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HomeMy WebLinkAboutUtilities 2010-01-26 COMPLETE AGENDA PACKETItem Current Agenda Review Presentation(s) Business Agenda City of Tukwila Utilities Committee Kathy Hougardy, Chair Joe Duffle Allan Ekberg AGENDA A. Comcast Franchise Extension Amend Ordinance Nos. 1688 and 2224 B. NPDES Surface Water Education Survey C. Utility Billing Refunds and Back -Bill Policy D. City Council Pre Retreat Budget Review (PLEASE BRING YOUR BUDGET BOOKS) IV. Old Business Distribution: B. Giberson K. Hougardy F. Iriarte J. Duffie R. Tischmak A. Ekberg P. Brodin D. Robertson G. Labanara Mayor Haggerton R. Larson S. Lancaster M. Cusick K. Matej P. Lau D. Speck M. Mathia C. O'Flaherty S. Anderson M. Hart J. Howat S. Norris B. Still N. Olives R. Still TUESDAY, JANUARY 26, 2010 Time: 5 :00 PM Place: Conference Room #1 A. Forward to 2/1/10 Regular pg. 1 (Due to expiration date) B. Information Only C. Information Only D. Information Only IV. Future Agendas: Next Scheduled Meeting: Tuesday, February 9, 2010 Committee Goals: Study the feasibility and implementation of televised City Council meetings. Continue to foster relationships within local, regional, and state entities that encourage opportunities for joint partnership and outreach. The City of Tukwila strives to accommodate individuals with disabilities Please contact the Public Works Department at 206- 433 -0179 for assistance. S. Hunstock S. Kerslake M. Miotke J. Pace C. Parrish B. Arthur File Copy Single side to Ana 3 Extra Copies e -mail to B. Saxton, M, Hart, C. O'Flaherty, K. Narog, S. Norris and S. Kirby Recommended Action Page Pg. 13 Pg. 19 Pg. 23 City of Tukwila INFORMATIONAL MEMORANDUM Mayor Haggerton Utilities Committee FROM: Public Works Director DATE: January 19, 2010 SUBJECT: Comcast Franchise Extension TO: ISSUE BACKGROUND DISCUSSION H:Frank\2010\Franchise \Information Memo Comcast Franchise Amendment Jim Haggerton, Mayor Approve Comcast Cable Franchise Extension and amend Ordinance Numbers 1688 and 2224 (Attachments 1 -2). Comcast, formerly Telecommunications Inc. of Seattle was granted a 15 -year non exclusive Franchise by the City for the construction, operation, and maintenance of a cable system within the City (Ordinance No. 1688). On February 2, 2009, the City Council passed Ordnance No. 2224 that extended the Franchise to February 1, 2010. Throughout the Franchise term, Comcast has been a good business partner and has maintained a professional relationship with the City. Through the Franchise Agreement, the City received significant benefits including the installation of City Institutional Network Fiber Connections, free cable television services at City facilities and City Channel 21. In 2009, staff began the franchise renewal process and joined a consortium of cities that were pursuing cable franchise renewals /extensions. The consortium worked with River Oaks Communications Corporation, a cable consulting firm, to provide technical expertise and support during negotiations with Comcast. After evaluating River Oaks Communications' fee structure and learning that the cities were focusing on 3 -5 year extensions rather than comprehensive renewals, staff pursued direct negotiations with Comcast for an extension of the current Franchise Agreement. Subject to approvals, City and Comcast staff agreed to a three -year extension with the same terms and conditions. A three -year extension provides the City with the following advantages: Potential Cost Savings. A comprehensive franchise renewal would cost approximately $30,000 $40,000 (2010 estimate). In about three years, several neighboring cities would be in the renewal window. The cities could form a consortium, and share the costs associated with a comprehensive franchise renewal. Depending on the number of participants, the City could save several thousand dollars. INFORMATIONAL MEMO Page 2 Cable Legislation. Pending and future Federal Communications Commission (FCC) mandates regarding cable and broadband issues would be integrated into a new comprehensive Franchise Agreement. Attachment 3 is the Final Draft Franchise Ordinance that amends Ordinance Numbers 1688 and 2224 and extends the Franchise term through February 1, 2013. RECOMMENDATION The Council is being asked to approve the Franchise Amendment Ordinance and, due to the expiration date, consider this item at the February 1, 2010 Regular Meeting. Attachments: 1. Ordinance 1688 2. Ordinance 2224 3. Final Draft Franchise Amendment Ordinance W:1PW Eng \PROJECTS \Franchise \Infomation Memo Comcast Franchise Amendment.doc City of Tukwila Washington Ordinance No. /6 8 3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON EXCLUSIVE FRANCHISE TO TELECOMMUNICATIONS, INC. OF SEATTLE FOR THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF A CABLE SYSTEM WITHIN THE CITY LIMITS, PROVIDING FOR SEVERABILITY, AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City of Tukwila is authorized to grant nonexclusive franchises for the operation of cable systems within the City rights -of -way; and WHEREAS, Telecommunications, Incorporated of Seattle has applied for such a franchise to construct, operate, and maintain a cable system within the jurisdictional boundaries of Tukwila; and WHEREAS, the City has conducted a Community Needs Assessment to determine how such a franchise can best address the existing cable services needs for public access, education, and government within the City; and WHEREAS, a public hearing has been conducted in accordance with the Master Cable Ordinance (Section 4), during which any and all interested parties were allowed to provide statements regarding the grant of the franchise rights contained herein; and WHEREAS, the terms, conditions, and obligations provided herein are necessary to protect the safety and welfare of the citizens of Tukwila and provide for the cable services needs of the community; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1: Purpose. This Ordinance, shall establish a non exclusive Franchise, which constitutes an agreement between the City of Tukwila (hereinafter the "City and TCI