. ,
.. ;-local government programming on its regional Channel line-up, currently Channel 21, so that the
City will receive the same benefits from such carriage as other jurisdictions in western
Washington. Grantee will use reasonable efforts to minimize the movement of City-designated
Access Channel assignments and maintain common Channel assignments for compatible Access
programming. Grantee will provide 90 (ninety) days notice to the City prior to any relocation of
City-designated Access Channels, and will reimburse the City for its costs incurred for any
promoting, marketing, advertising, and notice ofthe Channel change up to $5,000.
(b) Upon request by City, Grantee will provide City the opportunity to include
one Access Channel bill insertion and one Access Channel bill message per year. Grantee will
be responsible for the costs of printing its bill insertion or message, the cost of inserting the
ORD# , Page 37
------ ----~-- ~----
information into Grantee's bills, and for any incremental postage costs. Bill insertions will
conform to Grantee's reasonable mailing requirements.
9.8 Return Lines.
(a) Grantee must at its expense continue providing, from its Headend or hub,
a fiber connection to the City Hall at 33325 8th Avenue South to enable the distribution of
Access programming to Subscribers on the Access Channel(s) within the Franchise Area.
(b) At the written request of the City, Grantee must construct and maintain
fiber-optic return lines to the designated distributor's facilities from new or relocated Designated
Access Providers delivering Public, Education, and Government Access programming for
distribution on the Cable System in the Franchise Area. Any new or relocated return line
construction costs shall1:>epaid by the City and be completed within six (6) months after .u. ~ . ... . OJ
, ,,; . receiving a valid;purchase:order or check from :the City. .;. .....1. . ,::. ' . " ~.,. . '. '1:: 1 ;~':~.::_,~,'.; ~:
9.9 Technical Quality. The Grantee must maintain Access Channels at the same or
better level oftechnical quality and reliability required by this Franchise. The Grantee must
provide routine maintenance and repair and replace as necessary all Grantee's transmission
equipment. This includes fiber transmitters and receivers, Channel modulators, associated cable
and equipment required to carry a quality signal to and from the City's Designated Access
Providers' facilities and the Grantee's Headend or hub.
9.10 Access Channel Interconnections.
(a) Grantee acknowledges that it is the City's goal to further the community's
needs and interests by providing for the interconnection of Access Channels between the City
and surrounding communities. Therefore, Grantee will implement Access Channel
interconnections, at the cost of the City (such cost to be agreed upon by both parties prior to
ORD# , Page 38
-----~-
-------~
beginning of construction), and maintain existing interconnections which facilitate the sharing of
Access programming between and among the City and surrounding (geographically adjacent, but
not necessarily contiguous) communities that are served by the same Headend or hub. The City
shall have the right to use any Access programming provided to it through an interconnection
and approved for use by the interconnecting municipality. Notwithstanding anything to the
contrary, the City shall not require Grantee to interconnect with a newly authorized Cable
Operator or any facilities-based entity to provide Cable Services or comparable video
programming within the franchise area without a franchise or other similar lawful authorization
granted by the City. In those cases, the recently authorized Grantee shall be required to connect
to the City access studio(s) to receive the City's Access programming for distribution on their
Cable System. All interconnects in place as ofthe.effective date of this Franchis~:will be .' .~. .' ... ..
C,.> . niaintainedthroughout itsrterm.' Any new interconnects will be completed. arid:functioning .'
within ninety (90) days from Acceptance of the Franchise by Grantee or from date of request.
(b) Grantee will make the necessary modifications to allow the City to receive
programming from Puget Sound Access, or its successor, upon request from the City and
demonstration that City has the required permission to receive the programming. This
programming will replace programming on the City's Public Access Channel.
Section 10. Rieht-or-Wav and Construction Standards
10.1 Permitting.
(a) Emergencies.
(1) Emergency Blanket Permitting - The following work shall be
allowed to take place under this permit in the following situations:
ORD# , Page 39
(i) FCC-defined service interruptions that require the start of
corrective action in less than twenty-four (24) hours when they are discovered through a field
review or by notification by other Persons. (Such interruptions are when there is loss of picture
or sound on one or more cable channels.); or
(ii) Public safety related distribution line or equipment repairs
requiring immediate response to correct when they are discovered through a field review or by
notification by other Persons.
(2) Notification of Emergencies - Comcast shall call the City's Public
Works inspection line upon discovery to leave a message describing the applicable work area
that is related to the emergency. The message shall include: specific address, ifknown, street
crossing reference, and. the type of traffic control that is anticipated. ,.". ., '.
(3) I.. Traffic Control ~ State Department of Transportation and Manual, :
of Uniform Traffic Control Devices shall be used to determine specific control plans. I . .
(b) Maintenance Blanket Permit. The following non-emergency related
activities shall be allowed to occur under this permit:
(1) Aerial and underground system monitoring and testing, and
(2) Power supply monitoring and testing.
(c) Individual Construction Projects - Permitting. Individual Right-of-Way
permits shall be required for the following activities:
(1) Activities related to new construction;
(2) Special projects related to Cable System rebuild or upgrade;
(3) Cable System relocation projects;
(4) Pole transfers;,
ORD# , Page 40
(5) Scheduled repair and splicing of existing plant; or
f
(6) Activities not specifically identified in (a) or (b).
10.2 Construction.
(a) Subject to applicable laws, regulations and ordinances of City and
provisions ofthis Franchise, Grantee may perform all construction necessary for the operation of
its Cable System. All construction and maintenance of Grantee's facilities within Rights-of-Way
remain Grantee's responsibility regardless of who performs the construction.
(b) The Grantee shall be responsible for obtaining, at its own cost and
expense, all permits, licenses, or other forms of approval or authorization necessary to cons~ruct,
operate, maintain, or repair the Cable System, or any part thereof, prior to the commencement of
any ,such activity. Grantee's application will include information required by City's Public ~.... I,' , '.. ',' .'
Works Director 'or their designee including;'b;ut-not:.1imited to, construction sChedules, tr.affic . '.:;' .:;.; r
" . control, location information, and protection of public and pedestrian or vehicular traffic, etc.'.
Prior to any construction, Grantee must provide City with a construction schedule for work in the
Rights-of-Way.
(c) Upon discovery, Grantee may initiate emergency repairs and, if any
excavation in the Rights-of-Way is involved, the Grantee must apply for appropriate permits on
the next business day.
(d) When obtaining a permit, Grantee will inquire about other construction in
progress, planned or proposed to investigate all opportunities for joint trenching or boring.
Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, Grantee
must endeavor to work with other providers, licensees, permittees, and franchisees to reduce
Rights-of-Way cuts within the Franchise Area.
ORD# , Page 41
(e) City has the right to inspect all construction or installation work performed
within the Franchise Area as it deems necessary to ensure compliance with the terms of this
Franchise and other provisions of law.
(t) At the request of any Person holding a valid permit, with no less than ten
(10) days' notice, Grantee must temporarily raise, lower, or remove its wires as necessary to
permit the moving of a building, vehicle, equipment, or other item. The expense of such
temporary changes must be paid by the permit holder. Grantee may require an estimated
payment in advance.
10.3 Standards of Performance.
(a) All work by Grantee must be done in a safe, thorough and workmanlike
I.,. manner. The Grantee must comply with an federal, State, and local safety requirements and.
practices; and employ all necessary.de;vicesas.required by applicable law during construction, >l if.. ~'. " .
operation; and repair of its Cable System. The Grantee must comply with the National Electric
Code (NBC), National Electrical Safety Code (NESC), and Occupational Safety and Health
Administration (OSHA) Standards.
(b) In the maintenance and operation of its Cable System in Rights-of-Way,
alleys, and other public places and during new construction or additions to its facilities, the
Grantee must cause the least possible inconvenience to the general public. Any opening or
obstruction in the Rights-of-Way or other public places by the Grantee must be guarded and
protected at all times by the placement of adequate barriers, fences or boarding. The boundaries
must be clearly designated by warning lights during periods of dusk and darkness.
(c) All installations of equipment must be permanent, durable, and installed in
accordance with good engineering practices. They must be of sufficient height to comply with
ORD# , Page 42
~--
---~
all existing local and State laws and regulations, and not interfere with the rights of the public or
individual property owners. They must not interfere with the travel and use of public places by
the public during the construction, repair, operation, or removal, and must not obstruct or impede
traffic.
(d) Grantee will ensure that all cable drops are properly bonded to the
electrical power ground at the home, consistent with applicable code requirements. All non-
conforming or non-performing cable drops will be replaced by Grantee as necessary.
(e) If the City relocates a Right-of-Way, raises or lowers a bridge, or makes
any other changes requiring the removal of utility installations, the Grantee must remove or
relocate its installations at no cost to the City.
-..... '~ (f) The.Granteeshall not excavate for a distance.ofmore than one hundred .,.-'-,.. '. '"
: .:, .feet(lOO') without immediately backfilling and compacting to surface. grade andcCity.:standards. ... ~H;L> . ....
unless otherwise approved by the City's Public Werks Director or their designee. Backfilled
trench areas within a driving lane must be either temporarily patched or plated, or permanently
patched, before the end of the workday in which they have been opened. Trench areas within the
right-of-way, but not within a driving lane, must also be patched within the time limits specified
by the City's Public Works Director or their designee on the right-of-way use permit. Final
surface restoration shall be completed within thirty (30) days or as authorized by the City's
Public Works Director or their designee, and shall be equal to or better than the surface condition
prior to permit issuance.
(g) Any asphalt overlay completed within the Franchise Area during the five
(5) year period immediately prior to the date of permit application shall not be open cut by
Grantee unless required by an emergency. As reasonably determined by the Public Works
ORD# , Page 43
------ ---
Director, Grantee 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 in
both directions from the open cut or pay a mitigation fee.
(h) Within ninety (90) days of completion of any new or relocated installation
of Grantee's facilities within the Franchise Area, Grantee shall submit amended plans to the
Director, stamped by an engineer, showing the final "as built" locations of the facilities in cases
where the actual location of facilities is different than the original permitted location as jointly
determined by City and Grantee.
10.4 Maintenance and Workmanship.
(a) Grantee's Cable System must be constructed and maintained so as not to
interfere with sewers,. water pipes, or any other property of City, or with any other pipes, wires; .^
:; c,. conduits, pedestals, structures, or other facilities in Rights-of-Way under theCity'os;authority. ..i.'. , +
.
(b) Grantee will provide and use any equipment and appliances necessary to
control and carry Grantee's signals so as to prevent injury to City's property or property
belonging to any Person. Grantee, at its own expense, will repair, renew, change, and improve
its facilities to keep them in good repair and safe and presentable condition. If Grantee's
facilities are determined by City to be in a state of disrepair, upon receipt of reasonable advanced
notice, Grantee will correct the state of disrepair of those facilities within thirty (30) days at its
own expense. In the event Grantee fails to repair the facilities within thirty (30) days, City may
repair the facilities or cause them to be repaired at the expense of Grantee.
(c) The Grantee's transmission and distribution system, wires, and
appurtenances must be located, erected and maintained so as not to endanger or interfere with the
lives of Persons, or to unnecessarily hinder or obstruct the free use of Rights-of-Way, alleys,
ORD# , Page 44
---------
bridges, or other public property. The Grantee must, at its own cost and expense, undertake all
necessary and appropriate efforts to maintain its work sites in a safe manner in order to prevent
accidents that may cause damage or injuries. All work undertaken on the Cable System shall be
performed in substantial accordance with applicable FCC or other federal or state regulations.
The Cable System shall not unreasonably endanger or interfere with the safety of Persons or
property in the Rights-of-Way. All equipment enclosures shall be permanently marked to
identify them as property of the Grantee. ,..
10.5 Repair and Restoration of Rights-of-Way and City-Owned Property.
(a) The Grantee must avoid damage to public and private property within the
Rights-of-Way.
~I . . .': (b) If public, property is disturbed or damaged, the Grantee must restore the I..
;.,'. ':. : S :. c' l!propertyto a:conditionas good as or better than its c~mdition prior to,the.permit issuance. ........ ,10.,
Rights-of-Way or other public property must be restored in a manner and within a timeframe ,.
approved by the City's Public Works Director or their designee. If restoration of Rights-of-Way
or other public property is not satisfactorily performed within a reasonable time, the Public
Works Director or their designee may cause the repairs to be made at the Grantee's expense and
recover the cost from the Grantee. Within forty-five (45) days of receipt ofthose costs,
including the costs oflabor, materials and equipment, the Grantee must pay the City. Iflegal
action is brought by City for Grantee's failure to pay for repair or restoration, the reasonable
costs and expenses including attorneys fees will be paid as determined by the court.
(c) If Grantee excavates the surface of any Rights-of-Way or City-owned
property, Grantee is responsible for promptly refilling the opening and restoring to a condition as
good as or better than its condition prior to the permit issuance. Such restoration must be in
ORD# , Page 45
accordance with state and local laws and Public Works Development Standards. City may, after
notice to Grantee, refill or repave any opening made by Grantee and the expense must be paid by
Grantee. City may after notice to Grantee remove and repair any work done by Grantee which,
in the determination of City, does not conform to applicable regulations. All costs including the
costs of inspection and supervision must be paid by Grantee.
10.6 Location of Facilities. Grantee must, at its expense, comply with the call before
you dig.program required under Chapter 19.122 RCW.
10.7 Relocation. City has the right to require Grantee to change the location of any
part of Grantee's Cable System within the Rights-of Way consistent with the exercise of the
City's police powers, and the expense will be paid by Grantee. Should Grantee fail to remove or
relocate any such facilities by the date established by City, City may effect such removal or. . -
relocation,.and the expense will'.be1paid.by Grantee, including all costs and expenses'.,incurred by: ,
;;,.~ '" ~ ) 1. ..... ?l. ". ~.~'.
ii . ..#
City due to Grantee's delay. IfCity requires Grantee to relocate its facilities located within the {
Streets, City will make a reasonable effort to provide Grantee with an alternate location within
the Rights-of-Way.
Grantee shall not be required to remove abandoned facilities or relocate its existing Cable
System facilities at its expense for the benefit of private developers or other third party projects.
However, in the event the City notifies the Grantee that the primary purpose for requiring such
changes to or relocation of Grantee's Facilities by a third party is to cause or facilitate the
construction of an Improvement Project to be owned by the City under the City's adopted
Capital Investment Plan, including the Transportation Program, Surface Water Facilities Plan, or
other adopted plans, then the Grantee shall change or otherwise relocate its facilities in
accordance with the Franchise at Grantee's sole cost, expense, and risk.
ORD# , Page 46
In the case of relocation projects where the City hires and designates an independent
contractor to accommodate and coordinate the conversion of overhead utilities within a capital
improvement project, if the City charges the Grantee for use of a provided trench, the Grantee
shall participate in the joint trenching portion of the project and pay the City a portion of th~
trench costs, including but not limited to trench bedding, backfill, and traffic control,
commensurate with Grantee's proportionate share of trench usage. To ensure reasonable and
balanced bids by potential contractors within the bidding process, the City agrees to maintain
Grantee's pipe and vault line-items as a separate schedule.
10.8 Undergrounding of Cable.
(a) Where electric and telephone utility wiring is installed underground at the
. _', time of Cable S ystemconstmction, or when such wiring is subsequentlyp laced. underground;. aU " ...',
\.;Cable-.System lil'les~ wiring, iandequipment must:alsobeplaced underground at no expense to the':; ;,.:..~; j.~ I
: .;City.; Related Cable System equipment, such as pedestals, must be placed in accordance with
regulations as interpreted by the City's Director of Public Works or their designee. In areas
where either electric or telephone utility wiring is aerial, the Grantee may install aerial cable
except when a property owner or resident requests undergrOlmd installation and agrees to pay the
additional cost in excess of aerial installation.
(b) The Grantee must utilize existing poles and conduit wherever possible.
(c) This Franchise does not grant, give or convey to the Grantee the right or
privilege to install its facilities in any manner on specific utility poles or equipment of the City or
any other Person.
(d) If the Grantee is constructing underground conduit for its own use, the
City may require the Grantee to construct excess conduit capacity in the public Right-of-Way,
ORD# , Page 47
provided that the City enters into a contract with the Grantee consistent with RCW 80.36.150.
The contract rates to be charged should recover the incremental costs of the Grantee, (calculated
as the difference between what the Grantee would have paid for the construction of its conduit
and the additional cost only of construction of the excess conduit). The City shall not require
that the additional conduit space be connected to the access structure and vaults of the Grantee.
The City will be responsible for maintaining its respective cable, conduit, and Fiber Optic cable
buried in the Grantee's trenches and bores.
(e) The City will not be required to obtain easements from or for the Grantee.
(f) The Grantee shall cooperate with others to minimize adverse impacts on
the Rights-of-Way in joint trench projects to relocate its overhead facilities underground and
. remove its overhead facilities in areas where all utilities are being.converted to undeF.ground,
facilities.:. :.. ,. ~ ~ ~~~';:~- r.,'. .; :"~ .;:..'~~ . '.
"10.9 Trimming of Trees and Shrubbery. Upon obtaining a written pemiit from City, if
the City's Public Works Director or their designee determines that such a permit is required,
Grantee shall have the authority to trim trees or other natural growth interfering with, damaging,
or restricting access to, and any of its Cable System in the Rights-of-Way. All such trimming
shall be done at the Grantee's sole cost and expense. The Grantee shall be responsible for any
damage caused by such trimming.
10.10 Use of Poles. Whenever feasible, Grantee will use existing poles when the
installation of facilities above-ground is permitted. If Grantee cannot obtain the necessary poles
and related facilities by a pole attachment agreement, and only then, Grantee may make needed
excavations in the Streets. This applies to the placing, erecting, laying, maintaining, repairing
and removing of poles, conduits, supports for wires and conductors, and any other facility
ORD# , Page 48
-----------
needed for the maintenance or extension of Grantee's Cable System. All poles of Grantee must
be erected between the curb and the sidewalk unless otherwise designated by the City, and each
pole will be set whenever practicable at an extension lot line. City may require Grantee to
change the location of any pole, conduit, structure or other facility within Rights-of-Way when
the City believes the public convenience requires such change. The expense of this change will
be paid by Grantee.
10.11 Stop Work. On notice from City that any work is being conducted contrary to this
Franchise, or in an unsafe or dangerous manner as determined by City, or in apparent violation of
any permit, law, regulation, ordinance, or standard, the work may immediately be stopped by
City. The stop work order will:
.' .\ .. (a) Be in writing; ., . . ,.:.: ~ "'l
, .-. (b)' " ,Be given to the' individual doing the work, or posted on the work site;.. '.J.. ... .' ~.>~!...i ";
I (c) Be sent to Grantee by mail at'the address given; ,
(d) State the nature ofthe alleged violation or unsafe condition; and
(e) Establish conditions under which work may be resumed.
10.12 Work of Contractors and Subcontractors. Grantee's contractors and
subcontractors must be licensed and bonded in accordance with applicable 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 Grantee. Grantee is
responsible for all work performed by its contractors and subcontractors and others performing
work on its behalf as if the work were performed by it. Grantee must ensure that all such work is
performed in compliance with this Franchise and other applicable law. Grantee is responsible to
ensure that contractors, subcontractors, or other Persons performing work on Grantee's behalf
ORD# , Page 49
--~----- ---- --------
are familiar with the requirements of this Franchise and other laws governing the work
performed by them.
10.13 Acquisition of Facilities. Upon Grantee's acquisition of facilities in any public
Rights-of-Way, Grantee will, upon request by City, submit a statement describing all facilities
involved, whether authorized by Franchise, permit, license, or other prior right, and specifying
the location of all such facilities, in accordance with Section 7.4(a) herein. Such facilities will
immediately be subject to this Franchise
10.14 Reservation of City Rights-of-Way Use Ri~hts. This Franchise does not prevent
or limit the City or any public utility from constructing any public work or improvement. City is
not liable for any damage to any portion of Grantee's Cable System.
10.15 Discontinuing Use of Facilities. Whenever Grantee intends to discontinue,using
any .facility. within the Rights-of-Way , Grantee'. must submit for City' s approval a completei" ! "" :. ..
description of the facility and the date on which Grantee intends to discontinue its use. Grantee
may remove the facility or request that City allow it to remain in place; City may require
Grantee to remove the facility from the Rights-of-Way, or modify the facility to protect the
public health, welfare, safety, or convenience. City may require Grantee to perform a
combination of modification and removal of the facility. Grantee must complete removal or
modification in accordance with a schedule set by City. Grantee remains responsible for all
necessary repairs and relocations, maintenance of the Rights-of-Way and retains all liability until
it removes the facility as directed by City, or the facility is accepted by another Person having
authority to construct and maintain it. Grantee remains responsible in the same manner and
degree as if the facility were in active use. If Grantee abandons its facilities, City may use such
facilities for any purpose including Access Channel purposes.
ORD# , Page 50
10.16 Street Vacation. If any Street or portion thereof used by Grantee is vacated by
City during the term of this Franchise, unless City specifically reserves to Grantee the right to
continue its installation in the vacated Street, Grantee will, without delay or expense to City,
remove its facilities from such Street, and restore, repair, or reconstruct the Street where such
removal has occurred, and place the Street in such condition as may be required by City. In the
event of failure, neglect, or refusal of Grantee, after thirty (30) days' notice by City, to restore,
repair, or reconstruct such Street, City may do such work or cause it to be done, and the
reasonable cost thereof, as found and declared by City, will be paid by Grantee within thirty (30)
days of receipt of an invoice and documentation, and failure to make such payment will be
considered a material violation of this Franchise.
Section It. Cable System Deshm and,Capacitv ~ i ~(..~ ~ '"
~.. -
.:: ~ . ~ ..:;:. \,.;.. 11.1 Equal and Uniform Service. . The Grantee must provide access toequc\l ahd . '. ,
~-\ ,;.,.
uniform Cable Service throughout the Franchise Area. Grantee may provide additional Cable . -.
Services to Subscribers on a node by node basis during an upgrade of its Cable System.
11.2 Cable System Upgrade. Prior to the effective date of this Fr~chise, Grantee has
upgraded its Cable System to a fiber-to-the-node system architecture. Fiber-optic cable was
deployed from the Headend to the node and tying into a hybrid fiber-coaxial Cable System.
Active and passive devices are capable of passing a minimum of750 MHz. The Cable System is
capable of delivering high quality signals that meet or exceed FCC technical quality standards .
regardless of how the signal is transmitted. Grantee agrees to at least maintain these
specifications throughout the term of this Franchise.
11.3 Technical Performance. The technical performance of the Cable System must
comply with FCC rules, Part 76, Subpart K, Section 76.601 through 76.610, as set forth in and as
ORD# , Page 51
----- ------- ------ ------ -------- ----
may hereafter be amended by the FCC. City has the full authority permitted by applicable law to
enforce compliance with these technical standards.
11.4. Inspection of Facilities. Upon reasonable prior written notice, and in the presence
ofthe Grantee's employee, the City may review the Cable System's technical performance as
necessary to monitor the Grantee's compliance with the provisions of this Franchise. All
equipment testing under a technical performance review shall be conducted by the Grantee.
11.5 Cable System Performance Testing.
(a) Grantee must at is own expense perform the following tests on its Cable
System:
(1) All tests required by the FCC; and
.~,; . , (2) .,L\..ILotper tests reasonably necessary to determine compliance with .... .
. ;,.,: technical stai1dards adopted bytlie FeCat any time during thetermofthisFranchise;.. ' ..' ; L. .
.. \... '. , '. ~ .;
. (b) Grantee must maintain written records of all results of its Cable System .~
tests performed by or for Grantee, for a period of five (5) years. Copies oftest results must be
provided to City upon request.
(c) The FCC semi-annual testing is conducted in January/February and
July! August of each year. If City provides written notice to Grantee prior to December 15 or
June 15 of each year, Grantee must allow and accommodate the City to have a representative
present during the next testing. Grantee will cooperate in scheduling its testing so that the
representative can be present.
(d) Grantee must promptly take such corrective measures as are necessary to
fully correct any performance deficiencies and prevent their recurrence as far as possible.
ORD# , Page 52
--- ------~ ----~ -- --~
Grantee's failure to correct deficiencies identified by testing is a material violation of this
Franchise. Sites must be re-tested following correction.
Section 12. Institutional Network
12.1 I-Net History. As of the effective date of this Franchise, the Grantee has
constructed, terminated, and completed all I-Net commitments to the City under the
"Institutional Network Agreement ("I-Net Agreement") between TCI Cablevision of
Washington, Inc., Cable TV Puget Sound, Inc. and the City of Federal Way," predecessors in
interest to Grantee, dated May 2, 2000. The following are the active sites and spare splice points
utilized by the City and other authorized users:
- FCOl Federal Way Police/City Hall- 33325 8th Ave S (Active)
- FC02 Old City Hall- 33530 First Way South (Active)
--- . -. FC03 -_ Steel Lake Park & Rec.l Maint.Facility - 31132 28th Ave S (Active) ,l!~ _.. ,~~.....1. ....,
- FC04 Steel Lake Annex - 2645 S 312th St (Active) '4 ,'j .' .
I \:\..... i,..:..
