HomeMy WebLinkAboutReg 2010-04-19 COMPLETE AGENDA PACKET ,1 w Tukwila City Council Agenda
c o f E k -r REGULAR MEETING
Jim Haggerton, Mayor Councilmembers Joe Duffie Joan Hernandez
d Steve Lancaster, City Administrator Allan Ekberg Verna Seal
190: Dennis Robertson, Council President Kathy Hougardy De'Sean Quinn
Monday, April 19, 2010; 7:00 PM Ord #2281 Res #1710
1. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL
2. SPECIAL a. Annual State of the City Address; Mayor Haggerton.
PRESENTATIONS b. Proposed use of the former Tukwila Library for display of community
history; Pat Brodin, Chair of the Historical Society.
3. PROCLAMATIONS/ A proclamation recognizing Volunteer Week Pg.1
APPOINTMENTS
4. CITIZEN At this time, you are invited to comment on items not included on this agenda
COMMENT (please limit your comments to five minutes per citizen). To comment on an
item listed on this agenda, please save your comments until the issue is presented
for discussion.
5. CONSENT a. Approval of Minutes: 4/5/10 (Regular).
AGENDA b. Approval of Vouchers.
6. UNFINISHED a. Designating the name of park property at 12929 50th Place South as Pg.3
BUSINESS Codiga Park (see 4/12 CO. W).
b. Residential Rental Housing: Pg.5
1. An ordinance establishing Residential Rental Housing regulations, to Pg.7
be codified at Tukwila Municipal Code Chapter 5.06, "Residential
Rental Business License and Inspection Program."
2. A resolution adopting a Residential Rental Business License and Pg.13
Inspection Program fee schedule.
c. An ordinance granting a non exclusive franchise to AboveNet Pg.15
Communications for the purpose of constructing, operating and
maintaining a telecomunications system in certain public rights -of -way in
the City.
d. An ordinance granting a non exclusive franchise to PAETEC Holding Pg.27
Corporation, an Iowa Corporation, for the purpose of constructing,
operating and maintaining a telecommunications system in certain public
rights -of -way in the City.
e. An ordinance adopting the 2010 Standard Specifications for road, bridge Pg.39
and municipal construction.
f. Authorize the Mayor to sign an agreement with KPG, Inc., for the 2010 Pg.43
Annual Small Drainage Program, in the amount of $47,990.16
(see 4/12 CO. W).
g. A resolution urging the United States Department of Defense to select Pg.45
the Boeing Company to build the next mid -air refueling tanker.
7. NEW BUSINESS
8. REPORTS a. Mayor c. Staff e. Intergovernmental
b. City Council d. City Attorney
9. MISCELLANEOUS
10. EXECUTIVE SESSION
11. ADJOURNMENT
Tukwila City Hall is wheelchair accessible. Reasonable accommodations are available at public hearings with advance
notice to the City Clerk's Office 206 433- 1800/TDD 206 248 -2933. This notice is available at www.ci.tukwila.wa.us. and
in alternate formats with advance notice for those with disabilities. Tukwila Council meetings are audio taped.
HOW TO TESTIFY
If you would like to address the Council, please go to the podium and state your name and address
clearly for the record. Please observe the basic rules of courtesy when speaking and limit your comments
to five minutes. The Council appreciates hearing from citizens, but may not be able to take immediate
action on comments received until they are referred to a Committee or discussed under New Business.
COUNCIL MEETINGS
No Council meetings are scheduled on the fifth Monday of the month unless prior public notification is
given.
Regular Meetings: The Mayor, elected by the people to a four -year term, presides at all Regular Council
meetings held on the first and third Mondays of each month at 7 PM. Official Council action in the form of
formal motions, adopting of resolutions and passing of ordinances can only be taken at Regular Council
meetings.
Committee of the Whole Meetings: Council members are elected for a four -year term. The Council
president is elected by the Council members to preside at all Committee of the Whole meetings for a one-
year term. Committee of the Whole meetings are held the second and fourth Mondays at 7 PM. Issues
discussed are forwarded to the Regular Council meeting for official action.
GENERAL INFORMATION
At each Council meeting citizens are given the opportunity to address the Council on items that are not
included on the agenda during Citizen Comment. Please limit your comments to five minutes.
Special Meetings may be called at any time with proper public notice. Procedures followed are the same
as those used in Regular Council meetings.
Executive Sessions may be called to inform the Council of pending legal action, financial or personnel
matters.
PUBLIC HEARINGS
Public Hearings are required by law before the Council can take action of matters affecting the public
interest such as land -use laws, annexations, rezone requests, public safety issues, etc. Section 2.04.150 of
the Tukwila Municipal Code states the following guidelines for Public Hearings:
1. The proponent shall speak first and is allowed 15 minutes for a presentation.
2. The opponent is then allowed 15 minutes to make a presentation.
3. Each side is then allowed 5 minutes for rebuttal.
4. Citizens who wish to address the Council may speak for 5 minutes each. No one may speak a second
time until everyone wishing to speak has spoken.
5. After each speaker has spoken, the Council may question the speaker. Each speaker can respond to
the question, but may not engage in further debate at this time.
6. After the Public Hearing is closed, the Council may discuss the issue among themselves without
further public testimony. Council action may be taken at this time or postponed to another date.
Office of the Mayor
Tukwila, Washington
PROCLAVIATION
WHEREAS, the City of Tukwila has a long tradition of volunteerism that has
continuously enhanced the quality of life within the community; and
WHEREAS, during 2009, volunteers donated more than 12,700 hours to City
sponsored projects such as coaching youth basketball, mentoring teens,
monitoring handicapped parking slots, delivering Meals -on- Wheels, serving on
City Boards and Commissions, and more; and
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hereby proclaim April 19-23, 2010 as 11,7..
NOW, THEREFORE, I, JIM HAGGERTON, MAYOR of Tukwila, do
i yin
WHEREAS, Tukwila's School District, the faith community and local
businesses promote volunteerism through their participation in volunteer projects
that benefit all Tukwila citizens, such as the beautification of City parks; and
WHEREAS, Tukwila's civic organizations and community groups combine
vision with service in working with City Departments to ensure a clean, safe and
caring community;
National Volunteer Week
in the City of Tukwila and encourage all citizens to recognize the outstanding
volunteer spirit that exists in the City of Tukwila. An appreciation event will be
held at the Tukwila Community Center on April 22, 2010 in honor of our
committed volunteers to thank them for their service to the community.
Signed this
9 t
e day of Le. CT
Jim Hagg�, Mayor of Tukwila
2010.
2
CAS NUMBER:
SPONSOR'S
SUMMARY
Fund Source:
Comments:
EXPENDITURE REQUIRED
MTG. DATE
04/12/10
MTG. DATE
04/12/10
04/19/10
$0
COUNCIL AGENDA SYNOPSIS
Initials
Meeting Date Prepared by A/404 review I Council review
04/12/10 RS f g_
04/19/10 RS 1 (I4e,44
1 1 `0
ITEM INFORMATION
ORIGINAL AGENDA DATE: APRIL 12, 2010
AGENDA ITEM TITLE Park Naming Process Park Property located at 12929 50 Place South.
CA'T'EGORY Discussion Motion Resolution Ordinance E Bid Award Public Hearing n Other
Mtg Date 4/12/10 Mtg Date 4/19/10 Mtg Date Mtg Date Mtg Date Mtg Date Mtg Date
(SPONSOR Council r] Mayor Adm Sacs DCD Finance Fire Legal P&R r] Police n PW
The recently developed park property located at 12929 50 Place South will be dedicated
on May 8 The City has an established Park Naming Process in Resolution 1400. The Park
Commission recommended Codiga Park. The Community Affairs and Parks Committee
recommended Codiga Park on a 2 -1 vote; the other vote was for Codiga Farm Park.
The Council is being asked to consider and approve the naming of the Park Property.
REvII WED BY COW Mtg. P1I CA &P Cmte (i F &S Cmte Li Transportation Cmte
rl Utilities Cmte Arts Comm. Parks Comm. ri Planning Comm.
DATE: 3/22/10
RECOMMENDATIONS:
SPONSOR /ADMIN. Parks and Recreation Department
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
AMOUNT BUDGETED APPROPRIATION REQUIRED
$0
RECORD OF COUNCIL ACTION
Forward to Next Regular Meeting
ATTACHMENTS
Informational Memorandum dated 3/17/10
Resolution #1400 regarding naming of City property
Minutes from the Community Affairs and Parks Committee meeting of 3/22/10
No Attachments
I
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CAS NUMBER:
Meeting Date
04/12/10
04/19/10
COUNCIL AGENDA SYNOPSIS
Initials
Prepared by Mayyr4eview .council review
kas 1 I
kas R
:ITEM INFORMATION
1 ORIGINAL AGENDA DA I'L: APRIL 12, 2010
AGENDA ITEM TITLE Residential Rental Business License and Inspection Program
CATEGORY
SP( )NSOR
SPONSOR'S
SUMMARY
Discussion Motion Resolution Ordinance n Bid Award n Public Hearing Other
Mtg Date 03/22/10 Mtg Date Mtg Date 04/19/10 Mtg Date 04/19/10 Mtg Date
Mtg Date Mtg Date
Council Mayor Adm Svcs DCD Finance Fire L( Legal n P &R n Police PV
A proposal to require all rental dwelling units obtain an annual residential rental business
license. The license requires an inspection every fifth year. Associated fee resolution.
The Council is being asked to consider and approve the ordinance and associated
resolution
Comments: Expenditures cover staffing and materials.
MTG. DATE RECORD OF COUNCIL ACTION
04/12/10 Forward to Next Regular Meeting
ITEM NO.
n Transportation Cmte
Planning Comm.
REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte
Utilities Cmte Arts Comm. Parks Comm.
DATE: 03/ 22/ 10
RECOMMENDATIONS:
SPONSOR /ADMIN. Department of Community Development
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED
$203,000 $203,000
Fund Source: FEE SUPPORTED 2011: 101,500 2012: 101,500
APPROPRIATION REQUIRED
$o
MTG. DATE ATTACHMENTS
04/12/10 Informational Memorandum dated 4/12/10
Ordinance in Draft Form
Fee Resolution in Draft Form
Minutes from the Community Affairs and Parks Committee meeting of 03/22/10
04/19/10 Ordinance in Final Form
Resolution in Final Form
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City of Tukwila
Washington
Ordinance No.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, ESTABLISHING RESIDENTIAL RENTAL HOUSING
REGULATIONS, TO BE CODIFIED AT TUKWILA MUNICIPAL CODE
CHAPTER 5.06, "RESIDENTIAL RENTAL BUSINESS LICENSE AND
INSPECTION PROGRAM PROVIDING FOR SEVERABILITY; AND
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City of Tukwila commissioned a City of Tukwila Housing Needs
Assessment and Condition Survey, which found that 60 percent of Tukwila households
live in rental housing, 40 percent of renter occupied housing units are rated as "needs
maintenance," "deteriorated" or "dilapidated," and 65 percent of Tukwila's housing
stock overall is 40 -50 years old or older; and
WHEREAS, the City Council has determined substandard and unsanitary
residential buildings and dwelling units exist within the City of Tukwila, the physical
condition of which violates State and local housing and technical codes, rendering them
unfit or unsafe for human occupancy and habitation; and
WHEREAS, the existence of such substandard buildings and dwelling units
threatens the physical, social and economic stability of sound residential units and of
their supporting neighborhood facilities; necessitates the expenditure of public funds
for remedial action and abatement; and destroys the amenity of residential areas and
neighborhoods and of the community as a whole; and
WHEREAS, improving the residential housing environment and providing for
neighborhood stability throughout the City requires periodic inspection of residential
rental housing units in the City to ensure such premises conform to the City's Housing
Code and other applicable laws; and
'WHEREAS, in order to provide for such periodic inspection of residential rental
housing units, these regulations establish a Residential Rental Business License and
Inspection Program to protect occupants from substandard housing; and
WHEREAS, the fees imposed pursuant to these regulations shall not exceed the
reasonable cost of providing the services for which such fees are charged; and
WHEREAS, such fees imposed to recover the cost of the Residential Rental Business
License and Inspection Program are not imposed on property ownership, but rather on
the carrying out of the business of renting residential property subject to these
regulations; and
WHEREAS, nothing in these regulations shall limit the City's ability to inspect
properties and issue citations /orders for property- related conditions that may
constitute an immediate threat to health or safety;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. New Regulations Established. New residential rental housing
regulations, to be codified at Tukwila Municipal Code Chapter 5.06, "Residential Rental
Business License and Inspection Program," are hereby established to read as follows:
Page 1 of 6
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5.06.010 Declaration of Purpose. The City Council finds that the establislunent of a
Residential Rental Business License and Inspection Program for rental units is necessary
to protect the public health, safety and welfare by ensuring the proper maintenance of
such housing, by identifying and requiring correction of substandard housing
conditions, and by preventing conditions of deterioration and blight that could
adversely impact the quality of life in the City of Tukwila.