Seattle, Inc. (hereinafter the "Operator The Operator agrees to construct, maintain, and operate a cable television system for the distribution of television and other electronic signals pursuant to the terms of this Franchise. The City agrees to grant the Operator all necessary rights and privileges to use public rights of way necessary for a cable television system. This agreement shall, as of its effective date, supersede and replace all existing franchises previously granted by the City of Tukwila to the Operator or any of its predecessors, subsidiaries or affiliated companies, and shall incorporate all provisions of Ordinance the Master Ordinance, which is hereby made a part of this ordinance by this reference. Section 2: Lenvth of Franchise. The length of this Franchise shall be for a term of fifteen (15) years from —2 /9'SL through midnight .2/ /,.Z■ /3 9 Section 3: Service Area. The Operator's service area shall be the entire incorporated area of the City of Tukwila, in its present incorporated form or in any later reorganized, consolidated, enlarged, or re- incorporated form. Page 1 Section 4: Franchise Fee. The Operator shall pay to the City quarterly, on or before the thirtieth (30th) day of each January, April, July and October, a sum equal to five percent (5 or greater of gross revenues, for the preceding three calendar months, as defined in Ordinance g 7 Revenues that are derived as a portion of a national or regional service shall be computed on a per subscriber basis if such determination cannot be achieved by other means. The City may raise the franchise fee, if so permitted by Federal and State law. Prior to implementation of any increase in franchise fees the Operator may request a public hearing by the City Council to discuss said increases. Following such a hearing the City Council may require the implementation of such increase in accordance with the provisions of this Ordinance. (a) Late Payment. Any quarterly franchise fee not paid by the Operator within thirty (30) days of the end of a quarter shall bear interest at the rate of twelve percent (12 per annum or whatever maximum amount is allowed under State law, whichever is greater, from the due date until paid. (b) Financial Reports. Each franchise fee payment shall be accompanied by a financial report on a form provided by the City showing the basis for the Operator's computation and separately indicating revenues received by the Operator within the City from basic service, pay TV service, other applicable sources of revenue, and such other information directly related to confirming the amount of the Operator's gross revenues as may be reasonably required by the City. (c) Audit by City. The City shall have the right, upon reasonable notice or no less than two (2) working days, to inspect the books and records of the Operator during normal business hours, for the purpose of ascertaining the actual gross revenues collected by the Operator. In the event that such audit discloses a discrepancy of more than ten percent (10%) between the financial report submitted by the Operator with a quarterly payment and the actual gross revenues collected by the Operator, the Operator agrees to pay to the City the costs of such audit. In the event that such audit results in a determination that additional franchise fees are due the City, the Operator further agrees to pay any additional franchise fees plus interest as required for late payment on such additional franchise fees, computed from the date on which such additional franchise fees were due and payable. (d) Non waiver. Acceptance of any franchise fee payment by the City shall not be construed as an agreement by the City that the franchise fee paid is in fact the correct amount, nor shall acceptance of payment by the City be construed as a release or waiver of any claim the City may have for further or additional sums payable under the provisions of this Ordinance. (e) Taxes. Nothing in this Section shall limit the Operator's obligation to pay applicable local, State, or Federal taxes. Section 5: Future Provisions The City and the Operator acknowledge that the City should be provided with a cable system that has at least the same general capabilities and capacity as those provided other cities served by the Operator in the King- Pierce Snohomish County area of the State of Washington. The City may, at its discretion, require that the Operator provide such interactive services as addressability, security, computer interaction, banking, shopping, voice and data transmission, High Definition Television (HDTV), fiber optic and other such features, as well as upgrades capable of carrying at least fifty-four (54) channels, within twenty -four (24) months of any of the following occurrences: Provision by the Operator of any of the same services identified above to a preponderance of the system; (a) Within the City of Seattle system; or, (b) Within any community adjacent to Tukwila; or, (c) In forty percent (40 of the municipalities in the King, Pierce, and Snohomish Counties. Notwithstanding the above, the Operator shall complete the upgrade to fifty -four (54) channels, provide the facilities in Section 8 Reeional Public Access, and have the capability of implementing these enhanced services within forty-eight (48) months from the effective date of this franchise. Prior to implementation of any such service, the Operator may request a public hearing by the City Council, to discuss the benefits of said features to the citizens of the City. Upon a finding by the City Council that such features are reasonably required to meet community needs, taking into consideration the expense of providing such services and the potential costs to Page 2 subscribers, the City Counc.:.nay require the implementation of n features in accord with the provisions of this agreement. If the Council deem it necessary, it may, at its own option by a majority vote, extend the time requirements established in this section. Section 6: Access Channels Upon completion of the upgrade conditions the City shall be provided with three (3) arrPcs channels, one of which shall be capable