HomeMy WebLinkAboutTIC 2020-11-16 COMPLETE AGENDA PACKET
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AGENDA
MONDAY, NOVEMBER 16, 2020 – 5:30 PM
Virtual Meeting - Members of the public may listen by dialing 1-253-292-9750 and entering conference ID 393 337 832#
(6300 BUILDING, SUITE 100)
Next Scheduled Meeting: Monday, December 7, 2020 (last meeting of 2020)
City of Tukwila
Transportation and
Infrastructure Committee
❖ Cynthia Delostrinos Johnson, Chair
❖ Verna Seal
❖ Kate Kruller
Distribution:
C. Delostrinos
Johnson (email)
V. Seal
K. Kruller
K. Hougardy(email)
D. Quinn
L. Humphrey
H. Ponnekanti
G. Labanara
B. Still (email)
City Attorney (email)
A. Youn
Clerk File Copy
Place pkt pdf on SharePoint:
Z Trans & Infra Agendas
email cover to: F. Ayala,
A. Le, C. O’Flaherty, A.
Youn, B. Saxton, S. Norris,
L. Humphrey
Item Recommended Action Page
1. PRESENTATIONS
2. BUSINESS AGENDA
a) Andover Park East Water Main Pavement Repair
Bid Award (Scott Bates)
a) Forward same night to 11/16/2020
Regular New Business
Pg. 1
b) East Marginal Way South Stormwater Outfalls
Consultant Agreement (Ryan Larson)
b) Forward to 11/23/20 Special
Consent Agenda
Pg. 5
c) 2020/2021 Annual Small Drainage Programs
Contract 20-029, Amendment 2 (Ryan Larson)
c) Forward to 12/07/20 Regular
Consent Agenda
Pg. 23
d) Ordinance - Extenet Systems Franchise Agreement
(Eric Compton)
d) Forward to the 12/07/20 Regular
Consent Agenda
Pg. 41
e) Zayo Telecommunications Asset Sharing Agreement
(Eric Compton)
e) Forward to 11/23/20 Special
Consent Agenda
Pg. 65
f) TIC Committee Work Plan f) Committee discussion Pg. 81
3. MISCELLANEOUS
53rd Ave S Traffic Revision
Future Agendas:
https://tukwilawa.sharepoint.com/sites/publicworks/engineering/PW Drop Box/01 TIC Agenda/2020 Agenda Items/TIC 11 -16-2020/1. APE Water Main Pav Repair Bid Award/Info Memo APE Water Main Pavement Repair Bid
Award.docx
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Hari Ponnekanti, Interim Public Works Director
BY: Scott Bates, Traffic Engineering Project Manager
CC: Mayor Ekberg
DATE: November 13, 2020
SUBJECT: Water Fund - Andover Park East Water Main Pavement Repair Project
Project No. 92040102
Bid Award
ISSUE
Award the bid for construction of the Andover Park East Water Main Pavement Repair Project.
BACKGROUND
On June 17, 2020, the City’s 10” water main failed at 455 Andover Park East causing damage
to the roadway and area driveways.
ANALYSIS
A call for bids was advertised for the Andover Park East Water Main Pavement Repair Project
on October 20 and 27, 2020. Seven bids were opened on November 3, 2020. The confirmed
lowest bidder was ICON Materials with a bid of $141,546.00. The Engineer’s Estimate was
$143,155.00. There were no bidding errors.
FINANCIAL IMPACT AND BID SUMMARY (All amounts include sales tax)
Bid Amount Engineer’s Water Fund
Estimate Budget
ICON Materials $141,546.00
Contingency 10% 14,154.60
Total $155,700.60 $143,155.00 $155,700.60
RECOMMENDATION
Council is being asked to award construction of the Andover Park East Water Main Pavement
Repair Project to Icon Materials for a total contract amount of $141,546.00 and to consider this
item that same night under New Business at the November 16, 2020 Regular Meeting.
Attachments: Vicinity Map
Award recommendation letter
Bid Tabulation
1
2
3131 Elliott Avenue North Seattle, WA 98121 Phone (206) 286-1640 Fax (206) 286-1639
2502 Jefferson Avenue Tacoma, WA 98402 Phone (253) 627-0720 Fax (253) 627-4144
www.kpg.com
November 04, 2020
Scott Bates
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
RE: Andover Park East Water Main Pavement Repair [Project No. 92040102]
Dear Mr. Bates,
As requested, KPG has completed the verification for Icon Materials for the Andover Park East
Water Main Pavement Repair for their bid in the amount of $141,546.00.
We have also checked the status of Icon Materials on the Washington State Labor and Industries
web page to confirm they are currently insured, bonded, and licensed. Additionally, no strikes or
debarment records arose federally or statewide regarding Icon Materials.
It is KPG’s recommendation that the Andover Park East Water Main Pavement Repair be
awarded to Icon Materials.
We have enclosed the contractor verification package for your review.
Sincerely,
KPG, Inc.
Bryce Corrigan, P.E.
cc:
Enclosures: Icon Materials Verification Package
3
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https://tukwilawa.sharepoint.com/sites/publicworks/engineering/PW Drop Box/01 TIC Agenda/2020 Agenda Items/TIC 11 -16-2020/2. East Marginal Way S. Outfalls/Info Memo KPG New Contract.docx
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Hari Ponnekanti, Interim Public Works Director
BY: Ryan Larson, Senior Program Manager
CC: Mayor Ekberg
DATE: November 13, 2020
SUBJECT: Surface Water Fund - East Marginal Way South Stormwater Outfalls
Project No. 91041204
Consultant Agreement
ISSUE
Approve a Consultant Agreement with KPG for final design and construction management services.
BACKGROUND
A construction contract was awarded to Marshbank Construction, Inc. for construction of drainage improvements along
the northern portion of East Marginal Way South. This project will reestablish a drainage connection to the Duwamish
River and will add water quality treatment for a portion of East Marginal Way S. Construction is anticipated to begin in
December 2020.
A consultant agreement was executed with KPG for design and construction management of this project under
Contract No. 14-010 for $403,101.72. This contract inadvertently expired on July 31, 2020 prior to it being extended.
DISCUSSION
A new consultant contract is necessary to provide construction engineering and final design following the expiration of
Contract No. 14-010. This new contract has a nearly identical scope and fee as the previous contracted work with the
only change being a new completion date and a provision to pay for consultant expenses for work on scope items that
occurred after the expiration of the previous contract.
FISCAL IMPACT
Budget remains to complete this project and no additional costs are anticipated at this time. KPG has expended
$203,125.74 of Contract No. 14-010, leaving a balance of $179,978.98. KPG has prepared the attached contract,
scope of work, and fee to complete the design and provide the necessary construction management services. The
proposed contract amount for this work is $179,978.98.
RECOMMENDATION
Council is being asked to authorize the Mayor to execute a consultant agreement for design and construction
management services with KPG Inc. in the amount of $179,978.98 for the East Marginal Way Stormwater Outfall
Project and consider this item on the Consent Agenda at the November 23, 2020 Special Meeting.
Attachment: KPG Consultant Agreement and Scope of Work
5
City of Tukwila Contract Number:
6200 Southcenter Boulevard, Tukwila WA 98188
CONSULTANT AGREEMENT FOR
ENGINEERING SERVICES
THIS AGREEMENT is entered into between the City of Tukwila, Washington, hereinafter
referred to as “the City”, and KPG, Inc., hereinafter referred to as “the Consultant”, in consideration
of the mutual benefits, terms, and conditions hereinafter specified.
1. Project Designation. The Consultant is retained by the City to perform engineering services
in connection with the project titled ‘East Marginal Way South Stormwater Outfalls Project’.
2. Scope of Services. The Consultant agrees to perform the services, identified on Exhibit “A”
attached hereto, including the provision of all labor, materials, equipment and supplies.
3. Duration of Agreement; Time for Performance. This Agreement shall be in full force and
effect for a period commencing upon execution and ending December 31, 2021, unless sooner
terminated under the provisions hereinafter specified. Work under this Agreement shall
commence upon written notice by the City to the Consultant to proceed. The Consultant shall
perform all services and provide all work product required pursuant to this Agreement no later
than December 31, 2021 unless an extension of such time is granted in writing by the City.
4. Payment. The Consultant shall be paid by the City for completed work and for services
rendered under this Agreement as follows:
A. Payment for the work provided by the Consultant shall be made as provided on Exhibit
“B” attached hereto, provided that the total amount of payment to the Consultant shall
not exceed $179,978.98 without express written modification of the Agreement signed by
the City.
B. The Consultant may submit vouchers to the City once per month during the progress of
the work for partial payment for that portion of the project completed to date. Such
vouchers will be checked by the City and, upon approval thereof, payment shall be made
to the Consultant in the amount approved.
C. Final payment of any balance due the Consultant of the total contract price earned will be
made promptly upon its ascertainment and verification by the City after the completion
of the work under this Agreement and its acceptance by the City.
D. Payment as provided in this section shall be full compensation for work performed,
services rendered, and for all materials, supplies, equipment and incidentals necessary to
complete the work.
E. The Consultant’s records and accounts pertaining to this Agreement are to be kept
available for inspection by representatives of the City and the state of Washington for a
period of three (3) years after final payments. Copies shall be made available upon
request.
6
CA revised : 1-2013 Page 2
5. Ownership and Use of Documents. All documents, drawings, specifications and other
materials produced by the Consultant in connection with the services rendered under this
Agreement shall be the property of the City whether the project for which they are made is
executed or not. The Consultant shall be permitted to retain copies, including reproducible
copies, of drawings and specifications for information, reference and use in connection with
the Consultant’s endeavors. The Consultant shall not be responsible for any use of the said
documents, drawings, specifications or other materials by the City on any project other than
the project specified in this Agreement.
6. Compliance with Laws. The Consultant shall, in performing the services contemplated by
this Agreement, faithfully observe and comply with all federal, state, and local laws,
ordinances and regulations, applicable to the services rendered under this Agreement.
7. Indemnification. The Consultant shall defend, indemnify and hold the City, its officers,
officials, employees and volunteers harmless from any and all claims, injuries, damages,
losses or suits including attorney fees, arising out of or resulting from the acts, errors or
omissions of the Consultant in performance of this Agreement, except for injuries and
damages caused by the sole negligence of the City.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Consultant
and the City, its officers, officials, employees, and volunteers, the Consultant’s liability
hereunder shall be only to the extent of the Consultant’s negligence. It is further specifically
and expressly understood that the indemnification provided herein constitutes the Consultant's
waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties. The provisions of
this section shall survive the expiration or termination of this Agreement.