- - FC06 .- -.Traffic Camera.....llOO.S320th St.(Active) . >.:ir .i~~..f ~
I - FC07 Federal Way District CoUrt - 33506 10th PI S (Splice) i..': '. : ~
- FC08 - South King County Multi-service Center - 1200 S 336th (Splice) "
I - FC09 West Way Community Center - 33400 21st SW (Active)
- FCI0 Fire Station #2 - 31617 First Ave S (Active)
I - FCll Fire Station #3 - 33414 21st Ave SW (Active)
- FC12 Fire Station #8 - 1405 SW 312th (Active)
I - FC13 Durn,as Bay Center - 3200 SW Dash Point Rd (Active)
- FC14 Klah~ee Senior Center - 33901 9th Ave S (Active)
- FCl5 Fire Station #65 - 4966 S. 298th ST (Active)
- FC16 Spare 4 Count - Splice CS-12 (Splice)
- FC17 Spare 4 Count- Splice CS-27 (Splice)
- FC18 Spare 4 Count - Splice CS-24 (Splice)
- FC19 Spare 4 Count - Splice CS-16 (Splice)
- FC20 Fire Station #4 - 3700 S 320th St (Active)
- FC21 Celebration Park - 1406 S 330th St (Active)
- FC22 Internet Academy - 32020 1st Way S (Splice)
- FC23 Station #66 - 27010 15th Ave S (Des Moines) (Active)
- FC24 Station #26 - 2238 S 223rd ST (Des Moines) (Active)
- FC25 Station #62 -31617 1st Ave S (Active)
- FC26 Station #61 - 3203 S. 360th ST (Active)
ORD# , Page 53
--------------~- -- - ------------
12.2 I-Net Use. The City shall have an indefatigable, exclusive right of use ofthe I-
Net for non-commercial network communications, which right cannot be revoked by the
Grantee, or successor companies, if any. However, the Grantee shall at all times own in fee the
outside aerial and underground fiber optic cable and associated facilities and equipment up to
said fiber termination points where physically connected to City-owned optronics.
12.3 I-Net Terms and Conditions. Both parties shall follow the terms and condi~ions
listed in Exhibit B for the on-going I-Net operation, maintenance, relocation, and future
construction activities.
Section 13. Service Availability.
13.1 Service Req~est. Generally, Grantee must provide service within seven (7) days
of a requesthy any Person for a. standard installation within the Franchise.Area. A.req.uestis
made on the date: of signing a service agteem~nt, receipt of funds by Grantee;. receipt :of a;written. ., ; "i >:'"
request by Grantee or receipt by Grantee of a verified verbal request. Grantee must provide such
servIce:
(a) At a non-discriminatory installation charge for a standard installation,
consisting of a 125 foot drop connecting to an inside wall. Additional charges may be made for
non-standard installations computed according to a non-discriminatory method adopted by
Grantee and provided in writing to City.
(b) At non-discriminatory monthly rates for all Subscribers except
commercial customers, MDU bulk customers and other allowed exceptions to uniform pricing.
13.2 Service Extensions.
(a) Service to new Subdivisions. The Grantee will deploy its cable system
within new subdivisions and provide Cable Services at the same time as other utilities or within
ORD# , Page 54
- - -------------------~
thirty (30) days of a request from a new resident. Grantee must provide such service at a
nondiscriminatory installation charge for a standard installation, consisting of a drop no longer
than one hundred twenty-five (125) feet, with additional charges for non-standard installations
computed according to a nondiscriminatory time and material cost basis for that portion beyond
one hundred twenty-five (125) feet.
(b) Required Extensions of Service. Whenever the Grantee receives requests
for service from at least eight (8) residences with a density of thirty-two (32) dwellings per mile
and within 1,320 cable-bearing strand feet (one-quarter cable mile) of its trunk or distribution
cable, it must extend its Cable System to such Customers. There will be no cost to them for
other than the non-standard installation and usual connection fees for all Customers. Such
. extensions must be technically,feasible, and not adversely affect the operation ofthe Cable. .. ~}" . "._ .' II!
'.
(System. .' The:Granteemayelect to prDvide Cable Service to areas notme,eting the above. ;:":~<,':.. ';;.:.~."" J
density standard and charge the requesting resident(s) for the line extension on a time and
material cost basis.
(c) Enforcement. Failure to meet these standards subjects Grantee to
enforcement actions on a per Subscriber basis under Section 15.
Section 14. Standby Power and Emereency Alert System
14.1 Standby Power. Grantee must provide standby power generating capacity at the
Cable System Headend capable of providing at least twelve (12) hours of emergency operation.
Grantee must maintain standby power system supplies rated for at least two (2) hours duration
throughout the trunk and distribution networks.
ORD# . Page 55
14.2 Emergency Alert Service (EAS) Capability.
(a) Grantee must activate and maintain EAS in accordance with FCC
Regulations. Grantee must ensure that the EAS system properly functions at all times.. It will
test the EAS system periodically in accordance with FCC regulations.
(b) Grantee will cooperate with the City and local emergency officials to
develop practices and procedures for the use of the emergency broadcast capability within the
Franchise Service Area.
Section 15. Enforcement~ Termination of Franchise.
15.1 Informal Dispute Resolution. Before proceeding with the formal procedure for
remedying Franchise violations as set forth below, City agrees to provide Grantee informal oral
, . . . or electronic mail notice, of any alleged. material Franchise violation. . Grantee will have a... . '..
;. .;' reasonable opportunity to cute the violation. If the alleged violation is investigated'by. Granteei
and found valid, Grantee will exert good faith efforts to immediately resolve the matter.
However, if Grantee believes the alleged violation is invalid or outside of Grantee's legal
responsibilities, the Grantee must promptly advise the City. Grantee will exercise good faith
efforts to expedite its investigation, determination and communications to City to facilitate the
informal resolution process. If City believes that Grantee is unreasonably delaying the informal
resolution process, City may commence the formal dispute resolution process.
15.2 Procedure for Remedying Franchise Violations.
(a) Except for revocation matters addressed in Section 15.5, if City believes
that Grantee has failed to perform any material obligation under this Franchise, or has failed to
perform in a timely manner, City will notify Grantee in writing stating with reasonable
ORD# , Page 56
--~------
specificity the nature of the alleged violation. Grantee will have thirty (30) days from the receipt
of such notice to:
(1) Respond to City contesting City's assertion that a default has
occurred, and requesting a hearing in accordance with subsection (b);
(2) Cure the violation; or
(3) Notify City that Grantee cannot cure the violation within 30 days
because of the nature ofthe violation. Ifthe violation cannot be cured within 30 days, Grantee
must promptly take all reasonable steps to cure the violation and notify City in writing and in
detail as to the exact steps that will be taken and the projected completion date. City may set a
hearing in accordance with subsection (b) to determine whether additional time is needed, and
whether Grantee's proposed completion schedule, and steps are reasonable. Upon five. (5) ...~..... .~" . ,",
,. ..:' .' business days' prior written notice, either CityorGrantee~may call an informaLmeetip.g to :~;'J. '.
discuss the alleged violatioh. \. ,
...
(b) If Grantee does not cure the alleged violation within thirty (30) days or by
the projected completion date, denies the default and requests a hearing, or City orders a hearing,
City must set a public hearing in front of City's designated hearing authority to investigate the
alleged violation. City must notify Grantee of the hearing in writing and such hearing will take
place no less than seven (7) days after Grantee's receipt of notice ofthe hearing. At the hearing
Grantee will be provided an opportunity to present and question witnesses, and to present
evidence in its defense. At any such hearing, City will not unreasonably limit Grantee's
opportunity to make a record that may be reviewed by a court. The public hearing will be on the
record and an audio recording will be available to the Grantee within ten (10) business days
following Grantee's request.
ORD# , Page 57
--- ~---~--------~- -
(c) If City determines after the public hearing that a violation exists, City will
order Grantee to correct or remedy the violation or breach within fourteen (14) days or within
such other time determined by City. If Grantee does not cure the violation to the City's
satisfaction within the time set, City may:
(1) Assess and collect liquidated damages in accordance with this
Franchise;
(2) Begin procedures to terminate this Franchise as specified in
Section 15.5; or
(3) Pursue any other legal or equitable remedy available under this
Franchise or applicable law.
(d) . The determination as to whether a violation of this Franchise has.occurred of
, .. t ;: . :-. ~, :is within the sole discretion. of the GityioroitsdesigneeJ Ariysuchdetermination by Citymust;be 'Ii. 1
in writing and must be based upon a record that includes Grantee's submissions. Any such final
determination is subject to court review.
15.3 Alternative Remedies.
(a) No provision of this Franchise affects the right of the either party to seek
judicial relief from a violation of any provision of this Franchise, or any regulation or directive
under this Franchise. The existence of other remedies under this Franchise does not limit the
right of either party to recover monetary damages, or to seek judicial enforcement of obligations
by specific performance, injunctive relief or mandate, or any other remedy at law or inequity.
(b) The City does not waive any right, immunity, limitation or protection
(including complete damage immunity) otherwise available to the City, its officers, officials,
council, boards, commissions, agents, or employees under federal, State, or loca11aw, including
ORD# , Page 58
Section 635A. (47 U.S.C. 555a] of the Cable Act. The Grantee has no monetary recourse against
the City, or its officers, officials, council, boards, commissions, agents, or employees for any
loss, costs, expenses or damages arising out of any provision, requirement of this Franchise or its
enforcement, except that no such requirement shall apply where such claims, suites, causes of
action, proceedings, and judgments for damage are occasioned by the sole negligence or willful
misconduct of the City or its officials, boards, commissions, agents, or employees while acting
on behalf of the City.
15.4 Assessment of LiQuidated Damages.
(a) The City and the Grantee recognize the delays, expense and unique
difficulties involved in proving in a legal proceeding the actual loss suffered by the City as a
result of the Grantee's violation of this Franchise. Because it may. be difficult to calculate. the ... y.:;~ f, .,." ~ .
. " ~ harm to the City in the event.ofa breach of this Franchise by Grantee, the parties agree to .... ;. ~:;f::~ '..-' , ~y
liquidated damages as a reasonable estimation of the actual damages. To the extent that the City ...
elects to assess liquidated damages as provided in this Franchise and such liquidated damages
have been paid, such damages shall be the City's sole and exclusive remedy. Nothing in this
Section is intended to preclude the City from exercising any other right or remedy with respect to
a breach that continues past the time the City stops assessing liquidated damages for such breach.
(b) Prior to assessing any liquidated damages, the City shall follow the
enforcement procedures of Section 15.2 of this Franchise that provide the Grantee proper notice,
right to cure, and due process to defend and refute the allegations of non-compliance.
(c) The City shall not assess any liquidated damage if the Grantee has
reasonably responded to the complaint or cured or commenced to cure, under the enforcement
provisions of this Franchise. In the event Grantee fails to cure or commence to cure, or fails to
ORD# , Page 59
-------------
refute the alleged breach, the City may assess liquidated damages and shall inform Grantee in
"
writing of the assessment. Grantee shall have forty-five (45) days to pay the damages. Such
amounts are agreed by both parties to be a reasonable estimate of the actual damages the City
would suffer from Grantee's Franchise violation, and are not intended as a penalty.
(d) The first day for which liquidated damages may be assessed, ifthere has
been no cure after the end of the applicable cure period, shall be the day after the end ofthe
applicable cure period, including any extension of the cure period granted by the City.
(e) Grantee may appeal (by pursuing judicial relief or other relief afforded by
the City) any assessment of liquidated damages within thirty (30) days of receiving written
notice of the assessment. Grantee's obligation to pay the liquidated damages assessed shall not
.. .. . __ be stayed pending resolution of the appeal. ,! " ....; ~ 1. ~ 1;..
. '. '. ;(f) ';, ,In no eventwillliquidated..damages be assessed for a period exceeding .,': ,;-:" ... : ~.
~,' : ','
one'hundred twenty (120) days in a twelve (12) month period.
(g) Pursuant to the requirements outlined herein, liquidated damages shall not
exceed the following amounts: one-hundred dollars ($100.00) per day for material departure
from the FCC technical performance standards; fifty dollars ($50.00) per day for failure to
provide the Access channels or any equipment related thereto which is required hereunder; one-
hundred dollars ($100.00) per day for each material violation of the Customer Service Standards;
twenty five dollars ($25.00) per day for failure to provide reports or notices as required by this
Franchise; and one hundred dollars ($100.00) per day for any material breaches or defaults not
enumerated herein.
ORD# , Page 60
-----
--------
15.5 Revocation.
/
(a) The City may revoke this Franchise and all associated rights and
privileges if a Franchise violation is not cured under Section 15.2, or if:
(1) Grantee fails to perform any material obligation under this
Franchise;
(2) Grantee attempts to evade any material provision of this Franchise
or practices any fraud or deceit upon the City or Subscribers;
(3) Grantee abandons the Cable System, or terminates the Cable
System's operations; or
(4) Grantee becomes insolvent, unable or unwilling to pay its debts, or
files for. bankruptcy, there is an assignment for the benefit of Grantee's creditors, or all Ot;.part of_ .."
. . the, Grantee's Cable Systeilids said to secure a debt and is not redeemed b:y' Grantee Within. thirty :;
(30) days of the sale.
(b) Prior to revocation of the Franchise, the City shall give written notice to
the Grantee of its intent to revoke the Franchise, setting forth the exact nature of the
noncompliance. The Grantee shall have thirty (30) days' from such notice to object in writing
and to state its reasons for such objection and provide any explanation. In the event the City has
not received a timely and satisfactory response from the Grantee, it may then seek a revocation
of the Franchise by the City Council as follows:
(1) Any proceeding regarding revocation shall be conducted by the
City Council and open to the public. The Grantee shall be afforded at least forty-five (45) days'
prior written notice of such proceeding.
ORD# , Page 61
~----------
(2) At such proceeding, the Grantee shall be provided a fair
opportunity for full participation, including the right to be represented by legal counsel, to
introduce evidence. A complete verbatim record or video tape shall be made of such proceeding
and the cost shall be shared equally between the parties. The City shall maintain a record of such
proceeding consistent with its record retention policies. Nothing herein prohibits Grantee from
paying to create a written transcript of the proceeding. The City Council shall hear any Persons
interested in the revocation, and shall allow the Grantee, in particular, an opportunity to state its
position on the matter.
(3) Within ninety (90) days after the hearing, the City Council shall
determine whether to revoke the Franchise; or if the breach at issue is capable of being cured by
the Grantee, direct the Grantee to take appropriate remedial action within the time and in the
. . .. .:manrter.and0nthetenns and conditions that the City.. Council determines are,reasomibleunder): ..,
the circumstances. If the City Council determines that the Franchise is to be revoked, the City
Council shall issue a written decision and shall transmit a copy of the decision to the Grantee.
The Grantee shall be bound by the City Council's decision to revoke the Franchise unless it
appeals the decision to a court of competent jurisdiction within thirty (30) days of the date of the
decision.
(c) The Grantee shall be entitled to such relief as the court may deem
appropriate.
(d) The City Council may ~n its sole discretion take any lawful action that it
deems appropriate to enforce the City's rights under the franchise in lieu of revocation.
ORD# , Page 62
--- -----
--- ----
15.6 Removal.
(a) When there is a termination or expiration of this Franchise, and after all
court reviews are concluded, City may order the removal of the Cable System facilities from the
Franchise Area at Grantee's sole expense within a reasonable period oftime as determined by
City. In removing its plant, structures, and equipment, Grantee must refill at its own expense any
excavation it made and leave all Rights-of-Way, public places, and private property in as good a
condition as prevailed prior to installation of Grantee's equipment.
(b) If Grantee fails to complete any required removal to the City's
satisfaction, City may cause work to be done. Grantee must reimburse City for the reasonable
costs incurred within thirty (30) days receipt of an itemized list of City's expenses and costs.
City may recover its expenses. and costs from ,the security, or pursue any judicial remedies. Any... c.
~ ;; exp.enSesincurred in the collection by CitywiUheinc1uded.intheimonies:dueGityfrom Grantee~'(:, ..
including reasonable attomeyfees, court expenses and attributed expenses for work conducted
by City's staff or agents.
15.7 Non-Enforcement by City. Grantee is not relieved of its obligation to comply
with any of the provisions of this Franchise by reason of any failure of City to enforce prompt
compliance. City's forbearance or failure to enforce any provision of this Franchise will not
serve as a basis to stop any subsequent enforcement. The failure of the City on one or more
occasions to exercise a right or to require compliance or performance under this Franchise does
not constitute a waiver of such right or a waiver of compliance or performance, unless such right
has been specifically waived in writing. Any waiver of a violation is not a waiver of any other
violation, whether similar or different from that waived.
ORD# , Page 63
- ---------
15.8 Bankruptcy Procedures. Grantor may revoke this Franchise one hundred twenty
(120) days after the appointment of a receiver or trustee to take over and conduct the business of
the Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding,
unless:
(a) The receivership or trusteeship is vacated within one hundred twenty (120)
days of appointment; or
(b) The receivers or trustees have, within one hundred twenty (120) days after
their election or appointment, fully complied with all the material terms and provisions of this
Franchise and have remedied all Franchise violations. The receivers or trustees must execute an
agreement approved by the appointing court providing that the receiver or trustee assumes and is
. I "... bound by the provisions of this Franchise. ,.... . ..',.
.' ,. Section 16. Abandonment' :,',' ~ \ i : i' . ,-': ~ .' ; ~... ~..n
16.1 Effect of Abandonment. If the Grantee abandons its Cable System or Institutional
Network during the Franchise term, or fails to operate its Cable System or Institutional Network
in accordance with its duty to provide continuous service, the City may operate the Cable System
or designate another. entity to operate the System. This operation may continue until the Grantee
restores service under conditions acceptable to the City, or until the Franchise is revoked and a
new Grantee is selected by the City. If the City operates or designates another entity to operate
the Cable System, the Grantee must reimburse the City for all reasonable costs, expenses and
damages incurred including reasonable attorney fees, court expenses and attributed expenses for
work conducted by City's staff or agents.
16.2 What Constitutes Abandonment. The City is entitled to exercise its option and
obtain any required injunctive relief if:
ORD# , Page 64
-- ------
-------~
(a) The Grantee fails to provide Cable Service in accordance with this
Franchise to the Franchise Area for ninety-six (96) consecutive hours, unless the City authorizes
a longer interruption of service, except if such failure to provide service is due to a force majeure
occurrence, as described in Section 19.17; or
(b) The Grantee for any period willfully and without cause refuses to provide
Cable Service in accordance with this Franchise.
Section 17. Transfer of Ownership or Control
(a) Neither the Cable System nor this Franchise may be sold, assigned,
transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by
voluntary sale, merger or consolidation without the prior written consent of the City, except as
otherwise specificallyprov.ided in (h) below. Neither the title, legal or equitable, nor any right,...., c' . .....
interest nor property may pass to or vest in any Person without the prior written .consent ofthe.~:'~, t' i.': ...
City. Such consent may only be granted by City Council resolution.
(b) The Grantee must promptly notify the City of any actual or proposed
change in, or transfer of, or acquisition by any other Person of control of the Grantee. The word
"control" is not limited to majority stockholders but includes actual working control in whatever
manner exercised. Every change, transfer or acquisition of control ofthe Grantee makes this
Franchise subject to cancellation unless and until the City Council consents by resolution.
(c) The parties to any sale or transfer must make a written request to the City
for its approval of a sale or transfer and furnish all information required by the City.
(d) In seeking the City's consent to any change in ownership or control, the
proposed transferee will state whether it:
ORD# , Page 65
(1) Has ever been convicted or held liable for acts involving deceit
including any violation of federal, State, or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or
misrepresentation entered against the proposed transferee by any court;
(3) Has pending any legal claim, lawsuit, or administrative proceeding
arising out of or involving a Cable System;
(4) Is financially solvent by submitting financial data including
fInancial statements that are audited by an independent certified public accountant, along with
any other data that the City may reasonably require; and
...... ." J (5) Has the financial, legal, and technical capability to .enable it to
maintain and operate the Cable System for the remaining termofthe.Franchise:and:1o'ou,r.e,any , \ .?~'. ; :;; ..;.y:.
existing performance deficiencies. ',~'
(e) The City will act by resolution on the request within one hundred twenty
(120) days ofthe request ifit has received all requested information. Ifthe City fails to make a
final decision on the request within one hundred twenty (120) days, the request will be deemed
granted unless the requesting party and the City agree to an extension of time.
(f) Within thirty (30) days of any transfer, sale or change of control, if
approved or deemed granted by the City, Grantee must file with the City a copy of the deed,
agreement, lease or other written instrument evidencing such sale or transfer of ownership or
change of control. Such documents must be certified and sworn to as correct by Grantee and the
transferee. The transferee must file its written acceptance agreeing to be bound by all of the
provisions ofthis Franchise. Ifthere is a change in control in which the Grantee is not replaced
ORD# , Page 66
-----
by another entity, the Grantee will continue to be bound by all ofthe provisions ofthe Franchise,
and will not be required to file an additional written acceptance.
(g) When reviewing a request for sale, transfer, or change of control, the City
may inquire into the legal, technical and financial qualifications ofthe prospective controlling
party or transferee. Grantee will assist the City with such inquires. The City may condition
consent to a sale or transfer upon such terms and conditions as it deems appropriate. Any terms
and conditions must be related to the legal, technical and financial qualifications ofthe
prospective controlling party or transferee, and to the resolution of outstanding and unresolved
issues of noncompliance with this Franchise by Grantee.
(h) The prior approval of the City is not required for any sale, assignment or
,:transfer of the Franchise or.Cable System to an entity controlling, controlled by.or under. the .;.. .....
'.:same,common:control as {&rantee. The:proposedassignee or transferee mllst:-show financial::;',. .:: . :';\;
responsibility as may be determined necessary by the City, and must agree in writing to comply
with all of the provisions of this Franchise. Grantee may pledge the assets of the Cable System
for the purpose of financing without the consent of the City. Any pledge of assets must not
impair or mitigate Grantee's responsibilities and capabilities to meet all of its obligations under
this Franchise.
Section 18. Franchise Review
18.1 Performance Evaluation.
(a) Upon thirty (30) days' written request of City, but no more than annually,
a franchise review may be held. The City or its designee will conduct all such reviews.
(b) All performance reviews will be open to the public and announced at least
one week in advance in a newspaper of general circulation within the Franchise Area.
ORD# , Page 67
--------------
(c) During evaluations under this section, Grantee must fully cooperate with
City and provide information and documents in accordance with Section 7 as required by City to
perform the evaluation.
18.2 Topics to be Addressed at Performance Reviews. The City's review may include,
but is not limited to, the following topics at any performance review:
(a) Cable Service rate structures governed by federal law;
(b) Franchise Fees;
(c) PEG access support by the Grantee;
(d) I-Net construction, functioning, and service;
(e) Liquidated damages;
(f) Free or discounted Cable Services;. . ... "
.~. . l .-' ..;. '(g). . Application of new technologies; ,..-:. . .\ ..... . . '.:..
. "f
(h) Video on Demand for local government programming;
(i) Performance of the Cable System;
(j) Parity of the Cable System with neighboring Cable Systems;
(k) New technologies that, in the City's opinion, would enhance substantially
.
the quality or quantity of programming available to Subscribers on the System;
(1) Cable Services provided;
(m) Programming;
(n) Line extension policies;
(0) Customer complaints;
(P) Grantee's privacy practices;
(q) Judicial or FCC rulings;
ORD# . Page 68
-------------
(r) Grantee's Facilities and Services in light of reasonable City needs and
interests, including identification of needed changes in Facilities and/or Services; and
(s) Amendments to this Franchise.
Nothing in this subsection requires either the City or the Grantee to agree to any amendment to
this Franchise, and any amendments hereto must be formally accepted in writing by both parties.
Section 19. Miscellaneous Provisions
19.1 Eaual Emplovment Opportunity Reauirements. Grantee must comply with all
provisions of FCC rules concerning equal employment opportunity.
19.2 Notices. Throughout the term of this Franchise, each party will maintain and file
with the other an address for the service of notices by mail. All notices will be sent to such
respective address, and are effective upon the date of mailing. At the effective date ofthis " ", >.'
Franchise: .... . .,
Grantee's address: t'
Comcast ofPuget Sound, Inc. and Comcast of Washington IV, Inc.
4020 Auburn Way N
Auburn, W A 98002
Attention: Director, Franchising and Government Affairs
With a non-binding courtesy copy to:
Comcast ofPuget Sound, Inc. and Comcast of Washington IV, Inc.
P.O. Box 3042
Bothell, WA 98041-3042
. Attention: Franchising and Government Affairs
City's address:
City of Federal Way
City Manager
33325 8th Avenue South
P.O. Box 9718
Federal Way, Washington 98003-9718
ORD# , Page 69
--~----
19.3 Costs to be Borne by Grantee. Grantee must pay for all costs of publication of
this Franchise, and all reasonable costs for public notices provided for in this Franchise.
19.4 Binding Effect. This Franchise is binding upon the parties, their consented
successors and assigns.
19.5 Authority to Amend. This Franchise may be amended at any time by written
agreement between the parties.
19.6 Venue. The venue for any dispute related to this Franchise will be with the
United States District Court for the Western District of Washington or the King County Superior
Court, Kent, Washington.
19.7 Governing Law. This Franchise is governed in all respects by the laws of the
State of Washington. ..:>..' . ,..
19.8 Guarantee. Grantee is not required to maintain a guarantee for the terin ofthe ;. ! ..
Franchise. However, the City reserves its right, in the case of a transfer under Section 17, to
require a signed guarantee, in a form approved by the City, filed with the City contemporaneous
with the controlling party or transferee's acceptance oftheFranchise transfer.
19.9 Captions. The captions. and headings of this Franchise are for convenience and
'reference purposes only and do not affect in any way the meaning or interpretation of the
provisions of this Franchise.
19.10 Construction of Franchise. The provisions of this Franchise will be liberally
construed to promote the public interest.
19.11 No Joint Venture. This Franchise does not create a joint venture or principal-
agent relationship between the parties. Neither party is authorized to, nor will either party act
ORD# , Page 70
--
- ~-
toward third Persons or the public in any manner that would suggest such relationship with the
other.
19.12 Waiver. The failure of either party at any time to require performance by the
other of any provision of this Franchise will in no way affect the right of the other party to
enforce the Franchise. The waiver by either party of any breach of any provision is not a waiver
of any succeeding breach of such provision, or as a waiver of the provision itself or any other
prOVIsIon.
19.13. Severability. The provisions ofthis ordinance are declared separate and
severable. The invalidity of any clause, sentence, paragraph, subdivision, section, subsection,
provision or portion of this ordinance or the invalidity of the application thereof to any person or
... circumstance, will not affect the validity of the remainder of the ordinance, or. the validity of.its
.~ application to other persons or. circumstances. I 'j .. '.'\ ,.:~ ~: ., ,',::r . ,
. .