5.06.020 Definitions. Unless specifically defined below, words or phrases used in
this chapter shall be interpreted using the meaning they have in common usage and to
give this chapter its most reasonable application.
1. "Accessory dzuelling unit" or "ADU" means a unit that meets the requirements
of TMC Section 18.10.030(2).
2. "Applicable laws" include, but are not limited to, the City's housing code, the
City zoning ordinance and other City ordinances, and other laws or regulations relating
to the health and safety of City residents or the general public.
3. "Certificate of Compliance" means the certificate issued by the City evidencing
compliance with the requirements of this chapter. A Certificate of Compliance is
required before a unit can be rented.
4. "Code official" means the Department of Community Development Director or
his /her designee.
5. "City" means the City of Tukwila, Washington.
6. "Deficiency" means any failure by a rental unit to comply with applicable
laws.
7. "Department" means the City of Tukwila Department of Community
Development.
8. "Inispection Certificate" means the document submitted to the City as the result
of an inspection conducted by an inspector which shows the true condition of the unit.
An Inspection Certificate must be signed and dated by the inspector.
9. "Inspector" means:
a. A City building code inspector;
b. A City code enforcement officer;
c. A private inspector, approved by the City upon evidence of at least one of
the following credentials: A.A.C.E. Property Maintenance and Housing Inspector
certification, I.C.C. Property Maintenance and Housing Inspector certification, or I.C.C.
Residential Building Code Inspector;
d. A Washington State licensed architect; or
e. A Washington State licensed home inspector.
10. "Non -City inspector" means any inspector meeting the criteria in Section
5.06.020 who is not a City code official.
11. "Occupant" means an individual, partnership, corporation or association, or
agent of any of them lawfully residing in a unit.
12. "Owner" means the owner of record as shown on the last King County tax
assessment roll or such owner's authorized agent.
13. "Rental inspection deficiency point system" means the point system used by
inspectors to evaluate whether a rental unit is in compliance with the requirements of
this chapter.
14. "Rental unit" means a unit occupied or leased by a tenant.
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15. "Single-family residence" means a building, modular home, or new
manufactured home designed to contain no more than one dwelling unit, plus one
accessory dwelling unit.
16. "Tenant" means any adult person granted temporary use of a rental unit
pursuant to a lease or rental agreement with the owner of the rental unit.
17. "Unit" means any structure or part of a structure, which is used as a home,
residence or sleeping place by one or more persons, including but not limited to, single
family residences, duplexes, tri- plexes, four plexes, multi- family dwellings, apartment
buildings, condominiums, mobile homes and similar living accommodations.
18. "Unit unavailable for rent" means a unit whose owner has filed with the code
official a statement signed under penalty of perjury that such unit is not offered or
available for rent as a rental unit and that prior to offering or making the unit available
as a rental unit, the owner will apply for a Residential Rental Business License and
comply with any applicable administrative regulations adopted pursuant to this
chapter.
5.06.030 Scope. The provisions of this chapter shall apply to all rental units, with the
exception of:
1. Owner- occupied rental units;
2. Units unavailable for rent;
3. Housing accommodations in hotels, motels, inns or tourist homes;
4. Housing accommodations in retirement or nursing homes;
5. Housing accommodations in any hospital, State licensed community care
facility, convent, monastery or other facility occupied exclusively by members of a
religious order or an extended medical care facility;
6. Housing accommodations that a government unit, agency or authority owns,
operates or manages, or which are specifically exempted from municipal regulation by
State or federal law or administrative regulation. This exception shall not apply once
the governmental ownership, operation or management regulation is discontinued.
5.06.040 Residential Rental Business License Requirement. Every rental unit
owner shall obtain an annual residential rental business license, pursuant to Title 5 of
the Tukwila Municipal Code, prior to operating, leasing or causing to be leased a rental
unit. Rental unit owners must file a written application annually with the Department
for each rental unit to be leased. To be considered for approval, residential rental
business license applications must be complete and include the appropriate application
fee as set by the City's fee schedule. Failure to obtain a residential rental business
license will result in the inability to rent the unit.
5.06.050 Inspection Required. The owner must obtain an inspection of each rental
unit and submit the inspection results to the code official. The owner may utilize a City
inspector or a non -City inspector, as defined herein and shall indicate their choice on
the application form. The City shall provide the inspection criteria to the owner with the
application form. The code official shall issue a Certificate of Compliance for rental
units that comply with applicable laws based on a submitted inspection certificate. If
using a non -City inspector, the owner shall be responsible for making the inspection
arrangements with the non -City inspector.
5.06.060 Inspection Consent. Owners shall make every effort to make units available
for inspection pursuant to this chapter. If the owner fails to arrange for a non -City
inspector and /or the owner or occupants do not consent to City entry for inspection,
the code official may not force or otherwise attempt to gain entry except in accordance
with a court warrant authorizing entry for the purpose of inspection.
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5.06.070 Rental Inspection Deficiency Point System.
A. The code official shall prepare and shall keep on file for public inspection the
rental inspection deficiency point system used in the point calculation procedure set
forth herein. The code official shall assign points according to the severity of each code
violation on a scale of 1 to 25. Except when otherwise provided by State law, conditions
in the design or structure of a building such as, but not limited to, the size and
dimension of rooms and windows and the electrical and plumbing systems that were
legal under existing codes when built, shall not be violations as long as they are
maintained in good repair. A violation noted during the inspection shall receive the
assigned point value.
B. A rental unit shall be considered unfit for occupancy if it fails an inspection by 25
points or more.
5.06.080 Inspection Certificate. As a condition of the issuance of a residential rental
business license, the owner shall provide a completed Inspection Certificate signed by
the inspector showing the current condition of the rental unit. The code official shall
issue a Certificate of Compliance upon receipt of the inspection results indicating
compliance with the applicable laws pursuant to this chapter.
5.06.090 Deficiencies. Items to be inspected are weighted according to a point
system established by the City. Accrual of 25 points or more for deficiencies constitutes
a failure of the inspection and requires correction. The inspector shall provide the
owner and the City written notice of each deficiency disclosed by inspection. A
Certificate of Compliance shall not be issued until the Inspection Certificate indicates a
score of less than 25 points. Repairs required to bring the unit into compliance are the
responsibility of the owner. Rental units shall be subject to re- inspections pursuant to
Section 5.06.110.
5.06.100 Violations. If an inspection of a rental unit conducted pursuant to this
chapter reveals deficiencies of 25 points or more on the Inspection Certificate, the
violation must be cured within 30 days. If upon re- inspection, the unit reveals
deficiencies of 25 points or more, the City's code official may seek any remedies
permitted by law including, but not limited to, denial or revocation of a residential
rental business license for that unit pursuant to Title 5 of the Tukwila Municipal Code,
and abatement proceedings pursuant to Chapter 8.45 of the Tukwila Municipal Code.
The City may seek legal or equitable relief to enjoin any act or practice that constitutes
or will constitute a violation of any regulation under this chapter.
5.06.110 Re- inspections. A rental unit that exhibits deficiencies of 25 points or more
on the Inspection Certificate shall be subject to a re- inspection and re- inspection fee as
set forth in the City's fee schedule adopted pursuant to this chapter.
5.06.120 Notice of Non Issuance of Certificate of Compliance. If, upon re-
inspection, the inspector determines a rental unit is unfit for occupancy by failing an
inspection by 25 points or more, the City shall provide the owner with written notice of
non issuance of Certificate of Compliance. Such notice shall specify the date of the non
issuance determination, the rental unit address, the name of the owner, the name of the
inspector and the specific reasons for the non- issuance determination. Failure to obtain
a Certificate of Compliance will result in the non- issuance or revocation of the rental
business Iicense for that unit. The unit shall be posted Unfit for Occupancy. Tenants, if
any, shall be required to vacate. Relocation Assistance pursuant to TMC 8.46 may
apply.
5.06.130 Contents of Certificate of Compliance. Certificate of Compliance shall
specify the date of issuance, the legal use and occupancy of the rental unit, the rental
unit address, the name of the owner to whom the certificate is issued, the expiration
date of the Certificate, and an indication the rental unit complies with applicable laws
as far as could be determined by inspection.
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5.06.140 Certificate of Compliance Validity and Renewal. Certificates of
Compliance expire on December 31, four years from the date of issuance by the City.
The owner shall submit a new Inspection Certificate prior to the expiration of the
current Certificate of Compliance. Failure to renew the Certificate of Compliance every
four years shall result in the non issuance or revocation of the rental business license for
that unit.
5.06.150 Notice. All notices issued pursuant to this chapter shall provide the address
and phone number where additional information concerning the inspection may be
obtained. Notice to the owner and occupants shall be mailed by first -class mail to the
owner's last known address as it appears in the records of the county assessor or other
address provided by the owner, and to the rental unit's occupants.
5.06.160 Authority. The code official shall be responsible for enforcement and
administration of this ordinance.
5.06.170 Administrative Regulations. The code official is authorized and directed to
promulgate administrative regulations pertaining to the implementation of this chapter.
5.06.180 Complaint -Based Inspections. Nothing contained herein shall prevent or
restrict the authority of the City's code official to inspect any unit or premises thereof in
response to a complaint alleging code violations or other violations of law at such unit
and to pursue all code enforcement remedies available under this code or other laws
following such a complaint -based inspection of a unit.
5.06.190 Voluntary Inspection Requests. Nothing in this chapter shall be construed
to prohibit an owner from voluntarily requesting an inspection to determine whether a
rental unit complies with applicable laws, even though such inspection may not be
required pursuant to this chapter. Such voluntary inspection requests shall be subject to
all of the provisions of this chapter including, but not limited to, the provisions
governing applications and fees.
5.06.200 Penalties.
A. Violations of the provisions of this chapter shall be deemed civil infractions
subject to the provisions of TMC Section 8.45.050 and the monetary penalties specified
in Section 5.06.200.C.
B. Any violation of this chapter that constitutes an immediate health or safety threat
shall constitute a public nuisance.
C. Any person who violates any of the provisions of this chapter shall, upon a
determination that a violation has been committed, be assessed monetary penalties as
follows:
1. First civil penalty: $250.00.
2. Second civil penalty: $500.00.
3. Third and each subsequent civil penalty: $1,000.00.
D. Each day that a property or person is not in compliance with the provisions of
this chapter may constitute a separate violation of this chapter.