8. Insurance. The Consultant shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may arise from
or in connection with the performance of the work hereunder by the Consultant, its agents,
representatives, or employees. Consultant’s maintenance of insurance as required by the
agreement shall not be construed to limit the liability of the Consultant to the coverage
provided by such insurance, or otherwise limit the City’s recourse to any remedy available at
law or in equity.
A. Minimum Amounts and Scope of Insurance. Consultant shall obtain insurance of the
types and with the limits described below:
1. Automobile Liability insurance with a minimum combined single limit for bodily
injury and property damage of $1,000,000 per accident. Automobile Liability
insurance shall cover all owned, non-owned, hired and leased vehicles. Coverage
shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute
form providing equivalent liability coverage. If necessary, the policy shall be
endorsed to provide contractual liability coverage.
7
CA revised : 1-2013 Page 3
2. Commercial General Liability insurance with limits no less than $1,000,000 each
occurrence, $2,000,000 general aggregate. Commercial General Liability
insurance shall be written on ISO occurrence form CG 00 01 and shall cover
liability arising from premises, operations, independent contractors and personal
injury and advertising injury. The City shall be named as an insured under the
Consultant’s Commercial General Liability insurance policy with respect to the
work performed for the City.
3. Workers’ Compensation coverage as required by the Industrial Insurance laws of
the State of Washington.
4. Professional Liability with limits no less than $1,000,000 per claim and
$1,000,000 policy aggregate limit. Professional Liability insurance shall be
appropriate to the Consultant’s profession.
B. Other Insurance Provision. The Consultant’s Automobile Liability and Commercial
General Liability insurance policies are to contain, or be endorsed to contain that they
shall be primary insurance with respect to the City. Any Insurance, self-insurance, or
insurance pool coverage maintained by the City shall be excess of the Consultant’s
insurance and shall not be contributed or combined with it.
C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best rating of not less than A:VII.
D. Verification of Coverage. Consultant shall furnish the City with original certificates and
a copy of the amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of the Consultant
before commencement of the work. Certificates of coverage and endorsements as
required by this section shall be delivered to the City within fifteen (15) days of execution
of this Agreement.
E. Notice of Cancellation. The Consultant shall provide the City with written notice of any
policy cancellation, within two business days of their receipt of such notice.
F. Failure to Maintain Insurance. Failure on the part of the Consultant to maintain the
insurance as required shall constitute a material breach of contract, upon which the City
may, after giving five business days notice to the Consultant to correct the breach,
immediately terminate the contract or, at its discretion, procure or renew such insurance
and pay any and all premiums in connection therewith, with any sums so expended to be
repaid to the City on demand, or at the sole discretion of the City, offset against funds due
the Consultant from the City.
9. Independent Contractor. The Consultant and the City agree that the Consultant is an
independent contractor with respect to the services provided pursuant to this Agreement.
Nothing in this Agreement shall be considered to create the relationship of employer and
employee between the parties hereto. Neither the Consultant nor any employee of the
Consultant shall be entitled to any benefits accorded City employees by virtue of the services
provided under this Agreement. The City shall not be responsible for withholding or
otherwise deducting federal income tax or social security or for contributing to the state
industrial insurance program, otherwise assuming the duties of an employer with respect to
the Consultant, or any employee of the Consultant.
8
CA revised : 1-2013 Page 4
10. Covenant Against Contingent Fees. The Consultant warrants that he has not employed or
retained any company or person, other than a bonafide employee working solely for the
Consultant, to solicit or secure this contract, and that he has not paid or agreed to pay any
company or person, other than a bonafide employee working solely for the Consultant, any
fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon
or resulting from the award or making of this contract. For breach or violation of this warrant,
the City shall have the right to annul this contract without liability, or in its discretion to
deduct from the contract price or consideration, or otherwise recover, the full amount of such
fee, commission, percentage, brokerage fee, gift, or contingent fee.
11. Discrimination Prohibited. The Consultant, with regard to the work performed by it under
this Agreement, will not discriminate on the grounds of race, religion, creed, color, national
origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political
affiliation or the presence of any disability in the selection and retention of employees or
procurement of materials or supplies.
12. Assignment. The Consultant shall not sublet or assign any of the services covered by this
Agreement without the express written consent of the City.
13. Non-Waiver. Waiver by the City of any provision of this Agreement or any time limitation
provided for in this Agreement shall not constitute a waiver of any other provision.
14. Termination.
A. The City reserves the right to terminate this Agreement at any time by giving ten (10)
days written notice to the Consultant.
B. In the event of the death of a member, partner or officer of the Consultant, or any of its
supervisory personnel assigned to the project, the surviving members of the Consultant
hereby agree to complete the work under the terms of this Agreement, if requested to do
so by the City. This section shall not be a bar to renegotiations of this Agreement
between surviving members of the Consultant and the City, if the City so chooses.
15. Applicable Law; Venue; Attorney’s Fees. This Agreement shall be subject to, and the
Consultant shall at all times comply with, all applicable federal, state and local laws,
regulations, and rules, including the provisions of the City of Tukwila Municipal Code and
ordinances of the City of Tukwila. In the event any suit, arbitration, or other proceeding is
instituted to enforce any term of this Agreement, the parties specifically understand and agree
that venue shall be properly laid in King County, Washington. The prevailing party in any
such action shall be entitled to its attorney’s fees and costs of suit. Venue for any action
arising from or related to this Agreement shall be exclusively in King County Superior Court.
16. Severability and Survival. If any term, condition or provision of this Agreement is declared
void or unenforceable or limited in its application or effect, such event shall not affect any
other provisions hereof and all other provisions shall remain fully enforceable. The
provisions of this Agreement, which by their sense and context are reasonably intended to
survive the completion, expiration or cancellation of this Agreement, shall survive termination
of this Agreement.
9
CA revised : 1-2013 Page 5
17.Notices. Notices to the City of Tukwila shall be sent to the following address:
City Clerk
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
Notices to Consultant shall be sent to the following address:
KPG
3131 Elliott Ave, Suite 400
Seattle, WA 98121
18.Entire Agreement; Modification. This Agreement, together with attachments or addenda,
represents the entire and integrated Agreement between the City and the Consultant and
supersedes all prior negotiations, representations, or agreements written or oral. No
amendment or modification of this Agreement shall be of any force or effect unless it is in
writing and signed by the parties.
DATED this _________ day of ____________________________, 2020.
CITY OF TUKWILA CONSULTANT
By:____________________________________ ____________________________________
Mayor, Allan Ekberg
Printed Name:Nelson Davis, KPG
Title:_Principal
Attest/Authenticated: Approved as to Form:
____________________________________ _______________________________________
City Clerk, Christy O’Flaherty Office of the City Attorney
10
City of Tukwila KPG
EMW Stormwater Outfalls Page 1 of 10 November 03, 2020
EXHIBIT A
City of Tukwila
East Marginal Way South
Stormwater Outfalls Project
Final Design and Construction Services
Scope of Work
November 03, 2020
This Contract is provided to complete work originally scoped under Supplement No. 6 for
Contract 14-010. Contract completion was delayed as a result of grant funding delays by the
Department of Ecology and inadvertently allowed to expire. This Contract provides for work
performed within the original contract scope and budget between the previous contract
expiration date of July 31, 2020 and contract completion.
Drainage from East Marginal Way South historically discharged through outfalls owned and
operated by the Boeing Company, Jorgensen Forge, and two King County Airport storm
systems. The Jorgensen Forge outfall was abandoned in 2012 under orders from the
Department of Ecology (DOE) due to contaminants within the conveyance pipe and this East
Marginal Way South discharge has been temporarily diverted to the King County Airport
outfall.
Improvements are proposed to utilize the Boeing Z Line outfall in lieu of the King County
Airport. This project will improve water quality in the Duwamish River through the installation
of conveyance, stormwater treatment facilities, and permeable pavement, as well as lining a
leaky storm pipe along East Marginal Way. The project will provide water quality treatment
for toral suspended solids (TSS) and will reduce groundwater contamination.
Under previous contract authorization, KPG prepared topographic survey, a pre-design
report, limited environmental approvals, and preliminary design in the format required for the
2013-15 Municipal Stormwater Capacity Grant Program. DOE has provided comments to
this report and determined that the project remains eligible for final design and construction
grant funds; however, these funds were put on hold in 2015 due to a lack of available funds.
Funding was recently re-authorized by DOE to complete final design and construction.
This supplement is provided to complete environmental documentation, geotechnical
analysis, final design, bid period services, and construction management in accordance with
the attached scope of work and grant funding requirements.
11
City of Tukwila KPG
EMW Stormwater Outfalls Page 2 of 10 November 03, 2020
TASK 1 – MANAGEMENT / COORDINATION / ADMINISTRATION
1.1 The Consultant will provide continuous project management for the project duration (8 months
for final design).
1.2 The Consultant shall prepare monthly progress reports identifying work in progress, upcoming
work elements, and reporting of any delays, problems, or additional information needs. The
monthly progress reports shall be submitted with invoices.
Task 1 Deliverables:
Monthly progress reports during design period (8 months).
TASK 2 – PERMITTING
2.1 The Consultant shall prepare a draft and final SEPA checklist describing the project
improvements for submittal and coordination by the City.
2.2 The Consultant shall prepare and submit an Inadvertent Discovery Plan (IDP) in accordance
with DOE grant requirements. The IDP will be included as an appendix to the final project
specifications.
Task 2 Deliverables:
Draft and Final SEPA checklist, 2 paper copies and 1 pdf.
IDP uploaded to DOE EAGL site for approval.
Task 2 Assumptions:
No other permits will be required.
Previous EO 05-05 approval from DAHP remains valid.
Fees, signage, and public notice of SEPA will be by the City.
TASK 3 – GEOTECHNICAL EXPLORATION
3.1 Previous geotechnical analysis by GeoDesign under subcontract to the Consultant will be
utilized for final design. We have included a $5,000 budget for final design support and to
incorporate comments on the draft geotechnical report in order to prepare the final geotechnical
report.
TASK 4 – UTILITY AND AGENCY COORDINATION
4.1 Washington Department of Ecology: The Consultant shall prepare for and attend up to two (2)
coordination meetings and provide necessary phone and email communication with DOE and
the City for review and comment of the pre design and design submittal.
12
City of Tukwila KPG
EMW Stormwater Outfalls Page 3 of 10 November 03, 2020
4.2 Boeing: The Consultant shall prepare for and attend up to two (2) coordination meetings with
the City and Boeing to coordinate access and design information for work on Boeing property.