19.14 Entire Agreement. This Franchise and all exhibits are the entire understanding
and agreement between the parties with respect to this subject matter and supersede all prior oral
negotiations and written agreements between the parties.
19.15 Compliance with Federal, State. and Local Laws. The Grantee will comply with
all federal, State, and local laws, rules, and regulations.
19.16 Force Maieure. The Grantee will not be held in violation under, or in
noncompliance with, the provisions of this Franchise, nor suffer any enforcement or penalty
relating to noncompliance or violation, where such noncompliance or alleged defaults occurred
or were caused by circumstances reasonably beyond the ability ofthe Grantee to anti<?ipate and
control. This includes, for example, war, riots, civil disturbances, floods or other natural
catastrophes, labor stoppages, or slow downs not attributable to City's employees, or power
ORD# , Page 71
outages exceeding back-up power supplies, work delays caused by waiting for utility providers
to service or monitor their utility poles to which the Grantee's Cable System is attached.
Section 20. Ratification
Any act consistent with the authority and prior to the effective date ofthis ordinance is
hereby ratified and affirmed.
Section 21. Effective Date
This ordinance shall take effect and be in force five (5) days from the time of its final
passage, and publication, as provided by law.
PASSED by the City Council of the City of Federal Way this _ day of , 2006.
CITY OF FEDERAL WAY " .".
. ...."....
MAYOR, MICHAEL PARK . .
. .
ATTEST:
CITY CLERK, LAURA HATHA WAY, CMC
APPROVED AS TO FORM:
CITY ATTORNEY, PATRICIA A. RICHARDSON
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTNE DATE:
ORDINANCE NO.
ORD# , Page 72
EXHIBIT A - ACCEPTANCE
KNOW ALL MEN BY THESE PRESENTS:
The City Council ofthe City of Federal Way, Washington, having duly passed and adopted
Ordinance No. , titled
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO COMCAST OF
PUGET SOUND, INC. AND COMCAST OF WASHINGTON IV, INC. TO OCCupy
RIGHTS-OF- WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE
SPECIFIED FRANCHISE AREA FOR THE PURPOSES OF OPERATING AND
MAINTAINING A CABLE COMMUNICATIONS SYSTEM, AND SETTING FORTH
CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE
and said Ordinance stating at Section 2.4 that the grant of franchise must be unconditionally
accepted by the Grantee by the submission of a written instrument in substantially the form of
this Exhibit A;
NOW, THEREFORE, Comcast ofPuget Sound, Inc. and Comcast of Washington IV, Inc. do
hereby unconditionally accept the terms and conditions ofthe Ordinance granting the said
franchise, and do promise to comply with and .abide by all its. provisions, terms and c.onditiqns,
subject to federal, State, and local law. . i ':." . . .
ACCEPTED this _ day of , 2006. .., f
COMCAST OF PUGET SOUND, INC. COMCAST OF WASHINGTON IV, INC.
By: By:
Name: Name:
Title: Title:
Date: Date:
STATE OF WASHINGTON)
COUNTY OF ) ss.
On this instrument was acknowledged before me by
, a corporate officer of Com cast ofPuget Sound, Inc. and
Comcast of Washington IV, Inc.
NOTARY PUBLIC FOR WASHINGTON
My Commission Expires:
ORD# , Page 73
EXHIBIT B - INSTITUTIONAL NETWORK AGREEMENT
Section 1. Private Network Status. The I-Net is a private communication network governed
by the Franchise, and the City will use the I-Net solely for Non-Commercial applications in
accordance therewith. The Grantee reserves the right to inspect the City's Non-Commercial
application ofthe network. Such inspection can only occur upon reasonable prior written notice
by the Grantee, and in the presence of a City employee and shall not interfere with the operation
of the network. The City may not lease, resell, or grant access privileges to I-Net fiber backbone
capacity to a third party, other than public entities such as the Fire Departments, School Districts,
and Utility Districts. The I-Net may be used for origination purposed for governmental,
educational, and public use.
Section 2. Maintenance and Repair of I-net Fiber Backbone. Routine maintenance and
repair on the I-Net fiber backbone and associated facilities and equipment, will be conducted on
the same schedule as routine maintenance and repairs of Grantee's Cable System. Any routine
maintenance work performed effected upon the I-net fiber backbone and associated facilities and
equipment shall be conducted by Grantee, with prior notice of at least five (5) business days to
the City. In emergency conditions, such as a natural emergency resulting from a windstorm,
.., . Grantee will effect emergency repair work on the I-Net system, if any, in the course of .~. ,~.. . ,
conducting its own emergency repair work on its cable system, excepting where I-Net backbone
fiber may not be co-located with Grantee system plant on a strand or incon'duitin which case;1
Grantee's fiber shall be repaired as a first priority and I-Net backbone fiber shall be repaired asa .>
second priority in a continuous repair window. In such event, Grantee shall have no liability to
City for a delay in I-Net service restoration. Grantee will make every reasonable effort to restore
service on an expedited basis where the City advises Grantee that such service is a critical
emergency communication need.
Grantee shall perform maintenance on the I-Net fiber backbone at its own expense. In
the case of needed repairs to the I-Net fiber backbone and associated facilities and equipment
used exclusively by the City, whether co-located or not with Grantee's system plant on a strand
or in conduit but not in the same sheath, shall be performed by the Grantee at a reasonable time
and materials cost. The Grantee shall notify the City in writing of such needed repairs prior to
conducting the work, together with an estimate ofthe cost of the work, and shall obtain the
City's approval to perform the work. The City will timely reimburse the Grantee for its
reasonable expenses on a time and material basis for conducting such repair. For the purposes of
this section, repair shall include, without limitation, all labor, materials and equipment charges
for restoration of outages or damage wrought by inclement weather.
Section 3. Service Trouble Calls and Escalation.' The City acknowledges that Grantee does
not actively monitor the signal transmission upon City utilized I-Net fiber, and may have no
notice of a service outage but for City-initiated notification. For any outages of City utilized I-
Net fiber as determined by the City, the City shall notify its information technology (tilT")
representative, who shall in turn, contact the designated local Network Operations Center
(NOC). Grantee shall respond on-site to any routine trouble calls within four (4) hours of receipt
ORD# , Page 74
of notification at the NOC and shall actively begin working on the problem until it is resolved.
In order to document its work on the City-utilized I-Net fiber, Grantee will use its normal trouble
ticket processes. In the event of an inability to initially resolve I-Net problems, Grantee shall
follow its normal escalation procedures for correcting fiber outages. At the City's request,
Grantee shall also notify the City and provide documentation ofthe I-Net problem resolution.
Such documentation shall include, among other things, a description of the cause and resolution
ofthe problem for each I-Net trouble ticket.
Section 4. Administration, Maintenance and Management ofthe I-Net. The City shall be -
responsible for the ongoing administration, maintenance and management of the non-backbone 1-
Net facilities and equipment located on the City side ofthe I-Net fiber termination panel located
at each site, and the internal site network itself, unless it contracts with Grantee separately for a
managed network. All such maintenance conducted by the City shall be performed in
accordance with industry standards, and any equipment owned and used by the City shall comply
in all respects with applicable governmental codes, laws, ordinances or regulations.
Section 5. City I-Net Users to Provide Certain Electronics. Grantee shall be responsible for
supplying and installing the I-Net fiber backbone and associated facilities and equipment, for the
City's use, to the specified fiber termination panel locations only, thereby providing a pathway
for I-Net communications between sites. Any "active" equipment or components beyond the
..... ,', termination panel, including but not limited to computers, network cards, optronics, electronics, .: ..~ . .:'. . ~ ..;
and equipment'racks, requi:r;ed for I.Net use shaltbeprovided at the City's sole expense. TIle ... 0<. ;:..' ...t.... ,..
, City shall coordinate with the Grantee to .ensure that active eqwpmentis compatible with I-Net . . ~. '.. t ~
backbone equipment. ...,: .~ '.: ~ I. .~
GRANTEE DISCLAIMS ANY WARRANTY, WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GRANTEE
SPECIF ALLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY
THE CITY ARISING OUT OF ITS PERFORMANCE UNDER THIS EXHIBIT. IN NO
EVENT SHALL GRANTEE BE LIABLE TO THE CITY FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT
FORESEEABLE. THE FORGOING DISCLAIMER APPLIES ONLY TO SUCH CITY, FIRE
DEPARTMENT AND OTHER USERS PROVIDED "ACTIVE" EQUIPMENT OR
COMPONENTS.
Section 6. Equipment or Modifications. Neither the City nor the Grantee will attach any
equipment or otherwise modify the I-Net in any way that will interfere with the signal quality
and the normal operation of each other's systems. The City may not access any part of the
backbone fiber and associated facilities and equipment outside the actual I-Net site fiber
termination panel, and the City's permitted access shall in no event extend beyond the City's side .
of the fiber termination panel. Except as provided in this Exhibit, Grantee will not interfere with
the signal quality and the normal operation ofthe I-Net.
Section 7. Relocation. I-Net backbone fiber and associated equipment are subject to the
aerial to underground relocation requirements governing the Grantee's Cable system under the
ORD# , Page 75
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Franchise. Such relocation shall be at the Grantee's expense, except should an increased cost
differential arise because of Grantee's having to do additional splicing, increase the size of its
conduit, vaults, or fiber sheath solely because of the I-Net fiber backbone and associated
facilities and equipment. In such cases, then the City shall pay the reasonable incremental cost.
differential pertaining to the I-Net backbone fiber only.
Section 8. Future I-Net Expansion and Modification. Grantee and the City shall cooperate in
investigating and considering options for expansion or modification of the I-Net within current
or future City limits. Upon request ofthe City, the Grantee shall investigate and provide the City
a plan with cost estimates based both on a new fiber configuration and the most cost efficient
connection utilizing current technology, such as Dense Wave Division Multiplexing, or a
managed network, to accommodate the City's I-Net needs for the proposed expansion or
. modification as mutually agreed upon. After receiving a request for additional I-Net
construction or modification, Grantee shall provide the City a plan, including an estimate of the
construction costs, within ninety (90) days. The cost estimate shall include the fully allocated
construction cost from the nearest Grantee identified fiber access location to the requested site,
including, but not limited to, site construction, fiber, labor, materials and Granteeprovided
equipment. The City shall pay all of Grantee's design engineering costs associated with
development of the requested plan and cost estimate(s), ifthe City decides not to proceed with
the construction. To approve the Grantee to perform the work, the City shall provide the Grantee
t;,,;, . ~ with written authorization to complete the expansion or modification.construction.and a purchase. , .' .
.'!.... order in the amount.ofthe.costestimate'. Any:..additional I-Net construction shall be performed..!,::: .:' .'.J; ':1.~'
.. ......' and completed within six (6) months.;after the.City-authorizes that the work be performed;..unless; \ . ~ . ,. [:)
.....
the parties agree in writing to a different completion date prior to commencementlOfthe work .in ~ ';' . /'i.:
order to accommodate special considerations of the City.
Section 9. Fiber Construction and Termination. Any new construction and termination of 1-
Net fiber backbone and associated facilities and equipment will be completed in accordance with
the Franchise and the Grantee's standard practices, including but not limited to practices
concerning connectorization. The Grantee will be allowed to utilize City-owned conduit
capacity at no charge for fiber construction if such conduit is available in the foreseeable future
as determined by the City, and the City agrees to grant the Grantee all necessary rights of entry
for the connections to the new sites. The Grantee agrees to obtain all necessary licenses and
permits, and construct the I-net fiber backbone in a manner consistent with the Franchise.
Any new fiber connection shall be terminated at an internal point of demarcation in
Grantee's standard termination panel, unless the City provides another means oftermination, in
which case the City shall provide all necessary termination equipment. At each termination
location, the City shall provide wall mount backboards and a power source for the basic
termination, or such equipment as chosen by the City as replacement.
Section 10. Testing and Acceptance. For any new construction of I-Net fiber backbone, the
Grantee shall certify the integrity through testing in accordance with industry standards. Tests
will be conducted from the demarcation point to termination point, example City Hall to the 1-
Net site. Industry standards for loss and attenuation will determine the acceptable loss of a given
link. A copy of the documentation shall be provided by the Grantee in an electronic format. The
ORD# , Page 76
City or its designee shall have the option of attending any I-Net test conducted by Grantee and
also have the option of conducting a physical inspection of the construction taking place in the
right-of-way or on City property or other property used by the City, provided that this inspection
should not include touching, moving or manipulating the fiber, and provided further that this
inspection is conducted prior to the date of Grantee's planned testing.
....,/, ..> -" :.", ..... .. .'. .. \......,;. -. ... ;., .', .:~~ .,.
I: , -: (. ~}:.,~ :.'::'.: . . I:. '", ... . ',,' .;. "!. ~ .'. " . .... . , ,
'.~ ".,;. ~ \,... .'.
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ORD# , Page 77
------
COUNCIL MEETING DATE: May 16,2006 ITEM #: 5-c
"H""~_~""~'M_"'H"'" ..........._ ..... m..... mm...._._.............H...................H..... ........_..H..... ..........._. ...m......_~H..._.____~__.~ ...~~_.__.._.._._..m.._.._~.. ................. ......__...._.._.....__..........~__~..........m ................
CITY OF FEDERAL WA.Y
CITY COUNCIL
AGENDA BILL
SUBJECT: INTERLOCAL AGREEMENT - USE OF TECHNICAL RESCUE TRAILER
POLICY QUESTION: SHOULD THE CITY AGREE TO ALLOW USE OF THE CITY'S RESCUE TRAILER BY THE SOUTH
KING FIRE AND RESCUE TEAM?
COMMITTEE: PR&PSC MEETING DATE: May 8, 2006
CATEGORY:
rgj Consent [ -~ Ordinance D Public Hearing
0 City Council Business D Resolution 0 Other
STAFF REPORT By: GREG I CONTACT LYNETTE ALLEN DEPT: Public Safety
The City of Federal Way does not have a Technical Rescue Team; South King Fire and Rescue District does. With
this Agreement the City and the District would agree to mutual convenience and mutual aid throughout Federal
Way. The City would equip the Trailer with some small equipment and tools, while the District would stock with
rescue tools, shoring devices, and other necessary equipment.
With this Agreement the District would have unrestricted use of the trailer; however, the Rescue Trailer would be
available within the City of Fe~eral Way whenever an emergency "technical rescue" response is necessary; and the
District would agree to store the trailer at its expense, provide insurance for the trailer and pay for regular
maintenance.
Attachments: Interlocal Agreement - Use of Technical Rescue Trailer
Options Co.nsidered: N/A
_.....m...___.............._..._ ............M .............._.............._. ........""....._..... ..................... .. ....__H_.._...__.~..__...........H.............H ..........._..... .............H.......H....'._......m............................_~.."..".."...._.............._..___..__._.....",.~_...._,...._..,""._.
STAFFRECOMMENDATION:Staffrecommends Council agree to the use of the Rescue Trailer by the Dis~rict
and authorize the City Manag to execute th greement.
CITY MANAGER ApPROVAL: l ~ .
DIRECTOR ApPROVAL: ~\J,~--
Commitl e Council
COMMITTEE RECOMMENDATION: FORWARD THE RESCUE TRAILER AGREEMENT TO E
16. 2006 FOR APPROVAL
PROPOSED COUNCIL MOTION: "I move approval of accepting the Interlocal Agreement - Use of Technical
Rescue Trailer and authorize the City Manager to execute the agreement"
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION:
0 APPROVED COUNCIL BILL #
0 DENIED 1 ST reading
0 TABLEDIDEFERRED/NO ACTION Enactment reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REVISED - 02/06'2006 RESOLUTION #
---
-
INTERLOCAL AGREEMENT- USE OF
TECHNICAL RESCUE TRAILER
THIS AGREEMENT IS MADE by and between the City of Federal Way (hereinafter "the City")
and South King Fire and Rescue (hereinafter "South King Fire & Rescue" or "the District") for
the permitted use by South King Fire & Rescue of a rescue trailer provided by the City.
WHEREAS, the City has obtained a Starlite Cargo trailer through a 2003 Urban Area Security
Initiative Grant; and
WHEREAS, the City does not have a Technical Rescue Team, South King Fire & Rescue does
have a Technical Rescue Team, and the team is in need of such a trailer; and
WHEREAS, it would benefit the citizens of Federal Way ifthe District's Technical Rescue
Team had unrestricted access to the Rescue Trailer; and
WHEREAS, the City is willing to allow the District to use the trailer as a Rescue Trailer, so long
as the District stocks the trailer with rescue equipment, stores and maintains the trailer at its
expense, and makes the trailer and its equipment available for responses within the City; and
WHEREAS, RCW 39.34.08 and other Washington law, as amended, authorizes any city to enter
into an interlocal agreement to permit another government entity to perform any governmental
. service, activity or undertaking which either entity is authorized by law to perform; and
WHEREAS, the governing bodies of each of the parties hereto have determined to enter into this
Agreement as authorized and provided for by RCW 39.34.080 and other Washington law, as
amended;
NOW THEREFORE, in consideration ofthe above and foregoing recitals, the mutual promises
and covenants herein contained, and for other good and valuable consideration, the parties hereto
agree as follows:
1. Authority. This agreement is entered into pursuant to the authority of RCW 39.34, the
Interlocal Cooperation Act.
2. Purpose of Agreement. The purpose of this agreement is to set forth the terms and conditions
under which the City will allow use of a rescue trailer, described as "a Starlite Cargo, 14'
long by 7' wide" (VIN No.46YCPI42861076651) South King Fire & Rescue, as set forth
herein. The trailer will also include small equipment or tools, which also shall be and remain
the property ofthe City, but which shall be fully available to the District for use, along with
the trailer. The trailer will be stocked with the District's rescue tools and shoring devices,
necessary and appropriate for use by the District's Techpical Rescue Team.
3. Term of Am:eement. This agreement shall be effective for one year from the date of .
execution, but shall renew automatically for annual terms thereafter, unless earlier terminated
in accordance with the terms hereof.
Interlocalsl Use of Trailer
JFQlNovember 9, 2005 1
-------------------------- - ----- ---
4. Consideration. The consideration for this agreement is mutual convenience, reciprocity and
cooperation in mutual aid and otherwise. The District agrees to provide dry and secure
storage for the trailer at its expense. In consideration for the unrestricted ~se of the trailer,
the District agrees that it will make the Rescue Trailer available within thJ City of Federal
Way, should an emergency "technical rescue" response call for such use.
5. Termination of Agreement. If the City determines that it requires the use of the trailer, it may
require return of the trailer on 30 days notice, terminating this agreement at its discretion.
6. Good Condition. The parties agree that the trailer will be returned to the City in as good
condition as the condition it is in upon delivery to the District, except for fair wear and tear.
7. Maintenance Costs. The District agrees to bear any routine maintenance costs necessarily
incurred during the term ofthis agreement.
8. Insurance. The District agrees to provide all appropriate and necessary casualty and liability
insurance for the trailer and the contents thereof, during the term of this loan and agre~ment,
and to provide proof of insurance to the City upon request.
9. Hold Harmless and Indemnification. The District agrees to hold the City hannless and
indemnify the City from any and all claims of any kind arising out of the loan or the use of
the trailer by any person during the term of this agreement.
10. Other Costs. The parties have not identified any other incidental costs of this agreement, but
the City shall have the right to charge any extraordinary costs that are incurred to the District
such as unanticipated repairs or maintenance during the loan, provided that the City provides
prior written notice to the District of its intent to do so.
DATED this day of ,2006.
CITY OF FEDERAL WAY
Interim City Manager, Derek Matheson
Attest: Approved as to Form:
City Clerk, Laura Hathaway, CMC City Attorney, Patricia A. Richardson
Interlocalsl Use of Trailer
JFQlNovember 9,2005 2
COUNCIL MEETING DATE: May 16,2006 ITEM #: 5-d
~'_'_'___'''~__'__'_____'_'''_''_'''''_''''''''''_'''___''_'''__..~'_HH_"""'u~ .m._...__,......^~_____._..__.__...__~._.m___._.~.~ ..... ~_.._..._. ............._._____._______..._..........____._.............._..._..._......"......_.__M._ ....._"'...._____.___..........._
CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: INTERLOCAL AGREEMENT BETWEEN OKANOGAN COUNTY, WASHINGTON AND THE CITY OF
FEDERAL WAY, WASHINGTON, FOR THE HOUSING OF INMA TES IN Tl-IE OKANOGAN COUNTY JAIL
POLICY QUESTION: SHOULD THE CITY OF FEDERAL WAY ENTER INTO A NEW INTERLOCAL AGREEMENT WITH
OKANOGAN COUNTY?
COMMITTEE: PR&PS COMMITTEE MEETING DATE:.May 8, 2006
CA TEGORY:
rgj Consent 0 Ordinance D Public Hearing
0 City Council Business 0 Resolution D Other
STAHREPORT By: COMMANDER ANDY HWANG I LYNETTE ALLEN DEPT; Public Safety
_~..H...'.H..._...__..........__.._._...._....._._H___~__.._._...........m...... ................._~..._.._..........~.__... ._.__..........._....._..._._.......H......m 'M ......._... ._.._................__...__.....__.......... ..._....~._.H.H._...__.___m...._..___........._....____.......___.._............__. ............
Attachments: Interlocal Agreement between Okanogan County, Washington and the City of Federal Way,
Washington for the Housing of Inmates in the Okanogan County Jail.
Options Considered: N/A
City of Federal Way currently has five interlocal agreements with other municipal and county
jurisdictions for jail services (Auburn, Enumclaw, Fife, King Co., and Yakima Co.) to house
misdemeanor inmates. City of Federal Way has had an interlocal agreement with Okanogan County in
the past but the contract has expired and needs to be renewed.
The City of Federal Way is part of the Jail Administrative Group (JAG), comprised of37 cities in King
County. The primary jail services for these cities are being provided by Yakima County Department of
Corrections. Our city's primary jail facilities are Yakima County with 29 contracted beds and Fife Jail
with 10 contracted beds. Overflow inmates are incarcerated at Auburn, Enumclaw and King County
Jail.
Entering into ajail service contract with Okanogan County will allow our city the flexibility to
incarcerate our inmates at another jail facility. In addition, the housing of inmates at Okanogan County
will bring cost savings to our city. Okanogan County's daily rate is $42 without a booking fee.
The daily rate and booking fee are as following:
Jail Facility Daily Ra te Booking Fee
. Auburn $59.04 $0.00
. Enumclaw $50.00 $0.00
. Fife $63.00 $0.00
e. King County $97.59 $186.42
. Yakima County $68.07 $0.00
. Okanogan County $42.00 $0.00
There is a benefit financially and operationally for the city to enter into ajail service contract with
Okanogan County. Other local jurisdictions such as Renton, Auburn, etc already have a contract with
Okanogan County Jail to house misdemeanor inmates.
_.~~..........._...._._m"""""'''''''~'__'''''''_'_~'''.''_''M____..........__._.._"........ ...............................__._ ...._....._ ..mm._..~~__............"......_......_._.___m..... ....._......_...._~....._._H_...~.. ........._..~_._.._...m._......._._...........___._........ ........._ ..._.~__.._......._.....___ .....m.... mmm..._._......__._~......
STAff RECOMMENDATION: Stan. recommends Council agree to the lnterlocal Agreement between
Okanogan County, Washington and the City of Federal Way, Washington for the Housing of Inmates in
the Okanogan County Jail.
1
CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL: h \)\)\\1"\
"" Council
COMMITTEE RECOMMENDATION: FORWARD THE INTERLOCAL AGREEMENT TO FULL COUNCIL ON MAY 16,
2006 FOR ApPROVAL
... .
PROPOSED COUNCIL MOTION: "I move approval of the Interlocal Agreeme Okollogan County.
Washingtoll and the City of Federal Way. Washington. for the Housing of Inmates in the Okanogan County
jail and authorize the City Manager to execute the agreement. "
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION:
0 AI)PI~OVED COUNCIL BILL II
0 DENIED I ST reading
0 TABLED/DEFElmED/NO ACTION EuaCllllcnt reading
0 MOVED TO SECOND READING (orc!illlll/ces only) ORDINANCE II
REVISED - 02/0612006 RESOLUTION II
INTERLOCAL AGREEMENT BETWEEN OKANOGAN
COUNTY, WASHINGTON AND THE CITY OF FEDERAL
WAY, WASHINGTON, FOR THE HOUSING OF INMATES
IN THE OKANOGAN COUNTY JAIL
THIS INTERLOCAL AGREEMENT, hereinafter referred to as "Agreement", is made
and entered into on this day of 2006 by and between the City of Federal Way
hereinafter referred to as "The City", and the Board of County Commissioners of Okanogan
County, Washington, hereinafter referred to as "Okanogan County", each party having been duly
organized and now existing under the laws of the State of Washington.
WITNESSETH: .
WHEREAS, Okanogan County is authorized by law to operate a jail and the City is
authorized by law to operate a jail; and
WHEREAS, the City wishes to designate the Okanogan County jail as a place of
confinement for the incarceration of one or more inmates lawfully committed to the City's
custody; and
WHEREAS, the Director of the Corrections Facility of Okanogan County is desirous of
accepting and keeping in his/her custody such inmate(s) in the Okanogan County jail for a rate of
compensation mutually agreed upon by the parties hereto; and
WHEREAS, RCW 39.34.080 and other Washington law, as amended, authorizes any
county to contract with any city to perfoml any govell1mental service, activity or undertaking
which each contracting j urisdictiol1 is authorized by law to perform; and
WHEREAS, the governing bodies of each of the parties hereto have determined to enter
into this Agreement as authorized and provided for by RCW 39.34.080 and other Washington
law, as amended,
NOW, THEREFORE, in consideration of the above and foregoing recitals, the payments
to be made, the mutual promises and covenants herein contained, and for other good and
valuable consideration, the parties hereto agree as follows:
Section I. GOVERNING LAW
The parties hereto agree that, except where expressly otherwise provided, the laws and
administrative rules and regulations of the State of Washington shall govern in any matter
relating to inmate confinement pursuant to this Agreement.