E. The code official shall have the authority to waive or reduce monetary penalties.
Such waiver or reduction in monetary penalties shall be based on the code official's
finding that compliance has been obtained and that further penalties are punitive
assessments that serve no purpose.
F. In addition to the penalties above, the City shall not issue or shall revoke the
unit's business license and require that the unit be vacated until the unit is brought into
compliance.
G. The penalties set forth in this chapter are not exclusive. The City may avail itself
of any other remedies provided by law.
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5.06.210 Appeal.
A. Upon notice of non issuance of a Certificate of Compliance, the owner may
appeal by filing a notice of appeal, specifying the particular reason(s) upon which the
appeal is based, with the City Clerk within ten calendar days of and including the date
of the notice of non issuance. A timely notice of appeal shall stay the effect of the notice
of non- issuance.
B. Upon timely filing of a notice of appeal, the City Clerk or his /her designee shall
schedule a hearing on the appeal before a Hearing Examiner. The hearing shall be
conducted no later than 45 business days from the date of the notice of appeal, unless
an extension is agreed to by the appellant or otherwise ordered by the Hearing
Examiner for good cause shown.
C. Within 14 business days, excluding holidays recognized by the City of Tukwila,
from the date of the hearing on an appeal under this section, the Hearing Examiner
shall issue a written decision, which shall set forth the reasons therefore.
D. A decision of the Hearing Examiner to reject an appeal as untimely, shall be final
unless an application for a writ of review is filed with the King County Superior Court
and properly served upon the City of Tukwila within 14 calendar days of and including
the date of the Hearing Examiner's decision.
5.06.220 Annual Review and Report. The code official shall conduct an annual
review of the Residential Rental Business License and Inspection Program and shall
submit an annual report of the program's effectiveness to the City Council.
5.06.230 Immediate Health and Safety Threats. Nothing in this ordinance shall limit
the City's ability to inspect properties and issue citations for property related conditions
that may constitute an immediate health or safety threat.
5.06.240 No Warranty by City. By enacting and undertaking to enforce this
ordinance, the City, City Council, its agents and employees do not warrant or guarantee
the safety, fitness or suitability of any dwelling in the City or any unit inspected under
this program. Owners and occupants should take whatever steps they deem
appropriate to protect their interests, health, safety and welfare.
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.
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
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Jim Haggerton, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
Page 6 of 6
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, ADOPTING A RESIDENTIAL RENTAL BUSINESS
LICENSE AND INSPECTION PROGRAM FEE SCHEDULE.
WHEREAS, the City has adopted a Residential Rental Business License and
Inspection Program, pursuant to Tukwila Municipal Code Chapter 5.06; and
WHEREAS, the City is authorized to impose fees for services rendered;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Residential Rental Business License and Inspection Program fees will be charged
according to the following schedule:
Annual Residential Rental Business License:
RESIDENTIAL RENTAL BUSINESS LICENSE AND INSPECTION FEES
Property with five or more units
Property with one, two, three or four units
Inspection fee per unit (City inspector)
Re- inspection fee per unit (City inspector)
Hearing Examiner appeal fee
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
City of Tukwila
Washington
Resolution No.
DESCRIPTION
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FEE
$100.00
$50.00
$35.00
$35.00
$300.00
Dennis Robertson, Council President
Filed with the City Clerk:
Passed by the City Council:
Resolution Number:
Page 1 of 1
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CAS NUMBER:
Fund Source:
Comments:
04/19/10
MTG. DATE
04/12/10
AGENDA ITEM TITLE Ordinance to Renew AboveNet Communications Franchise Agreement
CA'l'IGORY Discussion
Mtg Date 04/12/10 Mtg Date
SPONSOR
SPONSO
SUMMARY
04/19/10
Meetin, Date
04/12/10
04/19/10
In- fl Lf 7
EXPENDITURE RI QUIRIE,D
$0.00
COUNCIL A G ENDA SYNOPSIS
Motion I I Resolution
ITEM INFORMATION
ORIGINAL AGENDA DATE: APRIL 12, 2010
Mtg Date
,.T repared by
FI
FI
Initla /s
Ordinance Bid Award L Public Hearing
Mtg Date 4/19/10 Mtg Date Mtg Date Mtg Date
n Council Mayor Adm Svc.r DCD n Finance Fire Legal P&R I Police PTV
AboveNet Communications (formerly Metromedia Fiber Network Services) Ordinance No.
2145 expired on December 12, 2009. AboveNet Communications is a telecommunications
company that provides customized network solutions and high bandwidth connectivity for
financial, healthcare, and government entities. Council is being asked to approve the
ordinance for the renewal of the AboveNet Communications franchise agreement for three
years with an expiration date in April, 2013.
RV \'IEWI D BY COW Mtg. CA &P Cmte n F &S Cmte n Transportation Cmte
Utilities Cmte E Arts Comm. Parks Comm. Planning Comm.
DATE: 03/23/10
RECOMMENDATIONS:
SPONSOR /ADMIN. Public Works
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
AMOUNT BUDGETED
$0.00
Mpiereview •until review
MTG. DATE RECORD OF COUNCIL AC TION
04/12/10 !Forward to Next Regular Meeting
ATTACHMENTS
Informational Memorandum dated 3/15/10
Draft Ordinance with Exhibits
Minutes from the Utilities Committee meeting of 03/23/10
Ordinance in Final Form
ITEM NO.
c
Other
APPROPRIATION REQUIRED
$0.00
15
16
City of Tu;
Washington
Ordinance No.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, GRANTING A NON EXCLUSIVE FRANCHISE TO
ABOVENET COMMUNICATIONS, LEGALLY AUTHORIZED TO
CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE
PURPOSE OF CONSTRUCTING, OPERATING AND MAINTAINING A
TELECOMMUNICATIONS SYSTEM IN CERTAIN PUBLIC RIGHTS -OF-
WAY IN THE CITY; PROVIDING FOR SEVERABILITY; AND
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, AboveNet Communications, hereinafter referred to as "AboveNet," is a
telecommunications company that, among other things, provides voice and data
services to customers, including those in the Puget Sound region; and
WHEREAS, AboveNet's desired route through the City of Tukwila, hereinafter
referred to as "City," requires the use of certain portions of City rights -of -way for the
installation, operation and maintenance of a telecommunications system; and
WHEREAS, the City Council has determined that the use of portions of the City's
rights -of -way for installation of a telecommunications system is appropriate from the
standpoint of the benefits to be derived by local business and the region as a result of
such services; and
WHEREAS, the City Council also recognizes that the use of public rights -of -way
must be restricted to allow for the construction of amenities necessary to serve the
future needs of the citizens of Tukwila and that the coordination, planning and
management of the City's rights -of -way is necessary to ensure that the burden of costs
for the operations of non municipal interests are not borne by the citizenry; and
WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant
and regulate non exclusive franchises for the use of public streets, right -of -ways and
other public property for transmission of communications;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Non exclusive Franchise Granted.
A. The City hereby grants to AboveNet, subject to the conditions prescribed in this
ordinance "Franchise Agreement the franchise rights and authority to construct,
replace, repair, monitor, maintain, use and operate the equipment and facilities
necessary for a telecommunications facility within the City -owned rights -of -way,
generally described in Exhibit A, and hereinafter referred to as the "franchise area."
B. Such franchise shall not be deemed to be exclusive to AboveNet and shall in no
way prohibit or limit the City's ability to grant other franchises, permits, or rights along,
over or under the areas to which this franchise has been granted to AboveNet;
provided, that such other franchises do not unreasonably interfere with AboveNet's
exercise of franchise rights granted herein as determined by the City. This franchise
shall in no way interfere with existing utilities or in any way limit, prohibit or prevent
the City from using the franchise area or affect the City's jurisdiction over such area in
any way.
Section 2. Authority. The Director of Public Works or his or her designee is hereby
granted the authority to administer and enforce the terms and provisions of this
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Franchise Agreement and may develop such lawful and reasonable rules, policies and
procedures as he or she deems necessary to carry out the provisions contained herein.
Section 3. Franchise Term. The franchise rights granted herein shall remain in full
force and effect for a period of three years from the effective date of this ordinance.
This franchise shall not take effect and AboveNet shall have no rights under this
franchise unless a written acceptance with the City is received pursuant to Section 4 of
this agreement. If AboveNet requests a franchise renewal prior to the expiration date,
the City may, at the City's sole discretion, extend the tern of this franchise for up to one
year beyond the expiration date to allow processing of renewal. If the City elects to
extend the term of this franchise, written notice of the extension shall be provided to
AboveNet prior to the franchise expiration date.
Section 4. Acceptance of Terms and Conditions. The full acceptance of this
franchise and all the terms and conditions shall be filed with the City Clerk within 30
days of the effective date of this ordinance in the form attached hereto as Exhibit B.
Failure on the part of AboveNet to file said consent within 30 days of the effective date
of this ordinance shall void and nullify any and all rights granted under this Franchise
Agreement.
Section 5. Construction Provisions and Standards. The following provisions shall
be considered mandatory and failure to abide by any conditions described herein shall
be deemed as non compliance with the terms of this Franchise Agreement and may
result in some or all of the penalties specified in Section 6.
A. Permit Required. No construction, maintenance or repairs (except for emergency
repairs) shall be undertaken in the franchise area without first obtaining appropriate
permits from the City of Tukwila, Department of Public Works. In case of an
emergency, AboveNet shall, within 24 hours of the emergency, obtain a permit from the
City of Tukwila Department of Public Works.
B. Coordination. All capital construction projects performed by AboveNet within
the franchise area shall be inspected by a City inspector. All work and inspection shall
be coordinated with the Engineering Division of the Public Works Department to
ensure consistency with City infrastructure, future Capital Improvement Projects, all
developer improvements, and pertinent codes and ordinances.
C. Construction Standards. Any construction, installation, maintenance and
restoration activities performed by or for AboveNet within the franchise area shall be
constructed and located so as to produce the least amount of interference with the free
passage of pedestrian and vehicular traffic. All construction, installation, maintenance
and restoration activities shall be conducted such that they conform to City's
development guidelines and standards and comply with Title 11 of the Tukwila
Municipal Code.
D. Underground Installation Required. All telecommunications cables and junction
boxes or other vaulted system components shall be installed underground unless
otherwise exempted from this requirement, in writing, by the Director of Public Works.
E. Relocation.
1. Whenever the City causes a public improvement to be constructed within the
franchise area, and such public improvement requires the relocation of AboveNet's
facilities, the City shall provide AboveNet with written notice requesting such
relocation, along with plans for the public improvement that are sufficiently complete
to allow for the initial evaluation, coordination and the development of a relocation
plan. The City and AboveNet shall meet at a time and location determined by the City
to discuss the project requirements including critical timelines, schedules, construction
standards, utility conflicts, as -built requirements, and other pertinent relocation plan
details.
2. To ensure timely execution of relocation requirements, AboveNet shall, upon
written request from the City, provide at AboveNet's expense, base maps, current as-
built information, detailed relocation plan (including detailed schedule of relocation
activities, identification of critical path, identification of facilities, and relocation
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procedures), and other design, technical or operational requirements within the
timeframe specified by the City.
3. AboveNet may, after receipt of written notice requesting a relocation of its
facilities, submit to the City written alternatives to such relocation within the time
specified by the City. Such alternatives shall include the use and operation of temporary
facilities in adjacent rights of way. The City shall evaluate such alternatives and advise
AboveNet in writing if one or more of the alternatives are suitable to accommodate the
work, which would otherwise necessitate relocation of the facilities. If requested by the
City, AboveNet shall submit additional information to assist the City in making such
evaluation. The City shall give each alternative proposed by AboveNet fuII and fair
consideration. In the event the City ultimately determines there is no other reasonable
alternative, AboveNet shall relocate its facilities as otherwise specified in Section 5.E.