of broadcasting live from City Hall. The City may initially share a common public access channel with other communities, however, the City may elect, at its option, to provide programming over an individual public access channel for the City's sole use. Additional channels over and above the three (3) designated channels shall be made available for Public access, Education and Government (PEG) or City purposes when any of the three (3) designated channels is in use for access purposes with programming during fifty percent (50 of the hours between 10:00 a.m. and 10:00 p.m., during any consecutive ten (10) week period. The Operator shall, within six (6) months following a request by the City, subject to the restrictions above, provide another designated access channel for this purpose. The Operator shall continue to provide additional channels under the same conditions described above. Programming on additional channels shall be distinct and non repetitive of the previous channel. If additional channels are designated for community use, but, after one year, such channel(s) are not utilized at least twenty-five percent (25 of the hours between 10:00 a.m. and 10:00 p.m. with programming, the access users will, within six (6) months of receiving written notice from the Operator, group their programming into one contiguous block of time of their choosing. The remaining broadcast time on such channel shall then revert to the Operator for its unrestricted use within the terms and conditions of this ordinance. Contributions to PEG access will not be considered in lieu of a franchise fee or other obligations to the City. Section 7: Government Access Eauinment The Operator shall provide, maintain, and install the necessary equipment for local government cablecasting within twelve (12) months of a request of the City, unless extended by mutual written agreement. Such equipment shall not be less in quantity nor equivalent quality than those listed in Appendix A, and all pieces shall be in new or like new condition. Section 8: Reeional Public Access The Operator, upon completion of the upgrade or by the expiration of the forty-eight (48) month period as prescribed in Section 5 Future Provisions. shall provide, maintain and operate a regional public access studio to serve South King County at a location mutually agreeable to all parties. Such facilities shall be subject to approval by the City as suitable. Such approval shall not be unreasonably withheld. J Section 9: Institutional Networks Upon completion of the cable system upgrade the Operator's system shall have the capability L/of bi- directional Institutional Networks for educational and public safety communications. An entity desiring activation of such feature(s) will provide the City Council demonstrated need of such use. Prior to implementation of any such service the Operator may request a public hearing by the City Council, to discuss the benefits of said features to the citizens of the City. Upon a finding by the City Council that such features are reasonably required to meet community needs, taking into consideration the expense of providing such services and the potential costs to subscribers, the City Council may require the implementation of such features in accord with the provisions of this agreement. Section 10: Emereencv Override Upon completion of the system upgrade subject to the conditions of Section F5, Future Provisions the Operator shall make provisions for an emergency alert system. The Operator shall establish a process which will provide a character generated scroll and will make its best effort to furnish a voice override notifying viewers and listeners of an emergency. Subject to Federal and State laws and regional planning authorities, control of these emergency override facilities shall be the responsibility of the City. The City shall hold Operator, its agents, employees, officers, and assigns harmless from any claims arising out of the emergency use of its transmitting Page 3 facilities by the City. The City, at its option may elect to share this service with adjoining communities. Section 11: Emergency Power Operator shall provide a standby power system to automatically activate equipment at the headend and hubs, if applicable, in event of a primary electrical failure. Section 12: Coverage. The City shall be provided with cable television service in the entire Franchise area. If such a condition does not now exist, the Operator shall complete such wiring and be in a position to offer cable reception to all residents within twelve (12) months from the grant of the Franchise. Areas subsequently annexed shall be provided with cable availability within twelve (12) months, subject to the terms in Section F14 Extraordinary Installation. Section 13: Cable Availability Cable service shall not be denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. Section 14: Extraordinary Installation All residents requesting cable service and living within one hundred fifty (150) feet of existing cable distribution lines shall have the cable installed at the prevailing published installation rate. In the event a request is made for service and the residence is more than one hundred fifty (150) feet from an existing cable distribution line, such installation shall be completed on a time and material cost basis for that portion of the service line extending beyond one hundred fifty (150) feet. Section 15: Distribution Line Extension Charges Cable Service shall be available to all residents within the City provided there are at least thirty five (35) dwelling units per street mile. In the event a request is made for service by a resident(s) living in an area not meeting such criteria, the Operator shall enter into a contractual agreement with the resident(s) requesting service wherein the Operator shall be reimbursed for its construction costs. Whenever any subsequent subscriber who did not contribute to the original cost of the extension connects to the extended distribution service line, that subscriber shall pay his /her pro rata share directly to the Operator prior to obtaining cable service. The