Section 2. DURA nON
This Agreement shall remain in full force and effect from the effective date hereto until
December 31, 2008, subject to earlier tennination as provided by Secti~n 3 herein. This
Agreement may be renewed for like successive periods by written addendum under such terms
I JBT544959.DOC; I 100006.9001 60/1
and conditions as the parties may determine. Nothing in this Agreement shall be construed to
make it necessary for the City to have inmates housed in Okanogan County continuously.
Section 3. TERMIN A TION
(a) Bv either party. This Agreement may be terminated by written notice from
either party to the other party delivered by regular mail to the contact person identified herein,
provided that termination shall become effective ninety (90) days after receipt of such notice.
Within said ninety (90) days, the City agrees to remove its inmate(s) from the Okanogan County
jail.
(b) By the Citvdue to lack of funding. The obligation of the City to pay
Okanogan County under the provision of this Agreement beyond the current fiscal year is
expressly made contingent upon the appropriation, budgeting, and availability of sufficient funds
by and from the City 0 f Federal Way. In the event that such funds are not budgeted, appropriated
or otherwise made available for the purpose of payment under this Agreement at any time after
the current fiscal year, then the City shall have the option of tellllinating the Agreement upon
written notice to Okanogan County, except that all services provided to that point shall be
compensated at the agreed rate. The termination of this Agreement for this reason will not cause
any penalty to be charged to the City.
(c) Compensation Due for Services Rendered. In the event of termination of
this Agreement for any reason, the City shall compensate Okanogan County in the same manner,
and at the same rates as if this Agreement had not been terminated, should any City inmates
remain housed by Okanogan County after notice of such termination.
Section 4. MAILING ADDRESSES
(a) All notices, reports, and correspondence to the respective parties of this
Agreement shall be sent to the attention of the following people, except as set forth in (b) below:
Okanogan COllnty:
Okanogan County Corrections
Street 149 4th Ave N
City Okanogan, W A 98840
Contact Person: Noah Stewart
City of Federal Way:
City of Federal Way
PO Box 9718
Federal Way, W A 98063
(b) Contact Person: Notification related to the Medical, Removal, Escape, or
Death clauses herein shall be given by facsimile with a follow up telephone call to:
The on duty Federal Way Police Department Watch Commander, 253-835-6&51.
:JIH544<J5lJ.[)OC;I/OOOU6.<JOOI ClO/:
Section 5. COMPENSATION
(a) Rates. Except as provided in subsection (b), Okanogan County agrees to
perfonn at no transport cost to the City, a minimum of two tran~ports per week from the Fife
City Jailor such other location as designated by the City in order to transport Federal Way
inmates to and from the City, and to house the City inmates for compensation per day per
inmate, at the rate of forty-two dollars ($42.00) per day.
(b) Billing and payment. Okanogan County agrees to provide the City with an
iLemized bill lisLing all names of inmaLes who are housed, the case or citation number, the
number of days housed including the date and time booked into Okanogan County's jail and the
date and time released from Okanogan County's jail, and the dollar amount due for each.
Okanogan County agrees to provide said bill on or about the 10th ofeach month. The City agrees
to make payment to Okanogan County on or about thirty (30) days from the date the bill is
received.
Section 6. RIGHT OF INSPECTION
The City shall have the right, but not the duty, to inspect at all reasonable times, all Okanogan
County jails in which inmates of the City are confined in order to detem1ine if such jail maintains
standards of confinement acceptable to the City and that such inmates therein are treated equally
regardless of race, religion, color, creed or national origin. Okanogan County shall be obligated
to manage, maintain and operate its facilities consistent with all applicable federal, state and
local laws and regulations.
Section 7. INMA TE ACCOUNTS
Okanogan County shall establish and maintain an account for each inmate received from the City
and shall credit to such account all money which is received and shall make disbursements,
debiting such account in accurate amounts for the inmate's personal needs. Disbursements shall
be made in limited amounts as are reasonably necessary for personal maintenance. Okanogan
County shall be accountable to the City for such inmate funds. At either the termination of this
Agreement, the inmate's death, release from incarceration or retum to either the City or indefinite
release to the court, the inmate's money shall be transferred to the inmate's account in care of the
City. If requested by the City, Okanogan County Corrections will return said inmate
reimbursement to the City in the form of a check in the name of each inmate eligible for said
reimbursement.
Section 8. RESPONSlBlUTY FOR INMATE'S CUSTODY
(a) It shall be the responsibility of Okanogan County to confine the inmate or
inmates; to provide treatment, including the furnishing of subsistence and all necessary medical
and hospital services and supplies; to provide for the inmates' physical needs; to make available
to them programs and/or treatment consistent with their individual needs; to retain them in said
custody; to supervise them; to maintain proper discipline and control; to make certain that they
receive no special privileges and that the sentence and orders of the committing court in the State
PBT544959. DOC; 1/00006.900 160/:
-_._~
~-
are faithfully executed; provided that nothing herein contained shall be construed to require
Okanogan County, or any of its agents, to provide treatment, facilities or programs for any
inmates confined pursuant to this Agreement, which it.does not provide for similar inmates not
confined pursuant to this Agreement.
(b) Except as provided in Section 12, it is expressly understood that Okanogan
County shall not be authorized to transfer custody of any inmate confined pursuant to this
Agreement to any party other than the City, or to release any inmate from custody without
written authorization from the committing court.
Section 9. MEDICAL SER VICES
(a) Inmates from the City shall receive such medical, psychiatric and dental
treatment as may be necessary to safeguard their health while housed in the Okanogan County
jail. Okanogan County shall provide, or arrange for the providing, of such medical, psychiatric,
and dental services. The City shall pay directly or reimburse Okanogan County for all costs
associated with the delivery of medical services, or any emergency and/or major medical service,
provided to the City inmates.
(b) Okanogan County shall keep an adequate record of all such services. The
City will be able to review at its request any medical or dental services of major consequence, in
accordance with applicable law, including but not limited to HIPPA. Okanogan County will
report to the City any medical or dental services of a major consequence as soon as is practical.
(c) Should medical or dental services require hospitalization, the City agrees
to compensate Okanogan County dollar for dollar any amount expended or cost incurred in
providing the same; provided that, except in emergencies, the City will be notified either by
phone or fax prior to the inmate's transfer to a hospital and nothing herein shall preclude the City
from retaking the ill or injured inmates.
Section 10. DISCIPLINE
Okanogan County shall have physical control over and power to execute disciplinary authority
over all inmates of the City. However, nothing contained herein shall be construed to authorize
or permit the imposition of a type of discipline prohibited by state or federal law or the
imposition of a type of discipline that would not be imposed on an inmate who is not confined
pursuant to this contract.
Section II. RECORDS AND REPORTS
(a) Before or at the time of delivery of each inmate, the City shall forward to
Okanogan County a copy of all inmate records pertaining to the inmate's present incarceration at
the Fife City Jail. If additional infornlation is requested regarding a particular inmate, the parties
shall mutually cooperate to provide any additional information.
(b) Okanogan County shall keep all necessary and pertinent records
concerning such inmates in the manner mutually agreed upon by the partie.s hereto. During an
PBT54495<).DOC: 1/00006.<)00160/)
-~~------~----------------~-----
inmate's confinement in Okanogan County, the City shall, upon request, be entitled to receive
and be furnished with copies of any report or record associated with said inmate's incarceration.
Section 12. REMOVAL FROM THE JAIL
Except for eligible inmates for correctional work details and under the' direct supervision of a
corrections officer, an inmate of the City legally confined in Okanogan County shall not be
removed therefrom by any person without written authorization from the City or by order of any
court having jurisdiction. Okanogan County agrees that no early releases or alternatives to
incarceration, including furloughs, passes, home detention, or Work Release shall be granted to
any inmate housed pursuant to this Agreement without written authorization by the committing
court. This paragraph shall not apply to an emergency necessitating the immediate removal of
the inmate for medical, dental, psychiatric treatment or other catastrophic condition presenting an
eminent danger to the safety of the inmate or to the inmates or personnel of Okanogan County. In
the event of any such emergency removal, Okanogan County shall infornl the City of the
whereabouts of the inmate or inmates so removed, at the earliest practicable time, and shall
exercise all reasonable care for the safe keeping and cllstody of such inmate or inmates.
Section 13. ESCAPES
In the event any City inmate shall escape from Okanogan COllnty's custody, Okanogan County
will use all reasonable means to recapture the imnate. The escape shall be rep0l1ed immediately
to the City. Okanogan County shall have the primary responsibi lity for and authority to file
escape charges and authority to direct the pursuit and retaking of the inmate or inmates within its
own territory. Any cost in connection therewith shall be chargeable to and borne by Okanogan
County; however, Okanogan County shall not be required to expend unreasonable amounts to
pursue and return inmates from other states or other counties.
Section 14. DEA TH OF AN INMATE
(a) In the event of the death of a City inmate, the Okanogan County coroner
shall be notified. The City shall receive copies of any records made at or in connection with such
notification. Okanogan County will investigate any death within its facility and will allow the
City to join in on the investigation.
(b) Okanogan County shall immediately notify the City of the death of a City
inmate, fUlllish information as requested and, subject to the authority of the Okanogan County
coroner, follow the instructions of the City with regard to the disposition of the body. Written
notice shall be provided within three calendar days of receipt by the City of notice of such death.
All expenses relative to any necessary preparation of the body and shipment charges shall be
paid by the City. With the City's consent, Okanogan County may arrange for burial and all
matters related or incidental thereto, and all such expenses shall be paid by the City. The
provisions of this paragraph shall govern only the relations between or among the parties hereto
and shall not affect the liability of any relative or other person for the disposition of the deceased
or for any expenses connected therewith.
{JBT544959.DOC; 1/00006.900160/:
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(c) The City shall receive a certified copy of the death certificate for any of its
inmates who have died while in Okanogan County custody.
Section 15. RETAKING OF INMATES
In the event the confinement of any City inmate is terminated for any reason by either party,
retaking of inmates shall be coordinated in the same manner and at the same rates as if this
Agreement had not been terminated, or in a manner as agreed in writing by the parties.
Section 16. HOLD HARMLESS AND INDEMNIFICATION
" .
(a) The City shall defend, indemnify and hold harmless :Okanogan County, its
officers, agents and employees from any claim, cost, judgment or damages, including attorneys'
fees, arising from any City action or proceeding involving the confinement of any inmates from
the City in Okanogan County: provided that this subsection shall not apply to any such claim,
cost, judgment or damage that arises out of or in any way results from any allegations of any
intentional, willful or negligent act or omission on the part of Okanogan County or any officer,
agent or employee thereof.
(b) Okanogan County shall defend, indemnify and hold hannless the City, its
officers, agents and employees from any claim, cost, judgments or damages, including attorneys'
fees, including third party claims, arising out of any action or omission of Okanogan County, its
officers, agents, independent contractors, or employees while City inmates are in the custody of
Okanogan County, or for any wrongful release of inmates placed in their custody, or for any
claim by its employees, agents or independent contractors that may be asserted against the City
in performing this Agreement.
(c) An inmate shall become the responsibility of Okanogan County at the
point that the inmate(s) is booked into Okanogan County jailor when the inmate(s) has been
released to the care, custody and control of Okanogan County, including without limitation the
point at which Okanogan County, or its agents, picks up inmates or transports inmates as in
Section 5, whichever occurs first. Okanogan County shall hold the City harmless under the
terms of this section for all claims arising out of the detention of the inmate(s). Accordingly,
Okanogan County shall be held harmless by the City under the ternlS of this Agreement, for
claims arising out of the arrest of the inmate(s), or arising out of any situation occurring prior to
the time Lhat Okanogan County assumes responsibility for the inmate(s).
(d) The provisions of this section (Section 16) shall survive any termination or
expiration of this Agreement.
Section 17. INSURANCE
(a) Each party agrees to provide the other with evidence of insurance
coverage, in the form of a certificate of insurance from a solvent insurance provider and/or a
letter confirming coverage from a solvent self insurance pool, which is sufficient to address the
insurance and indemnification obligations set forth in this Agreement.
I JBT544959. DOC; 1/00006.900 l60/l
- -----
\.. (b) Ea<fh party shall obtain and maintain coverage in minimum liability limits
of one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the
aggregate for its liability exposures, including comprehensive general liability, errors and
omissions, auto liability and police professional liability. The insurance policy shall provide
coverage for those events that occur during the term of the policy, despite when the claim is
made. For the purpose of this paragraph, membership in a self insurance risk pool that provides
coverage with limits that are no less than the policy, and limits identified above shall satisfy the
requiremellLs of this.
Section 18. RIGHT TO REFUSE INMA TE(S)
(a) Okanogan County shall have the right to refuse to accept any inmate from
the City when, in the opinion of Okanogan County, its inmate census is at capacity or so near
capacity that there is a substantial risk that, through usual operation of the jail, the reasonable
operational capacity limits of the jail might be reached or exceeded.
(b) Okanogan County shall further have the right to refuse to accept any
inmate from the City who, in the judgment of Okanogan County, has a current illness or injury
which may adversely affect the operations of the Okanogan County jai I, has a history of serious
medical problems, presents a substantial risk of escape, or presents a substantial risk of injury to
other persons or property.
(c) Except as provided in Section 5 (a) and (b), Okanogan County shall
further have the right to refuse to keep any inmate from the City as provided in subsection (b) of
Section 18, and any transport returned to the City as a result of Section i8 shall be at the expense
ofthe City unless otherwise agreed upon in writing.
Section 19. MiSCELLANEOUS
In providing services under this contract, Okanogan County is an independent contractor and
neither it nor its officers, agents or employees are employees of the City for any purpose,
including responsibility for any federal or state tax, industrial insurance or Social Security
liability. Neither shall the provision of services under this contract give rise to any claim of
career service or civil service rights, which may accrue, to an employee .of the City under any
applicable law, rule or regulation.
Section 20. FINANCING
There shall be no financing of any joint or cooperative undertaking pursuant to this Interlocal
Agreement. There shall be no budget maintained for any joint or cooperative undertaking
pursuant to this Agreement.
Section 21. PROPERTY
This Agreement does not provide for the acquisition, holding or disposal of real or personal
property.
.
I JBT544959.DOC; 1/00006.90016011
~._-
Section 22. JOINT ADMINISTRATIVE BOARD
J
No separate legal or administrative entity is created by this Agreement. To the extent necessary,
this Agreement shall be administered by the City Administrator for the City of Federal Way, or
his/her designee, and the Chainnan of the Okanogan County Board of Commissioners, or his/her
designee.
Section 23. GENERAL PROVISIONS
This Agreement contains all of the agreements of the parties with respect to any matter covered
or mentioned in the Agreement. No provision of the Agreement may be amended or modified
except by written agreement signed by all of the parties' successors in interest and assigns;
provided, however, that Okanogan County shall not delegate its duties pertaining to'City inmate
care without the written consent of the City, which consent shall nor be withheld unreasonably.
Any provision that is declared invalid or illegal shall in no way affect or invalidate any other
provision. In the event either party defaults on the performance of any terms of the Agreement
or either party places the enforcement of the Agreement in the hands of an attorney, or files a
lawsuit, the prevailing party shall be entitled (0 an award of all its attorney fees, costs and
expenses. Failure of any party to declare any breach or default immediately upon the occurrence
thereof, or delay in taking any action in connection therewith, shall not waive such breach or
default. Time is of the essence of the Agreement and each and all of its provisions in which
performance is a factor. The laws of the state of Washington shall govern this Agreement. Any
action, suit, or judicial or administrative proceeding for the enforcement of the Agreement shall
be brought and tried in the Superior Court for the State of Washington in King County. This
Agreement may be executed in any number of counterparts. Upon Effective Date, this
Agreement modifies, supersedes and replaces any and all contractual provisions, promises, or
covenants contained in any previous agreement between the City and Okanogan County.
IN WITNESS WHEREOF, the above and foregoing Agreement as been executed in
duplicate by the parties hereto and made effective on the day and year first above written:
DA TED at Okanogan, Washington this _ day of 2006.
CITY OF FEDERAL WAY BOARD OF COUNTY COMMISSIONERS
OKANOGAN, WASHINGTON
By:
Derek Matheson, Interim City Manager Don Hover, Chairman
.
: J BT544959. DOC; 1/00006.90016011
---- - -- -------
\ Andrew Lampe, Member
Mary Lou Peterson, Member
. ATTEST/: ATTEST:
By: By:
.
Laura Hathaway, CMC Brenda J. Crowell, Clerk of the Board
City Clerk
OKANOGAN COUNTY SHERIFF
By:
Frank Rogers, Sheriff
APPROVED AS TO FORM: APPROVED AS TO FORM:
Patricia A. Richardson, City Attorney , Civil Deputy
,
PIH544959.DOCI/OOOO6.900160/}
----- -- -
COUNCIL MEETING DATE: May 16,2006 ITEM #: 5-e
._._.__..........."......._.~~... ._~.~.~......_...."....._.".~.~._......"._..____,..._....,__..~....._.......... ....."...................... ...."..........~................____..~.....H....~__..... ....._'_"_'" ....,_ -
CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: INTERLOCAL AGREEMENT BETWEEN CITY OF FIFE, WASHINGTON AND THE CITY OF FEDERAL
WAY, WASHINGTON, FOR THE HOUSING OF INMATES IN THE CITY OF FIFE JAIL
POLICY QUESTION: SHOULD niE CITY OF FEDERAL WAY ENTER INTO A NEW INTERLOCAL AGREEMENT WITH
THE CITY OF FIFE FOR JAIL SERVICES?
COMMITTEE: PR&PS COMMITTEE MEETING DATE: May 8, 2006
CATEGORY:
rgj Consent 0 Ordinance 0 Public Hearing
0 City Council Business 0 Resolution 0 Other
STAFF REpORT By: JAIL COORDINATOR JASON WILSON DEPT: Public Safety
..._........._"...._..M...R ~.._........".......................~.. ___.......__....._.~._..H._~....._...................._............_.~......_..........,._..__..._.._....._..........._
Attachments: Interlocal Agreement between the City of Fife, Washington and the City of Federal Way,
Washington for the Housing of Inmates in the Fife City Jail.
Options Considered: N/A
The City of Federal Way currently has five interloca1 agreements with municipal and county
jurisdictions for jail services (Auburn, Enumc1aw, Fife, King Co., and Yakima Co.) to house
misdemeanor inmates. The City of Federal Way has had an interlocal agreement with the City of Fife
since 2001. In late 2005 both cities began to negotiate the current terms of the interlocal agreement.
The Fife City Jail is a facility able to incarcerate approximately thirty (30) male misdemeanor inmates
at any given time. The Fife Jail's geographic location reduces the amount of time patrol officers are
outside of the city booking arrestees. The agreement requires that a minimum of ten (I 0) beds be
allocated daily for the use of Federal Way inmates. In recent years our daily population at Fife is
generally over ten inmates per day.
By renewing the interlocal agreement the City will continue to have both a cost effective and close
location to incarcerate misdemeanor inmates. The contract also allows us the flexibility to continue to
utilize the Fife City Jail as a transport hub for inmates needing transportation services to Yakima
County. Additionally the Fife City Jail will be responsible for providing security of Federal Way
inmates ifthey are in need of outside medical care.
Fife's daily rate will increase from $63 to $66 per day / pei inmate with no booking fee for the 2006
calendar year; and to $67 per day / per inmate effective January 1, 2007. The 2006 daily rate is
retroactive to January 1, 2006, costing the city approximately $3837. The increase in daily rates is
reasonable based on the normal market adjustments made by our other contract jails.
The tentative 2006 / 07 daily rates and booking fees are as follows:
J ail Facility Daily Rate Booking Fee
2006 2007 2006 2007
Fife $66.00 $67.00 $0.00 $0.00
Auburn $59.04 $59.04 $0.00 $0.00
Enumclaw $50.00 $50.00 $0.00 $0.00
King County $97.59 $103.27 $186.42 $197.23
Yakima County $68.07 $71.47 $0.00 $0.00
Okanogan County $42.00 $0.00 $0.00 $0.00
There is a benefit financially and operationally for the city to renew the jail service contract with the
City of Fife.
~_....""_"'~..._M_'~"_"_,,,,,_,,,,,,,,,,,_,,,,,,,,,,_,,___,____'_~"'"'___'''___'_'M~"",,,,,,_,_,___,,,,,,__,'''_'''__H_'''''',,,,,,,,,,,_,~,_____........"""'''..............___......._"..._...._......._,..._....__..__..._.....__.~~.____
STAFF RECOMMENDATION: Staff recommends Council agree to the InterJocal Agreement between the City
of Fife and the City of Federal Way for the Housing ofInmates in the Fife City Jail, and authorize the City
Manager to execute the Agree nt.
CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL:
Committee Committee Council
COMMITTEE RECOMMENDATION: FORWARD THE INTERLOCAL AGREEMENT TO FULL COUNCIL ON MAY 16,
2006 FOR APPROVAL
.~ ('
PROPOSED COUNCIL MOTION: HI move approval of the Interlocal Agreemen between the City of Fife,
Washington and the City of Federal Way, Washington, for the Housing of Inmates in the Fife City Jail, and
authorize the City Manager to execute the Agreement.
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION:
0 APPROVED COUNCIL BILL #
0 DENIED I ST reading
0 TABLED/DEFERRED/NO ACTION Enactment reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REVISED - 02/06'2006 RESOLUTION #
INTERLOCAL AGREEMENT BETWEEN THE CITY OF FIFE, WASHINGTON AND
THE CITY OF FEDERAL WAY, WASHINGTON
FOR THE HOUSING OF INMATES IN THE FIFE JAIL
THIS INTERLOCAL AGREEMENT is dated effective this 1st day of January, 2006 by
and between the City of Federal Way, Washington, a Washington municipal corporation, and the
City of Fife, Washington, municipal corporation, each party having been duly organized and now
existing under the laws of the State of Washington.
WITNESSETH:
WHEREAS, the Chief of Police for the City of Fife (hereinafter "Fife") is authorized by
law to have charge and custody ofthe City of Fife Jail (hereinafter "Fife Jail"); and
WHEREAS, the City Manager for the City of Federal Way (hereinafter "Federal Way")
is authorized by law to have charge and custody of Federal Way prisoners or inmates; and
WHEREAS, Federal Way wishes to designate the Fife Jail as a place of confinement for
the incarceration of one or more inmates lawfully committed to its custody; and
WHEREAS, Fife desires to accept and keep in its custody such inmate(s) in the Fife Jail
for a rate of compensation mutually agreed upon by the parties hereto; and
WHEREAS, RCW 39.34.08 and other Washington law, as amended, authorizes any city
to enter into an interlocal agreement to permit another city to perform any governmental service,
activity or undertaking which either city is authorized by law to perform; and
WHEREAS, the goveming bodies of each of the parties hereto have determined to enter
into the Agreement as authorized and provided for by RCW 39.34.080 and other Washington
law, as amended;
NOW, THEREFORE, in consideration of the above and foregoing recitals, the payments
to be made, the mutual promises and covenants herein contained, and for other good and
valuable consideration, the parties hereto agree as follows:
1. JAIL A V AILABILITY
Fife shall make available for Federal Way inmates a minimum often (10) beds per day, and
shall accept and house a minimum often (10) Federal Way inmates per day. Fife also agrees
lnterlocal Agreement Between City of Fife/City of Federal Way
Page 1 of8
4/28/2006 FIFE_ FW
-
- - -
to make additional beds in excess often (10) available to Federal Way on a "first come, first
served" or "space available" basis.
2. COMPENSA nON
(a) Rates. The cost of Fife's care of all Federal Way inmates herein shall be $66.00 per
day, per bed/inmate, effective through 2006. Beginning January 1,2007 the rate shall be $67.00
per day, per bed/inmate. The parties agree that Fife will not charge a separate booking fee in
addition to such rates.
(b) Minimum Charge. The City of Federal Way agrees to commit to and pay for ten (10)
beds per day, at the rate set forth in Section 2(a) above. Fife shall make any contracted bed not
used by Federal Way available for use by other agencies. If the bed is used by another agency
then $66.00 per bed for each day will be credited to Federal Way's bill as set forth in Section
2(c) below. Provided, however, Fife reserves the right to fill other empty beds in its facility
before offeling the Federal Way beds to other agencies.
(c) Billing and payment. Fife agrees to provide Federal Way with an itemized bill listing
all names of inmates who are housed, the case/citation number, the number of days housed
(including the date and time of booking and date and time of release), and the dollar amount due
for each. The bill shall reflect the minimum charge provided for in Section 2(b) above, and
charges for any inmates in excess often (10) inmates per day (under Section 1 above), less credit
for all income received by Fife from other agencies for their use of the Federal Way's ten (10)
contracted beds as provided for in Section 2 (b) above. Fife agrees to provide said bill by the
10th of each month. Federal Way agrees to make payment to Fife within thirty (30) days of
receipt of such bill for the amount billed for the previous calendar month.
3. DURATION OF INMATE STAY/TYPES OF INMATES
(a) Duration of Inmate Stay. The parties agree that the maximum length of stay per
inmate, including pre- and post-trial, may not exceed 30 calendar days.
(b) Types of Inmates accepted by Fife Jail. Fife will not accept female prisoners for
booking into the Fife Jail until such time that Fife equips the Fife Jail to accommodate female
prisoners. Federal Way may not book violent felons into the Fife Jail. "Violent felon" is defmed
as any person being held for suspicion, warrant, or arrest for any felony crime against a person.
Federal Way may book nonviolent felons for a one-night stay provided that Federal Way
transports any such nonviolent felons the following day to another jail facility.