4. Upon final approval of the relocation plan by the City, AboveNet shall, at its
own expense, unless otherwise prohibited by statute, and at the timeframe specified by
the City, temporarily or permanently remove, relocate, place underground, change or
alter the position of any facilities or structures within the right -of -way whenever the
City has determined that such removal, relocation, undergrounding, change or
alteration is reasonably necessary for the construction, repair, maintenance, installation,
public safety, or operation of any public improvement in or upon the rights -of -way.
5. If during the construction, repair, or maintenance of City's public
improvement project an unexpected conflict occurs from AboveNet's facilities,
AboveNet shall upon notification from the City, respond within 24 hours to resolve the
conflict.
F. Removal or Abandonment. Upon the removal from service of any service
antennas or other associated structures, facilities and amenities, AboveNet shall comply
with all applicable standards and requirements prescribed by the City of Tukwila Public
Works Department for the removal or abandonment of said structures and facilities. No
facility constructed or owned by AboveNet may be abandoned without the express
written consent of the City.
G. Bond. Before undertaking any of the work, installation, improvements,
construction, repair, relocation, or maintenance authorized by this Franchise
Agreement, AboveNet shall, upon the request of the City, furnish a bond executed by
AboveNet and a corporate surety authorized to operate a surety business in the State of
Washington, in such sum as may be set and approved by the City as sufficient to ensure
performance of AboveNet's obligations under this Franchise Agreement, provided,
however, that such sum shall not exceed 150% of the cost of the telecommunications
system to be installed by AboveNet in the City rights -of -way. At AboveNet's sole
option, AboveNet may provide alternate security in the form of an assignment of funds
or a letter of credit, in the same amount as the bond. All forms of security shall be in the
form reasonably acceptable to the City. The bond shall be conditioned so that AboveNet
shall observe all the covenants, terms and conditions and shall faithfully perform all of
the obligations of this Franchise Agreement, and to repair or replace any defective
AboveNet work or materials discovered in the City's roads, streets or property.
H. "One- Call" Location Liability. AboveNet shall subscribe to and maintain
membership in the regional "One -Call" utility location service and shall promptly locate
all of its lines upon request. The City shall not be liable for any damages to AboveNet's
system components or for interruptions in service to AboveNet customers which are a
direct result of work performed for any City project for which AboveNet has failed to
properly locate its lines and facilities within the prescribed time Iimits and guidelines
established by One -Call. The City shall also not be liable for any damages to the
AboveNet system components or for interruptions in service to AboveNet customers
resulting from work performed under a permit issued by the City.
I. As -Built Plans Required. AboveNet shall maintain accurate engineering plans
and details of all installations within the City limits and shall provide such information
in both paper form and electronic form using the most current Autocad version prior to
close -out of any permits issued by the City and any work undertaken by AboveNet
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pursuant to this Franchise Agreement. The City shall determine the acceptability of any
as -built submittals provided under this section.
J. Recovery of Costs. AboveNet shall be subject to all permit fees associated with
activities undertaken through the authority granted in this Franchise Agreement or
under ordinances of the City. Where the City incurs costs and expenses for review or
inspection of activities undertaken through the authority granted in this Franchise
Agreement or any ordinances relating to the subject for which permit fees have not
been established, AboveNet shall pay such reasonable costs and expenses directly to the
City.
K. Vacation. If, at any time, the City shall vacate any City road, right -of -way or
other City property which is subject to rights granted by this Franchise Agreement and
said vacation shall be for the purpose of acquiring the fee or other property interest in
said road, right -of -way or other City property for the use of the City, in either its
proprietary or governmental capacity, then the City may, at its option and by giving 30-
days written notice to AboveNet, terminate this Franchise Agreement with reference to
such City road, right -of -way or other City property so vacated, and the City shall not be
liable for any damages or loss to AboveNet by reason of such termination other than
those provided for in RCW 35.99.
Section 6. Franchise Compliance.
A. Franchise Violations. The failure by AboveNet to fully comply with any of the
provisions of this Franchise Agreement may result in a written notice from the City that
describes the violations of the franchise and requests remedial action within 30 days of
receipt of such notice. If AboveNet has not attained full compliance at the end of the 30-
day period following receipt of the violation notification, the City may declare an
immediate termination of all franchise rights and privileges, provided that full
compliance was reasonably possible within that 30 -day period.
B. Emergency Actions.
1. If any of AboveNet's actions, or any failure by AboveNet to act to correct a
situation caused by AboveNet, is deemed by the City to create a threat to life or
property, financial harm, or cause a delay of the construction, repair or maintenance of
the public improvement, the City may order AboveNet to immediately correct said
threat, financial harm, or delay or, at the City's discretion, the City may undertake
measures to correct said threat, financial harm or delay itself; provided that, when
possible, the City shall notify AboveNet and give AboveNet an opportunity to correct
within a specified time said threat, financial harm or delay before undertaking such
corrective measures. AboveNet shall be liable for all costs, expenses and damages
attributed to the correction of such an emergency situation as undertaken by the City to
the extent that such situation was caused by AboveNet and shall further be liable for all
costs, expenses and damages resulting to the City from such situation and any
reimbursement of such costs to the City shall be made within 30 days of written notice
of the completion of such action or determination of damages by the City. The failure
by AboveNet to take appropriate action to correct a situation caused by AboveNet and
identified by the City as a threat to public or private safety or property, financial harm,
or delay of the construction, repair or maintenance of the public improvement shall be
considered a violation of franchise terms.
2. If during construction or maintenance of AboveNet's facilities any damage
occurs to an underground facility and the damage results in the release of natural gas or
other hazardous substance or potentially endangers life, health or property, AboveNet
or its contractor shall immediately call 911 or other local emergency response number.
C. Other Remedies. Nothing contained in this Franchise Agreement shall limit the
City's available remedies in the event of AboveNet's failure to comply with the
provisions of this Franchise Agreement, to include but not limited to, the City's right to
a lawsuit for specific performance and /or damages.
D. Removal of System. In the event this Franchise Agreement is terminated as a
result of violations of the terns of this Franchise Agreement, AboveNet shall, at its sole
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expense, promptly remove all system components and facilities, provided that the City,
at its sole option, may allow AboveNet to abandon its facilities in place.
Section 7. Insurance.
A. AboveNet shall maintain liability insurance written on a per occurrence basis
during the full term of this franchise for personal injuries and property damages. The
policy shall contain coverage in the amounts and conditions stipulated in Title 11 of the
Tukwila Municipal Code.
B. Such insurance shall specifically name as additional insured, the City, its officers
and employees; shall apply as primary insurance; shall stipulate that no insurance
affected by the City will be called on to contribute to a loss covered thereunder; and
shall further provide that the policy shall not be modified or canceled during the life of
the permit or Franchise Agreement without giving 30 days written notice to the City.
Notice shall be by certified mail, return receipt requested to the City.
C. If the City determines that circumstances warrant an increase in insurance
coverage and liability limits to adequately cover the risks of the City, the City may
require additional insurance to be acquired. The City shall provide written notice
should the City exercise its right to require additional insurance.
Section 8. Other Permits Approvals. Nothing in this Agreement shall relieve
AboveNet from any obligation to obtain approvals or necessary permits from
applicable federal, state and City authorities for all activities in the franchise area.
Section 9. Transfer of Ownership.
A. The rights, privileges, benefits, title or interest provided by this franchise shall
not be sold, transferred, assigned or otherwise encumbered, without the prior written
consent of the City, with such consent not being unreasonably withheld or delayed. No
such consent shall be required, however, for a transfer in trust, by other hypothecation,
or by assignment or any rights, title or interest in AboveNet's telecommunications
system in order to secure indebtedness. Approval shall not be required for mortgaging
purposes provided that the collateral pledged for any mortgage shall not include the
assets of this franchise. Approval shall not be required for any transfer from AboveNet
to another person or entity controlling, controlled by, or under common control with
AboveNet.
B. In any transfer of this franchise which requires the approval of the City,
AboveNet shall show that the recipient of such transfer has the technical ability,
financial capability, and any other legal or general qualifications as reasonably
determined by the City to be necessary to ensure that the obligations and terms
required under this Franchise Agreement can be met to the full satisfaction of the City.
The qualifications of any transferee shall be determined by hearing before the City
Council and the approval to such transfer shall be granted by resolution of the City
Council. Any administrative costs associated with a transfer of this franchise which
requires the approval of the City, shall be reimbursed to the City within 30 days of such
transfer.
Section 10. Administrative Fees.
A. Pursuant to the RCW, the City is precluded from imposing franchise fees for
"telephone businesses" defined in RCW 82.04.065, except that fees may be collected for
administrative expenses related to such franchise. AboveNet does hereby warrant that
its operations, as authorized under this franchise, are those of a telephone business as
defined in RCW 82.04.065.
B. AboveNet shall be subject to a $5,000 administrative fee for reimbursement of
costs associated with the preparation, processing and approval of this Franchise
Agreement. These costs shall include, but not be limited to, wages, benefits, overhead
expenses, equipment and supplies associated with such tasks as plan review, site visits,
meetings, negotiations and other functions critical to proper management and oversight
of City's right -of -way. Administrative fees exclude normal permit fees as stipulated in
Title 11 of the Tukwila Municipal Code. Payment of the one -time administrative fee is
due 30 days after franchise approval.
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C. In the event AboveNet submits a request for work beyond scope of original
franchise, or submits a complex project that requires significant comprehensive plan
review or inspection, AboveNet shaII reimburse City for franchise amendment and
expenses associated with the project. AboveNet shall pay such costs within 30 days of
receipt of bill from the City.
D. Failure by AboveNet to make full payment of bills within the time specified shall
be considered sufficient grounds for the termination of all rights and privileges existing
under this ordinance, utilizing the procedures specified in Section 6 of this ordinance.
Section 11. Notices. Any notice to be served upon the City or AboveNet shall be
delivered to the following addresses respectively:
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila WA 98188
Section 12. Indemnification.
A. AboveNet shall use reasonable and appropriate precautions to avoid damage to
persons or property in the construction, installation, repair, operation and maintenance
of its structures and facilities. AboveNet shall indemnify and hold the City harmless
from all claims, actions or damages, including reasonable attorney's and expert witness
fees, which may accrue to or be suffered by any person or persons, corporation or
property to the extent caused in part or in whole by any negligent act or omission of
AboveNet, its officers, agents, servants or employees, carried on in the furtherance of
the rights, benefits, and privileges granted to AboveNet by this franchise. In the event
any claim or demand is presented to or filed with the City which gives rise to
AboveNet's obligation pursuant to this section, the City shall within a reasonable time
notify AboveNet thereof and AboveNet shall have a right, at its election, to settle or
compromise such claim or demand. In the event any claim or action is commenced in
which the City is named a party, and which suit or action is based on a claim or demand
which gives rise to AboveNet's obligation pursuant to this section, the City shall
promptly notify AboveNet thereof, and AboveNet shall, at its sole cost and expense,
defend such suit or action by attorneys of its own election. In defense of such suit or
action, AboveNet may, at its election and at its sole cost and expense, settle or
compromise such suit or action. This section shall not be construed to require AboveNet
to:
AboveNet
360 Hamilton Avenue
7th Floor
White Plains NY 100601
1. protect and save the City harmless from any claims, actions or damages;
2. settle or compromise any claim, demand, suit or action;
3. appear in or defend any suit or action; or,
4. pay any judgment or reimburse the City's costs and expenses (including
reasonable attorney's fees), to the extent such claim arises out of the negligence or
intentional acts of the City, its employees, agents or independent contractors.