4.3 Private Utilities (gas, water, sewer, power, telephone, cable): The Consultant shall distribute
design submittals to utility owners and identify and conflicts and potholing needs. Utility provided
potholes shall be surveyed by the Consultant and incorporated into base maps.
Task 4 Deliverables:
Plan distribution to private utilities.
Task 4 Assumptions:
Potholing of existing private utilities, if required, will be performed by the utility owner and is not
included in this scope of work.
No permits will be required by BNSF for work in the City right of way.
Obtaining easements from Boeing is not included in this scope of work.
TASK 5 – FINAL DESIGN
The Consultant shall prepare Final Plans, Specifications and Estimates for review and approval by the
City based on City and DOE comments received at the preliminary design submittal and DOE grant
requirements. Plans shall be formatted to provide sufficient detail for convenient field layout of all
proposed facilities. City standard details and WSDOT standard plans will be supplemented with project
specific details as required.
5.1 The Consultant shall review and update previous design report and preliminary design based
on comments received in 2015 from the City and DOE. Design Report and 90 percent plans,
specifications, and estimate will be uploaded to the DOE EAGL site as required by the grant.
5.2 Respond to up to two (2) rounds of DOE comments in order to obtain DOE acceptance of the
Design Report and 90% Plans.
5.3 The Consultant shall prepare draft Bid Plans for submittal to the City and upload to the DOE
EAGL site as required by the grant. Mechanical and electrical support for stormwater pump
station design will be provided by the City’s proprietary pump system supplier, Calvert Technical
Services, Inc. A $5,000 allowance is provided for design review and input from Calvert Technical
Services, Inc.
5.4 The Consultant will calculate quantities and prepare construction cost opinions in support of the
90% and Final Bid Plans and upload to DOE EAGL site as required by the grant.
5.5 The Consultant will prepare 90% and Final Bid Specifications for review and approval by the
City and DOE. Specifications will be based on 2018 WSDOT Standard Specifications, using
contract boilerplate and general special provisions provided by the City.
5.6 Prepare a preliminary Construction Schedule in accordance with DOE grant requirements and
upload to EAGL site. The Construction Schedule will be used for determining contract working
13
City of Tukwila KPG
EMW Stormwater Outfalls Page 4 of 10 November 03, 2020
days; however, the actual schedule and sequencing will be determined by the Contractor in
accordance with Contract requirements.
5.7 Upload final Bid Documents to BXWA.com in .pdf format for bidding. The Consultant shall
respond to bidder inquiries, prepare necessary addenda, attend bid opening, and prepare
recommendation for award letter for City consideration.
Task 5 Deliverables:
90% and Bid Submittals
One (1) ½-size unbound, seven (7) ½-size bound of the Construction plans. Upload to DOE
EAGL site.
One (1) hard copy, and two (2) electronic version (PDF and Excel) of the Engineer’s Estimate of
Probable Cost. Upload to DOE EAGL site.
One (1) electronic version of the Special Provisions and seven (7) hard copies. Upload to DOE
EAGL site.
One (1) hard copy and .pdf with a summary of responses to the previous submittal. Upload to
DOE EAGL site.
One (1) hard copy and .pdf of preliminary construction schedule. Upload to DOE EAGL site.
Addenda, Bid Tabulation, and Recommendation to either award or reject low bidder, .pdf.
Task 5 Assumptions:
Topographic survey prepared under previous authorization will be used for final design.
Scope of improvements for final design will be in general accordance with 2015 design report and
preliminary design.
TASK 6 – CONSTRUCTION PHASE SERVICES
This work will provide construction management services for the construction contract. These services
will include design support, project management, documentation control, inspection, materials testing,
and contract administration during the construction of the project, as detailed below. The objective
and purpose of this task is for the Consultant to successfully deliver the construction of the Project to
the City by ensuring that the improvements are constructed in accordance with the approved Plans
and Specifications, as may be amended or revised, that all of the required Project documentation is
accounted for. The following general assumptions were used for developing this budget estimate:
General Assumptions:
• The proposed project team will include one part-time documentation control specialist, a
part-time resident engineer during construction activities, a full-time inspector, sub-consultants
to provide services for materials testing, and other supporting tasks as deemed necessary.
It is anticipated that full- time site observation will be required for the entirety of the project.
• The level of service is based on a construction project duration of approximately 40 working
14
City of Tukwila KPG
EMW Stormwater Outfalls Page 5 of 10 November 03, 2020
days.
• KPG estimates a total project construction duration of 60 working days (12 weeks) including
preconstruction service, construction services, and project closeout. No suspensions or
stop work periods are anticipated during this duration; however, a procurement suspension
may be considered prior to beginning construction if requested by the Contractor.
• It is anticipated that the KPG will develop the Record of Materials (ROM). This scope of
services provides the management of the ROM and scheduling of required materials testing
respectively.
• It is anticipated that the City will review and execute the insurance, bonds, and the
Construction Contract.
• The design engineers from KPG will be available during construction to answer questions
during construction and review RAM’s, shop drawings, and answer RFI’s that require a level
of engineering expertise outside of the capabilities of the field personnel.
• Services will be performed in accordance with the Contract plans & special provisions, and
City engineering standards.
6.1 Provide overall project management, coordination with the City, monthly progress reports,
and invoicing during the construction phase. This effort will include the following elements.
• Organize and layout work for project staff. Prepare project instructions on contract
administration procedures to be used during construction.
• Review monthly expenditures and CM team scope activities. Prepare and submit project
progress letters to the City along with invoices describing CM services provided each
month. Prepare and submit reporting required by funding source(s).
6.2 Preconstruction Conference: The Consultant will prepare an agenda for, distribute notices of,
and conduct a preconstruction conference in the City’s offices. The Consultant’s project
manager, resident engineer, inspector, and document control specialist will attend the
preconstruction conference. The Consultant will prepare a written record of the meeting and
distribute copies of the minutes to all attendees and affected agencies, staff, etc.
At the Pre-construction conference, the Consultant shall facilitate discussions with the
Contractor concerning the plans, specifications, schedules, issues with utilities, unusual
conditions, Federal, State, and local requirements and any other items that will result in better
project understanding among the parties involved.
6.3 Field Construction Services shall include:
A. On-site Observation: The Consultant shall provide the services of one full time inspector
during construction activities and other tasks necessary to monitor the progress of the work.
Construction staff shall oversee the following items of work, on the project site, and will observe
the technical progress of the construction, including providing day-to-day contact with the
Contractor and the City:
Field inspection staff will perform the following duties as a matter of their daily activities:
15
City of Tukwila KPG
EMW Stormwater Outfalls Page 6 of 10 November 03, 2020
i. Observe technical conduct of the construction, including providing day-to-day contact
with construction contractor, City, utilities, and other stakeholders, and monitor for
adherence to the Contract Documents. The Consultant’s personnel will act in
accordance with Sections 1-05.1 and 1-05.2 of the Standard Specifications.
ii. Observe material, workmanship, and construction areas for compliance with the
Contract Documents and applicable codes, and notify construction contractor of
noncompliance. Advise the City of any non-conforming work observed during site visits.
iii. Document all material delivered to the job site in accordance with the contract
documents.
iv. Prepare daily inspection reports, recording the construction contractor’s operations as
actually observed by the Consultant; includes quantities of work placed that day,
contractor’s equipment and crews, and other pertinent information.
v. Interpret Contract Documents in coordination with the City and KPG.
vi. Resolve questions which may arise as to the quality and acceptability of material
furnished, work performed, and rate of progress of work performed by the construction
contractor.
vii. Establish communications with adjacent property owners. Respond to questions from
property owners and the general public.
viii. Coordinate with permit holders on the Project to monitor compliance with approved
permits, if applicable.
ix. Prepare field records and documents to help assure the Project is administered in
accordance with the funding requirements.
x. Collect and calculate delivery tickets and salesman’s daily reports of aggregate. All
tickets will be initialed with correct bid item and stationing identified (Construction
Manual 10-2).
xi. Attend and actively participate in regular on-site weekly construction meetings.
xii. Take periodic digital photographs during the course of construction, and record
locations.
xiii. Coordinate with the City’s maintenance personnel.
xiv. Punch list. Upon substantial completion of work, coordinate with the Client and affected
agencies, to prepare a ‘punch list’ of items to be completed or corrected. Coordinate
final inspection with those agencies.
B. Substantial Completion: Upon substantial completion of work, coordinate with the City and
other affected agencies, to perform a project inspection and develop a comprehensive list of
deficiencies or ‘punchlist’ of items to be completed. A punchlist and Certificate of Substantial
Completion will be prepared by the Consultant and issued by the City.
C. Materials Testing: Coordinate the work of the materials testing technicians and testing
laboratories in the observation and testing of materials used in the construction; document and
evaluate results of testing; and address deficiencies. Frequency of testing shall be determined
by the resident engineer.
16
City of Tukwila KPG
EMW Stormwater Outfalls Page 7 of 10 November 03, 2020
Assumptions:
• Consultant will provide observation services for the days/hours that the contractor’s
personnel are on-site.
• Consultant will provide qualified personnel for inspection of all bid item work.
• The Consultant’s monitoring of the construction contractor's activities is to ascertain
whether or not they are performing the work in accordance with the Contract Documents;
in case of noncompliance, Consultant will reject non-conforming work, and pursue the
other remedies in the interests of the City, as detailed in the Contract Documents. The
Consultant cannot guarantee the construction contractors’ performance, and it is
understood that Consultant shall assume no responsibility for: proper construction
means, methods, techniques; project site safety, safety precautions or programs; or for
the failure of any other entity to perform its work in accordance with laws, contracts,
regulations, or City’s expectations.
Deliverables:
• Daily Construction Reports with project photos – submitted on a weekly basis
• Punch List, Certificate of Substantial Completion
• Review test reports for compliance
6.3 Office Construction Services shall include:
A. Document Control. Original documentation will be housed at the Consultant’s office,
and filed in accordance with standard filing protocol. A copy of working files will be
maintained in the field office.
Document Control consists of:
Final Estimate (Approving Authority File)
Comparison of Preliminary and Final Quantities (Approving Authority File)
Final Records (Approving Authority File)
Record of Material Samples and Tests
Affidavit of Wages Paid
Release for the Protection of Property Owners and General Contractor
B. Project Coordination: Liaison with City, construction contractor, engineer, utilities and
property owners on a regular basis to discuss project issues and status.
C. Plan Interpretations: Provide technical interpretations of the drawings, specifications,
and contract documents, and evaluate requested deviations from the approved design
or specifications. Coordinate with City for resolution of issues involving scope, schedule,
and/or budget changes.