At the time a person is presented to the Fife Jail for booking by a Federal Way
officer, the Fife corrections staff will determine whether the suspect and/or prisoner will be
accepted for booking. Fife reserves the right, in its sole discretion, to not accept persons injured,
extremely ill, or exhibiting behavior that presents an obvious danger to the staff or other inmates.
In the event a prisoner is not accepted for booking, Fife shall provide written notice (email is
acceptable) to the Federal Way Jail Coordinator indicating why booking was declined.
lnterlocal Agreement Between City ofFife/City of Federal Way
Page 2 of8
4/28/2006 FIFE FW
-----
(c) Collection of insurance information. Fife agrees to collect medical insurance
information from inmates when they are booked into the Fife Jail pursuant to RCW 70.48.130.
4. RIGHT OF INSPECTION
Federal Way shall have the right to inspect, at all reasonable times, all of the Fife Jail in
which Federal Way's inmates are confined in order to determine if such jail maintains standards
of confinement acceptable to Federal Way and that such inmates therein are treated equally
regardless or race, religion, color, creed or national origin; provided, however, that Fife shall be
obligated to manage, maintain and operate its facilities consistent with all applicable federal,
state and local laws and regulations.
5. FURLOUGHS. PASSES. AND WORK RELEASE
Fife agrees that no early releases or alternatives to incarceration, including furloughs,
passes, work crews, electronic home detention, or work release shall be granted to any inmate
housed pursuant to this Agreement without written authorization by the committing court.
Provided, Fife shall be under no obligation to allow furloughs, passes, work crews, electronic
home detention or work release.
6. INMATE ACCOUNTS
Fife shall establish and maintain an account for each inmate received from Federal Way
and shall credit to such account all money which is received and shall make disbursements,
debiting such accounts in accurate amounts for the inmate's personal needs. Disbursements shall
be made in limited amounts as are reasonably necessary for personal maintenance. At either the
termination of this Agreement, the inmate's death, or return to either Federal Way or indefinite
release to the court, the inmate's money shall be transferred to the inmate's account in care of
Federal Way. Upon release from incarceration, Fife shall return any remaining money to the
pnsoner.
7. RESPONSffiILITY FOR OFFENDER'S CUSTODY
It shall be the responsibility of Fife to confine the inmate or inmates; to provide
h-eatment, including the furnishing of subsistence and all necessary medical and hospital services
and supplies; to provide for the inmates' physical needs; to make available to them programs
and/or treatment consistent with the individual needs; to retain them in said custody; to supervise
them; to maintain proper discipline and control; to make certain that they receive no special
privileges and that the sentence and orders of the committing court in the State are faithfully
executed; provided that nothing herein contained shall be construed to require Fife, or any of its
agents, to provide treatment, facilities or programs for any inmates confined pursuant to this
Agreement, which it does not provide for similar inmates not confined pursuant to this
Agreement, or which are not otherwise required by law.
Interlocal Agreement Between City ofFife/City of Federal Way
Page 3 of8
4/28/2006 FIFE FW
8. MEDICAL SERVICES
(a) Inmates from Federal Way shall receive and Fife shall arrange for such medical,
psychiatric and dental treatment as may be necessary to safeguard their health while housed in
the Fife Jail and shall notify Federal Way prior to any consultation for non-emergency outside
servIces. Except for in-house routine minor medical services that can be treated by Fife Jail
staff, Federal Way shall pay directly or reimburse Fife for all costs associated with the delivery
of any medical, psychiatric and/or dental services provided to Federal Way inmates; provided
that Federal Way has the option to remove inmates, if at Federal Way's discretion, it believes
that another jail would be more appropriate for addressing the inmate's medical needs.
(b) Fife shall keep adequate records of all such services and said records shall be
available for Federal Way's review at its request.
(c) Except in emergencies, Federal Way will be notified by contacting Federal Way's
Public Safety Department Watch Commander at (253) 835-6851 prior to the inmate's transfer to
a hospital and nothing herein shall preclude Federal Way from retaking the ill or injured inmates.
Any emergency medical, psychiatric, or dental services shall be reported to Federal Way as soon
as time permits.
. (d) If inmates held on Federal Way charges are transported to a local hospital facility, the
short term security of said inmates shall be the responsibility of the City of Fife. Short term
security is defmed as less than eight (8) hours.
(e) If inmates held on Federal Way domestic violence related charges or driving under
the influence (DUI) charges are transported to a local hospital facility, the security of said
inmates shall be the responsibility of the City of Fife.
9. DISCIPLINE
Fife shall have physical control over and power to execute disciplinary authority over all
Federal Way inmates. However, nothing contained herein shall be construed to authorize or
permit the imposition of a type of discipline prohibited by the Laws of the State of Washington.
10. RECORDS AND REPORTS
Fife shall keep all necessary and pertinent records concerning Federal Way inmates in the
manner mutually agreed upon by the parties hereto. During an inmate's confinement in the Fife
Jail, Federal Way shall upon request be entitled to receive and be furnished with copies of any
report or record associated with said inmate(s) incarceration.
11. REMOVAL FROM THE JAIL
A Federal Way inmate legally confined in the Fife Jail shall not be removed therefrom by
any person without written authorization from Federal Way or by order of any court having
jurisdiction. Fife agrees that no early releases or alternatives to incarceration, including
furloughs, passes, work release, work crews or electronic home detention shall be granted to any
Interlocal Agreement Between City of Fife/City of Federal Way
Page 4 of8
4/28/2006 FIFE_ FW
______n_______ ------------------------- --------------
inmate without written authorization from the committing court. This paragraph shall not apply
to an emergency necessitating the immediate removal of the inmate for medical, dental,
psychiatric treatment or other catastrophic condition presenting an imminent danger to the safety
of the inmate or to other inmates or Fife Jail personnel. In the event of any such emergency
removal, Fife shall inform Federal Way of the whereabouts of the inmate or inmates so removed,
at the earliest practicable time, and shall exercise all reasonable care for the safekeeping and
custody of such inmate or inmates.
12. ESCAPES
In the event any Federal Way inmate shall escape from Fife's custody, Fife will use all
reasonable means to recapture the inmate. The escape shall be reported immediately to Federal
Way. Fife shall have the primary responsibility for and authority to file escape charges and
direct the pursuit and retaking of the inmate or inmates within its own territory. Any cost in
connections therewith shall be chargeable to and borne by Fife; however, Fife shall not be
required to expend unreasonable amounts to pursue and return inmates from other states or other
countries.
13. DEATH OF AN INMATE
(a) In the event of the death of a Federal Way inmate, the Pierce County Coroner shall be
notified. Federal Way shall receive copies of any records made at or in connection with such
notification.
(b) Fife shall immediately notify Federal Way of the death of a Federal Way inmate,
furnish information as requested and follow the instructions of Federal Way with regard to the
disposition of the body. The body shall not be released except on written order of the
appropriate officials of Federal Way. Written notice pertaining to the release shall be provided
within three weekdays of receipt by Federal Way of notice of such death. All expenses relative
to any necessary preparation of the body and shipment charges shall be paid by Federal Way.
With Federal Way's consent, Fife may arrange for burial and all matters related or incidental
thereto, and all such expenses shall be paid by Federal Way. The provisions of this paragraph
shall govern only the relations between or among the parties hereto and shall not affect the
liability of any relative or other person for the disposition of the deceased or for any expenses
connected therewith.
(c) Federal Way shall receive a certified copy of the death certificate for any of its
inmates who have died while in Fife's custody.
14. REMOVING OF INMATES
Upon request from Fife, Federal Way shall, at its expense, remove any Federal Way
inmate within (4) hours after receipt of such request. In the event the confinement of any Federal
Way inmate is terminated for any reason, Federal Way shall, at its expense, retake such inmate
from the Fife Jail.
Interlocal Agreement Between City of Fife/City of Federal Way
Page 5 of8
4/2812006 FIFE FW_
-------------
15. GOVERNING LAW
The parties hereto agree that, except where expressly otherwise provided, the laws and
administrative rules and regulations of the State of Washington shall govern in any matter
relating to an inmate(s) confined pursuant to the Agreement.
16. DURA nON
This Agreement shall enter into full force and effect from January 1, 2006, and end
December 31, 2007, subject to earlier termination as provided by Section 17 herein. This
Agreement shall be renewed automatically for one year successive periods under such terms and
conditions as the parties may determine. Nothing in the Agreement shall be construed to require
Federal Way to house inmates in the Fife Jail continuously.
17. TERMINA TrON
(a) By either party. This Agreement may be terminated by written notice from either
party to the other party delivered by regular mail to the contact person identified herein, provided
that termination shall become effective sixty (60) working days after receipt of such notice.
Federal Way agrees to remove any inmate(s) from the Fife Jail by the close of said sixty (60) day
notice period.
(b) By Federal Way due to lack of funding. The obligation of Federal Way to pay Fife
under the provision of this Agreement beyond the close of the current fiscal year (December 31,
2006) is expressly made contingent upon the appropriation, budgeting availability of sufficient
funds by Federal Way. In the event that such funds are not budgeted, appropriated or otherwise
made available for the purpose of payment under this Agreement at any time after December 31,
2006, then Federal Way shall have the option of terminating the Agreement upon written notice
to Fife, except that all services provided to that point shall be compensated at the agreed rate.
The termination of this Agreement for this reason will not cause any penalty to be charged to
Federal Way.
(c) In the event of termination of this Agreement for any reason, Federal Way shall
compensate Fife for prisoners housed by Fife after notice of such termination until Federal Way
retakes its inmates. Compensation shall be paid in the same manner and at the same rates set
forth under Section 2, just as if this agreement had not been terminated.
18. MAILING ADDRESSES
All notices, reports, and correspondence to the respective parties of this Agreement shall
be sent to the following:
City of Fife: City of Fife
5411 23rd St E
Fife, WA 98424-2061
Contact Person: Steve Worthington, City Manager
Interlocal Agreement Between City of Fife/City of Federal Way
Page 6 of8
4/28/2006 FIFE FW
~------- ----------..--
City of Federal Way: City of Federal City Manager's Office
PO Box 9718
Federal Way, WA 98063-9718
Contact Person: Derek Matheson, Interim City Manager
19. HOLD HARMLESS AND INDEMNIFICATION
Fife will assume the liability for the custody and care of Federal Way prisoners once they
are in the custody of Fife. Fife shall defend, indemnify and hold Federal Way, its officers,
officials, employees and volunteers hannless from any and all claims, injuries, damages, losses
or suits including reasonable attorney fees, arising out of or in connection with the performance
of this Agreement, except for injuries and damages caused by the sole negligence of Federal
Way and for any claims or false arrest of false imprisonment, for which Federal Way shall
defend, indemnify and hold Fife harmless, including reasonable attorneys fees. 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 Fife and Federal Way, its officers,
officials, employees, and volunteers, Fife's liability hereunder shall be only to the extent of
Fife's negligence. It is further specifically and expressly understood that the indemnification
provided herein constitutes Fife's waiver of immunity under Industrial Insurance, Title 51 RCW,
solely for the purposes of this indemnification. This waiver has been mutually negotiated by the
parties. The provisions of this section shall survive the expiration or termination of this
Agreement.
20. MISCELLANEOUS
(a) Fife shall have the right to refuse to accept more than ten inmates from Federal Way
when, in the opinion of Fife, its inmate census is at capacity or so near capacity that there is a
substantial risk that, through usual operation of the jail, the reasonable operational capacity limits
of the j ail might be reached or exceeded.
(b) Fife shall further have the right to refuse to accept any inmate from Federal Way who,
in the judgment of Fife, has a current illness or injury which may adversely affect the operations
of the Fife Jail, has a history of serious medical problems, presents a substantial risk of escape, or
presents a substantial risk of injury to other persons or property.
(c) Federal Way prisoners incarcerated in the Fife Jail pursuant to this Agreement shall be
transported to Fife by and at the expense of Federal Way and shall be returned, if necessary, to
Federal Way by Federal Way personnel and at Federal Way's expense. Fife is not responsible
for transportation of Federal Way prisoners under this Agreement and shall be reimbursed by
Federal Way for any actual expenses incurred in transport of an inmate if, in fact, transportation
of an inmate by Fife becomes necessary.
Interlocal Agreement Between City of Fife/City of Federal Way
Page 7 of8
4/28/2006 FIFE FW
(d) In providing services under this contract, Fife is an independent contractor and neither
it nor its officers, agents or employees are employees of Federal Way for any purpose, including
responsibility for any federal or state tax, industrial insurance or Social Security liability.
Neither shall the provision of services under this Agreement give rise to any claim of career
service or civil service rights, which may accrue to an employee of Federal Way under any
applicable law, rule or regulation.
(e) A copy of this agreement, once executed, will be filed with King County and Pierce
County, as required by RCW 39.34.040.
(f) This Agreement replaces and supersedes all prior agreements between the Parties
relating to jail services.
IN WITNESS WHEREOF, the above and foregoing Agreement has been executed in duplicate
by the parties hereto and made effective on the day and year firstabove written:
CITY OF FEDERAL WAY CITY OF FIFE
Derek Matheson, Interim City Manager Steve Worthington, City Manager
Brad Blackburn, Acting Chief of Police
ATTEST: ATTEST:
Laura Hathaway, CMC, City Clerk Madyn Campbell, City Clerk-Treasurer
Approved as to Form: Approved as to Form:
Patricia A. Richardson, City Attorney Loren Combs, City Attorney
lnterlocal Agreement Between City of Fife/City of Federal Way
Page 8 of8
4/28/2006 FIFE FW
COUNCIL MEETING DATE: May 16, 2005 ITEM #: 5-f
-
.__.._......._........__...._._...._~._..__..._~__H.~.....__m~......_m_._.............. . _.___..._.__.m__._...__......___.....~_..__...._....._. ..... ..... _'___.' ',.'_....'__ ... _... ..........___......__._ ... _._..__.__~....._m.___._.__.._~.____..~_..__ . ..._._...__._.__....___..__.__~_.~_.
CITY OF FEDERAL WAY
. CITY COUNCIL
AGENDA BILL
SUBJECT: 26th Avenue SW Pipe Replacement Project -Request for Direction (CIP # 304-3100-253)
POLICY QUESTION: Should the Council authorize Suiface Water Management (SWM) Staff to combine three projects into
one for efficiency and cost savings?
COMMITTEE: Land Useffransportation MEETING DA TE: May 1, 2006
CATEGORY:
rgj Consent 0 Ordinance 0 Public Hearing
D City Council Business 0 Resolution 0 Other
STAFF REpORT By: Paul Bucich, SWM Manager (lnitial~. DEPT: Public Works
-' -_.~---_._.~--_.._._~--_._-----~-- .......... .------------.-....-----.......---.
Attachments:
L LUTC Memo dated May 1, 2006.
Options Considered:
1. Direct SWM to combine the SW 320lh St. crossing project (304-3100-248) with the 26th Avenue
SW (304-3100-253) project and combine the funding ($150,000 and $519,000) into one project.
Direct the Finance Department to transfer $141,000 from SWM unallocated CIP into the 26lh
Avenue SW project (304-3100-253) in recognition of the additional trunk system being replaced
. and efficiencies generated from combining the three projects.
2. Direct SWM to design the 26th Avenue SW (304-3100-253) Trunk Replacement Project and
report back to council at the 50% design stage.
3. Direct staff not to combine projects nor proceed with design and provide direCtion to staff.
-.-.------. --.-"-----.-----.-.-.-..-------.--------.---.-.--------._-_._-_._-_.._-_._._----_.._--~ ._-
STAFF RECOMMENDATION: Staf
CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL: l~ Initial
Conuninee COWlcil Conunittee Council
COMMITTEE RECOMMENDA nON: LUTC recommends Option(s) It.)..
aIr ~ Committee Member
"I move approval of the LUTC recommendations from May 1", 2006. "
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION:
0 APPROVED COUNCIL BILL #
0 DENIED 1ST reading
0 T ABLEDIDEFERRED/NO ACTION Enactment reading
. 0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REVISED - 02/06/2006 RESOLUTION #
I
CITY OF FEDERAL WAY
MEMORANDUM
DATE: May 1 SI, 2006
TO: Land Use and Transpnrtation cnmmitt~
VIA: Derek Matheson, Interim City Manager
FROM: Cary M. Roe, P.E., Public Works Dir ctor ~
Paul A. Bucich, P.E., Surface Water Manage~
SUBJECT: 2rJh Avenue SW Pipe Replacement Project -Request for Direction (CIP # 304-3100-253)
POLICY QUESTION:
Should the Council authorize Surface Water Management (SWM) Staff to combine three projects into one for
efficiency and cost savings?
BACKGROUND:
Current SWM CIP budget documents call for three projects to be constructed along the 261h A venue SW
alignment between Decatur High School and SW 334th St.:
. Replace a 150 foot crossing at SW 320th St. south of Decatur High School with a larger diameter pipe in
2004/5, (304-3100-248) ($150,000)
. Replace 1,250 feet of pipe from approximately SW 327th S1. along 26th Avenue SW to SW 33200 S1. in
2005/6, (304-3100-253) ($519,000)
. Replace 1,150 feet of trunk line in 26th Avenue SW from SW 323rd S1. south to SW 327th St. in 2007.
(project number not assigned yet) ($680,637)
An analysis using a detailed computer model developed in 2004/5 and calibrated with in-pipe flow measurements,
along with a TV inspection of the entire mainline showed:
1. The crossing under SW 320th St. does not need replaced;
2. The majority of the flooding at the intersection of SW 323rd and 261h Avenue SW results from undersized
pipes in the intersection and conditions within Lake Ponce de Leon and its outlet channel;
3. Some of the pipe segments scheduled for replacement are adequate and do not need to be replaced.
4. Additional sections of pipe that have reached their service life and need to be replaced.
fu consideration of the modeling results, additional pipe that requires replacement, and cost savings that can be
realized through combining projects, SWM is recommending combining the three above referenced projects into
one for construction and funding. If implemented, this recommendation will result in a reduction of approxi~ately
250 lineal feet of pipe replacement.
The proposed "combined" project will construct approximately 2,300 feet of replacement trunk line in 2007
instead of 2,550 feet as was proposed with the three projects. The new project is estimated to cost $810,000 in
2006 dollars versus $1,349,000 for the three projects resulting in an estimated savings of$539,000. It is proposed
that funding be combined from the three original projects to meet the "new" project needs. fu 2007 there would
be no need to allocate funding for another project within 26th Avenue SW.
5/I106
Land Use and Transportation Committee
26th Avenue SW Trunk Replacement Project
Page 2
OPTIONS:
L Direct SWM to combine the SW 320u, St. crossing project (304-3100-248) with the 26th Avenue
SW (304-3100-253) project and combine the funding ($150,000 and $519,000) into one project.
Direct the Finance Department to transfer $141,000 from SWM unallocated CIP into the 26th
Avenue SW project (304-3100-253) in recognition of the additional trunk system being replaced
and efficiencies generated from combining the three projects.
2. Direct SWM to design the 26u1 Avenue SW (304-3100-253) Trunk Replacement Project and
report back to council at the 50% design stage.
3. Direct staff not to combine projects nor proceed with design and provide direction to staff.
STAFF RECOMMENDATION:
Staff recommends forwarding Options I and 2 to the May 16th, 2006 City Council Consent Agenda for approval:
COMMITTEE RECOMMENDA nON:
Forward the above staff recommendation to the May 16lh, 2006 City Council Consent Agenda.
cc: Project File
Day File
COUNCIL MEETING DATE: May 16,2006 ITEM #: 5-g
____.~.___.m..~_..___.._.~_~.....____....____._..~_ ",~",,______,_'_____'_"'''''__''''__'__'_''~'__~'__'___' ..........__._...___.__._.___....._~...._..___.___~_.~____..____.._~_..__...___....____.__..______.___
CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: Joe's Creek Salmon Habitat Restoration Project - Bid Award
POLICY QUESTIONS: Should the Council award the Joe's Creek Salmon Habitat Restoration Project Bid to the
lowest responsive, responsible bidder?
Should the Council approve and accept the "King County and City of Federal Way Project Funding Agreement"
and the "State of Washington Department of Community, Trade and Economic Development Local/Community
Projects Program Capital Contract" in support of the Joe's Creek Habitat Restoration Project?
COMMITTEE: Land Useffransportation MEETING DATE: May 1, 2006
CATEGORY:
rgj Consent 0 Ordinance 0 Public Hearing
0 City Council Business 0 Resolution 0 Other
STAFF REpORT By: Paul A. Bucich, SWM Manager ~ DEPT: Public Works
-------_._._-~-----_..-.__._-~._--_._---_._--_._--_....~..-._...~......._.--_._--_. ~ .-._..__._-,...._._...----_.~_.._..~-~..__.._-----------~-----------
Attachments:
1. LUTC Memo with exhibits to the LUTC dated May I, 2006.
Options Considered:
1. Award the Joe's Creek Salmon Habitat Restoration Project to Jansen Inc. as the lowest responsive,
responsible bidder, in the amount of$I,272,552.27 and approve a 10% contingency of$127,255.22 for a
total of$I,399,807.50, and authorize the Interim City Manager to execute the contract. Authorize staffto
transfer funding ($103,329) from the SW 320th Street Crossing project (304-3100-252) to complete the Joe's
Creek Habitat Restoration Project.
2. Reject all bids for the Joe's Creek Salmon Habitat Restoration Project and provide direction to staff.
3. Direct the Interim City Manager to execute the King County Project Funding Agreement for $250,000 as
well as the State of Washington Department of Community, Trade and Economic Development (CTED)
LocaVCommunity Projects Program Capital Contract for $856,000.
4. Do not direct the Interim City Manager to execute the two funding agreements and provide direction to staff.
._--------_._--.-._------_.._--_._-_..~----_._~._._--,,-.__._----------_.~----.._----_.__.._--- .----
STAFF RECOMMENDATION: Staffrecommends Qptions 1 and 3.
CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL: /fJ1Jt
Committee Council
COMMITTEE RECOMMENDATION: LUTC recommends Option(s) Jt3
~:~~~r Eric Faison, Member
PROPOSED COUNCIL MOTION: HI move approval of the Land Use and Transportation Committee
Recommendations from May 1", 2006.
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION:
0 APPROVED COUNCIL BILL #
0 DENIED I ST reading
0 T ABLEDIDEFERREDINO ACTION Enactment reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REVISED - 02/06/2006 RESOLUTION #
CITY OF FEDERAL WAY
MEMORANDUM
DATE: May I S\ 2006
TO: Land Use and Transportation committee~
VIA: Derek Matheson, Interim City Manager
FROM: Cary M. Roe, P.E., Public Works Dire~
Paul A. BUCICh, .P.E., SWM Manager
SUBJECT: Joe's Creek Salmon Habitat Restoration Project - Bid Award
POLICY QUESTIONS:
Should the Council award the Joe's Creek Salmon Habitat Restoration Project Bid to the lowest responsive,
responsible bidder?
Should the Council approve and accept the "King County and City of Federal Way Project Funding Agreement"
and the "State of Washington Department of Community, Trade and Economic Development LocaVCommunity
Projects Program Capital Contract" in support of the Joe's Creek Habitat Restoration Project?
BACKGROUND:
Project Bid:
Five bids were received and opened on April II, 2006 for the Joe's Creek Salmon Habitat Restoration Project;
please see attached Bid Tabulation Summary. Th.e lowest responsive, responsible bidder is Jansen, Inc. with a
total bid of$1 ,272,552.27. The low bid receivedwas $157,591 above the engineer's estimate of$I,114,961.
AVAILABLE FUNDING:
SURFACE WATER UTILITY $750,000 .
KING COUNTY FUNDING (REET 2) $250,000
WASHINGTON STATE 2006/07 APPROPRIATION * $843,160
TOTAL AVAILABLE BUDGET $1,843,160
PROJECT ESTIMATED EXPENDITURES:
Design $447,745
Year 2006 Construction Bid $1,272,522
10% Construction Contingency $127;252
Printing Plans $700
Advertising $1,500
Construction Management $86,770
Long Term Mitigation Monitoring $10,000
TOTAL PROJECT COSTS $1,946,489
*State Grant is for $856,000 but due to administrative costs by State, only $843,160 will be available to the
project.
Projected Shortfall:
Current estimated project expenditures exceed the available funding by $103,329. The utility has available
funding in project 304-3100-252 (SW 3201h Street Crossing) that has been identified for the Joe's Creek Habitat
Restoration Project in previous budget documents due to the common pipe replacement aspects of both projects.
Therefore, it is proposed to transfer necessary funding of $103,329 between projects to allow the Joe's Creek
May I, 2006
Land Use and Transportation Committee
Joe's Creek Salmon Habitat Restoration Project - Bid Award
Page 2
Habitat Restoration project to proceed to construction. The SW 320lh St. Crossing project will be removed from
the SWM Capital Program after this project is completed.
FUNDING AGREEMENTS:
Before the Council are two funding agreements for consideration and approval: King County has crafted a
"Project Funding Agreement" that will transfer $250,000 to the City for the Joe's Creek Habitat Restoration
Project which is attached for your consideration; also attached is a "State of Washington Department of
Community, Trade and Economic Development (CTED) Local/Community Projects Program Capital Contract"
for your consideration in the amount of $856,000. Due to administrative costs for CTED, the contract provides
$843,160 for project construction.
OPTIONS:
I. Award the Joe's Creek Salmon Habitat Restoration Project to Jansen Inc. as the lowest responsive,
responsible bidder, in the amount of$I,272,552.27 and approve a 10% contingency of$127,255 for a
total of$l ,399,808, and authorize the Interim City Manager to execute the contract. Authorize staff to
transfer funding ($103,329) from the SW 320lh Street Crossing project (304-3100-252) to complete the
Joe's Creek Habitat Restoration Project.
2. Reject all bids for the Joe's Creek Salmon Habitat Restoration Project and provide direction to staff.
3. Direct the Interim City Manager to execute the King County Project Funding Agreement for $250,000 as
well as the State of Washington Department of Community, Trade and Economic Development (CTED)
Local/Community Projects Program Capital Contract for $856,000.