B. To the extent of any concurrent negligence between AboveNet and the City,
AboveNet's obligations under this paragraph shall only extend to its share of
negligence or fault. The City shall have the right at all times to participate through its
own attorney in any suit or action which arises out of any right, privilege, and authority
granted by or exercised pursuant to this franchise when the City determines that such
participation is required to protect the interests of the City or the public. Such
participation by the City shall be at the City's sole cost and expense.
C. With respect to the performance of this franchise and as to claims against the
City, its officers, agents and employees, AboveNet expressly waives its immunity under
Title 51 of the RCW, the Industrial Insurance Act, for injuries to its officers, agents and
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employees and agrees that the obligation to indemnify, defend and hold harmless
provided for in this paragraph extends to any claim brought by or on behalf of
AboveNet's officers, agents or employees. This waiver is mutually negotiated by the
parties.
Section 13. Severability. If any section, sentence, clause or phrase of this ordinance
is held to be invalid or unconstitutional by a court of competent jurisdiction, either
party may deem the entire ordinance to be affected and thereby nullified. However, in
the event that a determination is made that a section, sentence, clause or phrase in this
ordinance is invalid or unconstitutional, the parties may agree to treat the portion
declared invalid or unconstitutional as severable and maintain in force the remaining
provisions of this ordinance; provided that, if the City elects, without agreement by
AboveNet, to enforce the remaining provisions of the ordinance, AboveNet shall have
the option to terminate the Franchise Agreement.
Section 14. Reservation of Rights. The parties agree that this agreement is intended
to satisfy the requirements of all applicable laws, administrative guidelines, rules,
orders and ordinances. Accordingly, any provision of this agreement or any local
ordinance which may conflict with or violate the law shall be invalid and
unenforceable, whether occurring before or after the execution of this agreement, it
being the intention of the parties to preserve their respective rights and remedies under
the law, and that the execution of this agreement does not constitute a waiver of any
rights or obligations by either party under the law.
Section 15. Police Powers. Nothing contained herein shall be deemed to affect the
City's authority to exercise its police powers. AboveNet shall not by this Franchise
Agreement obtain any vested rights to use any portion of the City right -of -way except
for the locations approved by the City and then only subject to the terms and conditions
of this Franchise Agreement. This Franchise Agreement and the permits issued
thereunder shall be governed by applicable City ordinances in effect at the time of
application for such permits.
Section 16. Future Rules, Regulations and Specifications. AboveNet acknowledges
that the City may develop rules, regulations and specifications, including a general
ordinance or other regulations governing telecommunications operations in the City.
Such regulations, upon written notice to AboveNet, shall thereafter govern AboveNet's
activities hereunder; provided, however, that in no event shall regulations:
1. materially interfere with or adversely affect AboveNet's rights pursuant to
and in accordance with this Franchise Agreement; or
2. be applied in a discriminatory manner as it pertains to AboveNet and other
similar user of such facilities.
Section 17. 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.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON,
at a Regular Meeting thereof this day of 2010.
ATTEST/ AUTHENTICATED:
Cluisty O'Flaherty, CMC, City Clerk
APPROVED AS TO FORM BY:
Office of the City Attorney
Attachments: Exhibit A Description
Exhibit A-1 Map
Exhibit B Acceptance Form
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Jim Haggerton, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
Page 7 of 10
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EXHIBIT A
AboveNet route descriptions within the City of Tukwila
(2) 1 1/4" conduits within the 360 Networks joint build beginning at the south City limits
on West Valley highway northerly approximately 2.22 miles to the intersection of West
Valley Highway, Grady Way and Interurban Ave. Populated with (1) 432ct fiber optic
cable.
(2) 1 1/4" conduits within the 360 Networks joint build continuing westerly along SW
Grady Way approximately .2 miles to the eastern City limits. Populated with (1) 432ct
fiber optic cable
(2) 1 1/4" conduits within the 360 Networks joint build from the intersection of SW Grady
Way, West Valley Highway and Interurban Ave northerly approximately 3.16 miles to
the intersection of Interurban Ave and E Marginal Way S. Populated with (1) 864ct fiber
optic cable. Note: There is no cable placed between S 133 St and E Marginal Way S
along Interurban Ave.
(2) 1 1/4" conduits within the 360 Networks joint build from the intersection of Interurban
Ave and E Marginal Way S northerly approximately .63 miles to the intersection of E
Marginal Way S and S Boeing Access Rd. Populated with (1) 432ct fiber optic cable.
(2) 1 1/4" conduits within the 360 Networks joint build from the intersection of S Boeing
Access Rd easterly approximately .23 miles to the intersection of S Boeing Access Rd
and Airport Way S at the northern City limits. Populated with (1) 432ct fiber optic cable.
(8) 1 /z" conduits within the McLeod joint build from the intersection of Interurban Ave
and S 133 St westerly approximately .36 miles, then continuing northerly along E
Marginal Way S approximately 1 mile to the intersection of E Marginal Way S and
Interurban Ave. Populated with (1) 864 ct fiber optic cable. Note: There is no cable
placed between S 124 St and S 120 St along E Marginal Way S.
(8) 1 /2' conduits from the intersection of E Marginal Way S and S 124 St westerly
approximately .13 miles. Populated with (1) 864 Ct fiber optic cable.
(4) 1 /2" conduits within the Williams joint build from the intersection of S 130 St and
Pacific Highway S northerly approximately 1.41 miles to the intersection of Pacific
Highway S and E Marginal Way S, then continuing northerly on E Marginal Way S
approximately 1.9 miles to the north City limits.
AboveNet
Fiber Optic System
Exhibit A-1
Map
26
Date:
City of Tukwila
City Clerk's Office
6200 Southcenter Blvd
Tukwila WA 98188
Re: Ordinance Adopted
Dear Ms. O'Flaherty,
In accordance with and as required by Section 4 of City of Tukwila Ordinance No
(the "Ordinance passed by the City Council and approved by the
Mayor on AboveNet Communications, Inc. hereby accepts
the terms, conditions and obligations to be complied with or performed by it under the
ordinance.
Sincerely,
Signature
Printed Name
Title
EXHIBIT B
FRANCHISE AGREEMENT ACCEPTANCE FORM
ABOVENET COMMUNICATIONS, INC.
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CAS NUMBISR:
CATEGORY
SP(' )NSOR
SPONSOR'S
SUMMARY
Fund Source:
Comments:
MTG. DATE
04/12/10
04/19/10
MTG. DATE
04/12/10
04/19/10
Discussion Motion
EXPENDITURE REQUIRED
$0.00
Ordinance in Final Form
COUNCIL AGENDA SYNOPSIS
Initials
Meeting Date 1 irepared by 1 Mater review ouncil review
I 04/12/10 FI I -4 1 J
1 04/19/10 FI I 7.fi, Ai
I
I
ITEM INFORMATION
!ORIGINALAGENDA DATE: APRIL 12, 2010
AMOUNT BUDGETED
$0.00
AGENDA ITEM TITLE Ordinance to grant Franchise Agreement to PAETEC Holding Corporation
Resolution Ordinance n Bid Award Public Hearing n Other
Mtg Date 04/12/10 Alts Date t11tg Date Mtg Date 4/19/10 Mtg Date Meg Date Mtg Date
n Council Mayor Adm Svcs n DCD n Finance Fire n Legal P &R U Police P1T7
PAETEC Holding Corporation acquired fiber optic assets of McLeodUSA Incorporated.
PAETEC is a telecommunications company that provides an extensive suite of data,
internet protocol (IP) based solutions, voice communications, networks security, customer
premises equipment, and managed services. Council is being asked to approve the
ordinance for the new PAETEC Holding Corp. franchise agreement for three years with an
expiration date in April, 2013.
RI ;VII;WI,D BY COW Mtg. CA &P Cmte n F &S Cmte
Utilities Cmte Arts Comm. Parks Comm. I Planning Comm.
DATE: 03/23/10
RECOMMENDATIONS:
SPONSOR /ADMIN. Public Works
COMMJ TrEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
R ECORD OF COUNCIL ACTION
Forward to Next Regular Meeting
ATTACHMENTS
Informational Memorandum dated 3/12/10
Draft Ordinance with Exhibits
Minutes from the Utilities Committee meeting of 03/23/10
ITEM No.
n Transportation Cmte
APPROPRIATION REQUIRED
$0.00
2 7
28
City of Tukwila
Washington
Ordinance No.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, GRANTING A NON EXCLUSIVE FRANCHISE TO
PAETEC HOLDING CORPORATION, AN IOWA CORPORATION
LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF
WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING
AND MAINTAINING A TELECOMMUNICATIONS SYSTEM IN CERTAIN
PUBLIC RIGHTS -OF -WAY IN THE CITY; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, PAETEC Holding Corporation, hereinafter referred to as "PAETEC," is
a telecommunications company that, among other things, provides voice and data
services to customers, including those in the Puget Sound region; and
WHEREAS, PAETEC's desired route through the City of Tukwila, hereinafter
referred to as "City," requires the use of certain portions of City rights -of -way for the
installation, operation and maintenance of a telecommunications system; and
WHEREAS, the City Council has determined that the use of portions of the City's
rights -of -way for installation of a telecommunications system is appropriate from the
standpoint of the benefits to be derived by local business and the region as a result of
such services; and
WHEREAS, the City Council also recognizes that the use of public rights -of -way
must be restricted to allow for the construction of amenities necessary to serve the
future needs of the citizens of Tukwila and that the coordination, planning and
management of the City's rights -of -way is necessary to ensure that the burden of costs
for the operations of non municipal interests are not borne by the citizenry; and
WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant
and regulate non exclusive franchises for the use of public streets, right -of -ways and
other public property for transmission of communications;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Non exclusive Franchise Granted.
A. The City hereby grants to PAElhC, subject to the conditions prescribed in this
ordinance "Franchise Agreement the franchise rights and authority to construct,
replace, repair, monitor, maintain, use and operate the equipment and facilities
necessary for a telecommunications facility within the City -owned rights -of -way,
generally described in Exhibit A, and hereinafter referred to as the "franchise area."
B. Such franchise shall not be deemed to be exclusive to PAETEC and shall in no
way prohibit or limit the City's ability to grant other franchises, permits, or rights along,
over or under the areas to which this franchise has been granted to PAETEC; provided,
that such other franchises do not unreasonably interfere with PAETEC's exercise of
franchise rights granted herein as determined by the City. This franchise shall in no
way interfere with existing utilities or in any way limit, prohibit or prevent the City
from using the franchise area or affect the City's jurisdiction over such area in any way.
Section 2. Authority. The Director of Public Works or his or her designee is hereby
granted the authority to administer and enforce the terms and provisions of this
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Franchise Agreement and may develop such lawful and reasonable rules, policies and
procedures as he or she deems necessary to carry out the provisions contained herein.
Section 3. Franchise Term. The franchise rights granted herein shall remain in full
force and effect for a period of three years from the effective date of this ordinance.
This franchise shall not take effect and PAETEC shall have no rights under this
franchise unless a written acceptance with the City is received pursuant to Section 4 of
this agreement. If PAETEC requests a franchise renewal prior to the expiration date, the
City may, at the City's sole discretion, extend the term of this franchise for up to one
year beyond the expiration date to allow processing of renewal. If the City elects to
extend the term of this franchise, writ notice of the extension shall be provided to
PAETEC prior to the franchise expiration date.
Section 4. Acceptance of Terms and Conditions. The full acceptance of this
franchise and all the terms and conditions shall be filed with the City Clerk within 30
days of the effective date of this ordinance in the form attached hereto as Exhibit B.