Operator shall then promptly tender such payment to the original subscriber so long as the agreement remains in force. Reimbursement shall be calculated on a front foot basis as a percentage of the total cost of the service line extension. Reimbursements shall be made to the original subscriber for a period of up to five (5) years or to the point when the Operator has recovered its incremental costs to construct the distribution service line. The Operator may, at its option, record its contractual agreement with the original subscriber in the office of the King County Recorder prior to the time any subsequent subscriber connects to the extended service line. Section 16: Public Buildings. The Operator shall provide without charge for installation or monthly rate, basic service, one outlet, and converter, if needed, at such public buildings and schools as specified in Appendix "B" and "C" as well as other such buildings that may be constructed during the period of the Franchise that are passed by cable and within one hundred fifty (150) feet of the trunk or distribution system. Section 17: Penalties. The City shall notify the Operator in writing stating the nature of a perceived deficiency in the operation of the cable system and setting forth the time the Operator will be allowed to rectify such alleged improper condition. The Operator may request an extension of time if construction is suspended or delayed by the City, or where unusual weather, acts of God (e.g. earthquakes, floods, etc.), extraordinary acts of third parties, or other circumstances which are reasonably beyond the control of the Operator, delay progress. Page 4 The Operator shall not, .hrough its own actions or inaction_, substantially contribute to the delay and the amount of time allowed shall be reasonable as determined by the City. The extension of time in any case should not be less than the extent of the actual delay experienced by the Operator in such cases where the City finds that the delay was beyond the control of the Operator. Failure of the Operator to correct these deficiencies, except in those circumstances cited above, may result in the City calling a hearing to determine if penalties should be imposed upon the Operator or if a material violation of the franchise has occurred. If, following such hearing, it is determined by the City Council that the Operator has failed to comply with the schedule set forth in the Franchise, monetary penalties shall be imposed as set forth below for each day beyond thirty (30) days that the Operator has not fulfilled the requirement(s) for: a. Upgrade improvements and regional PEG facilities required by Section 5 Future Provisions and Section 8 Regional Public Access, $200.00 per day; b. Equipment and channels committed by the Operator to the City for access purposes as well as I -Net activation. Sections 6 Access Channels; 7 Government Access Equipment and 9 Institutional Networks, $200.00 per day; or, c. Coverage of annexed areas where such is not completed as required by Section 12 Coverage, $200.00 per day. Any late payment of these penalties shall be subject to the provisions of Section 4 Franchise Fee, subsection (a) Late Payment, contained herein. Monetary penalties may be assessed retroactive to the date that notification was provided to the Operator in such cases where the Operator has been non responsive in correcting the situation or in the case of flagrant violations. Termination of the Franchise pursuant to the procedure outlined in Section 32 Removal Abandonment of Property of Franchisee of Ordinance Nofitit 1 may be imposed for any violation of one or more of the above listed items. The Operator and the City agree that any of the above described violations, unless excused, or not corrected by the Operator within the time allotted, shall constitute failure to comply with a material provision of the Franchise. No penalty, bond, forfeiture, or termination shall be imposed for delays where such delays are the result of causes beyond the reasonable control and /or without substantial fault or negligence of the Operator, as reasonably determined by the City. Section 18: Independent Contractors. This agreement shall not be construed to provide that the Operator is the agent or legal representative of the City for any purpose whatsoever. The Operator is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the City or to bind the City in any manner or thing whatsoever. Section 19: Entire Agreement. This agreement, including the Master Cable Ordinance and exhibits that are attached hereto and incorporated herein by reference represents all of the covenants, promises, agreements, and conditions, both oral and written, between the parties. However, the City reserves the right to waive any of these sections without affecting the applicability of other sections not so specifically waived. Waiver of any Franchise requirement or Ordinance Sections by the City shall be in writing in order to be effective. Section 20: Successors or Assigns. This Franchise Agreement, including all addenda, and the City's Master Cable Ordinance shall be binding on the Operator, its heirs, successors, and assigns. Section 21: Acceptance. This grant of Franchise and its terms and provisions shall be accepted by the Operator by the submission of a written instrument, executed and sworn to by a corporate officer of the Operator before a Notary Public, and filed with the City Clerk within sixty (60) days after the effective date of this Franchise. Such instrument shall evidence the unconditional acceptance of this Franchise and the promise to comply with and abide by all its provisions, terms and conditions. Page 5 S e:tinn 22: Effective Date. This Ordinance shall take effect five (5) days from the date of publication, following adoption by City Council. The Franchise granted by this Ordinance shall not become effective until the Operator files written acceptance thereof. Section 23: Severabilitv. Each section, subsection or other portion of this Ordinance shall be severable and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. Section 24: Notice. Written notices shall be deemed to have been duly served if delivered in person to the individual or entity for whom it was intended, or if delivered at or sent by registered or certified United States mail to the last business address known to the party who gives the notice. All notices and requests shall be addressed to the City of Tukwila and the Operator as follows: CITY: PASSED BY THE CITY COUIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this e.? 5 day of ,1994. ATTEST /AUTHENTICATED: O ne E. Cantu, City Clerk APPROVED AS TO FORM: Office of the City Attorney FILED WITH THE CITY CLERK: i Y PASSED BY THE CITY COUNCIL: 1/2 ei /r/ /?