4. Do not direct the Interim City Manager to execute the two funding agreements and provide direction to
staff.
STAFF RECOMMENDATION:
Staff recommends forwarding Options 1 and 3 to the May 16, 2006 City Council Consent Agenda for approval:
COMMITTEE RECOMMENDATION:
Forward the above Options 1 and 3 to the May 16, 2006 City Council Consent Agenda for approval.
cc: Project Fi Ie
Day File
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City of Joe's Creek Map Date: October 2004
City of Federal Way
Federal Way Drainage 33325 8th Ave S,
PO Box 9718
Federal Way, WA 98063
I Basin www.ci.federal-way.wa.us
Legend
Joe's Creek Basin
- Streams
: ... ..: City Boundary
r:::J Project Location
Exhibit A
Vicinity Map:
,,0
i;.;-_ .
This map is intended for use
as a graphical representation
ONl Y. The City of Federal Way
makes no warranty as to its
accuracy. ~
N
0 0.1250.25 0.5
~ I Miles
~
CITYOF ~
Federal Way
MikeS:C:\GIS\dept\pw\swm~oes.mxd
--~
STATE OF WASmNGTON
DEPARTMENT OF. COMMUNITY, TRADE AND ECONOMIC DEVELOPMENT
LOCAUCOMMUNITY PROJECTS PROGRAM
CAPITAL CONTRACT NUMBER 06-96100-435
THIS CONTRACT, entered into by and between the City of Federal Way (a unit oflocal
government hereinafter referred to as the CONfRACTOR), and the Washington State
Department of Community, Trade and Economic Development (hereinafter referred to as the
DEPARTMENT), WITNESSES THAT:
WHEREAS, the DEPARTMENT has the statutory authority under RCW 43.330.050 (5)
to cooperate with and provide assistance to local governments, businesses, and
community-based organizations; and
WHEREAS, the DEPARTMENT is also given the responsibility to administer state
funds and programs which are assigned to the DEPARTMENf by the Governor or the
Washington State Legislature; and .
WHEREAS, the Washington State Legislature has, in Laws of 2005, Chapter 488,
Section 131, made an appropriation to support the Local/Community Projects Program,
and directed the DEP ARTMENf to administer those funds; and
WHEREAS, the enabling legislation also stipulates that the CONTRACTOR is eligible
to receive funding for acquisition, construction, or rehabilitation (a venture hereinafter
referred to as the "Project").
NOW, THEREFORE, in consideration of covenants, conditions, performances, and promises
hereinafter contained, the parties hereto agree as follows:
I. FUNDING
The funds awarded to the CONTRACTOR hereunder shall be a sum up. to, but not to
exceed. $843, 160.00. The DEPARTMENT has retained the amount ofS12,840.00 for
costs directly associated' with managing the completion of this contract.
.
1
__________u____
2. SERVICE PROVISIONS
a) Funds awarded under this contract shall be used solely and specifically for capital
construction costs associated with the Joe's Creek Project, as contemplated in
Laws of 2005, Chapter 488, Section 13 L
b) The CONTRACTOR shall perform in accordance with the terms and conditions ....
of this contract and the following attachments which, by this reference, are made
a part of this contract:
ATTACHMENT A (Project Budget)
ATTACHMENT B (Certification ofthe Availability of Funds to Complete
the Project)
A TT ACHMENf C (Project Scope of Work)
AITACHMENT D (Certification of the Payment and Reporting of
Prevailing Wages)
3. SPECIAL CONDITION(S)
None.
4. CONTRACT PERIOD
a) The effective date of this contract shall be the date of the last signature of the
contracting parties.
b) Unless terminated earlier pursuant to Section 9, 12, or 28, hereof, the termination
date shall be June 30, 2009.
5. CERTIFICATION OF FUNDS
a) The release of state funds under this contract is contingent upon the
CONTRACTOR certifying that it has expended or has access to funds from non-
state sources as set forth in A IT ACHMENT B (CERTIFICATION OF THE
A V AILABILlTY OF FUNDS TO COMPLETE THE PROJECT), hereof. Such
non-state sources may consist of a combination of any of the following:
i) Eligible Proiect expenditures prior to the execution of this contract.
ii) Cash dedicated to the Project.
Hi) Funds available through a letter of credit or other binding loan
commitment( s ).
iv) Pledges from foundations or corporations.
v) Pledges from individual donors.
2
vi) The value of real property when acquired solely for the purposes of this
Project, as established and evidenced by a current market value appraisal
performed by a licensed, professional real estate appraiser, or a current
property tax statement. The DEPARTMENT will not consider appraisals
for prospective values of such property for the purposes of calculating the
amount of non-state matching fund credit.
vii) In-kind contributions, subject to the DEPARTMENT'S approval.
b) The CONTRACTOR shall maintain records sufficient to evidence that it has
access to or has expended funds' from such non-state sources, and shall make such
records available for the DEPARTMENT'S review upon reasonable request.
6. EXPENDITURES ELIGIBLE FOR REIMBURSEMENT
The CONTRACTOR may be reimbursed, at the rate set forth elsewhere in this contract,
for Project expenditures in the following cost categories:
a) Real property, when purchased or acquired solely for the purposes of the Project;
b) Design, engineering, architectural, and planning costs;
c) Project management costs (from external sources only);
d) Construction costs including, but not limited to, the following:
Site preparation and improvements;
Permits and fees;
Labor and materials;
Taxes on Project goods and services;
Capitalized equipment; and
Landscaping.
7. REIMBURSEMENT PROVISIONS
a) Payments to the CONTRACTOR shall be made on a reimbursement basis only.
For the purposes of this contract, reimbursement shall be construed to mean costs
incurred and paid, or costs incurred and payable within thirty (30) days.
b) The DEPARTMENT shall reimburse the CONTRACTOR for one-hundred
percent (100%) of eligible Project expenditures, up to the maximum payable
under this contract. When requesting reimbursement for costs incurred or
expenditures made, the CONTRACTOR shall submit to the DEPARTMENT a
. signed and completed Invoice Voucher (Form A-19), referencing the Project
activity performed, and any appropriate documentation. The voucher must be
3
certified by an official of the CONTRACTOR with authority to bind the
CONTRACTOR. The final voucher shall be submitted to the DEPARTMENT
within fifteen (15) days following the completion of work or other termination of
this contract.
c) Each request for payment must be' accompanied by a Project Status Report, which
describes, in narrative form, the progress made on the Project since the last
invoice was submitted, as well as a report of Project status to date. The
DEPARTMENT will not release payment for any reimbursement request received
unless and until the Project Status Report is received.
d) After approving the Invoice Voucher and Project Status Repo~ the
DEP ARTMENT shall promptly remit a warrant to the CONTRACTOR.
e) The CONTRACTOR shall. not submit invoices more than once monthly~
I' 8. EV ALUA TION AND MONITORING
a) The CONTRACTOR shall cooperate with and freely participate in any
monitoring or evaluation activities conducted by the DEPARTMENT that are
pertinent to the intent of this contract, including periodic site inspections.
b) The CONTRACTOR shall provide the DEPARTMENT with photographs, either
hard copy or electronically, which depict visually the progress made on the
Project. Such photographs shall be submitted to the DEPARTMENT at the
inception of the Project, upon 50 percent of completion, and upon completion, as
applicable.
c) The DEPARTMENT or the State Auditor and any of their representatives shall
have full access to and the right to examine during normal business .hours and as
often as the DEPARTMENT or the State Auditor may deem necessary, all the
CONTRACTOR'S records with respect to all matterS covered in this contract.
Such representatives shall be permitted to audit, examine, and make excerpts or
transcripts from such records and to make audits of all contracts, invoices,
~aterials, payrolls, and records of matters covered by this contract. Such rights
last for six (6) years from the date final payment is made hereunder.
9. NONDISCRIMINATION PROVISION
a) During the performance of this contract, the CONTRACTOR shall abide by all
applicable federal and state nondiscrimination ;Iaws and regulations, including,
but not limited to Chapter 49.60 RCW (Washington's Law Against
Discrimination) and 42 U.S.C. 12101 et. seq. (the Americans With Disabilities
Act [ADA]).
4
b) In the event of the CONTRACTOR'S noncompliance or refusal to comply with
any nondiscrimination law, regulation, or policy, this contract may be rescinded,
canceled, or terminated in whole or in part, and the CONTRACTOR may be
declared ineligible for further contracts with the DEPARTMENT. The
CONTRACTOR shall, however, be given a reasonable time in which to remedy
any such noncompliance. Any dispute may be resolved in accordance with the
"Disputes" procedure set forth in Section 23 of this contract.
10. . CONTRACT MODIFICATIONS
The DEPARTMENT and the CONTRACTOR may, from time to time, desire to make
changes to this contract. Any such changes that are mutually agreed upon by the
DEPARTMENT and the CONTRACTOR shall be incorporated herein by written
amendment. It is mutually agreed and understood that, except for the budget
modifications described in Section II of this contract, no alteration or variation of the
terms of this contract shall be valid unless made in writing and signed by the parties
hereto prior to implementation of the changes, and that any oral understanding or
agreements not incorporated herein shall not be binding.
II. MODIFICATIONS TO THE PROJECT BUDGET
a) Notwithstanding any other provision ofthis contract, the CONTRACTOR may, at
its discretion, make modifications no(to exceed ten percent (10%) of each line
item in the Project Budget (Attachment A), hereof.
b) The CONTRACTOR shall notify the DEPARTMENT in writing prior to making
any budget modification or -modifications that would exceed ten percent (10%) of
any budget line item. Any such request shall require the written approval of the
DEPARTMENT, and any such modifications shall be made in writing and signed
by both parties, and attached to the Project Budget (Attachment A), hereof.
c) Nothing in this section shall be construed to permit an increase in the amount of
funds available for the Project, as set forth in Section I of this contract.
12. TERMINATION OF CONTRACT
a) If, through any cause, the CONTRACTOR shall fail to fulfill in a timely and
proper manner its obligations under this contract or if the CONTRACTOR shall
violate any of its covenants, agreements or stipulations of this contract, the
DEPARTMENT shall thereupon have the right to terminate this contract and
withhold the remaining allocation if such default or violation is not corrected
within twenty (20) days after the DEPARTMENT'S submitting written notice to
the CONTRACTOR describing such default or violation; Provided, that if more
than twenty (20) days are required to correct any such default or violation and the
5
CONTRACTOR has initiated appropriate corrective measures as reasonably
determined by the DEPARTMENT, the DEPARTMENT will not terminate this
CONTRACT for such default or violation.
b) Notwithstanding any provisions of this contract, either party may terminate this
contract by providing the other party with written notice of such termination,
specifying the effective date thereof, at least thirty (30) days prior to such date.
c) In the event this.contract is terminated, the CONTRACTOR shall be reimbursed
for eligible expenses incurred prior to the effective date of such termination and
not otherwise paid for by the DEPARTMENT, as the DEPARTMENT reasonably
determines.
d) In the event funds are not reappropriated for this Project in the 2007 - 2009
biennial budget, this contract shall terminate on June 30, 2007.
13. SPECIAL PROVISION
The DEPARTMENT'S failure to insist upon the strict performance of any provision of
this contract or to exercise any right based upon a breach thereof or the acceptance of any
performance during such breach, shall not constitute a waiver of any right under this
contract.
14. HOLD HARMLESS
a) It is understood and agreed that this contract is solely for the benefit of the parties
hereto and gives no right to any other party. No joint venture or partnership is
formed as a result of this contract. Each party hereto agrees to be responsible and
assume liability for its own negligent acts or omissions, or those of its officers,
agents, or employees to the fullest extent required by law, and agrees to save,
indemnify, defend, and hold the other party harmless from any such liability. In
the case of negligence of more than one party, any damages allo~ed shall be
levied in proportion to the percentage of negligence attributable to each party, and
each party shall have the right to seek contribution from the other party in
. proportion to the percentage of negligence attributable to the other party.
b) This indemnifiCation clause shall also apply to any and all causes of action arising
out of the performance of work activities under this contract. Each contract for
services or activities utilizing funds provided in whole or in part by this contract
shall include a provision that the DEPARTMENT and the state of Washington are
not liable for damages or claims from damages arising from any subcontractor's
performance or activities Wlder the terms of the contracts.
,
6
c) The CONTRACTOR shall defend, indemnify and save the DEPARTMENT, its
officers, and employees harmless, from and against any and all claims, including
reasonable attorney fees, made by the CONTRACTOR, its subcontractors, their
employees and subcontractors, and any other persons, relating to the payment or
reporting of prevailing wages under RCW 39.04 or RCW 39.12.
15. RECAPTURE PROVISION
In the event that the CONTRACTOR fails to expend state funds in accordance with state
law and/or the provisions of this contract, the DEPARTMENT reserves the right to
recapture state funds in an amount equivalent to the extent of noncompliance.
Repayment by the CONTRACTOR of state funds under this recapture provision shall
occur within thirty (30) days of demand. In the event that the DEP AR TMENT is
required to institute proceedings to enforce this recapture provision, the DEPARTMENT
shall be entitled to its cost thereof, including reasonable attorney's fees.
16. OWNERSHIP OF PROJECT/CAPITAL FACILITIES
The DEPARTMENT makes no claim to any real property improved or constructed with
funds awarded under this contract and does not assert and will not acquire any ownership
interest in or title to the capital facilities and/or equipment constructed or purchased with
state funds under this contract. This provision does not extend to claims that the
DEP ARTMENT may bring against the CONTRACTOR in recapturing funds expended
in violati9n of this contract.
17. RELATIONSHIP BETWEEN TIlE PARTIES
The CONTR..ACTOR and its employees or agents performing under this contract are not
deemed to be employees of the DEPARTMENT nor agents of the DEPARTMENT in
any manner whatsoever, nor will they hold themselves out as nor claim to be officers or
employees of the DEPARTMENT or of the state of Washington hereof and will not make
any claim, demand, or application to or for any right or privilege applicable to an officer
or employee of the DEPARTMENT or of the state of Washington.
18. GOVERNING LAW AND VENUE
This contract shall be construed and enforced in accordance with, and the validity and
performance hereof shall be governed by, the laws of the state of Washington. Venue of
any action at law between the parties arising out of this contract shall be the superior
court. of Thurston County, Washington.
.
7
---.---
19. SEVERABILITY
In the event any term or condition of this contract or application thereof to any person or
circumstances is held invalid, such invalidity shall not affect other terms, conditions, or
applications of this contract that can be given effect without the invalid term. condition,
or application. To this end the terms and conditions of this contract are declared
severable.
20. REDUCTION IN FUNDS
In the event state funds appropriated for the work contemplated under this contract are
withdrawn, reduced, or limited in any way by the Governor or the Washington State
Legislature during the contract period, the parties hereto shall be bound by any such
revised funding limitations as implemented at the discretion of the DEPARTMENT, and
shall meet and renegotiate the contract accordingly.
21. ENTIRE AGREEMENT
This contract and all attachments hereto contain all the terms and conditions agreed upon
by the parties. No other understandings, oral or otherwise, regarding the subject matter
of this contract and attachments shall be deemed to exist or to bind any of the parties
hereto.
22. SIGNAGE. MARKERS AND PUBLICATIONS
a) If, during the period covered by this contract, the CONTRACTOR displays or
circulates any communication or publication identifying the financial participants
in the Project, any such communication or publication must identify the State of
Washington as a participant.
b) The CONTRACTOR shall display -a plaque in compliance with the Laws of2oo5,
Chapter 488, Section 131(3), subject to the DEPARTMENT'S approval.
23. DISPUTES
Except as otherwise provided in this contract, when a bona fide dispute arises l)etween
the parties and it cannot be resolved through discussion and negotiation, either party may
request a dispute hearing. The parties shall select a dispute resolution team to resolve the
dispute. The dispute resolution team shall consist of a representative appointed by the
DEPARTMENT, a representative appointed by the CONTRACTOR, and a third party
mutually agreed upon by both parties. The dispute resolution team shall attempt, by
majority vote, to resolve the dispute. The parties agree that this dispute process shall
precede any action ina judicial or quasi-judicial setting.
/
8
~ - -~
24. PREVAILING WAGE LA W
The Project funded under this contract may be subject to state prevailing wage law
(Chapter 39.12 RCW). The CONTRACTOR is advised to consult the Industrial
Statistician at the Washington Department of Labor and Industries to determine whether
prevailing wages must be paid. The DEPARTMENT is not responsible for determining
whether prevailing wage applies to this Project or for any prevailing wage payments that
may be required by law. .
25. CHANGE OF OWNERSHIP OR USE FOR CONTRACTOR-OWNED PROPERTY
a) The CONTRACTOR understands and agrees that any and all real property or
facilities owned by the CONTRACTOR that are acquired, constructed, or
othelWise improved by the CONTRACTOR using state funds under this contract
shall be held and used by the CONTRACTOR for the purpose or purposes stated
elsewhere in this contract for a period of at least ten (10) years from the date the
final payment is made hereunder.
b) This provision shall not be construed to prohibit the CONTRACTOR from selling
any property or properties described in this section; Provided, that any such sale
shall be subject to prior review and approval by the DEPARTMENT, and that all
proceeds from such sale shall be applied to the purchase price of a different
facility or facilities of equal or greater value than the original facility and that any
such new facility or facilities will be used for the purpose or purposes stated
elsewhere in this contract."
c) In the event the CONTRACTOR is found to be out of compliance with this
section, the CONTRACTOR shall repay to the state general fund the principal
amount of the grant as stated in Section I, hereof, plus interest calculated at the
rate of interest on state of Washington general obligation bonds issued most
closely to the effective date of the legislation in which the subject facility was
authorized. Repayment shall be made pursuant to Section 15 (Recapture
provision).
26. CHANGE OF USE FOR LEASED PROPERTY
a) The CONTRACTOR understands and agrees that any facil~ty leased by the
CONTRACTOR that is constructed, renovated, or othelWise improved using state
funds under this contract shall be used by the CONTRACTOR for the purpose or
purposes stated elsewhere in this contract for a period of at least ten (10) years
from the date the final payment is made hereunder.
b) In the event the CONTRACTOR is found to be out of compliance with this
section, the CONTRACTOR shall repay to the state general fund the principal
amount of the grant as stated in Section I, hereof, plus interest calculated at the
rate of interest on sta~ of Washington general obligation bonds issued most
9
~----
closely to the effective date of the legislation in which the subject facility was
authorized. Repayment shall be made pursuant to Section 15 (Recapture
Provision).
27. H[STORICAL AND CUL TURAL ART[F ACTS
[n the event that historical or cultural artifacts are discovered at the Project site during
construction, the CONTRACTOR shall immediately stop construction and notify the
focal historical preservation officer and the state historical preservation officer at the
Washington State Department of Archaeology and Historic Preservation.
28. REAP PROPRIA TlON
a) The parties hereto understand and agree that any state funds not expended by
June 30, 2007, will lapse on that date unless specifically reappropriated by the
Washington State Legislature. [ffunds are so reappropriated, the state's
obligation under the terms of this contract shall be contingent upon the terms of
such reappropriation.
b) [n the event any funds awarded under this contract are reappropriated for use in a
future biennium, the DEPARTMENT reserves the right to assign a reasonable
share of any such reappropriation for administrative costs.
29. SURV[V AL
a) The terms and conditions contained in this contract that by their sense and context
are intended to survive the termination of this contract, including Sections 14
(Hold Harmless), 15 (Recapture Provision), 18 (Governing Law and Venue), 22
(Signage, Markers and Publications), 23 (Dispute), 25 (Change of Ownership or
Use for Contractor-Owned Property) and 26 (Change of Use for Leased
Property), shall so survive.
{Rest of page left blank intentionally}
10
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30. ADMINISTRATION
a) The CONTRACTOR'S representative shall be Mark Turley.
b) The DEPARTMENT'S representative shall be Daniel Aarthun.
IN WITNESS WHEREOF, the DEPARTMENT and the CONTRACTOR have executed this
contract as of the date and year written below.
Nancy K. Ousley, Assistant Director Derek Matheson, Interim City Manager
Local Government Division City of Federal Way
Department of Community, Trade, and
Economic Development
Federal Tax ID #: 91-1462550
Date: Date:
APPROVED AS TO .FORM: I
~&~
Assistant Attorney General
Date: 3~6h6
/ /
11
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ATTACHMENT A
PROJECT BUDGET
Amount
$20.00
$450,000.00
$1,245,980.00
$110,000.00
$50,000.00
$1,856,000.00
The CONTRACTOR, by its signature, certifies that the Project Budget set forth above has been
reviewed and approved by the CONTRACTOR'S governing body or board of directors, as
applicable, as ofthe date and year written below. .
CONTRACTOR
TITLE
DATE
12
--- --------
-------.-
ATfACHMENTB
CERTIFICATION OF THE A V AILABILITY OF FUNDS
TO COMPLETE THE PROJECT
Non-State Funds Amount Total
King County $250,000.00
Federal Way Surface Water Utility $618,840.00
Twin Lakes Golf and Country Club $144,000.00
Total Non-State Funds $1,012,840.00 $1,012,840.00
State Funds
2005 State Capital Bud~et $843,160.00 $843,160.00
Total Non-State and State Sources $1,856,000.00
CERTIFICATION
The CONTRACTOR, by its signature, certifies that Project funding from sources other than
those provided by this contract and identified above has either been expended for eligible Project
expenses, or is committed in writing and available and will remain committed and available
solely and specifically for carrying out the purposes ofthis Project as described in elsewhere in
this contract, as of the date and year written below. The CONTRACTOR shall maintain records
sufficient to evidence that it has expended or has access to the funds needed to complete the
Project, and shall make such records available for the DEPARTMENT'S review upon reasonable
request.
CONTRACTOR
TITLE
DATE
,
.13
~
ATTACHMENTC
PROJECT SCOPE OF WORK
PROJECT SUMMARY
Funds awarded under this contract will be used to install salmon habitat restoration elements,
compensatory wetland creation, and stream bank stabilization along approximately 640 feet of
Joe's Creek. This project will also replace a failing storm drain pipe.
Construction is sceduled to start June, 2006 and be completed by October, 2006, with work on
stream side plantings to follow.
i
14
ATIACHMENTD
CERTIFICATION OF THE PAYMENT AND REPORTING
OF PREVAILING WAGES
CERTIFICATION
The CONTRACTOR, by its signature, certifies that all contractors and subcontractors
performing work on the Project shall comply with prevailing wage rules set forth in Chapter
39.12 RCW, including the filing of the "Statement oflntent to Pay Prevailing Wages" and
"Affidavit of Wages Paid" as required by RCW 39.12.040. The CONTRACTOR shall maintain
records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records
available for the DEPARTMENT'S review upon request.
CONTRACTOR
TITLE
DATE
15
Project Funding Agreement Between
King County and the City of Federal Way
For the Joe's Creek Salmon Habitat Restoration Project
I. Purpose
This Project Funding Agreement between King County (the "County") and the
City of Federal Way ("Federal Way"), hereinafter "the Parties," provides Federal.
Way with $250,000 ("Project Funds") towards completion ofthe Joe's Creek
Salmon Habitat Restoration Project ("Project").
II. Background and Project Scope of Work
A. Background
Joe's Creek, within FederalWay city limits, drains directly to Dumas Bay,
part ofthe Puget Sound Nearshore area. The Nearshore is the ribbon of
habitat extending from the shallow marine waters ofPuget Sound up to the
tops of beaches and bluffs. It provides critical habitat for young salmon after
they have left the freshwater streams where they hatched and reared. The
Joe's Creek watershed was included in the Marine Shoreline Inventory Report
that contributed to the development of the inteIjurisdictional Puget Sound
Salmon Habitat Plan for Water Resource Inventory Area (WRIA) 9,
completed in 2005.
Previously, the Hylebos Creek Basin Plan, prepared jointly by King
County and the City of Federal Way, designated the Dumas Bay drainages as
watershed resources of regional significance; their shorelines are among the
least altered among those ofWRIA 9.
The upstream portion of Joe's Creek that is the site of the Project has been
heavily altered by human activity over several decades, is highly erosive, and
contributes damaging sediments to the Creek's downstream portion, which
contains high quality habitat and is utilized by coho and chum salmon and
trout. Such sediment also detrimentally affects the Nearshore area. Two City
Parks, Dumas Bay Park and Poverty Bay Park, are adjacent to or near Dumas
Bay Nearshore and would receive benefits from improvement of the
Nearshore area. Such benefits include reduced deposition of materials on the
beaches from Joe's Creek as well as increased salmonid production in the
Nearshore environment. The Project's goal is to restore a significant reach of
the Creek to a more naturalistic state, create off-bank wetlands,. and reduce
sediments entering the Creek.
B. Scope of Work
The Project will restore approximately 680 lineal feet of Joe's Creek just north
of its crossing with SW 320th S1. and will include the following elements:
. rebuilding the creek bed and banks and providing sinuosity to the channel
Page I of4
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Project Funding Agreement
King County and Federal Way
Joe's Creek Salmon Habitat Restoration Project
2006
. placinglarge woody debris along the banks and in the channel for habitat
enhancement and energy dissipation purposes;
. providing additional energy dissipation within the channel to prevent
scour of the streambed and banks;
. establishing a restored wetland at the north end of the project by removing
up to 4700 cubic yards offill materials in an area known to have wetland
seeps suitable to maintain the wetland plants;
. eliminating overland flows from undersized conveyance resulting in
damages to the stream banks, and;
. replacing approximately 265 feet of undersized and failing conveyance
pipe contributing fine sediment to the stream.
The Project design is complete and construction is scheduled for June through
December 2006. Exhibit A, attached to this Agreement, illustrates the Project
location.
III. Project Management and Administration
A. One representative to be named by King County and one representative to be
named by Federal Way shall coordinate on Project progress and verify
compliance with this Agreement.
B. In the event that a dispute arises regarding the activities governed under this
Agreement, it shall be resolved for King County by the Division Director of
WLRD, or other representative as designated by King County, and for Federal
Way by the Public Works Director other representative as designated by
Federal Way.