Failure on the part of PAETEC to file said consent within 30 days of the effective date of
this ordinance shall void and nullify any and all rights granted under this Franchise
Agreement.
Section 5. Construction Provisions and Standards. The following provisions shall
be considered mandatory and failure to abide by any conditions described herein shall
be deemed as non compliance with the terms of this Franchise Agreement and may
result in some or all of the penalties specified in Section 6.
A. Permit Required. No construction, maintenance or repairs (except for emergency
repairs) shall be undertaken in the franchise area without first obtaining appropriate
permits from the City of Tukwila, Department of Public Works. In case of an
emergency, PAETEC shall, within 24 hours of the emergency, obtain a permit from the
City of Tukwila Department of Public Works.
B. Coordination. All capital construction projects performed by PAETEC within the
franchise area shall be inspected by a City inspector. All work and inspection shall be
coordinated with the Engineering Division of the Public Works Department to ensure
consistency with City infrastructure, future Capital Improvement Projects, all developer
improvements, and pertinent codes and ordinances.
C. Construction Standards. Any construction, installation, maintenance and
restoration activities performed by or for PAETEC within the franchise area shall be
constructed and located so as to produce the least amount of interference with the free
passage of pedestrian and vehicular traffic. All construction, installation, maintenance
and restoration activities shall be conducted such that they conform to City's
development guidelines and standards and comply with Title 11 of the Tukwila
Municipal Code.
D. Underground Installation Required. All telecommunications cables and junction
boxes or other vaulted system components shall be installed underground unless
otherwise exempted from this requirement, in writing, by the Director of Public Works.
E. Relocation.
1. Whenever the City causes a public improvement to be constructed within the
franchise area, and such public improvement requires the relocation of PAETEC's
facilities, the City shall provide PAETEC with written notice requesting such relocation,
along with plans for the public improvement that are sufficiently complete to allow for
the initial evaluation, coordination and the development of a relocation plan. The City
and PAETEC shall meet at a time and Iocation determined by the City to discuss the
project requirements including critical timelines, schedules, construction standards,
utility conflicts, as -built requirements, and other pertinent relocation plan details.
2. To ensure timely execution of relocation requirements, PAETEC shall, upon
written request from the City, provide at PAETEC's expense, base maps, current as-
built information, detailed relocation plan (including detailed schedule of relocation
activities, identification of critical path, identification of facilities, and relocation
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procedures), and other design, technical or operational requirements within the
timeframe specified by the City.
3. PAETEC may, after receipt of written notice requesting a relocation of its
facilities, submit to the City written alternatives to such relocation within the time
specified by the City. Such alternatives shall include the use and operation of temporary
facilities in adjacent rights of way. The City shall evaluate such alternatives and advise
PAETEC in writing if one or more of the alternatives are suitable to accommodate the
work, which would otherwise necessitate relocation of the facilities. If requested by the
City, PAETEC shall submit additional information to assist the City in making such
evaluation. The City shall give each alternative proposed by PAETEC full and fair
consideration. In the event the City ultimately determines there is no other reasonable
alternative, PAETEC shall relocate its facilities as otherwise specified in Section 5.E.
4. Upon final approval of the relocation plan by the City, PAETEC shall, at its
own expense, unless otherwise prohibited by statute, and at the timeframe specified by
the City, temporarily or permanently remove, relocate, place underground, change or
alter the position of any facilities or structures within the right -of -way whenever the
City has determined that such removal, relocation, undergrounding, change or
alteration is reasonably necessary for the construction, repair, maintenance, installation,
public safety, or operation of any public improvement in or upon the rights -of -way.
5. If during the construction, repair, or maintenance of City's public
improvement project an unexpected conflict occurs from PAETEC's facilities, PAETEC
shall upon notification from the City, respond within 24 hours to resolve the conflict.
F. Removal or Abandonment. Upon the removal from service of any service
antennas or other associated structures, facilities and amenities, PAETEC shall comply
with all applicable standards and requirements prescribed by the City of Tukwila Public
Works Department for the removal or abandonment of said structures and facilities. No
facility constructed or owned by PAETEC may be abandoned without the express
written consent of the City.
G. Bond. Before undertaking any of the work, installation, improvements,
construction, repair, relocation, or maintenance authorized by this Franchise
Agreement, PAETEC shall, upon the request of the City, furnish a bond executed by
PAETEC and a corporate surety authorized to operate a surety business in the State of
Washington, in such sum as may be set and approved by the City as sufficient to ensure
performance of PAETEC's obligations under this Franchise Agreement, provided,
however, that such sum shall not exceed 150% of the cost of the telecommunications
system to be installed by PAETEC in the City rights -of -way. At PAETEC's sole option,
PAETEC may provide alternate security in the form of an assignment of funds or a
letter of credit, in the same amount as the bond. All forms of security shall be in the
form reasonably acceptable to the City. The bond shall be conditioned so that PAETEC
shall observe all the covenants, terms and conditions and shall faithfully perform all of
the obligations of this Franchise Agreement, and to repair or replace any defective
PAETEC work or materials discovered in the City's roads, streets or property.
H. "One -Call" Location Liability. PAETEC shall subscribe to and maintain
membership in the regional "One -Call" utility location service and shall promptly locate
all of its lines upon request. The City shall not be liable for any damages to PAETEC's
system components or for interruptions in service to PAETEC customers which are a
direct result of work performed for any City project for which PAETEC has failed to
properly locate its lines and facilities within the prescribed time limits and guidelines
established by One -Call. The City shall also not be liable for any damages to the
PAETEC system components or for interruptions in service to PAETEC customers
resulting from work performed under a permit issued by the City.
I. As -Built Plans Required. PAETEC shall maintain accurate engineering plans
and details of all installations within the City limits and shall provide such information
in both paper form and electronic form using the most current Autocad version prior to
close -out of any permits issued by the City and any work undertaken by PAETEC
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pursuant to this Franchise Agreement. The City shall determine the acceptability of any
as -built submittals provided under this section.
J. Recovery of Costs. PAETEC shall be subject to all permit fees associated with
activities undertaken through the authority granted in this Franchise Agreement or
under ordinances of the City. Where the City incurs costs and expenses for review or
inspection of activities undertaken through the authority granted in this Franchise
Agreement or any ordinances relating to the subject for which permit fees have not
been established, PAETEC shall pay such reasonable costs and expenses directly to the
City.
K. Vacation. If, at any time, the City shall vacate any City road, right -of -way or
other City property which is subject to rights granted by this Franchise Agreement and
said vacation shall be for the purpose of acquiring the fee or other property interest in
said road, right -of -way or other City property for the use of the City, in either its
proprietary or governmental capacity, then the City may, at its option and by giving 30-
days written notice to PAETEC, terminate this Franchise Agreement with reference to
such City road, right -of -way or other City property so vacated, and the City shall not be
liable for any damages or loss to PAETEC by reason of such termination other than
those provided for in RCW 35.99.
Section 6. Franchise Compliance.
A. Franchise Violations. The failure by PAETEC to fully comply with any of the
provisions of this Franchise Agreement may result in a written notice from the City that
describes the violations of the franchise and requests remedial action within 30 days of
receipt of such notice. If PAETEC has not attained full compliance at the end of the 30-
day period following receipt of the violation notification, the City may declare an
immediate termination of all franchise rights and privileges, provided that full
compliance was reasonably possible within that 30 -day period.
B. Emergency Actions.
1. If any of PAETEC's actions, or any failure by PAETEC to act to correct a
situation caused by PAETEC, is deemed by the City to create a threat to life or property,
financial harm, or cause a delay of the construction, repair or maintenance of the public
improvement, the City may order PAETEC to immediately correct said threat, financial
harm, or delay or, at the City's discretion, the City may undertake measures to correct
said threat, financial harm or delay itself; provided that, when possible, the City shall
notify PAETEC and give PAETEC an opportunity to correct within a specified time said
threat, financial harm or delay before undertaking such corrective measures. PAETEC
shall be liable for all costs, expenses and damages attributed to the correction of such an
emergency situation as undertaken by the City to the extent that such situation was
caused by PAETEC and shall further be liable for all costs, expenses and damages
resulting to the City from such situation and any reimbursement of such costs to the
City shall be made within 30 days of written notice of the completion of such action or
determination of damages by the City. The failure by PAETEC to take appropriate
action to correct a situation caused by PAETEC and identified by the City as a threat to
public or private safety or property, financial harm, or delay of the construction, repair
or maintenance of the public improvement shall be considered a violation of franchise
terns.
2. If during construction or maintenance of PAETEC's facilities any damage
occurs to an underground facility and the damage results in the release of natural gas or
other hazardous substance or potentially endangers life, health or property, PAETEC or
its contractor shall immediately call 911 or other local emergency response number.
C. Other Remedies, Nothing contained in this Franchise Agreement shall limit the
City's available remedies in the event of PAETEC's failure to comply with the
provisions of this Franchise Agreement, to include but not limited to, the City's right to
a lawsuit for specific performance and/or damages.
D. Removal of System. In the event this Franchise Agreement is terminated as a
result of violations of the terms of this Franchise Agreement, PAETEC shall, at its sole
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expense, promptly remove all system components and facilities, provided that the City,
at its sole option, may allow PAEI hC to abandon its facilities in place.
Section 7. Insurance.
A. PAETEC shall maintain liability insurance written on a per- occurrence basis
during the full term of this franchise for personal injuries and property damages. The
policy shall contain coverage in the amounts and conditions stipulated in Title 11 of the
Tukwila Municipal Code.
B. Such insurance shall specifically name as additional insured, the City, its officers
and employees; shall apply as primary insurance; shall stipulate that no insurance
affected by the City will be called on to contribute to a loss covered thereunder; and
shall further provide that the policy shall not be modified or canceled during the life of
the permit or Franchise Agreement without giving 30 days written notice to the City.
Notice shall be by certified mail, return receipt requested to the City.
C. If the City determines that circumstances warrant an increase in insurance
coverage and liability lirnits to adequately cover the risks of the City, the City may
require additional insurance to be acquired. The City shall provide written notice
should the City exercise its right to require additional insurance.
Section 8. Other Permits Approvals. Nothing in this Agreement shall relieve
PAETEC from any obligation to obtain approvals or necessary permits from applicable
federal, state and City authorities for all activities in the franchise area.
Section 9. Transfer of Ownership.
A. The rights, privileges, benefits, title or interest provided by this franchise shall
not be sold, transferred, assigned or otherwise encumbered, without the prior written
consent of the City, with such consent not being unreasonably withheld or delayed. No
such consent shall be required, however, for a transfer in trust, by other hypothecation,
or by assignment or any rights, title or interest in PAETEC's telecommunications system
in order to secure indebtedness. Approval shall not be required for mortgaging
purposes provided that the collateral pledged for any mortgage shall not include the
assets of this franchise. Approval shall not be required for any transfer from PAETEC to
another person or entity controlling, controlled by, or under common control with
PAETEC.
B. In any transfer of this franchise which requires the approval of the City, PAETEC
shall show that the recipient of such transfer has the technical ability, financial
capability, and any other legal or general qualifications as reasonably determined by the
City to be necessary to ensure that the obligations and terms required under this
Franchise Agreement can be met to the full satisfaction of the City. The qualifications of
any transferee shall be determined by hearing before the City Council and the approval
to such transfer shall be granted by resolution of the City Council. Any administrative
costs associated with a transfer of this franchise which requires the approval of the City,
shall be reimbursed to the City within 30 days of such transfer.
Section 10. Administrative Fees.