//--9 PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: /(o g g franchis.doc OPERATOR: City Clerk City of Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 TCI Seattle, Inc. 15241 Pacific Hwy. S. Seattle, WA 98188 ADDITIONAL NOTICE: TCI of Washington, Inc. Attn: Legal Department P.O. Box 5630 Terminal Annex Denver, CO 80217 W. Rants, Mayor Page 6 City of Tukwila Washington Ordinance No. .D l AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON; AMENDING ORDINANCE NO. 1688, SECTION 2, LENGTH OF FRANCHISE, TO GRANT A CABLE TELEVISION SYSTEM FRANCHISE EXTENSION TO COMCAST OF WASHINGTON IV, INCORPORATED; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, on January 24, 1994, the City of Tukwila passed Ordinance No. 1688, which went into effect on February 2, 1994, granting a 15 -year, non exclusive Franchise to construct, operate, and maintain a cable system within the City rights -of -way, to Telecommunications Incorporated of Seattle (TCI); and WHEREAS, the legal name of the cable system operator changed from TCI to Comcast of Washington IV, Incorporated (Comcast); and WHEREAS, the City has determined the need for a one -year extension to evaluate Comcast's franchise renewal proposal, and complete negotiations; and WHEREAS, neither party waives any right which it enjoys under law as a result of agreeing to this extension; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Length of Franchise Extended. Ordinance No. 1688, dated January 24, 1994, which grants a Franchise to Comcast of Washington IV, Incorporated, and sets forth the terms and conditions of said Franchise to construct, operate, and maintain a cable system within Tukwila City limits, is hereby amended by granting a one -year extension to extend the length of the Franchise to a term of 16 years, from February 2, 1994 through 12:00 midnight, February 1, 2010. Section 2. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 3. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. Section 4. Written Acceptance. Comcast shall accept this ordinance in its entirety in writing within 30 days of the effective date. Failure to provide written acceptance within such time shall render this ordinance voidable. PASSED BY THE CITY CQUN IL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this ..c' day of 1 C bt a Li 2009. ATTEST /AUTHENTICATED: �agger ton i: or Christy O'F'Iaherty, CMC, City Clerk r ed with the City Clerk: 1 `1 APPROV ORM BY: Passed by the City Council: -.1 c1 Published: Effective Date: Offi 6f the Att &rney Ordinance Number: �•a��� C•\ Documents and Settings \All Users \Desktop Kelly \MSDATA \Ordinances \Comcast Franchise.doc 1/28/2009 Page 1 of 1 Final graft AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, AMENDING ORDINANCE NOS. 1688 §2 AND 2224 §1, "LENGTH OF FRANCHISE," TO GRANT A CABLE TELEVISION SYSTEM FRANCHISE EXTENSION TO COMCAST OF WASHINGTON IV, INCORPORATED; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, on February 2, 1994, the City of Tukwila (the "City passed Ordinance No. 1688, granting a 15 -year, non exclusive franchise to construct, operate and maintain a cable system within the City rights -of -way to Telecommunications Incorporated of Seattle (TCI); and WHEREAS, the legal name of the cable system operator changed from TCI to Comcast of Washington IV, Incorporated (Comcast); and WHEREAS, on February 2, 2009, the City passed Ordinance No. 2224, which amended Ordinance No. 1688 and granted a one -year extension of the franchise through February 1, 2010; and WHEREAS, the City has determined that a comprehensive cable franchise agreement renewal would require technical resources and a financial commitment of approximately $30,000 to $40,000; and WHEREAS, the City has determined that a three -year franchise extension would significantly reduce the City's financial commitment by partnering and sharing the costs for a comprehensive cable franchise renewal with several municipalities; and WHEREAS, neither party waives any right which it enjoys under law as a result of agreeing to this extension; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Length of Franchise Extended. Ordinance No. 1688, dated Tanuary 24, 1994, which granted a franchise to Comcast of Washington IV, Incorporated and sets forth the terms and conditions of said franchise to construct, operate and maintain a cable system within Tukwila City limits, and Ordinance No. 2224, dated February 2, 2009, which granted a one -vear extension to February 1, 2010, are hereby amended by C:\DOCUME -1\ user \LOCALS --1 \Temp \XPgrpwise \Comcast Franchise 2010.docx FI:ksn 1/21/2010 Page 1 of 2 granting a three -vear extension to extend the length of the franchise to a term of 19 years, from February 2, 1994 through 12:00 midnight, February 1, 2013. Section 2. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 3. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. Section 4. Written Acceptance. Comcast shall accept this ordinance in its entirety in writing within 30 days of the effective date. Failure to provide written acceptance within such time shall render this ordinance voidable. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2010. ATTEST/ AUTHENTICATED: Christy O'Flaherty, CMC, City Clerk APPROVED AS TO FORM BY: Office of the City Attorney C:\DOCUME -1\ user\ LOCALS- 1 \Temp\XPgrpwise \Comcast Franchise 2010.docx FI:ksn 1/21/2010 Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Page 2 of 2 City of Tukwila To: Mayor Haggerton Utilities Committee From: Public Works Director Date: January 20, 2010 Subject: NPDES Program Project No. 93 -DR10 Surface Water Education Survey ISSUE Discuss surface water survey to be included in the January, 2010 billing. BACKGROUND The City's National Pollutant Discharge Elimination System (NPDES) Phase II general permit requires that the City measure citizens understanding of the City's surface water system. ANALYSIS To meet this requirement, staff has targeted 1,000 residences and has prepared a 15 question survey that we are asking to be returned with their surface water payment. Approximately 10% of the 5,000 billings are set up with automatic payment, so we hope the response will be measureable. This information will be collected as part of the ongoing Public Education and Awareness Program and will be used to guide future educational programs. To convey to residents of the importance of this survey and remind them to return it, a notice will be included in the February Hazelnut. RECOMMENDATION Information only. Attachment: Surface Water Survey INFORMATIONAL MEMORANDUM W: \PW Eng \PROJECTS\A- DR Projects \93 -dr10 (NPDES Program) \Info Memo 2010 Survey.doc Jim Haggerton, Mayor January 20, 2010 City of Tukwila Jim Haggerton, Mayor Department of Public Works Bob Giberson, P.E., Director Under the Western Washington Stormwater Permit required by the National Pollutant Discharge Elimination System (NPDES), the City of Tukwila is required to evaluate our stormwater education program by surveying and measuring our residents understanding of practices that impact the stormwater system. You can help! Your answers to the following questions will be used to prioritize spending of public education resources. This will help in our goal to reduce pollutants carried by stormwater that can hurt the environment and wildlife. Please take a few minutes to complete this survey and mail it to the City of Tukwila in the enclosed envelope. 1. The City of Tukwila has a spill hotline for residents to report illegal dumping, illegal discharges, and oil and hazardous waste spills, (206) 433 -1860. Did you know how to report spills and illegal dumping /discharges and to whom? CIRCLE ONE: YES NO 2. The following are some possible causes of pollution in local waters. Please indicate if you believe that it is: 1) a significant source of water pollution in Tukwila; 2) it may contribute some small amount of pollution; or, 3) probably is not a significant source of water pollution in Tukwila. INDICATE NUMBER NEXT TO EACH ITEM Run off from lawns and landscape, including animal waste and fertilizer Run off from roads and parking lots 3. Water from neighborhoods and residences that run off streets, yards, and rooftops goes into a storm system of pipes, ditches, ponds, or storage vaults. To the best of your knowledge, what happens to the water after it enters the storm system? Does that water: CIRCLE ONE: Go into the nearest body of water with treatment Go into the nearest body of water without treatment Go to a sewer treatment plant 4. The following is a list of things that can get washed into the storm system and eventually into lakes, streams, and rivers. Do you believe that in Tukwila, it is: 1) a significant source of water pollution; 2) may contribute some small amount; 3) probably not a significant source of water pollution. INDICATE NUMBER NEXT TO EACH ITEM Pesticides and fertilizers from yards Oils and other fluids from vehicles Soapy water from washing cars on pavement /driveways Pet waste left on the ground Improper disposal of cleaning fluids, paint, and other household hazardous waste C:\DOCUME -1 \GREG- 1.TUK \LOCALS--1 \Temp \XPgrpwise\2010 NPDES Survey.doc 6300 Southcenter Boulevard, Suite #100 Tukwila, Washington 98188 Phone: 206 433 -0179 Fax: 206 431 -3665 January 20, 2010 Stormwater Survey, page 2 5. Of the list of products below that some people use on lawns and gardens, how much of each is used on your yard during a typical growing season. Would you say that, on your yard, 1) it is used a lot; 2) a medium amount; 3) very little; or 4) never used on your yard. INDICATE NUMBER NEXT TO EACH ITEM Chemical fertilizers Pesticides such as insecticides or fungicides Weed Feed or other weed killer Organic or slow release fertilizers Watering 6. When you clean places like your driveway, walkways, or deck, do you typically? CIRCLE ALL THAT APPLY Sweep those areas Use a blower Hose areas down Pressure wash areas Use water with soap or another cleanser 7. If you own a dog and go for walks, how is the dog waste dealt with? CIRCLE ALL THAT APPLY Picked up every time Picked up most of the time Left on the ground most of the time Always left on the ground Not applicable 8. If the dog waste is picked up, how is it typically disposed of? CIRCLE ALL THAT APPLY Bagged and put in the trash Put in compost or yard waste collection Flushed down the toilet Tossed somewhere else Never picked up Not applicable C:I DOCUME- 11GREG- 1. TUKILOCALS- 11Temp\XPgrpwise12010 NPDES Survey.doc January 20, 2010 Stormwater Survey, page 3 9. At which of the following have you washed your vehicle or had it washed most often in the past year? CIRCLE ALL THAT APPLY Home A car wash or commercial coin operated car wash A charity car wash, such as a school or other fundraiser Haven't washed in past year Don't have any vehicles 10. If you wash your vehicles at home, where does the wash water drain to? CIRCLE ONE Down the street Onto gravel, dirt, or grass Yard catch basin Don't know 11. When it comes to changing the motor oil, anti freeze, and other fluids in the vehicles in your household, do you or someone else? CIRCLE ONE Always change it at home Always take vehicles to a shop Some combination of the above 12. If the motor oil or antifreeze is changed at home, what is typically done with the used fluids? CIRCLE ALL THAT APPLY Placed in the trash Poured down the drain inside the house Poured down a drain or ditch outside or in the street Poured on the ground Kept around the house /garage Taken to a collection facility /gas station /shop Used at home on fences or as lubricant Do not change oil or anti freeze