D. Weekly Meetings: Lead weekly meetings, including preparation of agenda, meeting
minutes, and distribution of minutes to attendees. Outstanding issues to be tracked on a
weekly basis.
E. Initial Schedule Review: Perform detailed schedule review of contractor provided CPM
for conformance with the contract documents.
F. Lump Sum Breakdown: Evaluate construction contractors’ Schedule of Values for lump
sum items. Review the Contract Price allocations and verify that such allocations are
17
City of Tukwila KPG
EMW Stormwater Outfalls Page 8 of 10 November 03, 2020
made in accordance with the requirements of the Contract Documents. Lump Sum
Breakdowns for payment each month will be calculated with detailed data.
G. Monthly Pay Requests: Prepare monthly requests for payment, review with the City,
contractor and approve as permitted. Utilize City provided format for pay estimates, or
Consultant format.
H. Monthly Schedule Review: At the monthly cutoff, review contractor’s updated schedule
and compare with field-observed progress, as described in Section 1-08 of the Special
Provisions. In addition, perform schedule analysis on contractor provided CPM updates
and review schedule for delays and impacts. Coordinate with Contractor in the development
of recovery schedules, as needed, to address delays caused by either events or issues
within the Contractor’s control or other events or issues beyond the Contractor’s control.
I. Certified Payroll: Process and track all certified payroll per State Prevailing Wage
Requirements. This includes verifying the initial payroll for compliance and 10% of all
payrolls submitted thereafter. Tracking payroll each week.
J. Weekly Statement of Working Days: Prepare and issue weekly statement of working
day report each week.
K. Subcontractor Documentation: Process / Approve all required subcontractor
documentation. Request to Sublets will be verified and logged. This includes checking
System Award Management System (SAMS), verifying business licensing, reviewing
insurance documentation, verifying city business licensing, Intent to Pay Prevailing Wage
and Affidavit of Wages Paid. All subcontractor documentation will be logged into KPG’s
subcontractor logs.
L. Record Drawings: Review record drawings prepared by the Contractor, and prepare a
conformed set of project record drawings based on Contractor provided information and from
inspection notes. Record drawings to be verified on a monthly basis, as part of the progress
payment to the Contractor. Upon project completion, contractor provided markups will be
verified for completeness and supplemented with inspection information. The Consultant
will provide the marked up plan sheets with both the contractors and inspectors as-built
information as well as CAD updates incorporating these markups.
M. Physical Completion Letter: Following completion of all punchlist work, prepare
physical completion letter to the contractor, and recommend that City and/or Utilities
accept the project.
N. Project Closeout: Transfer all project documents to the City for permanent storage.
• Schedule review comments
• As-built schedule
• Meeting agendas and notes
• Monthly Pay Estimates
• Subcontractor Packets
• Cost Projection
• Physical Completion Letter
• Final Project Documents
6.4 Submittal and RFI processing
A. Submittals: Coordinate review process for shop drawings, samples, traffic control plans,
test reports, and other submittals from the Contractor for compliance with the contract
documents. Key submittals to be transmitted to the City for their review and approval.
Submittals shall be logged and tracked.
18
City of Tukwila KPG
EMW Stormwater Outfalls Page 9 of 10 November 03, 2020
B. Request for Information (RFI): Review and respond to RFI’s. RFI’s shall be logged and
tracked.
C. Record of Materials (ROM): Utilize ROM prepared by KPG and update based on Special
Provisions and Plans for use on the project, based on the contract specifications. The ROM will
be maintained by the Resident Engineer. The ROM will track all of the materials delivered to
the site including manufacturer/supplier, approved RAM’s, QPL items, material compliance
documentation, and all other required documentation.
Deliverables
• Submittal log
• RFI Log
• Completed Record of Material for Material Certification
6.5 Change Management
A. Case Log: Develop and maintain a case log which includes change orders, RFP’s,
Field Work Directives
B. Change Orders: Develop change orders and provide technical assistance to negotiate change
orders, and assist in resolution of disputes which may occur during the course of the project.
Each change order will be executed in accordance with WSDOT Standard Specifications and
contain the following:
• Change order
• Independent Cost Estimate
• Time Impact Analysis
• Contractor’s Pricing
• Verbal Approval Memo
• Back up documentation
C. Field Work Directives: Prepare field work directives as necessary to keep the contractor
on schedule.
D. Minor Change Orders: Develop minor change orders per WSDOT Standard Specifications.
Each minor change order will be executed and contain the following:
• Independent Cost Estimate
• Verbal Approval Memo
• Back up documentation
E. Force Account: Track contractor force account labor, equipment and materials. All force
account calculations will be verified by the engineer and double checked by the documentation
specialist.
Deliverables
• Change Order(s)
• Case Management Log
• RFI Log
• Minor Change Order(s)
• Force Account Records
19
City of Tukwila KPG
EMW Stormwater Outfalls Page 10 of 10 November 03, 2020
Additional Services
The City may require additional services of the Consultant in order to advance the project corridor through
final design, bidding and/or construction. This work may include items identified in the current task
authorizations as well other items, which may include, but are not necessarily limited to the following:
• Right of way and easement research and/or acquisition
• Additional design or construction assistance
These services will be authorized under a future contract supplement if necessary. At the time these
services are required, the Consultant shall provide a detailed scope of work and an estimate of costs.
The Consultant shall not proceed with the work until the City has authorized the work and issued a
notice to proceed.
20
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22
https://tukwilawa.sharepoint.com/sites/publicworks/engineering/PW Drop Box/01 TIC Agenda/2020 Agenda Items/TIC 11 -16-2020/3. Small Drainage 2020/Info Memo Amendment 2.docx
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Hari Ponnekanti, Interim Public Works Director
BY: Ryan Larson, Senior Program Manager
CC: Allan Ekberg
DATE: November 13, 2020
SUBJECT: Surface Water Fund – 2020/2021 Annual Small Drainage Programs
Project Number 92041201, Contract No. 20-029
Amendment No. 2
ISSUE
Approve Amendment No. 2 to Contract No. 20-029 with KPG, Inc.
BACKGROUND
The City entered into a consultant agreement with KPG, Inc. for design and permitting services for
the 2020 Annual Small Drainage Program. This project was to design and construct improvements
at up to six locations. Permitting was not completed in time to allow construction in 2020.
Contract No. 20-029 was amended with Amendment No. 1 in the amount of $18,382.00 to cover the
cost of additional soil testing at the request of the Department of Ecology and a recommended soils
investigation at the site of a planned deep excavation.
DISCUSSION
The proposed Amendment No. 2 to KPG’s Contract No. 20-029 will include design of an additional
three sites (2021 sites) and construction management services. This will allow us to combine the
construction projects originally scheduled in 2020 and add the three additional sites for all of them to
be constructed in 2021. Initiating design work early will allow for the completion of design and
permitting and advertise for construction in early 2021.
FISCAL IMPACT
Amendment No. 2 is for $248,966.00, bringing the total contract amount to $359,820.00. Proposed
funding is made up of $160,000 in budgeted design and construction management funds from 2020
and $200,000 in proposed design and construction management funding for 2021.
Agreement 2020 Budget 2021 Budget
Original KPG Contract $ 92,472.00 $ 80,000.00
KPG Amendment No. 1 18,382.00
KPG Amendment No. 2 248,966.00 80,000.00 $200,000.00
$359,820.00 $160,000.00 $200,000.00
RECOMMENDATION
Council is being asked to authorize the Mayor to approve Amendment No. 2 to Contract No. 20-029
with KPG, Inc. in the amount of $248,966.00 for the 2020/2021 Small Drainage Project and consider
this item on the Consent Agenda at the December 7, 2020 Regular Meeting.
Attachments: Proposed 2021 CIP, page 78
KPG Supplemental Agreement No. 2
23
CITY OF TUKWILA CAPITAL PROJECT SUMMARY
2021 to 2026
PROJECT: Annual Small Drainage Program
Project No.9xx41201
81241207
DESCRIPTION:
JUSTIFICATION:
STATUS:
MAINT. IMPACT:
COMMENT:
FINANCIAL Through Estimated
(in $000's)2019 2020 2021 2022 2023 2024 2025 2026 BEYOND TOTAL
EXPENSES
Design 74 92 100 100 100 100 110 110 80 866
Const. Mgmt.40 68 100 100 100 100 110 110 80 808
Construction 108 515 700 700 700 700 750 750 513 5,436
TOTAL EXPENSES 222 675 900 900 900 900 970 970 673 7,110
FUND SOURCES
Awarded Grant 0
Proposed Grant 65 65
Mitigation Actual 0
Mitigation Expected 0
Utility Revenue 157 675 900 900 900 900 970 970 673 7,045
TOTAL SOURCES 222 675 900 900 900 900 970 970 673 7,110
Ongoing project, only one year shown in first column. Construction expenses may occur over two calendar
years.
Provide drainage corrections for existing/ongoing drainage problems throughout the City, including culvert
replacements, drain extensions, and pavement upgrades.
Select, design, and construct small drainage projects throughout the City.
Projects for this annual program are taken from Small Drainage Project List.
Reduces maintenance.
2021 - 2026 Capital Improvement Program 78 24
City of Tukwila Agreement Number: 20-029
6200 Southcenter Boulevard, Tukwila WA 98188
CA Revised December 2016 Page 1 of 1
CONTRACT FOR SERVICES
Amendment #2
Between the City of Tukwila and KPG, P.S.
That portion of Contract No. 20-029 between the City of Tukwila and KPG, P.S. is hereby
amended as follows:
Article 2, Scope of Services, shall be supplemented with the following:
The Consultant agrees to provide design and construction services in accordance with the scope of work
included as Exhibit A-1.
Article 3 - Duration of Agreement; Time for Performance shall be modified as follows:
This Agreement shall be in full force and effect for a period commencing upon execution and ending
December 31, 2021, unless sooner terminated under the provisions hereinafter specified. Work under this
Agreement shall commence upon written notice by the City to the Consultant to proceed. The Consultant
shall perform all services and provide all work product required pursuant to this Agreement no later than
December 31, 2021 unless an extension of such time is granted in writing by the City.
Article 4, Payment, shall be modified as follows:
Payment for work provided by Consultant shall be made as provided on Exhibit B-1, attached hereto,
provided that the total amount of payment to the Consultant for this work not exceed $248,966.00 without
express written modification of the Agreement signed by the City. The new total contract shall not exceed
$359,820.00 without express written modification of the Agreement signed by the City.
All other provisions of the contract shall remain in full force and effect.
Dated this ________ day of ___________________________, 20________________.