A. Pursuant to the RCW, the City is precluded from imposing franchise fees for
"telephone businesses" defined in RCW 82.04.065, except that fees may be collected for
administrative expenses related to such franchise. PAETEC does hereby warrant that its
operations, as authorized under this franchise, are those of a telephone business as
defined in RCW 82.04.065.
B. PAETEC shall be subject to a $5,000 administrative fee for reimbursement of
costs associated with the preparation, processing and approval of this Franchise
Agreement. These costs shall include, but not be limited to, wages, benefits, overhead
expenses, equipment and supplies associated with such tasks as plan review, site visits,
meetings, negotiations and other functions critical to proper management and oversight
of City's right -of -way. Administrative fees exclude normal permit fees as stipulated in
Title 11 of the Tukwila Municipal Code. Payment of the one -time administrative fee is
due 30 days after franchise approval.
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C. In the event PAETEC submits a request for work beyond scope of original
franchise, or submits a complex project that requires significant comprehensive plan
review or inspection, PAETEC shall reimburse City for franchise amendment and
expenses associated with the project. PAETEC shall pay such costs within 30 days of
receipt of bill from the City.
D. Failure by PAETEC to make full payment of bills within the time specified shall
be considered sufficient grounds for the termination of all rights and privileges existing
under this ordinance, utilizing the procedures specified in Section 6 of this ordinance.
Section 11. Notices. Any notice to be served upon the City or PAETEC shall be
delivered to the following addresses respectively:
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila WA 98188
PAETEC
Attn: ROW Department
One Martha's Way
Hiawatha IA 52233
Section 12. Indemnification.
A. PAETEC shall use reasonable and appropriate precautions to avoid damage to
persons or property in the construction, installation, repair, operation and maintenance
of its structures and facilities. PAETEC shall indemnify and hold the City harmless from
all claims, actions or damages, including reasonable attorney's and expert witness fees,
which may accrue to or be suffered by any person or persons, corporation or property
to the extent caused in part or in whole by any negligent act or omission of PAETEC, its
officers, agents, servants or employees, carried on in the furtherance of the rights,
benefits, and privileges granted to PAETEC by this franchise. In the event any claim or
demand is presented to or filed with the City which gives rise to PAETEC's obligation
pursuant to this section, the City shall within a reasonable time notify PAETEC thereof
and PAETEC shall have a right, at its election, to settle or compromise such claim or
demand. In the event any claim or action is commenced in which the City is named a
party, and which suit or action is based on a claim or demand which gives rise to
PAETEC's obligation pursuant to this section, the City shall promptly notify PAETEC
thereof, and PAETEC shall, at its sole cost and expense, defend such suit or action by
attorneys of its own election. In defense of such suit or action, PAETEC may, at its
election and at its sole cost and expense, settle or compromise such suit or action. This
section shall not be construed to require PAETEC to:
1. protect and save the City harmless from any claims, actions or damages;
2. settle or compromise any claim, demand, suit or action;
3. appear in or defend any suit or action; or,
4. pay any judgment or reimburse the City's costs and expenses (including
reasonable attorney's fees), to the extent such claim arises out of the negligence or
intentional acts of the City, its employees, agents or independent contractors.
B. To the extent of any concurrent negligence between PAETEC and the City,
PAETEC's obligations under this paragraph shall only extend to its share of negligence
or fault. The City shall have the right at all times to participate through its own attorney
in any suit or action which arises out of any right, privilege, and authority granted by or
exercised pursuant to this franchise when the City determines that such participation is
required to protect the interests of the City or the public. Such participation by the City
shall be at the City's sole cost and expense.
C. With respect to the performance of this franchise and as to claims against the
City, its officers, agents and employees, PAETEC expressly waives its irnmunity under
Title 51 of the RCW, the Industrial Insurance Act, for injuries to its officers, agents and
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employees and agrees that the obligation to indemnify, defend and hold harmless
provided for in this paragraph extends to any claim brought by or on behalf of
PAETEC's officers, agents or employees. This waiver is mutually negotiated by the
parties.
Section 13. Severability. If any section, sentence, clause or phrase of this ordinance
is held to be invalid or unconstitutional by a court of competent jurisdiction, either
party may deem the entire ordinance to be affected and thereby nullified. However, in
the event that a determination is made that a section, sentence, clause or phrase in this
ordinance is invalid or unconstitutional, the parties may agree to treat the portion
declared invalid or unconstitutional as severable and maintain in force the remaining
provisions of this ordinance; provided that, if the City elects, without agreement by
PAETEC, to enforce the remaining provisions of the ordinance, PAETEC shall have the
option to terminate the Franchise Agreement.
Section 14. Reservation of Rights. The parties agree that this agreement is intended
to satisfy the requirements of all applicable laws, administrative guidelines, rules,
orders and ordinances. Accordingly, any provision of this agreement or any local
ordinance which may conflict with or violate the law shall be invalid and
unenforceable, whether occurring before or after the execution of this agreement, it
being the intention of the parties to preserve their respective rights and remedies under
the law, and that the execution of this agreement does not constitute a waiver of any
rights or obligations by either party under the Iaw.
Section 15. Police Powers. Nothing contained herein shall be deemed to affect the
City's authority to exercise its police powers. PA1;1 EC shall not by this Franchise
Agreement obtain any vested rights to use any portion of the City right -of -way except
for the locations approved by the City and then only subject to the terms and conditions
of this Franchise Agreement. This Franchise Agreement and the permits issued
thereunder shall be governed by applicable City ordinances in effect at the time of
application for such permits.
Section 16. Future Rules, Regulations and Specifications. PAETEC acknowledges
that the City may develop rules, regulations and specifications, including a general
ordinance or other regulations governing telecommunications operations in the City.
Such regulations, upon written notice to PAETEC, shall thereafter govern PAETEC's
activities hereunder; provided, however, that in no event shall regulations:
1. materially interfere with or adversely affect PAETEC's rights pursuant to and
in accordance with this Franchise Agreement; or
2. be applied in a discriminatory manner as it pertains to PAETEC and other
similar user of such facilities.
Section 17. 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 clays
after passage and publication as provided by law.
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
Attachments: Exhibit A Description
Exhbit A -1 Map
Exhibit B Acceptance Form
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Jim Haggerton, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
Page 7of10
35
36
EXHIBIT A
PAETEC HOLDING CORPORATION
Fiber Optic System
PAETEC's primary Fiber Optic System in Tukwila begins at the northern City limit on
Airport Way and continues south to Boeing Access Road. On Boeing Access Road, the
System heads west to East Marginal Way South then south on East Marginal Way to
Interurban Avenue South where it continues south on West Valley Highway to the
southernmost limit of the City.
PAETEC also has a Fiber Optic System that begins 300 feet north of the intersection of
Interurban Avenue South and East Marginal Way South. On Interurban Avenue South,
the System travels south on Interurban Avenue South to the intersection of Interurban and
East Marginal Way then continues south on East Marginal Way to South 133` Street to
the intersection of South 133 Street and Interurban Avenue South tying into the primary
Fiber Optic System described above.
PAETEC
Fiber Optic System
Exhibit A-1
Map
38
Date:
City of Tukwila
City Clerk's Office
6200 Southcenter Blvd
Tukwila WA 98188
Re: Ordinance Adopted
Dear Ms. O'Flaherty,
In accordance with and as required by Section 4 of City of Tukwila Ordinance No.
(the "Ordinance passed by the City Council and approved by the
Mayor on PAETEC Holding Corporation hereby accepts the
terms, conditions and obligations to be complied with or performed by it under the
ordinance.
Sincerely,
Signature
Printed Name
Title
EXHIBIT B
FRANCHISE AGREEMENT ACCEPTANCE FORM
PAETEC HOLDING CORPORATION
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Page 10 of 10
1 CAS N UMBE R:
CXI'EGORY
SP( )NSOR
SPONSOR'S
SU,tidMARY
Meeting Date
04/12/10
04/19/10
[0 092-_
COUNCIL AGENDA SYNOPSIS
repared by
RT
RT
Mtg Date 04/12/10 Mtg Date 04/19/10 Altg Date Mtg Date
Initials
Ma review 1 Council review
J JL.1)
ITEM INFORMATION
ORIGINAL AGENDA DATE: APRIL 12, 2010
AGENDA ITEM TITLE Ordinance to Adopt 2010 WSDOT /APWA Standard Specifications and
repeal Ordinance 2193
Discussion Motion n Resolution Li Ordinance L Bid Award
Mtg Date
n Council Mayor Adm Svcs DCD Finance n .Fire n Legal P &R Police PIYI
Mtg Date Mtg Date
Local agencies utilizing federal funds for transportation contracts must incorporate and
adopt the 2010 Standard Specifications, as published by the WA State Dept of
Transportation and the Washington State Chapter of the American Public Works
Association. This ordinance will also repeal Ordinance 2193, which adopted the 2008
WSDOT /APWA Standards.
Transportation Cmte
n Planning Comm.
n COW Mtg. n CA &P Cmte n F &S Cmte
H Utilities Cmte n Arts Comm. E Parks Comm.
DATE: 04/05/10
RECOMMENDATIONS:
SPONSOR /ADMIN. Public Works
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
I3Y
Fund Source:
Comments:
MTG. DATE
EXPENDITURE REQUIRED
$0.00
04/12/10
04/19/10
MTG. DATE
04/12/10
04/19/10
COST IMPACT FUND SOURCE
AMOUNT BUDGETED
$0.00
RECORD OF COUNCIL ACTION
Forward to Next Regular Meeting
ATTACHMENTS
Informational Memorandum dated 03/31/10
Draft Ordinance
Minutes from the Transportation Committee meeting of 04/05/10
Ordinance in Final Form
ITEM No.
Public Hearing Other
APPROPRIATION REQUIRED
$0.00
3�
40
Christy O'Flaherty, CMC, City Clerk
APPROVED AS TO FORM BY:
Office of the City Attorney
City of Tukwila
Washington
Ordinance No.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, AMENDING TUKWILA MUNICIPAL CODE CHAPTER 16.34,
ADOPTING THE 2010 EDITION AND ALL FUTURE AMENDMENTS OF THE
STANDARD SPECIFICATIONS FOR ROAD, BRIDGE AND MUNICIPAL
CONSTRUCTION, SETTING NUMBER OF COPIES TO BE HELD FOR PUBLIC
REVIEW; REPEALING ORDINANCE NO. 2193; PROVIDING FOR SEVERABILITY;
AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City of Tukwila utilizes standard specifications for the construction of
public improvements, as well as supplemental requirements; and
WHEREAS, the City has previously adopted standard specifications, most recently by
Ordinance No. 2193; and
WHEREAS, more current standard specifications are provided by the Washington State
Department of Transportation and American Public Works Association, Washington Chapter;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. TMC Chapter 16.34, "Road, Bridge and Municipal Construction Specifications," is
hereby amended to read as follows:
16.34.010 Adopted. The 2010 edition of the Standard Specifications for Road, Bridge, and
Municipal Construction, prepared by the Washington State Department of Transportation and
the Washington State Chapter of the American Public Works Association, as presently existing
or as may be subsequently amended, is hereby adopted as the Code of the City of Tukwila,
Washington, for regulating the construction and maintenance of public works, including
streets, bridges, sanitary sewers, storm sewers, water distribution, structures and other public
works. The Public Works Director may allow the use of American Institute of Architects (AIA),
Construction Specifications Institute (CSI), or other building and facilities standard
specifications, on a case -by -case basis.
16.34.020 Copies to be on File. Not less than three copies of said Standard Specifications
and City of Tukwila supplements shall remain on file for use in examination by the public in
the Public Works Department.
Section 2. Repealer. Ordinance No. 2193, as codified at TMC Chapter 16.34, is hereby
repealed.