at home C:IDOCUME -11 GREG- 1. TUKILOCALS- 11Temp\XPgrpwise12010 NPDES Survey.doc January 20, 2010 Stormwater Survey, page 4 13. If one of your vehicles leaked or spilled oil or antifreeze onto the pavement, which of the following would you be most likely to do? CIRCLE ALL THAT APPLY Hose it off Soak it up with an absorbent pad or other absorbent material Probably not do anything 14. Which of the following best describes your attitude toward making changes to help prevent water pollution: Are you: CIRCLE ONE Willing to make changes in your lifestyle, even if it involves sacrifices Willing to make changes, if the changes are fairly easy Convinced that there is not more you can do to make a difference 15. Of the following reasons that some people give for wanting to reduce water pollution, how important is it for you personally? Using a scale from 0 to 10, with "10" meaning "extremely important" and "0" meaning "not important at all INDICATE NUMBER NEXT TO EACH ITEM Protecting fish and wildlife Protecting drinking water and food sources Maintaining the environment for future generations Keeping the waters clean for recreation Thank you for taking the time to fill out this survey. We would appreciate it if you would mail the survey back to the City of Tukwila in the enclosed envelope. C:IDOCUME -11 GREG -1.TUK \LOCALS 11Temp1XPgrpwise12010 NPDES Survey.doc TO: City of Tukwila INFORMATIONAL MEMORANDUM Mayor Haggerton and Utilities Committee FROM: Peggy McCarthy, Deputy Finance Director DATE: January 21, 2010 SUBJECT: Utility Billing Refunds and Back Bills ISSUE When a customer is overcharged or undercharged for utility services how far back should the refund or back bill extend? BACKGROUND Billing corrections are necessary for many reasons. Meters can become stuck preventing accurate recording of consumption; fire line services can unknowingly be charged to the wrong customer or the charges may be for incorrect line sizes. Under previous Finance Directors Alan Doerschel and Kevin Fuhrer, the policy limited back bills and refunds to 12 billing periods from the claim or discovery date or to the point of ownership change, whichever occurred first. For comparison purposes, the City of Auburn's policy provides for a 36 month adjustment period. The policy reads as follows, "In the event of a meter being out of order and failing to register properly, the consumer shall be back charged or refunded the difference between the billing volume they were charged for and the average volume of monthly consumption as shown by the meter when the meter was in proper working order as determined by the city. The maximum period of billing adjustment is three years." Although the policy is not required to mirror the statute of limitation laws, these laws may influence policy decisions and therefore are briefly discussed below. DISCUSSION The statutes of limitations, which are set out in chapter 4.16 RCW, do not expressly address utility accounts over- or undercharging. However, the state court of appeals in Western Lumber v. Aberdeen, 10 Wn. App. 325 (1973), applied the statute of limitations for fraud in RCW 4.16.080(4), which is three years, to an overcharge situation created by having two water meters on the water line serving the business. Upon discovery of the situation, the city refunded the business for overcharges dating back three years, but not more. The business sued. The court of appeals concluded that the facts of the case triggered application of the three -year statute of limitations set out in RCW 4.16.080(4), regarding action for relief on the ground of fraud, because the term "fraud" encompasses innocent misrepresentations of fact or honest mistakes. Jim Haggerton, Mayor INFORMATIONAL MEMO Page 2 The three -year limitations period does not begin to run until discovery by the aggrieved party of the facts constituting the fraud. In other words, the customer has three years to bring suit after discovery of the error and is entitled to seek reimbursement of all overcharges that can be proven regardless of how far back in time they reach. If the customer fails to bring a lawsuit within three years of discovering the error, then the customer is limited to recovering overcharges incurred in the past three years. Although the Western Lumber decision has not been overturned and is presumably still good law for an overcharge situation, a more recently enacted six -year limitations period may apply to an undercharge situation because amounts owed to a city arguably meet the definition of an "account receivable." RCW 4.16.040 provides for a six -year statute of limitations for various actions, including an action upon an account receivable. As amended effective July 22, 2007, RCW 4.16,040(2) provides: An action upon account receivable. For purposes of this section, an account receivable is any obligation for payment incurred in the ordinary course of the claimant's business or profession, whether arising from one or more transactions and whether or not earned by performance. It appears that the Legislature amended this provision in response to the Washington Supreme Court's decision in Tingey v. Haisch, 159 Wn.2d 652, 665 (2007), which concluded, in relevant part, that the plain meaning of "account receivable" as used in RCW 4.16.040(2) is "an amount due a business on account from a customer who has bought merchandise or received services." Thus, when a customer underpays for utility services provided by the City, an "account receivable" situation is created that would appear to be subject to the six -year limitations period under RCW 4.16.040(2). Although a three -year limitations period seems to apply to overcharge /refund situations whereas a six -year limitations period seems to apply to undercharge/back bill situations, the period for refund and back bill should be a length that would not cause undue hardship for the customer in the case of back bill, or the City in the case of a refund. The policy should be easy to apply without need for excessive record keeping, research or analysis. For consistency's sake and ease of administration, the refund period should be the same as the back bill period to achieve parity between the customer and the City. A three year period seems to satisfy these criteria and is therefore the suggested refund back bill period. RECOMMENDATION Information only. ATTACHMENTS Draft Utility Billing Refunds and Back Bill Policy POLICY AND PROCEDURE Subject: Index: UTILITY BILLING REFUNDS AND BACK BILLS FINANCE Number: 1 Effective Date: Supersedes: Page 1 of Staff Contact: Immediately Finance Director 1.0 PURPOSE: To establish policy for utility billing refunds and back bills. 