IV. Responsibilities
A. Federal Way will implement the Project, as described in Agreement Section
II.B. above, by no later than the end of2007.
B. Federal Way will obtain all additional funding and all necessary personnel,
services, materials, and permits required to perform and complete the Project.
Under this Agreement, King County's only obligation to Federal Way will be
the provision of funding to support Project implementation.
C. Federal Way represents and warrants that it will use Project Funds solely for
the work described in Agreement Section II. and in accordance with R.C.W.
82.46.035 and King County Code (K.C.C.) 432. Federal Wayshall refund
to the County any portion of any Project Funds that are used for work
performed outside the scope as outlined in Agreement Section II.B. or not in
accordance with RC.W. 82.46.035 and K.C.C. 4.32.
Project Funding Agreement
King County and Federal Way
Joe's Creek Salmon Habitat Restoration Project
2006
D. King County shall, as soon as practicable after execution ofthis Agreement,
provide to Federal Way $250,000 toward completion of the Project.
E. The Parties represent that funds provided for under this Agreement have been
appropriated and are available. To the extent that such funding requires
future appropriations beyond current appropriation authority, the Parties'
obligations are contingent upon the appropriation of sufficient funds to
complete the activities described herein. Ifno such appropriation is made,
this Agreement will terminate at the close of the current appropriation year.
V. Effectiveness, Duration, Amendment and Termination
A. This Agreement is effective upon signature by both Parties and shall remain in
effect until the Project is completed.
B. This Agreement may be amended, altered, clarified, or extended only by
written agreement of the Parties hereto.
C. This Agreement is not assignable by either Party, either in whole or in part.
D. This Agreement is a complete expression ofthe intent ofthe Parties and any
oral or written representations or understandings not incorporated herein are
excluded. The Parties recognize that time is of the essence in the performance
of the provisions of this Agreement. Waiver of any default shall not be
deemed to be waiver of any subsequent default. Waiver of breach of any
provision of this Agreement shall not be deemed to be a waiver of any other
or subsequent breach and shall not be construed to be a modification of the
terms ofthe Agreement unless stateq to be such through written approval by
the parties which shall be attached to the original Agreement.
I
!
VI. Indemnification
Federal Way agrees to indemnify, defend and hold harmless the County, its
agents, officers, officials and employees from all claims, alleged liability,
damages. losses to or death of person or damage to property allegedly resulting
from the acts or omissions of Federal Way or any ofits employees, agents,
contractors, subcontractors, or volunteers in connection with this Agreement.
King County agrees to indemnify, defend and hold harmless Federal Way, its
agents, officers, officials and employees from all claims, alleged liability,
damages, losses to or death of person or damage to property allegedly resulting
from the acts or omissions of King County or any of its employees, agents,
contractors, subcontractors, or volunteers in connection with this Agreement. For
this purpose only, each Party, by mutual negotiation, hereby waives, with respect
to the other Party only, any immunity that would otherwise be available against
such claims under the Industrial fusurance provisions of Title 51 RCW.
This indemnification shall survive the terminati9n of this Agreement.
-~
Project Funding Agreement
King County and Federal Way
Joe's Creek Salmon Habitat Restoration Project
2006
Approved as to Form King County:
By: By:
Title: Senior Deputv Prosecutine Attornev Title: King County Executive
Date: Date:
Approved as to Form City of Federal Way:
By: By:
Title: City Attornev. Patricia A. Richardson Title: Interim City Manager. Derek Matheson
Date: Date:
COUNCIL MEETING DATE: May 16,2005 ITEM #: 5-h
...u....._~_ ....._.__.....". . ~. .....h_._.._..._.____.._.._.._.._.._..........~,. ... . .. -_...._...-.~_........~...._.......~... __........._........_" _~.. __ ......_....~_.._.....__~~.._..........____.~ m
CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: Alternative Roadway Sections for S. 3481h Street BOV Lanes Project
POLICY QUESTION: Should the City Council authorize modification of the roadway section for the South 348'''
Street HOV Lanes Project (Pacific Highway South to (jh Avenue South)?
COMMITTEE: LUTC MEETING DATE: May IS" 2006
CATEGORY:
~ Consent 0 Ordinance Public Hearing
0 City Council Business 0 Resolution Other
~_!_~FF--!!:~_~g~_!!!X:_~~~~!1 Sa~1~_1!~?_~~~~L_~l!:~~t.?)'~!~I!lsJ~1~_~. . ......._.'___h.__~~.~..____.....___._._...M._.
Attachments:
1. Staff report with exhibits to the LUTC dated May IS" 2006
2. Exhibits A, AI, A2, A3
Options Considered:
1. Direct staffto design the project per the adopted Comprehensive Plan Roadway Classification Section A.
2. Direct Staff to revise the roadway design using Roadway Section Al (proposed Alternative).
3. Direct Staff to use one of the other Alternative Roadway Sections that the Committee would like to
implement.
.__.__h__~___....~______~__._..___~.....M_.._...._..,_....._.____________....__~ ...._.~...__...,.....~._h.. _... .. _ .~__._.....H~_._~..._..._.....___..~__....._...._____._.._'~...H_~."...______... ~_.._._~.._____~.._~.____._._______~
STAFF RECOMMENDATION: Sta
CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL: ~ . '/JJ.;!/f;i
Committee . Council
COMMITTEE RECOMMENDATION: Lure ~ "- Committee Member
1 Committee Member
PROPOSED COUNCIL MOTION: "1 move approval of option _ . "
(BELOW TO BE COMPLETED B Y CITY CLERKS OFFICE)
COUNCIL A(.TION:
0 APPROVED COUNCIL BILL #
0 DENIED 1ST reading
0 TABLEDIDEFERREDINO ACTION Enactment reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE'#
REVISED - 02/06/2006 RESOLUTION #
CITY OF FEDERAL WAY
MEMORANDUM
DATE: May 1, 2006
TO: Land Use and Transportation committe~
VIA: Derek Matheson, Interim City Manager
FROM: Cary M Roe, P.E., Director of Public Works
Marwan SaUoum,P.E., Street Systems Manager
SUBJECT: Alternative Roadway Sections for South 348th Street HOV Lanes Project
POLICY QUESTION:
Should the Council authorize modification of the roadway section for the South 348th Street HOV Lanes
Project (Pacific Highway South to 9th A venue South)?
BACKGROUND:
In 1998 the City of Federal Way adopted its Comprehensive Plan and roadway classification. South 348th Street.
between Enchanted Parkway and 1st A venue South was designated as a Principle Arterial with recommended
improvements meeting Cross Section A as shown on the attached figure. The City of Federal Way has completed
the first phase of the South 348th Street HOV Lanes project between Enchanted Parkway and Pacific Highway
South with the second phase between Pacific Highway South and 9th A venue South currently under preliminary
design. In the first phase, the project was designed consistent with Roadway Section A of the City's
Comprehensive Plan.
To minimize impacts to businesses and property owners by implementing Roadway Section A, Staffis presenting
Council with alternatives that will reduce the width of improvements and minimize right of way acquisition
impacts to businesses for Council consideration.
MINIMUM REQUIRED IMPROVEMENTS:
The only areas within the cross section that can be modi fied are the width of the landscaped median, the planting
strip area between the road edge and the sidewalks, and for sidewalk widths greater than the minimum six-foot
width.
Utilities require space within public right of way. Aerial facilities (PSE transmission lines) should be placed
behind sidewalks where possible for traffic safety reasons. Underground vaults should be placed behind the
street curb and gutter where possible so that traffic lanes do not need to be closed during servicing and
maintenance operations.
Storm drainage facilities, water quality vaults, and flow control vaults typically need to be located behind the street
curb and gutter so that traffic lanes do. not need to be closed during maintenance operations. There are no
opportunities to construct and use a regional storm water facility for this project. Therefore, facilities will need to
be constructed in the proposed right of way area, preferably behind the curb.
AL TERNA TIVE ROADWAY SECTIONS:
Based on the above-minimum requirements for roadway width and space for street furniture and utilities, City staff
evaluated three reduced roadway sections for the South 348thStreet HOV Lanes Project, see Exhibits attached.
Alternative Al (Proposed Alternative)
Roadway Section A 1, see attached sheet, (beginning on the south side of the roadway) plan elements include a
three-foot utility strip, eight-foot sidewalk, five and a half-foot planter strip, three lanes in each direction (a 12-foot
HOV lane, an II-foot outside general purpose lane and a 12-foot inside general purpose lane), no landscaped
May I, 2006
Land Use and Transportation Conunittee
South 348th Streel HOV Lanes Project
Page 2
median (C-curb will be installed), a five and a half-foot planter strip, an eight-foot sidewalk, and a three-foot
utility strip.
The total required right of way width would be 114 feet. The proposed roadway section will minimize the impact
to the adjacent property and business owners as will be outlined in the staff presentation at the Land Use and
Transportation Committee Meeting.
Alternative A2
Alternative A2 plan elements would be similar to Alternative A 1, except the planter strip on the south side would
be eliminated instead of the landscaped median. The total required Right of way would be 114 feet. There would
be no separation between pedestrians and traffic, a loss of aesthetic continuity (street trees/grass),
Alternative A3
Alternative A3 will eliminate the landscaped median and the planter strip on the south side of. The total required
right of way width would be 108 feet.
Furthermore, there are several locations even with Alternatives A I or A2 where the planter strip will be eliminated
to avoid conflicts with businesses.
OPTIONS:
1. Direct staff to design the project per the adopted Comprehensive Plan Roadway Classification Section A.
2. Direct Staff to revise the roadway design using Roadway Section A 1 (proposed Alternative).
3. Direct Staff to use one of the other Alternative Roadway Sections that the Committee would like to
implement.
STAFF RECOMMENDATION:
Staff requests that the Committee place the following project recommendation on the May 16,2006 City Council
Consent Agenda:
Option 2, direct staff to utilize Alternative Roadway Section A 1 in designing the South 348th Street ROV
Lanes Project and make planter strip modifications to the cross section at specific locations, to avoid
impacts on businesses.
COMMITTEE RECOMMENDATION:
Forward the above staff recommendation to the May 16,2006 City Council Consent Agenda.
cc: Project File
-- --_._---------------~ -------------------------
ROADWAY SECTION FOR PRINICIPAL
ARTERIAL STREET CLASSIFICATION
SOUTH 348TH STREET (SR99 TO 9TH AVENUE SOUTH)
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COUNCIL MEETING DATE: May 16,2006 ITEM #: 5-i
~_.._____..._,____ ,_,~""__,,,,_,___'"_'________'_'~____"'___'___"~'____'_.__.__._._....__.....____.._....~._..._..__.__._._._._. .m.._....m__..__._~_____.____._._.._....._.__. ...__.____._...__._~_.______
CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: PARK MAINTENANCE CONTRACT
POLICY QUESTION: Should the Council authorize a first amendment of the Park Maintenance services
contract from Omni Landscape Services, Inc.?
COMMITTEE: PARKS, RECREATION AND PUBLIC SAFETY MEETING DATE: May 8, 2006
CATEGORY:
X Consent Ordinance D Public Hearing
0 City Council Business 0 Resolution 0 Other
STAFF REpORT By: STEPHEN IKERD DEPT: Parks
..._-----_.._------_._--_.__._~-_._-------~_.._-------------_._-~----
Meyers Master Lawn Care has been performing landscape maintenance services to eight city sites for the past
year. During this current contract the owner became ill and sold his interest to his Manager who has now changed
the name to Omni Landscape Services, Inc. The services and price have not changed. The total amount of
compensation for this contract is $51,348.86 for a one year ter'm.
Attachments: First Amendment to Professional Services Agreement for Omni Landscape Services, Inc.
Options: N/ A
-- -----~------ -.--.----- ._~~---------_.
STAFF RECOMMENDATION: Staff recommends amending the term of the contract for another year.
CITYMANAGERAPPROVAL:~'-^/"- ~ DIRECTOR ApPROVAL: ~ttee -ili,
Committee COWlciI
COMMITTEE RECOMMENDATION:
PROPOSED COUNCIL MOTION: "] move approval to amend the maintenance c tract to reflect the new name
Omni Landscape Services, Inc., and. extend the term to April 30, 2007, and authorize the interim City Manger
to execute the amendment"
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION:
0 APPROVED COUNCIL BILL #
0 DENIED 15T reading
0 TABLEDIDEFERRED/NO ACTION Enactment reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REVISED - 0210612006 RESOLUTION #
FIRST AMENDMENT
TO
PROFESSIONAL SERVICES AGREEMENT
FOR
OMNI LANDSCAPE SERVICES
This First Amendment ("Amendment") is dated effective this 1st day of May 2006, and is
entered into by and between the City ofF ederal Way, a Washington municipal corporation ("City"),
and Omni Landscape Services Inc., a Washington Corporation ("Contractor").
A The City and Contractor entered into a Professional Services Agreement dated
effective May 1, 2005 whereby Contractor agreed to provide park landscape maintenance services
("Agreement").
B. Section 18.2 of the Agreement provided that the Agreement may only be amended by
written agreement signed by the parties.
C. The City and the Contractor desire to amend the Agreement to continue the Services
described in Section 1 ofthe Agreement by extending the term ofthe Agreement, and increasing the
compensation paid to the Contractor.
NOW, THEREFORE, the parties agree to the following tenns and conditions:
L Term.
Section 2 of the Agreement shall be amended to extend the term ofthe Agreement until April
30, 2007.
2. Compensation.
In consideration of Contractor continuing to provide the Services described in Section 1 of
the Agreement during the extended term of the Agreement, Section 4.1 shall be amended to increase
the compensation paid to the Contractor by an additional amount not to exceed Fifty-One Thousand
Three Hundred F orty- Eight and 86/100 Dollars ($51,348.86). The total amount payable to
Contractor pursuant to the original Agreement and this First Amendment shall be an amount not to
exceed One Hundred Two Thousand Six Hundred Ninety-Seven and 72/1 00 Dollars ($102,697.72).
3. Full Force and Effect.
All other terms and conditions of the Agreement not modified by this Amendment shall
remain in full force and effect.
.
- 1 -
DATED the effective date set forth above.
CITY OF FEDERAL WAY
By:
Interim City Manager, Derek Matheson
PO Box 9718
Federal Way, WA 98063-9718
ATTEST: APPROVED AS TO FORM:
City Clerk, Laura Hathaway, CMC City Attorney, Patricia A. Richardson
OMNI LANDSCAPE SERVICES, INC.
By:
Mark Tracy, President .
31344 13th A venue South
Federal Way, W A 98003
253-334-7025
- 2 -
STATE OF WASHINGTON)
) ss.
COUNTY OF )
On this day personally appeared before me Mark Tracy, to me known to be the
of 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 he/she
was 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 ,200_.
(typed/printed name of notary)
Notary Public in and for the State of Washington.
My commission expires
- 3 -
COUNCIL MEETING DATE: May 16,2005 ITEM #: 6-a
.' ..~._.. ..... _.. _"~_.",____,_,__,~,_,_",__~__,_,,,____,_"_'_"_'__"___._.._~_...____._....... "_"~____"'~"''''''___''''_''________'____'_ ....___.._._.._M___...____._~_.._._.______.____.__..___.
CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: TRANSPORT A TlON CONCURRENCY ORDINANCE
POLICY QUESTION: Should the Council approve the Transportation Concurrency Implementation Plan and
Ordinance. with an effective date of January 1. 2007, to be funded through the 2007-08 Budget process?
COMMITIEE: Land Useffransportation MEETING DATE: May 1,2006
CA TEGORY:
0 Consent rgj Ordinance 0 Public Hearing
0 City Council Business 0 Resolution 0 Other
STAFF REPORT By: Rick Perez, P.E., City Traffic Engineer ,,(f?:f) DEPT: Public Works
..~........._..._~_____.._.~.__.~.......___._._.._~___...__.____.._.......___.~_......_.__..._.............._~___M___._.._..._~....~.____._._..______~__...~_._~__._.~.~____mm__.__....________.__._._.____
Attachments:
1. Staff report to the LUTC dated May 15\ 2006.
2. Oraft Ordinance.
Options Considered:
L Approve the draft ordinance to implement the Transportation Concurrency Program with an
effective date of January 1,2007, to be funded through the 2007-08 Budget process.
2. Defer approval to allow Staff to respond to Council direction.
------_.._~--~._-_..._.._._....~.__.._._~-_._..__.__._..--_.-_._--~----~--------_..._-_.~._.__.-.-..__.-.._._..--------.-------,_._...__..~.-.......~----_._-
STAFF RECOMMENDATION: Sta
CITY MANAGER APPROVAL: DIRECTOR ApPROVAL: ~ hii:ial
Committee Council
A TION: LUTC recommends Option ~ ~
Eric Faison, Member
PROP ED OUNCIL MOTION: "I move to approve the draft ordinance to implement the Transportation
Concurrency Program with an effective date of January 1, 2007, to be funded through the 2007-08 Budget
process. "
(BELOW TO BE-COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION:
0 APPROVED COUNCIL BILL #
0 DENIED 1 ST reading
0 TABLED/DEFERRED/NO ACTION Enactment reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REVISED - 02/06/2006 RESOLUTION #
CITY OF FEDERAL WAY
MEMORANDUM
DATE: May 1 st, 2006
TO: Land Use and Transportation Committee
VIA: Derek Matheson, Interim City Manager
FROM: Cary M. Roe, P.E., Public Works Director M1Yl
Rick Perez, P.E., City Traffic Engineer It
SUBJECT:
Transportation Concurrency Implementation and Draft Ordinance
POLICY QUESTION:
Should the Council approve the Transportation Concurrency Implementation Plan and Ordinance, with an
effective date of January 1,2007, to be funded through the 2007-08 Budget process?
BACKGROUND:
At the April 17, 2006, meeting ofthe Land Use and Transportation Committee, the Committee reviewed and
approved the Transportation Concurrency Policy Framework and forwarded the item to the May rd, 2006, City
Council meeting. In addition, the Committee requested to review both the implementation plan and the draft
ordinance together rather than in two separate presentations.
Current'Traffic Review Process
To understand how this would change the development review process with respect to transportation, it might be
helpful to review how the process is currently administered.
The prOCess typically begins with the Preapplication Meeting where, based on the submitted materials, staff
estimates the proposal's trip generation in order to determine whether a Transportation Impact Analysis (TIA) is
required. For capacity analysis, the threshold for requiring a TIA is 10 evening peak hour trips impacting a
project on the Transportation Improvement Plan (TIP). Prior to submittal of a SEPA application, the applicant
would submit to staff a "Scoping Request". This is prepared by the applicant's consultant traffic engineer, and
proposes a trip generation and distribution ofthe traffic generated by the development. Staff reviews and
approves the scoping request by identifying what intersections need to be analyzed for capacity impacts, what
peak hours need to be analyzed, and any special study requirements. Staff also provides collision data on study
intersections, a list of TIP projects impacted, and signal timing and available count data to be used in the analysis.
The consultant prepares a TIA, identifies capacity and safety deficiencies and proposes mitigation. After one to
four rounds (typically) of comments and revisions, staff prepares an analysis for both the SEP A conditions and
land use applications. On average, Traffic Division staff devotes at least 0.5 FfE towards the SEP A process
alone and has virtuaIIy no cost recovery.
Proposed Process
With the proposed ordinance, the application process would proceed as follows:
J. Applicant submits concurrencv application.
This would provide enough data for staff to estimate trip generation, and identify location of the
development.
2. Staff calculates trip generation.
If applicant has requested it, we can provide our calculations for their review.
- -------------------------
May 1st, 2006
Land Use and Transportation Committee
Transportation Concurrency Implementation and Draft Ordinance
Page 2
3. StafJprovides the trip assignment. using the. City's travel demand model.
This would be broken down to three tiers of treatment, depending on the trip generation characteristics of
the development.
3. Less than 50 trips, pro-rate the assignment from a select zone analysis. Subsequent
applications within the same vicinity could use the same analysis for the same base year of the
model.
b. Between 50 and 500 trips, run a new assignment. Presumably, developments this big could
alter how traffic distributes itself.
c. Over 500 trips, run a new distribution and assignment. Presumably, developments this big
could alter the relative attractiveness of one T AZ over another.
4. StafJ calculates Levels of Service (LOS).
Staff currently maintains a traffic analysis program, Synchro, that models every major intersection in the
City and Potential Annexation Area, which also serves as a database for traffic volumes, signal timing,
and all variables (23 for a signalized intersection) that are included in a LOS analysis. At this point in the
process, staff would add the trips to the Synchro file from the previous concurrency permit.
Alternatively, staff could provide the base Synchro file for the applicant to modify.
5. Identify Mitigation.
Staff would provide the applicant with a suggested mitigation strategy. Staff would meet with the
applicant to determine a course of action, consisting of the following options:
a. The applicant may agree to construct the proposed mitigation
b. The applicant may reduce the trip generation of the development to within available capacity by
downsizing the development and/or implementation of travel demand management (TOM)
measures
c. The applicant may submit a counter-proposal that mitigates the LOS failure.
d. The applicant may submit an analysis rebutting the staff analysis.
6. Identifv Pro-Rata Shares.
Staff would calculate the pro-rata shares towards TIP projects.
7. Issue a certificate
Once any mitigation agreement is reached, staff would issue a Capacity Reserve Certificate, or a ~enial
letter. Denials could be appealed to the Hearing Examiner. Capacity would be encumbered until the
construction is complete, appeals are exhausted, or the underlying land use application expires.
Throughout this process, many parts of the analysis could alternatively be provided by the applicant, similar to
our current system. However, staffs proposal would result in less processing time and less cost to the applicant,
as demonstrated below.
Resources Necessary for Implementation
Staff estimates the. following increase in resources would be necessary to implement the Concurrency
Management Program as proposed:
J. A count program
This needs to include:
------------- --------
-----
May 1st, 2006
Land Use and Transportation Committee
Transportation Concurrency Implementation and Draft Ordinance
Page 3
a. Turning movement counts at all system intersections for LOS calculations
The current number of intersections to be monitored is 187; counted every 2 years at $240 each
costs $22,440 per year. This number will increase with annexations and as new collectors and
arterials are constructed.
b. Machine counts at all screen lines for travel demand model calibration
The current number of screenline count locations is 122; counted every 2 years at $250 each costs
$15,250 per year. This number will increase as new collectors and arterials are constructed.
c. System counters to collect data for seasonal adjustment factors
Staff is exploring using the capabilities of our existing traffic signal detection for this purpose.
d. Up-to-date, calibrated travel demand model
Funding for this work was approved by City Council on April 18th, 2006.
The cost of the count program could be charged on a per application basis, a charge based on the number
of trips generated, or tiered based on the size of the development similar to the hourly charges described
below. Staff proposes the tiered approach.
2. Periodic model calibration
Staff proposes a one-year cycle for updating the roadway network and forecast year and a two-year cycle
for updating the base year and model calibration, consistent with the count program
3. A continual/v-ulJdated Svnchro file
Each concurrency application would generate its own Synchro file, and subsequent applications would
build on the previous applications. When new, seasonally-adjusted counts become available, we would
then have to subtract out the trips generated by developments that received Certificate of Occupancy prior
to the date of the new counts.
4. Tracking in the Amanda Permit Tracking Svstem
This will also require that the Traffic Division be notified of building permit issuance, so that we can
track trips that will be included in traffic counts instead of assumed by the travel demand model.
5. Fee structure adequate to sUlJport resources
A fee structure allows the City to recover our costs for what we now conduct in SEPA review. The
benefit to applicants is that it will significantly reduce the number of applications that would require any
traffic analysis. In addition, this would also reduce review times by reducing the number of review
cycles. This statement is based on the analysis in Table 1 comparing the scope and costs for a
concurrency permit versus a typical TIA of a given size:
--- -------------
May 1st, 2006
Land Use and Transportation Committee
Transportation Concurrency Implementation and Draft Ordinance
Page 4
Table 1 - Estimated Scope and Cost of Concurrency Review
Trips Generated <10 10-50 50-500 >500
Intersections I 8 20 40
Impacted
Trip Generation 1 hour 2 hours 2 hours 4 hours
Modeling 2 hours 4 hours 10 hours 16 hours
Analysis I hour 4 hours 8 hours 16 hours
Report Generation 6 hours 12 hours 12 hours
Total hours 4 hours 16 hours 32 hours 48 hours
Cost at $60lhour $240 $960 $1920 $2880
Count program fee $35 $280 $700 $1400
Total concurrency $275 $1240 $2620 $4280
application fee
Estimated cost of Usually not $6000 - $12,000 - $18;000 -
consultant TlA required 12,000 18,000 32,000
This would not necessarily eliminate TIA's entirety. The City would still require the applicant to
address access and sight distance issues, and larger projects would have to address potential
impacts outside of the evening peak hour. Staff proposes to maintain a 100-trip threshold for
analysis of these other peaks. But for most small and medium-sized projects, this structure
should reduce applicant costs, streamline the review process, and improve cost recovery for the
City's review of traffic impacts of development. Furthermore, we could potentially offer these
services to provide analysis in-house and eliminate the need for TIA's to address other capacity-
related issues.
Based on applications received in 2004, estimated revenue generation is shown in Table 2 below.
Table 2 - Estimated Hourly Review Revenue Generation
Trips Generated <10 10-50 50-500 >500
Intersections Impacted 1 8 20 40
Number of Accessory Dwelling Unit applications 3 0 0 0
Number of Commercial Building applications 6 9 3 0
Number of Single Family Building applications 31 0 0 0
Number of SEP A applications 0 10 10 2
Number of Subdivision applications 6 4 2 0
Number of Use Process applications 8 12 4 0
Total applications 54 35 19 2
Application fee $360 $1080 $2160 $4080
Revenue generated $19,440 $37,800 $41,040 $8160
--------------- --- ----------------
-_._---~-------
May 1st, 2006
Land Use and Transportation Committee
Transportation Concurrency Implementation and Draft Ordinance
Page 5
Hence, given the workload and rate assu'mptions shown in Table 1 above, revenue generation'
would be $88,800. Staff estimates that a new position would require a budget of $99,300
ongoing, with a one-time cost of $25,000, resulting in an ongoing cost recovery of 89.4%.