CITY OF TUKWILA CONTRACTOR
_
Allan Ekberg, Mayor Printed Name:_______________________
ATTEST/AUTHENTICATED APPROVED AS TO FORM
Christy O’Flaherty, MMC, City Clerk Office of the City Attorney
25
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Design Services Page 1 of 4 October 2020
Design Services
Scope of Work
October 2020
City of Tukwila
2020-2021 Small Drainage Program
City Project Number: 92041201
KPG Project Number: 20025
PROJECT DESCRIPTION
The Consultant shall prepare final Plans, Specifications and Estimates for the 2020-2021 Small Drainage
Program. The project will include the following sites:
Site 7: S 166th Ln @ 51st Ave S
Install new storm drain structure at center of existing 12” Concrete pipe to provide access for City
maintenance. In addition, install approximately 140 LF of 12” CIPP liner to correct root intrusion
and minor damage that has been discovered through City Maintenance videos. Pipe repair locations
will be identified and included in design improvements based on City provided video inspections. The
existing termination catch basins structures will be inspected for any necessary repairs or upgrades.
Site 8: Thorndyke CIPP
Install approximately 280 LF of 24” CIPP liner to correct root intrusion and minor damage that has
been discovered through City Maintenance videos. Pipe repair locations will be identified and
included in design improvements based on City provided video inspections. Termination of point of
conveyance run is located at the Thorndyke Elementary School. The other termination point is within
existing City Easement.
Sites 9: 49th Ave S from S 124th St to S 122nd St Drainage System
Install storm drain system approximately 760 LF starting from the northside of S 124th St and
traveling down 49th Ave S to tie-into the existing system along S 122nd St.
The Consultant shall provide necessary surveying, project design, quantity and cost estimates, and utility
coordination required to complete final bid documents. It is anticipated that sites will be bid as a single
bid package along with up to six sites currently under design for the 2020-2021 Small Drainage Program
as budget or other considerations allow.
The Consultant shall provide surveyed base maps with horizontal utility locations, or base maps created
from field measurements, ortho-photography, and GIS data as necessary for each site as described below.
If necessary, surveyed base maps will include right-of-way line work based on available public records.
Project horizontal and vertical datum will be NAD83/2011 and NAVD88 respectively on all sites.
The Consultant shall prepare an easement document, legal description, and an exhibit for Site 7. The City
will perform negotiations to obtain signature and record the easement.
It is the Consultants understanding that Sites 7,8&9 do not require SEPA checklist, HPA application,
Special Permissions Permit, biological assessments, wetland delineations, detention facilities, or water
26
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Design Services Page 2 of 4 October 2020
quality treatment facilities. The budget assumes a straightforward approval process with no special studies
or extensive coordination.
It is the Consultants understanding that aside from the proposed Site 7 maintenance access easement, all
work will be completed within City right of way, existing easements, and/or approved right of entry, and
no further easement acquisition is anticipated.
It is the Consultants understanding that the City will secure right of entry and temporary access for work at
Site 8 for entrance onto the Thorndyke Elementary School property. It is assumed this work will be
completed during daytime working hours and a noise variance permit will not be required.
SCOPE OF WORK
TASK 1 – 2021 Small Drainage Program Design
1.1 MANAGEMENT/COORDINATION/ADMINISTRATION
• The Consultant shall provide continuous project management and administration for the
duration of the Project. (Estimate 8 months).
• Hold project coordination meetings with the City to update progress and review submittals.
Assume (3) meetings.
• The Consultant shall provide monthly status reports and billings.
• The Consultant shall provide independent QA/QC reviews by senior in-house staff of all
deliverables prior to submittal to the City.
1.2 The Consultant shall prepare a topographic base map along Site 7 where drainage structure will be
installed and there is absence of City GIS data. Utility Locates will be called and marked and existing
storm network mapped. Aerial base maps and City GIS data will be utilized for Site 8. The Consultant
shall prepare a topographic base map for Site 9.
1.3 For Site 7, the Consultant shall prepare 50% and 90% plans for review and approval by the City.
1.4 For Site 7, based on approved 50% preliminary design layout, the Consultant shall prepare necessary
easement and legal descriptions to acquire maintenance access to existing City utility easement. The
City will review the project and easement needs to obtain approval from the property owner. The
Consultant shall make necessary revisions to design based on easement conditions negotiated
between the City and property owner and include the final design into the Bid Documents.
• Deliverables
o Legal Description and figure(s) for City Maintenance Access Easement (assume four
(4) private parcels.) (pdf).
1.5 For Site 8, the Consultant shall prepare 50% and 90% plans for review and approval by the City using
aerial mapping and GIS data provided by the City. Each structure will be reviewed in the field to note
general size, type, and depth of structures which will require access for CIPP lining. These
27
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Design Services Page 3 of 4 October 2020
observations will be made from the surface, no survey or manned entry into drainage structures will
be performed. The City shall provide video inspection for each pipe segment to receive CIPP lining.
1.6 For Site 9, the Consultant shall prepare 50% and 90% plans for review and approval by the City.
1.7 The Consultant shall prepare Contract Specifications per 2021 WSDOT Standard Specifications for
the 90% Review Submittal and the Bid Documents.
1.8 The Consultant shall calculate quantities and prepare Engineers Estimate of Probable Construction
Cost for each review submittal and the Bid Documents.
1.9 The Consultant shall distribute 50% review submittals to franchise utility owners to identify potential
conflicts within the Project limits. The Consultant shall meet and coordinate with the franchise
utilities with facilities located within the limits of the project. The coordination will include relocation
of existing utilities. (estimate 2 meetings)
1.10 The Consultant shall prepare final Bid Documents for advertisement and award by the City for the
proposed improvements including the following:
o Plans shall be prepared with such provisions in such detail as to permit field layout and
construction within a degree of accuracy acceptable to the City and per industry
standards.
o Details will be prepared for items not available as standard details from the City, State,
or WSDOT standard drawings.
o The plans shall illustrate complete details of construction of the proposed
improvements including limits of construction and removals, proposed invert
elevations, rim elevations and required construction materials.
o Drainage designs will be determined through consultation with City staff and from
previous experience rather than detailed basin modeling.
1.11 The Consultant shall provide bid period services to include responses to bidder inquiries, preparation
of addenda (assume 2), attendance at bid opening, preparation of bid tabulation, and recommendation
to award or reject the apparent low bidder. The budget assumes a straightforward review process
with the low bidder receiving the contract award.
• Assumptions
o No federal funding is anticipated for the Project engineering or construction.
o No utility upgrades are anticipated in the project design.
o Drainage & Water Quality Reports will not be required.
o Geotechnical Engineering services will not be required except as identified in Task
1.12.
o Environmental Documentation will not be required.
o Potholing of existing underground utilities will be performed by the utility owner.
o All easement negotiations and approval from property owner will be through the City.
o Any fees for BXWA.com will be paid by the City.
28
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Design Services Page 4 of 4 October 2020
• Deliverables
o 50% review submittal with Plans and Estimate (pdf).
o 90% review submittal with Plans, Specifications, and Estimate (4 sets + pdf).
o Bid Documents and Engineer’s Estimate (6 sets ½ size plans, specs, and estimate)
o Coordinate upload of Plans and Specifications to Builders Exchange.
1.12 The Consultant shall support a Geotechnical Subconsultant to perform a site reconnaissance to
observe existing conditions and surficial indications of slope stability to support classification of the
geologic hazards and to evaluate impacted of the proposed project on slope stability at the previously
mapped 13601 40th Ave S Site referred to as (Site 1) in the original 2020 Small Drainage Program
Contract. Per the City of Tukwila Municipal Code Chapter 18.45, the Subconsultant will review and
provide recommendations to support the geologic critical areas assessment and geotechnical
recommendations for pipe design and installation. In addition, the Subconsultant shall collect samples
for characterization of arsenic and lead concentrations in surficial soil that has been impacted by the
TSP.
• Assumptions
o Project within Category 2 and 3 Soil Classification that requires Memo to satisfy City
Municipal Code Requirements.
o Project has anticipated tree removal that will require critical area assessment to satisfy
City Requirements.
• Deliverables
o Geotechnical memorandum summarizing the results of arsenic and lead testing. (pdf).
o Draft and final report summarizing the results of subsurface explorations, a geologic
critical areas assessment, and geotechnical recommendations to support design and
construction of the new storm drainpipe. (pdf).
Additional Services
The City of Tukwila may require other services of the consultant. These services could include additional
design, right of way, utility potholing, environmental documentation, construction phase services, or other
work tasks not included in the scope of work. At the time these services are required, the Consultant will
provide the City with a detailed scope of work and an hour and fee estimate. The Consultant will not
proceed with the work until the City has authorized the work and issued a Notice to Proceed.
29
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Construction Management Services Page 1 of 8 October 2020
Construction Management Services
Scope of Work
October 2020
City of Tukwila
2020-2021 Small Drainage Program
City Project Number: 92041201
KPG Project Number: 20025
KPG, P.S. (KPG) will provide construction management services for the construction contract to complete
the City of Tukwila 2020-2021 Small Drainage Program project. The proposed work includes:
Site 1: 13601 40th Ave S Drainage System
Replace and install new storm drain system approximately 90’ of 18” CMP and 80’ of 12” concrete
pipe along with three drainage structures. Tie into the existing system at 40th Ave S. This site requires
SEPA and City of Tukwila Special Permissions Permit with project limits within Type 3 Watercourse
Buffer.
Site 2: Klickitat Dr. @ 53rd Ave S Drainage System
Replace and install new storm drain system approximately180’ of 18” CMP. Tie into the existing
system along Klickitat Dr. This site requires HPA, SEPA and City of Tukwila Special Permissions
Permit with project limits within Type 3 Watercourse Buffer.
Site 3: S 124th St from 42nd Ave to 45th Ave Drainage System
Install storm drain system approximately 750’on the northside of S 124th St. Tie into the existing
system.
Site 4: 57th Ave S @ Golden Nugget Drainage Structure
Bring Type II Manhole up to grade by removing approximately 8’ of existing 24” riser rings. Add
48” barrel sections and new manhole ring and cover.
Site 5: 42nd Ave S Drainage Structure
Install a new drainage structure with bird cage inlet to reduce plugging and overflows onto 42nd Ave
S. This site requires an HPA and SEPA.
Site 6: 48th Ave S from S 124th St to S 122nd St Drainage System
Install storm drain system approximately 820’ starting the northside of S 124th St and down 48th Ave
S. Tie into the existing system along S 122nd St.
Site 7: S 166th Ln @ 51st Ave S – Seatac, WA
Install new storm drain structure at center of existing 12” Concrete pipe to provide access for City
maintenance. In addition, install approximately 140’ of 12”CIPP liner to correct root intrusion and
minor damage that has been discovered through City Maintenance videos. Pipe repair locations will
be identified and included in design improvements. The existing termination catch basins structures
will be inspected for any necessary repairs or upgrades.