2.0 ORGANIZATIONS AFFECTED: Finance department. 3.0 REFERENCES: Finance Safety Information Memo, 4.0 JOLICY: Date: Approved by: For a refund to be issued, the City must receive from the customer written notice describing the circumstances and rational behind the claim. If the City determines a refund is due, the refund period will begin with the billing period immediately preceding the date the written notification is received and extend back 36,rnonths, or to the date of ownership change if this occurs first. If an underbilling is discovered, the customer will be back billed for a maximum period of 36 service months starting with the billing period immediately preceding the date the error is discovered and extending back 36 months, or to the date of ownership change if this occurs first. 5.0 DEFINITIONS: N/A 6.0 PROCEDURE: payment may be made with the Finance Director. The Finance Utility Billing staff will research all customer claims using information and data..' maintained by the ,Finance, Water, and Sewer departments to determine the validity, extent and amount of the error. If an overcharge claim is determined to be valid, the ,Finance staff will notify the customer in,;' writing that an adjustment will be made to the account. At the discretion of the Finance staff and based on the complexity of the refund. additional supporting information will be provided to the customer, If_a customer has been undercharged, the Finance staff will send the customer a pack bill, that explains the circumstances and the basis for the Jill. Upon the customer's request, additional supporting information will be provided_ If the back bill eouals or exceeds $500. arrangements for Deleted: ING 1 Deleted: 21 -1 Deleted: No. Deleted: 4.0 Formatted: Indent: Left: 0" --1 Deleted: T Justified Deleted: billing periods Formatted: Justified, Indent: Left: 0.38 No bullets or numbering Formatted: Justified I Deleted: Deleted: financial impact Deleted: Utility Deleted: Fiscal Coordinator Deleted: The basis of the adjustment including the refund period, the source data and the computations used in the refund calculation will be included.¶ Deleted: Deleted: Utility Fiscal Coordinator Deleted: special Deleted: ing fDeleted: back Deleted: calculation including the back bill period, the source data, the computations used and any other pertinent information. J J MEMORANDUM City of Tukwila r r City Council TO: Utilities Committee FROM: Dennis Robertson, Council President BY: Kimberly Matej, Legislative Analyst CC: Steve Lancaster, City Administrator Shawn Hunstock, Finance Director DATE: January 19, 2010 SUBJECT: Pre Retreat Budget Review As Council President, I will be working with the Finance Director and Legislative Analyst to prepare a draft agenda for the 2010 Annual Council Retreat. I anticipate having a draft agenda to the Council sometime during the last week of January/first week of February, and that the majority of the Retreat will focus on discussion of the budget. Per Council discussion at the January 11 COW, Council Committees will conduct detailed review of the 2009 -10 Biennial Budget document in preparation for the 2010 Annual Council Retreat. Council Committees have each been assigned portions of the budget to review over the course of three consecutive meetings. The review schedule for the Utilities Committee is included at the end of this memo. The Committee can choose to move at a faster pace, if desired by its members. The Committee review process, as discussed at the January 11 COW, is outlined below. It is intended to assist the full Council in considering potential program alternatives, expense /capital reductions and /or new revenue opportunities in response to the severity of the City's budget crisis. Committee Review Process Utilizing the 2009 -10 Biennial Budget document, review the pages assigned to the Committee as outlined below. Committee member review, understanding and familiarity of the assigned budget items should be thorough enough that the three Committee members feel comfortable serving as the Council experts for discussion of the appropriate items during the Retreat. As mentioned above, it is the intent of the Committee review process to prepare Committee members with adequate knowledge of assigned sections so that they can assist the rest of the Council in a meaningful discussion of the items at the Retreat. Department directors and managers will be available during Committee meetings, as a resource, to answer questions regarding budget items. Discussions at the Committee meetings should be a Committee -led process, not staff -led. Specifics on budget items, as discussed in the Committee, will not be documented in the Committee minutes. Each Committee member should keep ample individual notes that will aid you in discussing items at the Retreat. Committees are not being asked to make any recommendations regarding the budget during the Committee meetings. Since the strength of the Council is the experience and knowledge of all seven Councilmembers, policy -level discussions regarding budget issues are best addressed with the full Council and Mayor working together. Utilities: Pre Retreat Budget Review page 2 Utilities Committee Review Schedule Tuesday,: January 26, 2010 Council Mayor's Office /Civil Service City Clerk Tuesday,: February 9, 2010 IT Court Personnel Legal Tuesday, February 23,: 2010 Debt Service Water Sewer Water /Sewer Rev. Bond Fund Bond Reserve Surface Water BUDGET PAGES 28 -29 32 -34 48 -49 BUDGET PAGES 52 -53 56 -57 60 -61 66 -67 BUDGET PAGES 153 -156 162 -165 166 -169 170 171 176 -179