Similarly, the count program fee as proposed would generate $27,790. Compared to the costs
estimated at $37,690, this constitutes a 73.7% cost recovery.
Draft Ordinance
Attached is the draft ordinance that would implement the Transportation Concurrency Program as described in the
Policy Framework and as described above.
OPTIONS:
L Approve the draft ordinance to implement the Transportation Concurrency Program with an
effective date ofJanuary 1,2007, to be funded through the 2007-08 Budget process.
2. Defer approval to allow Staff to respond to Council direction.
8T AFFREcOMMENDA TlON:
Staff recommends forwarding Option 1 to the May 16th, 2006 City Council for Is1 reading:
Approve the draft ordinance to implement the Transportation Concurrency Program with an effective
date of January 1,2007, to be funded through the 2007-08 Budget process.
,
COMMITTEE RECOMMENDATION:
Forward the above staff recommendation to the May 16th, 2006 City Council for first reading.
cc: Project File
Day File
ORDINANCE NO.
AN ORDINANCE OFTHECITYCOUNCILOFTHE CITY OF
FEDERAL WAY, WASHINGTON, CREATING CHAPTER 19,
ARTICLE IV, "TRANSPORTATION CONCURRENCY
MANAGEMENT"
WHEREAS, the City of Federal Way finds that creating Chapter 19, Article IV,
"Transportation Concurrency Management" meets the intent of Chapter 36.70A RCW , Growth
Management; and
WHEREAS, the City of Federal Way finds that these code amendments will implement and
are consistent with the Federal Way Comprehensive Plan;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
Section l. Creation of Chapter 19. Article IV. Chapter 19 is hereby amended by adding
Article IV as set forth in the attached Exhibit A.
Section 2. Severability. The provisions ofthis ordinance are declared separate and severable.
The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance
or the invalidity ofthe application thereofto any person or circumstance, shall not affect the validity
ofthe remainder ofthe ordinance, or the validity of its application to other persons or circumstances.
Section 3. Ratification. Any act consistent with the authority and prior to the effective date
ofthis ordinance is hereby ratified and affirmed.
Section 4. Effective Date. This ordinance shall take effect and be in force January 1,2007,
as provided by law.
ORD# , PAGE I
PASSED by the City Council of the City of Federal Way this day of
,200_
CITY OF FEDERAL WAY'
MA YOR, MICHAEL PARK
ATTEST:
CITY CLERK, LAURA HATHA WAY, CMC
APPROVED AS TO FORM:
CITY ATTORNEY, PATRICIAA. RICHARDSON
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTWE DATE:
ORDINANCE NO.:
ORD# , PAGE 2
C:\DOCUME-l \default\LOCALS-l \Temp\GWViewer\05-0 1-06 Transportation Concurrency code - Exhibitdoc
Page 1 of 12
ARTICLE IV
TRANSPORTATION CONCURRENCY MANAGEMENT
Sections:
19-151 Definitions.
19-152 Purpose.
19-153 Authority and general procedure.
19-154 . Applicability.
19-155 Capacity Reserve Certificate required.
19-156 Exempt development.
19-157 level of service standards.
19-158 Application for a Capacity Reserve Certificate.
19-159 Amendments to Capacity Reserve Certificates.
19-160 Use of reserved capacity.
19-161 Transfer of reserved capacity.
19-162 Capacity evaluation method.
19-163 Concurrency administration - Purpose and procedure.
19-164 Concurrency determination letter.
19-165 Mitigation methods
19-166 Appeals.
19-167 Annual report.
19-168 Interagency Coordination
19-169 Coordination with SEP A
Section 19-151 Definitions.
For the purpose of this article the terms, phrases, words and their derivations have the
following definitions. When not inconsistent with the context, words used in the present
tense include the future tense, words in the plural number include the singular number,
and words in the singular number include the plural number. The word "shall" is always
mandatory. The word "may" is permissive. The Public Works Director shall have the
authority to resolve questions of interpretation or conflicts within this article.
1. "Affected intersection" means any intersection within the City meeting the
requirements of Section 19-157 and having a direct traffic impact as a result of
development activity.
2. "Applicant" means a person who applies for a Capacity Reserve Certificate (CRC)
under this article and who is the owner of the subject property or the authorized
agent of the property owner.
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3. "Background traffic" means existing traffic levels and the anticipated traffic from
all proposals for which CRe's have been approved under the provisions of this
article.
4. "Build-out year conditions" means the volume of traffic that is projected to occur
on the roadway system as of the anticipated date of occupancy of a proposal.
Traffic conditions include regional traffic and the anticipated traffic from all
proposals for which CRe's have been approved under the provisions of this
article.
5. "Capacity" means the availability of an affected intersection to accommodate
increased traffic resulting from a development without causing the LOS to fall
below the standards established in the Comprehensive Plan.
6. "Available Capacity" means capacity which can be encumbered, reserved, or.
committed to future users, expressed in an appropriate unit of measure, such as
p.m. peak hour trips.
7. "Reserved Capacity" means capacity which has been allocated to a particular
property through issuance of a Capacity Reserve Certificate reserving capacity for
a set period of time.
8. "Capacity Reserve Certificate (CRC)" means the certificate issued by the City
pursuant to the terms and conditions of this article which constitutes the proof
that adequate capacity for each affected intersection has been reserved to serve
the densities and intensities of development within the time frame designated on
the certificate.
9. "City of Federal Way Development Standards" means those standards adopted
by the Federal Way Public Works Director.
11. "Concurrency evaluation" means the evaluation by the Director to ensure that
necessary roadway improvements are made concurrent with proposed
development activity, pursuant to RCW 36.70A.070.
. 12. "Concurrency denial letter" means a letter issued by the Director which
summarizes the results of the concurrency evaluation and the reason for denying
the request for a Concurrency Reserve Certificate.
13. "Concurrency management" means the process local jurisdictions use to ensure
that necessary roadway improvements are made concurrent with proposed
development activity, pursuant to RCW 36.70A.070.
14. "Development activity" means any work, condition, or activity which requires a
permit or approval under the City's subdivision, zoning, or building code. Exempt
permits are set forth in Section 19-156.
15. "Development approval" means written authorization from the City authorizing
the commencement of development activity or use.
16. "Development Permit" means any permit or approval under the City's
subdivision, zoning, or building code that must be obtained before initiating a
use or development activity.
17. "Direct traffic impact" means any net increase in vehicle traffic generated by a
proposed development.
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18. "Director" means the Director of the Department of Public Works of the City of
Federal Way or her/his designee.
"Level of service (LOS)" means a qualitative measure describing operational conditions
within a traffic stream, described with alphabetical representations of "A"
through "F" as defined in the Highway Capacity Manual prepared by the
Transportation Research Board of the National Research Council, to indicate the
amount of congestion and delay at particular locations, and adopted by the City.
20. "Net new trips" means the trip generation of the Development Activity less any
allowable credit for existing activity that will be replaced, demolished or
abandoned as part of the Development Activity.
21. "Owner" means, in reference to real property, the person or persons holding fee
title to the property as well as the purchaser or purchasers under any real estate
contract involving the real property.
22. "Peak hour" means the highest volume of traffic for a continuous hour between
4:00 p.m. and 6:00 p.m. on weekdays.
23. "Select zone analysis" means a travel demand model analysis that identifies trips
generated within a selected transportation analysis zone.
24. "Six-Year Transportation Improvement Program (TIP)" means the annually
adopted transportation improvement program which identifies all the City's
transportation needs over the next six years, including the total project costs.
25. "Standards" means the adopted City of Federal Way Development Standards.
26. "Total project cost" means the total cost for the transportation projects, as
defined in the current TIP. This cost includes, but is not limited to, studies,
design, right-of-way acquisition, utility relocation, grading, and construction.
27. "Transportation analysis zone" means the area defined within a travel demand
model representing all the land uses contained within that area.
28. "Trip assignment" means the determination within a travel demand model of the
number and type of trips using a defined roadway.
29. "Trip distribution" means the determination within a travel demand model of the
number and type of trips traveling between any given pair of transportation
analysis zones.
30. . "Trip generation" means the number of peak hour trips estimated to be produced
by the Development Activity using Institute of Traffic Engineers (ITE) Trip
Generation, current edition, or 9ther methodology approved by the Director.
31. "Trip generation credit" means a reduction in the number of new peak hour trips
attributed to an application as described in Section 19-158, equal to the number
of peak hour trips generated on the site described on the application from uses
thafhave had a SEPA analysis prior to the effective date of the ordinance
adopting this Article that have ceased or will cease if the development permit is
granted.
Section 19-152 Purpose.
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The purpose of this article is to implement the concurrency provisions of the
Transportation Element of the City's Comprehensive Plan, in accordance with RON
36.70A.070 (6)(e), consistent with WAC 365~195-510 and 365-195-835 as currently
exists or as hereafter amended. No Development Permit shall be issued except in
accordance with this article.
Section 19-153 Authority.
The Director shall be responsible for implementing and enforcing this article and
adopting procedures to implement this article, including making determinations
regarding concurrency and issuing Capacity Reserve Certificates (CRC's) according to
the procedures in this article.
The Director's determination of concurrency and the issuance or non issuance of a CRC
shall be integrated, insofar as possible, with any applicable decision making processes
on permits, applications, and proposals submitted to the City for review and decision.
For each Development Activity subject to concurrency evaluation and the requirement
for a CRC, the Director shall determine how the review can be best integrated with the
decision making process.
Section 19-154 Applicability.
A. This article shall apply to all applications for Development Permits, except for
development exempt under Section 19-156, if the Development Activity will
generate any net new trips in the peak hour.
B. All construction or changes in use initiated pursuant to a Development Permit for
which a SEPA decision was issued prior to the effective date of the ordinance
shall be exempt from the provisions of this Article. However, if the City
determines that a previously issued Development Permit for which the SEPA
decision was issued has lapsed or expired, pursuant to the applicable
development regulations, then no subsequent Development Permit shall be
issued except in accordance with this article.
Section 19-155 Capacity Reserve Certificate required.
A. Prior to the issuance of any permit for a nonexempt Development Activity, the
Director shall determine if the proposal is covered by an existing CRC or if
capacity exists on the road facilities to permit the proposed Development
Activity. Permits for the Development Activity shall be issued only if the Director
finds that the activity is covered by an existing CRC or capacity exists in
accordance with level of service standards adopted in the Comprehensive Plan.
Where such capacity exists, the Director shall issue a CRC to the applicant for the
development activity.
B. A CRC shall be issued only after a capacity evaluation is performed indicating
that capacity is available on all applicable road facilities.
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C. In no event shall the Director determine concurrency for a greater amount of
capacity than is needed for the development proposed.
D. Residential subdivisions shall be evaluated for concurrency as a single
development permit. Commercial subdivisions and other projects constructed in
phases shall be evaulated for concurrency as each phase is submitted for
applicable Development Permits, notwithstanding any requirement to analyze the
commercial subdivision as a whole under SEPA.
Section 19-156 Exempt development.
A. Any Development Activity or Development Permit may be exempted from this
article if the Development Activity or Development Permit is deemed by the
Director to generate no net new trips in the peak hour.
B. The following types of Development Permits are typically exempt from
Concurrency Management review and the requirements of this article because
they do not create additional long-term impacts on road facilities. However, if
any Development Permit from the list below generates any net new trips in the
peak period, it shall not be exempt from concurrency evaluation.
1. Boundary Line Adjustment;
2. Demolition Permit;
3. Electrical Permit;
4. Fire Protection System Permit;
5. Tenantimprovements with no change of use;
6. Land Surface Modification;
7. Lot Line Elimination;
8. Mechanical Permit;
9. Plumbing Permit;
10. Right-of-Way Modification;
11. Right of Way Use Permit;
12. Sign Permit;
13. Single-family remodeling with no change of use;
14. Rezones;
15. Comprehensive Plan amendment;
16. Shoreline Permit;
17. commercial subdivisions.
C. Exemption from Concurrency Review Fees. City-owned facilities shall be
exempted from the concurrency review fees. City-owned facilities shall not be
exempted from concurrency review and appropriate mitigation, if any.
Section 19-157 level of service standards.
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The Director shall use the LOS standards set forth in the Comprehensive Plan to make
concurrency evaluations as part of the review of any application for a CRC issued
pursuant to this article.
A. The street system measured for concurrency purposes are all intersections of
collectors and arterials as defined in the City's Comprehensive Plan, except for
the intersections of two or more minor collectors, as these intersections would
exist upon completion of all projects listed in the currently-adopted TIP and
currently funded projects by other transportation agencies.
B. The City's adopted LOS standard shall be applied in the review of Development
Activity pursuant to administrative procedures developed by the Public Works
Director.
Section 19-158 Application for a Capacity Reserve Certificate.
A. An application for a CRC shall be on a form provided by the Director. The
application shall be submitted and accompanied by the requisite fee, as
determined by City Council resolution.
B. An applicant may request a concurrency feasibility analysis. However, a CRC
shall not be issued for applications not ass~ciated with an active Development
Permit, nor shall the trips generated by the development proposal be reserved.
The Director may adjust applicable fees for subsequent analyses on the same
property associated with an active Development Permit to the extent that the
Director determines data from the feasibility analysis remains valid.
Section 19-159 Amendments to Capacity Reserve Certificates.
A. Any request to increase the number of trips from a development application for
which capacity is reserved shall require an analysis that determines that:
1. the analysis used for the development's orignal eRC is still valid; and
2. no level of service impact is reasonably anticipated.
In addition, the following conditions must be met in order to amend an existing
CRC:
3. the application to amend an existing CRC must be received within 1 year
of the issue date of the CRC;
4. the trips generated by the amendment may not exceed the greater of 10
trips or 10% of the trips approved in the existing CRe.
B. The analysis will be used to develop:
1. A finding that the additional capacity sought by the applicant through a
amended CRC is available to be reserved by the project or can be made
available through mitigation of the additional impact; or
2. A finding that the amendment is denied.
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Section 19-160 Use ofreserved capacity.
When a valid Development Permit is issued for a project possessing a CRC, the CRC
shall continue to reserve the capacity until the Development Permit expires, is
withdrawn, or is cancelled, whichever occurs first.
Section 19-161 Transfer of reserved capacity.
Reserved capacity cannot be sold or transferred to property not included in the legal
description provided by the applicant in the application for aCRe.
Section 19-162 Capacity evaluation method.
A. Any Development Permit application that will generate any net new trips in the
peak hour shalf require aCRe.
B. For the purposes of this article, application for a Development Permit shall
include consideration of the cumulative impacts of all Development Permit
applications for contiguous properties that are owned or under the control of the
same owner, when one or more Development Permits would be issued within
two years of the date of issuance of a Development Permit for such contiguous
property.
e. Increased impact on affected intersections. If a Development Activity would have
a greater impact on affected intersections than the previous use, then a CRC
shall be required for the net increase only to the extent that trips generated by
the last previous use were analyzed and, if required, mitigated by a previous
SEPA decision or CRC; othelWise, a CRC shall be required for all trips generated
by the Development Activity.
D. Demolition or Termination of Use. In the case of a demolition or termination of
an existing structure or use, only to the extent that trips generated by the last
previous use were analyzed and, if required, mitigated by a previous SEPA
decision or CRC, shall a trip generation credit be applied to the trip generation
for the use subsequent to the effective date of the ordinance codified in this
Article. The number of trips allowed in the credit shall be as estimated using
ITE's Trip Generation, or other methodology approved by the Director.
Section 19-163 Concurrency administration - Purpose and procedure.
Where either the City or the applicant may perform any part of the concurrency
transportation impact analysis, analysis prepared by the applicant is subject to the
review and. approval of the City at the applicant's expense. The applicant may also
review and comment on any analysis prepared by the City.
A. The concurrency management transportation impact analysis may be prepared
by the City or the applicant and shall follow the procedure outlined below. Each
Development Permit subject to this article shall be analyzed in the order the
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concurrency application is deemed complete by the Director, as described in
subsection (B). Concurrency transportation impact analyses shall be completed
sequentially in the order of receipt of the concurrency application. The most
recent concurrency management transportation impact analysis shall be the
beginning point for each succeeding concurrency management transportation
. impact analysis.
B. In performing the concurrency evaluation, the City or the applicant subject to the
City's approval shall determine the impact of the traffic generated by the
proposed development activity on the City's road system. The evaluation. shall be
based on data generated by the City, by professional associations, by the
applicant, and if needed, by independent analysis. The City shall examine the
data to verify that existing and projected trip generation is consistent with the
latest version of the IrE's Trip Generation or documented generation for uses
not typical of uses in Trip Generation. Upon successful evaluation, the
concurrency application will be deemed complete by the Director.
C. The City or the applicant shall perform level of service calculations for all
applicable intersections affected by the development based upon build-out year
conditions with and without the proposed development. The City or the applicant
shall determine if the capacity on the City's road facilities, plus the capacity that
is or shall be generated by all existing, reserved, and approved development, can
be provided while meeting the LOS standards set forth in the Comprehensive
Plan.
D. Technical provisions for each concurrency evaluation shalt b~ prepared in the
following format:
1. Project description shall be provided by the applicant in enough detail to
accurately determine the scope of analysis required.
2. Analysis scope shall be provided by City after consultation with affected
departments.
3. The City, based on the information supplied by the applicant, shall
determine project trip generation. If the applicant provides a detailed trip
generation study, that data shall. be used for concurrency management
traffic impact analysis at the discretion of the Public Works Director. The
applicant may also review and comment on a City-prepared calculation of
trip generation.
4. Project trip assignment to the street system shall be provided by the City,
consistent with the most current and updated travel demand forecasting
model. Three levels of analysis are defined based on the number of new
trips generated:
a. For applications generating less than 50 peak hour trips, a select
zone analysis shall be conducted.
b. For applications generating 50 peak hour trips or more, but less
than 500 peak hour trips, a new trip assignment shall be
conducted.
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c. For applications generating 500 or more peak hour trips, a new trip
distribution and assignment shall be conducted.
s. Traffic volumes at existing intersections that include background traffic
shalt be provided by the City.
6. The City shall include appropriate through traffic to each affected
intersection to obtain a revised traffic assignment for affected roadways
and intersections.
7. The applicant or the City, at the appicant's request and expense, in
compliance with the latest version of the Highway Capacity Manual, shall
complete the capacity analysis, using the City's chosen software. The
applicant may review and comment on a City-prepared capacity analysis.
8. After verification of the capacity analysis, the applicant or the City, at the
applicant's request and expense, shall prepare the final report.
9. The applicant or the City, at the applicant's request and expense, may
propose suggested mitigation measures for any LOS failures identified in
the capacity analysis.
10. The applicant or the City, at the applicant's request and expense, shall
also identify pro-rata share contributions for TIP projects impacted by the
net new trips generated by the proposed development in a manner
consistent with RCW 82.02.
Section 19-164 Concurrency determination letter.
The Director shall issue a concurrency determination letter to the applicant advising the
applicant as to whether available capacity exists. If the applicant is not the property
owner, the concurrency determination letter shall also be sent to the property owner.
The concurrency determination letter shall identify the application and identify which
status is determined to be applicable to the application: Approval; Approval with
Mitigation; or Denial.
A. Approval with Mitigation shall include a recommendation that would provide
adequate capacity and a description of the options available to the applicant.
These may inclu.de:
1. The applicant may agree to construct the recommended mitigation
measures at the applicant's cost;
2. The applicant may agree to construct alternative mitigation measures that
address the level of service deficiencies, subject to the approval of the
director; or
3. The applicant may modify the development proposal to reduce trip
generation to within available capacity by any combination of capacity
improvements and transportation demand management measures, subject
to the approval of the director.
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B. Denial. If no appeal is transmitted to the Director pursuant to Section 19-166
within 14 days after issuance of the determination, the encumbrance shall be
released and made available for subsequent applications.
Section 19-165 Mitigation methods
A. If mitigation is required to meet the level-of-service standard, the applicant may
choose to:
1. reduce the size of the development until the standard is met,
2. delay the development schedule until the city and/or others provide
needed improvements, or
3. provide the mitigation per subsection B of this section.
B. Payment for and Timing of Improvements.
The Director shall determine the method by which assurance is provided the City
that the mitgation is provided in a manner that is concurrent with development
consistent with state law. This determination shall address whether the
improvements are to be constructed by the applicant or if the applicant would
fund the cost of the improvement to be constructed by the City or another party.
'If the latter case, the determination shall also include the appropriate amount
and timing of payment to the City.
1. Construction improvements subject to the city's direct operational control
which are required of a developer under Section 19-164 must be
completed prior to issuance of a certificate of occupancy, final plat
approval, or other such approval upon which new trips are generated.
2. The developer may provide funding in an amount equal to the director's
cost estimate for improvements required under Section 19-164, if
approved by the Director. The Director may require actual construction
rather than provision of funding. Payment for transportation
improvements must occur prior to issuance of building permit, final plat
approval, 'or other such approval.
3. All funds received by the city under subsection (8)(2) of this section shall
be expended consistent with state law.
4. A proposal for construction of transportation improvements to
intersections partially or wholly outside the city's direct operational
control, or payment for those improvements in an amount equal to the
director's cost estimate, which improvements are required of a developer
to meet the requirement of Section 19-164, must be submitted to the
agencies which have control of the intersectio,n prior to issuance of
building permit, final plat approval, or other such approval.
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C. Transportation Demand Management.
1. As a mitigation measure, the developer may propose' to establish
transportation demand management strategies to reduce single
occupancy vehicle trips generated by the project. The Director shall
determine the corresponding trip volume reduction, considering adjacent
land uses and trips generated, how well the site is served by transit, HOV
facilities, bicycle facilities, and pedestrian facilities, workforce composition,
employer-provided incentives, and parking availability, among others.
2. The Director shall monitor and enforce the transportation demand
management performance as directed under Section 15-200 et seq. A
performance assurance device may be required as determined by the
Director.
D. Decision Criteria - Acceptable Mitigation. Acceptable mitigation requires a finding
by the director that:
1. The mitigation is consistent with the comprehensive plan.
2. The mitigation contributes to system performance.
3. Improvements to an intersection or roadway may not shift traffic to other
intersections for which there is no reasonable mitigation available.
4. The improvement shall not violate accepted engineering standards and
practices.
Section 19-166 Appeals.
The Concurrency Determination of the Director may be appealed by the Applicant or
Owner using the same process as the underlying Development Permit Application or
Process 1 of Chapter 22 if there is no underlying Development Permit, substituting the
Director of Public Works for the director of community development. The appeal, in the
form of a letter of appeal, must be delivered to the department of public works within
14 calendar days after issuance of the decision of the director. In those cases where
the Proposed Development Activity may require a public hearing under the authority of
other chapters of this Code, the hearings may be combined. For example, if the
underlying development permit application is a preliminary plat, the appeal shall be
heard at the preliminary plat public hearing.
Section 19-167 Annual report.
The City shall monitor LOS standards through an annual update of the Six-Year
Transportation Impact Program, which shall add data reflecting Development Permits
issued and trip allocations reserved. The CitYs traffic demand model shall be
recalibrated at least biannually based on traffic count information, obtained from at a
minimum the City's Public Works Department.
Section 19-168 Interagency Coordination.
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The City may enter into agreements with other agencies having authority over
transportation facilities to identify impacts and provide mitigation for those impacts. In
no case shall mitigation payments to the City be reduced to account for mitigation
payments to other jurisdictions.
Section 19-169 Coordination with other requirements.
A. Concurrency determinations are categorically exempt from SEPA.
B. Concurrency determinations provide for mitigation only for vehicle capacity
issues during the weekday evening peak hour. Mitigation of transportation
impacts outside of vehicle capacity issues during the weekday evening peak hour
shall be addressed through other review processes (in City Code, land use permit
. .
conditions, or SEPA). This analysis may be prepared either by the applicant or
the City at the applicant's expense.
COUNCIL MEETING DATE: 05/1612006 ITEM #: 7-a
~__.___.._.M_'_'_'_'___..__..__________.__._...._._.._...___'~""_'__'__'_~""""_"_"'_"'M_____H_'_"_...._..__~_______ -----
CITY OF FEDERAL WAY
CITY COUNCIL
AGENDA BILL
SUBJECT: VOTING DELEGATES FOR 2006 A WC ANNUAL BUSINESS MEETING
POLICY QUESTION: Should the City Council appoint voting delegates to the 2006 A WC Annual Business
Meeting in June?
COMMITTEE: N/ A MEETING DATE: N/A
CATEGORY:
D Consent D Ordinance D Public Hearing
[8J City Council Business D Resolution D Other
STAFF REpORT N/A DEPT: Council
Attachments: N/ A
Options Considered: The Association of Washington Cities (A We) has asked the city to select up to three city
officials and/or city staff who will serve as voting delegates to represent the City at the 2006 A WC annual
business meeting. Following the selection, the City Clerk is directed to advise A WC of the city's voting
delegates for 2006.
__.__....____....__________________._........._.....________H____........~.._._ ._-~.__._---_...__..._---_.._..
STAFF RECOMMENDATION: Apvo,,,,-+ 3
CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL:
Committee Committee Council
COMMITTEE RECOMMENDATION:
Committee Chair Committee Member Committee Member
PROPOSED COUNCIL MOTION: HI move to appoint (state Councilmembers) as voting delegates to the A WC
AnnualBusiness Meeting "
(BELOW TO BE COMPLETED BY CITY CLERKS OFFICE)
COUNCIL ACTION:
0 APPROVED COUNCIL BILL #
0 DENIED 1 ST reading
0 TABLEDIDEFERRED/NO ACTION Enactment reading
0 MOVED TO SECOND READING (ordinances only) ORDINANCE #
REVISED - 0210612006 RESOLUTION #