30
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Construction Management Services Page 2 of 8 October 2020
Site 8: Thorndyke CIPP
Install approximately 280’of 24” CIPP liner to correct root intrusion and minor damage that has been
discovered through City Maintenance videos. Pipe repair locations will be identified and included in
design improvements.
Sites 9: 49th Ave S from S 124th St to S 122nd St Drainage System
Install storm drain system approximately 760’ starting from the northside of S 124th St and traveling
down 49th Ave S to tie-into the existing system along S 122nd St.
A detailed scope for the Contract follows:
I. INTRODUCTION
The following scope of services and associated costs are based upon the assumptions outlined below.
General Assumptions:
• The level of service and fee is based on project duration of 90 working days.
• The proposed project team will include a part time Resident Engineer (20 hours a week) from the
Consultant for construction administration documentation and project support, one full time
Construction Inspector, and certified payroll admin (4 hours a week), and one part time Project
Engineer from KPG Design Team to review submittals and interpret Contractor inquiries as needed.
The Team also includes sub-consultant to provide services for materials testing and construction
site observation to satisfy Tukwila Municipal Codes for work within certain soil classifications.
• City will review and execute the insurance, bonds, and the Construction Contract.
• Consultant will coordinate during audits or traffic control operations related to project impacts and
help the City to complete any other required correspondence with outside agencies.
• The City will work with the Contractor to conduct all community outreach in relation to phasing
and direct impacts due to construction. The City’s Contractor shall be responsible for the
communication to the community on schedule and work activities.
• KPG design engineers will be available during construction to answer questions and review
RAM’s, shop drawings, and answer RFI’s.
• Consultant services will be performed in accordance with the WSDOT Construction Manual,
Contract plans & special provisions, and City of Tukwila engineering standards.
• The franchise Utilities will provide field inspection for all work surrounding the construction or
relocation of their utility systems if necessary.
• Coordination of construction with franchise utilities, if any, will be done by City Contractor.
Consultant will help facilitate coordination between utilities and Contractor as needed or requested
by City.
31
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Construction Management Services Page 3 of 8 October 2020
II. SCOPE OF WORK
The objective and purpose of this Construction Management Services Agreement is for the Consultant to
successfully deliver the construction of the Project to the City by ensuring that the improvements are
constructed in accordance with the approved Plans and Specifications, as may be amended or revised, that
all of the required Project documentation is accounted for, and ultimately that the City of Tukwila receives
a successful review by any outside agency including state audits at the end of the Project.
TASK 1 – MANAGEMENT / COORDINATION /ADMINISTRATION
Provide overall project management, coordination with the City, monthly progress reports, and invoicing.
This effort will include the following elements.
1.1 Organize and layout work for project staff. Prepare project instructions on contract administration
procedures to be used during construction.
1.2 Review monthly expenditures and CM team scope activities. Prepare and submit monthly project
progress reports to the City along with invoices describing CM services provided each month.
Prepare and submit reporting required by funding source(s), if any.
Deliverables:
• Monthly invoices and progress reports
TASK 2 – PRECONSTRUCTION SERVICES
2.1 Preconstruction Conference: KPG will prepare an agenda for, distribute notices of, and conduct
a preconstruction conference in the City’s offices or via an on-line platform of the City’s choice.
The Consultant’s team will attend the preconstruction conference. Pertinent City staff and private
utilities will also be present at this meeting. KPG will prepare a written record of the meeting and
distribute copies of the minutes to all attendees and affected agencies, staff, etc.
At the Pre-construction conference, the Consultant shall help facilitate discussions with the
Contractor concerning the plans, specifications, schedules, pay estimate timelines and cutoff dates,
issues with utilities, any unusual conditions, State and local requirements and any other items that
will result in better project understanding among the parties involved.
2.2 Preconstruction Photos: KPG’s inspector will arrive on site prior to City Contractor mobilizing
on site to take preconstruction photographs for documentation of pre-existing conditions.
2.3 Review Plans and Specs: The Consultant team will familiarize themselves with all plans, specs,
and City standards that will be incorporated into this project.
2.4 Prepare Hard and Electronic Files: The Consultant will prepare all electronic and hard copy
files in preparation for the project. This includes pre-populating forms and pay estimate as
coordinated with the City. SharePoint will not be utilized on this contract.
32
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Construction Management Services Page 4 of 8 October 2020
Deliverables:
• Preconstruction conference meeting minutes
• Pre-construction Photos
TASK 3 – CONSTRUCTION SERVICES - FIELD
3.1 Construction Observation: The Consultant will provide one (1) inspector during construction
activities and other tasks necessary to monitor the progress of the work. The Inspector will ensure
that the daily inspection reports and working days reporting are completed in a timely manner and
contain sufficient information to assess whether the work is being conducted in compliance with
the Contract Documents per City, WSDOT,. Consultant will make IDR’s available to the City by
Friday of the same work week upon request.
The Inspector may perform the following duties as a matter of his daily activities:
i. Observe technical conduct of the construction, including providing day-to-day contact with
construction contractor, City, utilities, and other stakeholders, and monitor for adherence
to the Contract Documents. The Consultant’s personnel will act in accordance with
Sections 1-05.1 and 1-05.2 of the WSDOT Standard Specifications.
ii. Observe material, workmanship, and construction areas for compliance with the Contract
Documents and applicable codes, and notify construction contractor of noncompliance.
Advise the City of any non-conforming work observed.
iii. Document all material delivered to the job site in accordance with the Contract Documents.
iv. Prepare daily inspection reports, recording the construction contractor’s operations as
actually observed by the Consultant; includes quantities of work placed that day,
contractor’s equipment and crews, and other pertinent information.
v. Interpret Contract Documents in coordination with the City, Contractor, and KPG.
vi. Resolve questions which may arise as to the quality and acceptability of material furnished,
work performed, and rate of progress of work performed by the construction contractor.
vii. Support the Contractor’s communication and responsibilities to answer questions from
property owners and the general public as needed.
viii. Monitor compliance of approved permits per the project specifications, if applicable.
ix. Prepare field records and documents to ensure the Project is administered in accordance
with the plans and specifications.
x. Collect and calculate delivery tickets and scaleman’s daily reports of aggregate. All tickets
will be initialed with correct bid item and stationing identified (Construction Manual 10-
2).
xi. Attend and actively participate in regular on-site weekly construction meetings.
xii. Take digital photographs during the course of construction, and record locations.
xiii. Punch list. Upon substantial completion of work, coordinate with the Client and affected
agencies, to prepare a ‘punch list’ of items to be completed or corrected. Coordinate final
inspection with those agencies.
33
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Construction Management Services Page 5 of 8 October 2020
Assumptions:
• Consultant will provide observation services for the days/hours that the contractor’s personnel are
on-site.
• Assumption is Client’s Contractor shall work normal 40-hour work weeks. For this project the
“normal” work week may occur at night. KPG does not differentiate day shift from night shift.
However, if the City’s Contractor works a double shift (both day and night) within a single 24-hour
period this will constitute two working days. Consultant’s hours for inspection are based on one
shift for number of working days allowed per Contract.
• Assumption is if Contractor is working at multiple sites within the City of Tukwila, the Consultant
will split their time at the multiple locations and prioritize what location to be at for observation.
• The Consultant’s monitoring of the construction contractor's activities is to ascertain whether or
not they are performing the work in accordance with the Contract Documents; in case of
noncompliance, Consultant will reject non-conforming work, and pursue the other remedies in the
interests of the client, as detailed in the Contract Documents.
3.2 Material Testing – Coordination & Tracking: The inspector shall coordinate with the Contractor
and the material testing firm to schedule testing of materials in the field to ensure they meet
specifications per contract requirements..
3.3 Substantial Completion: Upon substantial completion of work, the Consultant shall issue a punch
list and coordinate with the City’s contractor to complete any deficiencies. Upon completion of the
punch list work the Consultant will draft the Certificate of Substantial Completion for final review
and issuance by the City.
Deliverables:
• Daily Construction Reports with project photos
• Punch List – Consultant to issue punch list, City to Review
• Certificate of Substantial Completion – Consultant to draft, City to Issue
• Review test reports for compliance
TASK 4 – CONSTRUCTION SERVICES – OFFICE
4.1 Document Control. Original documentation will be housed at the Consultant’s office and filed in
accordance with standard filing protocol. Document Control will consist of the following:
• Final Estimate
• Affidavit of Wages Paid
• Release for the Protection of Property Owners and General Contractor
34
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Construction Management Services Page 6 of 8 October 2020
• Certified Payroll (see 4.8 below).
4.2 Project Coordination: Liaison with City, construction Contractor, engineer, utilities and property
owners on a regular basis to discuss project issues and status.
4.3 Plan Interpretations: Provide technical interpretations of the drawings, specifications, and
Contract Documents, and evaluate requested deviations from the approved design or specifications.
Coordinate with City for resolution of issues involving scope, schedule, and/or budget changes.
4.4 Weekly Meetings: Consultant will lead weekly meetings. Consultant will prepare agenda for City
review and distribute meeting minutes to attendees. Outstanding issues to be tracked on a weekly
basis. Weekly Statement of Working Days will be reviewed/accepted by Contractor during the
Weekly Meeting.
4.5 Schedule Review: Consultant shall perform review of initial Contractor provided CPM for
conformance with the Contract Documents. Any discrepancies, conflicts or unreasonable work
durations will be brought to the attention of the Contactor and City. Consultant will provide one
(1) intermediate review of Contractor’s updated schedule and compare with field-observed progress
and duration of the project.
4.6 Lump Sum Breakdown: Consultant shall evaluate construction Contractors’ Schedule of Values
for lump sum items. Review the Contract Price allocations and verify that such allocations are
made in accordance with the requirements of the Contract Documents. Lump Sum Breakdowns for
payment each month will be calculated.
4.7 Monthly Pay Requests: Consultant shall prepare monthly requests for Contractor payment based
on field note records prepared by Consultant field inspector in accordance with contract documents.
4.8 Certified Payroll: The Consultant will process and check the Contractor and Subcontractor’s
certified payroll per State Prevailing Wage Requirements. Tracking of payroll shall consist of
recording each payroll received from the Prime and Subcontractors and checking pay rates against
Contract requirements. Any discrepancies will be brought to the Contractor and City.