Section 3. 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 4. 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.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a
Regular Meeting thereof this day of 2010.
ATTEST/ AUTHENTICATED:
Jim Haggerton, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
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CAS NuivEr L R:
CA'T1,GORY
SPONSOR
SPONSOR'S
SUMMARY
MTG. DATE
04/12/10
04/19/10
MTG. DATE
04/12/10
04/19/10
10- 04'
CO UNCIL AGENDA SYNOPSIS
Meeting Date 1 Pjepared by
04/12/10 RL
04/19/10 RL
ITEM INFORMATION
ORIGINAL AGENDA DATE: APRIL 12, 2010
AGENDA ITEMTPT1.E 2010 Annual Small Drainage Program
Design Consultant Agreement with KPG, Inc.
Discussion Motion 1 Resolution Ordinance Bid Award n Public Hearing n Other
t14tg Date Mtg Date Mtg Date Mtg Date
n Council n Mayor Adm Svcs DCD n Finance Fire Legal P&R n Police PIF%
This contract is for design of the 2010 Annual Small Drainage Program. Three consultant
firms were short- listed from the Consultant Works Roster and KPG was chosen as the most
qualified. This year three projects are being designed for construction in 2010. Council is
being asked to approve the design contract with KPG, Inc. in the amount of $47,990.16.
Mig Date 04/12/10 Mtg Date 04/19/10 Mtg Date
$47,990.16 $50,000.00
Fund Source: 412 SURFACE WATER FUND (PAGE 144, 2010 CIP)
Comments:
Initials
Mayon view
,council review
RISVU U/1 ?D BY COW Mtg. U CA &P Cmte n F &S Cmte E Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DATE: 03/23/10
RECOMMENDATIONS:
SPONSOR /ADMIN. Public Works
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
RECORD OF COUNCIL ACTION
Forward to Next Regular Meeting
ATTACHMENTS
Informational Memorandum dated 03/15/10
Vicinity Map
Consultant Qualification Review
Consultant Agreement with Scope of Work and Fee
Minutes from the Utilities Committee meeting of 03/23/10
No Attachments
$0.00
ITEM No.
4
44
I CAS NUMBER:
CATEGORY
Fund Source:
Comments:
Discussion
Motion
COUNCIL AGENDA SYNOPSIS
Meeting Date Prepared by
04/12/10 SL
04/19/10 SL
Initial ITEM NO,
May wview
1 ouncil review
ITEM INFORMATION
ORIGINAL AGENDA DATE: APRIL 12, 2010
AGENDA ITEM TITLE A Resolution urging the U.S. Department of Defense to select The Boeing Company
to build the next mid -air refueling tanker.
Resolution n Ordinance Bid Award Public Hearing Other
Mtg Date 04/12/10 Mtg Date Mtg Date 04/19/10 Mtg Date Mtg Date Mtg Date
1 S PONSOR Council Major n Adm Svcs DCD n Finance Fire Legal P&'R I I Police I I NV
SPONSOR'S The Boeing Company is competing for a contract to build the U.S Air Force's next mid -air
SUMMARY refueling tanker. If awarded this contract, Boeing will build the tanker at its Everett
facilities, with beneficial economic impacts throughout the Puget Sound region. Several
government and business organizatoins have adopted similar resolutoins. The City Council
is being asked to adopt the attached resolution urging the U. S, Department of Defense to
select the Boeing Company for this important contract.
RI?VIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. n Planning Comm.
DATE: 4/6/10
RECOMMENDATIONS:
SPONSOR /ADMIN. Mayor's Office
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$0 $0 $0
1 MTG. DATE RECORD OF COUNCIL ACTION
1 4/12/10 J Forward to Next Regular Meeting
MTG. DATE ATTACHMENTS
04/12/10 Informational Memorandum dated 4/2/10
Resolution in Draft Form
Minutes from the Finance and Safety Committee meeting of 4/6/10
04/19/10 Resolution in Final Form
Mtg Date
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46
City of Tukwila
Washington
Resolution No.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, URGING THE UNITED STATES DEPARTMENT OF
DEFENSE TO SELECT THE BOEING COMPANY TO BUILD THE NEXT
MID -AIR REFUELING TANKER.
WHEREAS, the United States Department of Defense has begun the process to
procure the Air Force's next mid -air refueling tanker; and
WHEREAS, a contract could be worth $35 billion; and
WHEREAS, the United States economy is currently struggling through a recession
of historic magnitude; and
WHEREAS, unemployment nationally and in Washington State remains around 10
percent; and
WHEREAS, United States taxpayers and our men and women in uniform deserve
the best tanker at the least cost; and
WHEREAS, the United States Air Force has thoroughly studied its needs and has
clearly articulated those needs in its Tanker Request for Proposal; and
WHEREAS, The Boeing Company's NewGen Tanker meets all of the United States
Air Force's requirements and brings the latest and most advanced technology to our
troops; and
WHEREAS, The Boeing Company has a history of producing successful tankers for
the United States Air Force and air forces of other countries; and
WHEREAS, The Boeing Company can deliver a better aircraft and provide its
services more quickly to our soldiers, sailors, airmen and women, and marines; and
WHEREAS, The Boeing Company will build its tankers in Everett, Washington, at
a proven plant, with a highly skilled and dedicated regional workforce that has a
tradition of building the best airplanes in the world; and
WHEREAS, Seattle and the Puget Sound region are home to the vast majority of
The Boeing Company's more than 75,000 employees; and
WHEREAS, each Boeing Company job supports nearly three additional jobs in the
region; and
WHEREAS, aerospace workers earn an average of more than $50,000 per year,
which is 60 percent higher than the national average for all private sector industries;
and
WHEREAS, approximately $5.4 billion is paid in annual wages to aerospace
workers, which is five percent of all wages paid in the State of Washington; and
WHEREAS, the Tukwila City Council values these jobs and the people who hold
them and will make it a priority to ensure Washington State and the Puget Sound
region remain the best places to design, build and market commercial airplanes; and
WHEREAS, The Boeing Company and their employees donate millions of dollars
and volunteer countless hours to community service organizations benefitting our
entire region; and
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SL ksn 4113/2010
Page 1 of 2
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WHEREAS, our national security interests are not served by sending this valuable
and strategic program overseas; and
WHEREAS, awarding the contract to The Boeing Company can create or retain
40,000 to 50,000 American jobs at a time in history when we desperately need them;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Section 1. The United States Department of Defense should select The Boeing
Company to build the next mid -air refueling tanker.
Section 2. The United States Department of Defense should not split the contract
between two competitors.
Section 3. Upon passage of this resolution, the Tukwila City Council hereby directs
the City Clerk to immediately forward copies of this resolution to:
x The Boeing Company Corporate Office in Chicago, Illinois
x Boeing Commercial Airplanes in Seattle, Washington
x The International Association of Machinists and Aerospace Workers (IAMAW)
x The Society of Professional Engineering Employees in Aerospace (SPEEA)
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
W:1Word ProccssinglResolutions\ Mid -Air Refueling Tanker.doc
SL:ksn 4/13/2010
Dennis Robertson, Council President
Filed with the City Clerk:
Passed by the City Council:
Resolution Number:
Page 2 of 2
Upcoming Meetings Events
APRIL MAY 2010
19th (Monday) 20th (Tuesday) 21st (Wednesday) 22nd (Thursday) 23rd (Friday) 24th (Saturday)
Transportation Finance Parks Planning
C—ttxe Safety Cmte, Commission, Commission,
CANCELLED 5:00 PM 5:30 PM 6:30 PM
(CR #3) (Community (Council
City Council Center) Chambers)
Regular Mtg.,
7:00 PM
(Council
Chambers)
City Council
Committee of
the Whole
Mtg.,
7:00 PM
(Council
Chambers)
Family Bingo
Night
6:30 to 8:30 PM
(Community Center)
$4.00 per person
for up to 3 cards;
extra cards 500.
Concessions
available.
Library Advisory
Board,
7:00 PM
(Foster Libra)))
EARTH
DAY
26th (Monday) 27th (Tuesday) 28th (Wednesday) 29th (Thursday) 30th (Friday) 1st (Saturday)
Community Utilities Cmte, COPCAB,
Affairs 5:00 PM 6:30 PM Teen Career
Parks Cmte, (CR #1) (CR #5) Fair
5:00 PM 1:30 to 3:30 PM
(CR #3) Foster High
School
Tukwila Int'l, Blvd,
Action Cmte's
Trash Picicup Day
9:00 10:00 AM
For location contact
Rick at
rick(forschl er. org
Tukwila Pond
Wetland Buffer
Volunteer Work
Party
9:00 AM to 12:00 NOON
(Andover Park West,
south of Strander Blvd.)
Help spread wood chips
in preparation for the
May 12th ribbon
cutting ceremony.
Contact Tracy (206-
768 -2822) or Sandra
(206 -431- 3663).
City Council Committee of Whole (C.O.W.) Meeting: 2nd 4th Mon., 7:00 PM, Council Chambers at City Hall.
City Council Regular Meeting: 1st 3rd Mon., 7:00 PM, Council Chambers at City Hall.
Civil Service Commission: 1st Mon., 5:00 PM, Conf. Room #3. Contact Bev Willison at 206 -433 -1844.
Community Affairs Parks Committee: 2nd 4th Mon., 5:00 PM, Conf. Room #3.
COPCAB (Community Oriented Policing Citizens Adv. Board): 4th Wed., 6:30 PM, Conf. Am #5. Phi Huynh (206 -433- 7175).
Finance Safety Committee: 1st 3rd Tues., 5:00 PM, Conf. Room 143. Agenda items for 4/20/10 meeting.: (A) Resolution formally
adopting the Council Committee meeting schedule. (B) New travel policy. (C) Animal control update.
Library Advisory Board: 3rd Wed., 7:00 PM, Foster Library. Contact Stephanie Gardner at 206- 767 -2342.
Parks Commission: 3rd Wed., 5:30 PM, Senior Game Room at Community Center. Contact Stephanie Gardner at 206 767 -2342.
Planning Commission/Board of Architectural Review: 4th Thurs., except 2nd Thursday in Nov. Dec., 6:30 PM,
Council Chambers at City Hall. Contact Wynetta Bivens at 206 -431 -3670.
➢Transportation Committee: 1st 3rd Mon., 5:00 PM, Conf. Room #1. 4/19/10 meeting has been cancelled
Tukwila Historical Society: 3rd Thurs., 7:00 PM (meeting location varies). Contact Pat Brodin at 206 -433 -1860.
)Tukwila lnt'l. Blvd. Action Cmte: 2nd Tues., 7:00 PM, Tukwila Community Center. Contact Chief Dave Haynes at 206- 433 -1812.
Utilities Committee: 2nd 4th Tues., 5:00 PM, Conf. Room #1.
49
50
Tentative Agenda Schedule
April
5
MEETING 1,
REGULAR,:,
".MEETING :2 MEETING 3;:-
C:O,W: REGULAR:':::
12 19
See agenda packet
cover sheet for this
week's agenda
(April 19, 2010
Regular Meeting)
MEETING.4
26
Public Hearine:
Ordinance updating
regulations relating to
noise to clarify
definitions, requirements
and enforcement, and
repealing Ordinance
No. 2002
Special Issues:
Minor Home Repair
Program for 2011
Ordinance updating
regulations relating to
noise to clarify
definitions,
requirements and
enforcement
Resolution authorizing
Mayor to sign an
interlocal agreement
with King County
relating to processing
of building permits
and land use
applications for
Tukwila South
annexation area
Budget revenue
options (surplus City
property, property tax
levy lid lift, EMS levy;
Planning fees; TBD
sales tax