4.9 Weekly Statement of Working Days: Consultant shall prepare, and issue weekly statement of
working day report each week to the Contractor and City for review and approval. Weekly
statement of working days will be based on field inspection reports provided by Consultant.
4.10 Subcontractor Documentation: Process / approve all required subcontractor documentation.
Request to Sublets will be verified and logged. This includes checking System Award Management
System (SAMS), verifying business licensing, reviewing insurance documentation, verifying city
business licensing, Intent to Pay Prevailing Wage and Affidavit of Wages Paid. All subcontractor
documentation will be logged into KPG’s subcontractor logs.
4.11 Physical Completion Letter: Following completion of all punch list work verified by the
Consultant and any stakeholders required the Consultant shall prepare physical completion letter
to the Contractor and the City shall issue the final contract voucher.
35
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Construction Management Services Page 7 of 8 October 2020
4.12 Project Closeout: Transfer all project documents to the City for permanent storage.
• Schedule review comments
• Meeting agendas and notes
• Monthly Pay Estimates
• Subcontractor Packets
• Physical Completion Letter
• Contractor submitted As-builts transcribed to CADD Bid Plans
• Final Project Documents
TASK 5 – SUBMITTAL/RFI PROCESSING
5.1 Submittals: Consultant shall take lead on submittal reviews/ approvals. Consultant shall
coordinate review process for shop drawings, samples, traffic control plans, test reports, and other
submittals from the Contractor for compliance with the contract documents. Submittals shall be
logged and tracked by Consultant.
5.2 Request for Information (RFI): Consultant shall review and respond to RFI’s. RFI’s shall be
logged and tracked by Consultant.
Deliverables:
• Submittal log
• RFI Log
TASK 6 – CHANGE MANAGEMENT
6.1 Change Orders: The Consultant will develop change orders and the Consultant will provide
technical assistance to negotiate change orders, and assist in resolution of disputes which may occur
during the course of the project. The City will approve all change orders before being fully
executed. Each change order will be executed in accordance with WSDOT Standard
Specifications.
6.2 Field Work Directives: The Consultant will prepare field work directives as necessary to keep the
Contractor on schedule.
6.3 Force Account: The Consultant will track Contractor force account labor, equipment and
materials. All force account calculations will be verified by the City and double checked by the
Consultant. The City shall have final authority to approve any Force Account work prior to
agreement with the Contractor.
Deliverables:
36
EXHIBIT A-1
City of Tukwila KPG, P.S.
2020-2021 Small Drainage Program KPG Project Number 20025
Construction Management Services Page 8 of 8 October 2020
• Change Order(s)
• Force Account Records
TASK 7 – ADDITIONAL SERVICES
7.1 Material Testing: GeoDesign will be retained as our (KPG) subconsultant to provide material testing
and construction observation services. All testing will be done in accordance with LAG Manual and
WSDOT Construction Manual.
Additional services requested by the City will be performed only when authorized by the City.
Authorization to perform additional services will be in writing, specifying the work to be performed, and
basis of payment. Items such as Community Outreach (except as completed on a day to day basis by the
inspector and resident engineer as described in task 3.1 – vii), Public Meetings, Ribbon Cutting Ceremony,
claims analysis, surveying, services during shutdown periods of non-working days, and services for
extended working days are examples of possible additional services. This fee is based 90 working day
contract / 18 weeks, 8-hour days, additional extension of days will be approximately $1,000.00 per day for
one person. (8 hours x $125.00 = $1,000.00)
37
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40
City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Joseph Todd, Technology and Innovation Services Director
BY: Eric Compton, Franchise and Technology Specialist
CC: Mayor Ekberg
DATE: November 13, 2020
SUBJECT: Extenet Systems, Inc. Franchise Agreement
ISSUE
Approve an ordinance granting Extenet Systems, Inc a Franchise Agreement with an initial
period of ten (10) years.
BACKGROUND
State law provides cities the authority to establish franchises to telecommunication providers
who wish to occupy city owned rights-of-way. Tukwila Municipal Code 11.32.060 requires all
telecommunication providers to obtain franchise agreements with the City prior to approval to
construct, maintain and operate within the City limits.
DISCUSSION
Extenet is a partner for multiple wireless carriers in building out 5G/Small Cell facilities. Extenet
does not have a network of their own and, as part of building the Small Cell facilities, will run
fiber from the site to the partner carrier’s fiber backbone or hub.
Extenet has also sought to partner with the City in asset sharing agreements which could
provide additional sources of revenue or at least cost sharing/saving measures. A copy of their
desired conduit in the City is attached.
FINANCIAL IMPACT
Under the terms of the Franchise, Extenet is required to pay the City a $5000 administrative fee.
This fee has already been paid and processed by Finance.
Potential cost savings or small rental fees are possible with asset sharing as desired by Extenet.
RECOMMENDATION
Council is being asked to approve the Ordinance allowing Extenet Systems, Inc. Franchise
Agreement and consider this item on the Consent Agenda at the December 7, 2020 Regular
Meeting.
ATTACHMENTS
Draft Franchise Ordinance with Exhibit A
Extenet Conduit Inquiry
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DRAFT
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, GRANTING A NON-EXCLUSIVE
FRANCHISE TO EXTENET SYSTEMS, INC., A DELAWARE
CORPORATION, LEGALLY AUTHORIZED TO CONDUCT
BUSINESS IN THE STATE OF WASHINGTON, FOR THE
PURPOSE OF CONSTRUCTING, OPERATING, AND
MAINTAINING A TELECOMMUNICATIONS SYSTEM IN THE
PUBLIC RIGHTS-OF-WAY IN THE CITY; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, EXTENET Systems, Inc., a Delaware corporation, hereinafter referred
to as "EXTENET" is a telecommunications company that, among other things, provides
personal wireless services to customers in the Puget Sound region; and
WHEREAS, EXTENET'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, rights-of-way and other
public property for installation, operation and maintenance of communications facilities;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
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Section 1. Definitions.
A. For the purposes of this Franchise Agreement and the Exhibit attached hereto,
the following terms, words, phrases, and their derivations where capitalized shall have
the meanings given herein. Terms not defined herein shall have the meaning given in
Title 11 of the Tukwila Municipal Code. Terms not defined herein or in Title 11 of the
Tukwila Municipal Code shall have the meaning given pursuant to such federal statutes,
rules, or regulations that apply to and regulate the services provided by EXTENET. Words
not otherwise defined shall be given their common and ordina ry meaning.
B. When not inconsistent with the context, words used in the present tense include
the future, words in the plural include the singular, and words in the singular include the
plural. The word "shall" is always mandatory. References to governme ntal entities
(whether persons or entities) refer to those entities or their successors in authority. If
specific provisions of law, regulation or rule referred to herein are renumbered, then the
reference shall be read to refer to the renumbered provision.
1. "Affiliate" when used in connection with EXTENET means any Person who
owns or controls, is owned or controlled by, or is under common ownership or control with
EXTENET.
2. "Construct" shall mean to construct, reconstruct, install, reinstall, align ,
realign, locate, relocate, adjust, affix, attach, replace, repair, monitor, maintain, use,
relocate, remove, or support.
3. "Default" shall mean any failure of a Party to keep, observe, or perform any
of its duties or obligations under this Franchise t hat is not cured within 30 days after
receipt of written notice from the non-defaulting Party.
4. "Design Document(s)" shall mean the plans and specifications for the
construction of the Facilities meeting the minimum applicable general plan submittal
requirements for engineering services plan review as set forth in the City's Infrastructure
Design and Construction Standards Manual (the "Standards"), illustrating and describing
the refinement of the design of the Telecommunications System Facilities to be
Constructed, establishing the scope, relationship, forms, size and appearance of the
Facilities by means of plans, sections and elevations, typical construction details, location,
alignment, materials, and equipment layouts. The Design Documents shall inc lude
specifications that identify utilities, major material and systems, Public Right -of-Way
improvements, restoration and repair, and establish in general their quality levels.
5. "Dispute" shall mean a question or controversy that arises between the
Parties concerning the observance, performance, interpretation or implementation of any
of the terms, provisions, or conditions contained in this Franchise Agreement or the rights
or obligations of either Party under this Franchise Agreement.
6. "Emergency" shall mean and refer to a sudden condition or set of
circumstances that: (a) significantly disrupts or interrupts the operation of Facilities in the
Public Rights-of-Way and EXTENET's ability to continue to provide services if immediate
action is not taken; or (b) presents an immediate threat of harm to persons or property if
immediate action is not taken.
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7. "Facility or Facilities" means any part or all of the facilities, equipment and
appurtenances of EXTENET whether underground or overhead and located within the
Public Rights-of-Way as part of EXTENET's Telecommunications System, including but
not limited to, conduit, case, pipe, line, fiber, cabling, equipment, equipment cabinets and
shelters, vaults, generators, conductors, poles, carriers, drains, vents, guy wires,
encasements, sleeves, valves, wires, supports, foundations, anchors, transmitters,
receivers, antennas, and signage.
8. "Franchise" shall mean the grant, once accepted, giving general permission
to EXTENET to enter into and upon the Public Rights-of-Way to use and occupy the same
for the purposes authorized herein, all pursuant and subject to the terms and conditions
as set forth herein.
9. "Law(s)" shall mean all present and future applicable laws, ordinances,
rules, regulations, resolutions, environmental standards, orders, decrees and
requirements of all federal, state, and local governments, the departments, bureaus, or
commissions thereof, or other governmental authorities, including the City acting in its
governmental capacity. References to Laws shall be interpreted broadly to cover
government actions, however nominated.
10. "Party(ies)" shall mean either the City or EXTENET or both.
11. "Permit" means a permit issued under the regulatory authority of the City
that provides specific requirements and conditions for Work to Construct Facilities within
the Public Rights-of-Way and includes, but is not limited to: a construction permit, building
permit, street excavation permit, barricade permit, and clearing and grading permit.
12. "Person" means and includes any individual, corporation, partnership,
association, joint-stock company, limited liability company, political subdivision, public
corporation, taxing district, trust, or any other legal entity, but not the City or any Person
under contract with the City to perform work in the Public Rights-of-Way.
13. "Public Right(s)-of-Way" shall mean the surface of, and the space above
and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard,
sidewalk, way, lane, public way, drive, circle or other public right-of-way, including any
easement now or hereafter held by the City within the corporate boundaries of the City
as now or hereafter constituted for the purpose of public travel, and over which the City
has authority to grant permits, licenses, or franchises for use thereof, or has regulatory
authority to thereover, excluding: railroad rights-of-way, airports, harbor areas, buildings,
parks, poles, conduits, and excluding such similar facilities or property owned,
maintained, or leased by the City in its proprietary capacity or as an operator of a utility.
14. "Public Works Director" shall mean the Public Works Director for the City
or their designee, or such officer or person who has been assigned the duties of Public
Works Director or their designee.
15. "Service" shall mean the service or services authorized to be provided by
EXTENET under the terms and conditions of this Franchise Agreement.
16. "Telecommunications System" shall mean all necessary Facilities to
establish a small wireless network located in, under, and above City owned Public
Right(s)-of-Way for the provision of personal wireless services, including: commercial
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mobile services, unlicensed wireless services, and common carrier wireless exchange
access services. "Telecommunications System" shall not mean or include Facilities
owned or used by EXTENET for the provision of cable television services, video
programming, or services other than personal wireless services, including ownership
and/or operation of a dark fiber network.
17. "Work" shall mean any and all activities of EXTENET, or its officers,
directors, employees, agents, contractors, subcontractors, volunteers, invitees, or
licensees, within the Public Rights-of-Way to Construct the Facilities.
Section 2. Non-exclusive Franchise Granted.
A. The City hereby grants to EXTENET, subject to the conditions prescribed in this
ordinance ("Franchise Agreement"), the franchise rights and authority to Construct and
operate its Facilities necessary for a Telecommunications System within all City -owned
Public Rights-of-Way, generally described as that area within the present and future
boundaries of the City and hereinafter referred to as the "Franchise Area".
B. The foregoing franchise rights and authority ("Franchise") shall not be deemed
to be exclusive to EXTENET 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 EXTENET; provided, that such other franchises do not unreasonably
interfere with EXTENET'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.
C. This Franchise Agreement merely authorizes EXTENET to occupy and use the
Franchise Area. Nothing contained herein shall be construed to grant or convey any right,
title, or interest in the Franchise Area to EXTENET.
D. The City does not warrant its title or property interest in or to an y franchise area
nor undertake to defend EXTENET in the peaceable possession or use of the franchise
area. No covenant of quiet enjoyment is made.
Section 3. Authority. The Director of Public Works or designee is hereby granted
the authority to administer and enforce the terms and provisions of this Franchise
Agreement and may develop such lawful and reasonable rules, policies and procedures
as the Public Works Director deems necessary to carry out the provisions contained
herein.
Section 4. Franchise Term. The franchise rights granted herein shall remain in full
force and effect for a period of 10 years from the effective date of this ordinance.
However, this Franchise Agreement shall not take effect and EXTENET shall have no
rights under this Franchise Agreement unless a written acceptance with the City is
received pursuant to Section 5 of this Agreement. If EXTENET desires to renew this
Franchise Agreement, it shall file a renewal application with the City between 180 days
and 120 days prior to the expirat ion of the existing term. In the event of such filing, the
City may extend the term of this Franchise Agreement in one-year increments beyond the
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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 EXTENET prior to the
Franchise expiration date. EXTENET must sign the written approval of the extension
agreeing to all the terms of the prior agreement and the extension.
Section 5. Acceptance of Terms and Conditions. The full acceptance of this
Franchise Agreement 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
A. Failure on the part of EXTENET 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 6. 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 7.
1. 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. In case of an emergency, EXTENET shall,
within 24 hours of the emergency, obtain a Permit from the City of Tukwila's Public Works
Department.
2. Coordination. Any element of a City capital construction project which is
performed by EXTENET 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
in effect on the date the permits and authorizations are issued for the affected Facilities.
3. Notice to the Public. Except in the case of an Emergency, the City retains
the right to require EXTENET to notify the public prior to commencing any significant
planned Construction that EXTENET reasonably anticipates will materially disturb or
disrupt public property or have the potential to present a danger or affect the safety of the
public generally.
4. Use of Public Rights-of-Way. Within parameters related to the City's role
in protecting the public health, safety, and welfare and except as may be otherwise
preempted by Law, the City may require that Facilities be installed at a particular time, at
a specific place, or in a particular manner as a condition of access to the propos ed
Franchise Area and may deny access if EXTENET is not willing to comply with such
requirements; and, may require removal of any Facility that is not installed in compliance
with the Standards provided in this Franchise Agreement or which is installed wit hout prior
City approval of the time, place, or manner of installation.
5. Construction Standards. Any construction, installation, maintenance, and
restoration activities performed by or for EXTENET 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 and the rights and reasonable convenience of
property owners, businesses, and residents along the Public Rights -of-Way. All
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construction, installation, maintenance and restoration activities shall be conducted such
that they conform to the City's development guidelines and standards in effect on the date
the permits and authorizations are issued for the affected Facilities and comply with Title
11 of the Tukwila Municipal Code. EXTENET's Facilities shall be designed, located,
aligned, and constructed so as not to disturb or impair the use or operation of any street
improvements, utilities, and related facilities of the City or the City's existing lessees,
licensees, permitees, franchisees, easement beneficiaries or lien holders, without prior
written consent of the City or the parties whose improvements are interfered with and
whose consent is required pursuant to agreements with the City existing prior to the
effective date.
6. Duty to Restore.
a. EXTENET shall, after completion of construction of any part of its
Telecommunications System, leave the Public Rights-of-Way and other property
disturbed nearby in as good or better condition in all respects as it was in before the
commencement of such Construction. EXTENET agrees to promptly complete restoration
work to the reasonable satisfaction of the City and in conformance with City Standards at
the sole cost of EXTENET.
b. If EXTENET's Work causes unplanned, unapproved, or unanticipated
disturbance or alteration or damage to Public Rights-of-Way or other public property,
EXTENET shall, at EXTENET’s sole cost, promptly remove any obstructions therefrom
and restore such Public Rights-of-Way and public property to the satisfaction of the City
and in accordance with City Standards.
c. If weather or other conditions do not allow the complete restoration
required, EXTENET shall temporarily restore the affected Public Right -of-Way or public
property. EXTENET shall promptly undertake and complete the required permanent
restoration when the weather or other conditions no longer prevent such permanent
restoration.
7. Notice. If EXTENET's Work causes unplanned, unapproved, or
unanticipated disturbance or damage to Public Rights -of-Way or other public or private
property, EXTENET shall promptly notify the property owner within 24 hours.
8. Warranty. EXTENET shall warrant any restoration work performed by
EXTENET in the Public Rights-of-Way or on other public property for 2 years, unless a
longer period is required by applicable City Standards. If restoration is not satisfactorily
and timely performed by EXTENET, the City may, after 30 days prior notice to EXTENET,
or without notice where the disturbance or damage may create an imminent risk to public
health or safety, cause the repairs to be made and recover the cost of those repairs from
EXTENET. Within 30 days of receipt of an itemized list of those costs, including the costs
of labor, materials and equipment, EXTENET shall pay the City.
9. Restoration of Private Property. When EXTENET does any Work in the
Public Rights-of-Way that affects, disturbs, alters, or damages any adjacent private
property, it shall, at its own expense, be responsible for restoring such private property to
the reasonable satisfaction of the private property owner. Nothing within this Franchise
authorizes any work by EXTENET on private property.
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10. Stop Work. On written notice from the City that any Work does not comply
with the Franchise Agreement, the approved Design Documents for the Work, the
Standards, or other applicable Law, or is being performed in an unsafe or dangerous
manner as reasonably determined by the City, the non-compliant Work may immediately
be stopped by the City. The stop work order shall be in writing, given to the Person doing
the Work and be posted on the Work site, indicate the nature of the alleged violation or
unsafe condition and establish conditions under which Work may be resumed. If so
ordered, EXTENET shall cease and shall cause its contractors and subcontractors to
cease such activity until the City is satisfied that EXTENET is in compliance. If an unsafe
condition is found to exist, the City, in addition to taking any other action permitted under
applicable Law, may order EXTENET to make the necessary repairs and alterations
specified therein forthwith to correct the unsafe condition by a time the City establishes in
its discretion. The City has the right to inspect, repair, and correct the unsafe condition if
EXTENET fails to do so, and to reasonably charge EXTENET for the costs incurred to
perform such inspection, repair, or correction. Payment by EXTENET will be made within
30 days following receipt of written notice including itemized invoice and supporting
documentation evidencing such cost. The authority and remedy set forth herein in this
section is in addition to, and not a substitute for, any authority the City may otherwise
have to take enforcement action for violation of City codes or Standards.
11. Alteration. Except as may be shown in the Design Documents approved
by the City or the records drawings, or as may be necessary to respond to an Emergency,
EXTENET and EXTENET's contractors and subcontractors may not make any material
alterations to the Franchise Area without the City's prior consent, which consent shall not
be unreasonably withheld, delayed, or conditioned. The parties acknowledge that nothing
in this agreement limits the City's rights under applicable federal, state, and local laws to
regulate the placement and appearance of EXTENET's Facilities in the Franchise Area.
Material alteration and/or deviation shall include, but not be limited to, a change in the
dimension or height or location or placement of the Facilities. If EXTENET desires to
change either the location of any Facilities or otherwise materially deviates from the
approved design of any of the Facilities, EXTENET shall submit such change to the City
in writing for its approval. EXTENET shall have no right to commence any such alteration
or deviation until after EXTENET has received the City's approval of such change in
writing. Under no circumstance shall EXTENET permanently affix anything in the
Franchise Area that inconveniences the public use of the right of way or adversely affects
the public health, safety, or welfare.
12. Underground Installation Required. All telecommunications cables and
junction boxes or other vaulted system components shall be installed underground
consistent with the requirements of Tukwila Municipal Code Section 11.32.090(B), unless
otherwise exempted from this requirement, in writing, by the Public Works Director
provided, however, this requirement shall not apply to the Facilities that are required to
remain above ground in order to be functional. This requirement shall only apply where
all other similarly situated utilities are required to underground as well.
13. Relocation.
a. The City shall have the right to require EXTENET to alter, adjust,
relocate, re-attach, secure, or protect in place its Facilities within the public right-of-way
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when reasonably necessary for construction, alteration, repair, or improvement of any
portion of the public rights-of-way for purposes of public welfare, health, or safety ("Public
Improvements"). Such Public Improvements include, but are not limited to: public rights -
of-way construction; public rights-of-way repair (including resurfacing or widening);
change of public rights-of-way grade; construction, installation or repair of sewers, drains,
water pipes, power lines, signal lines, communication lines, or any other type of
government-owned communications, utility, or public transportation systems, public work,
public facility, or improvement of any government-owned utility; public rights-of-way
vacation, and the construction of any public improvement or structure by any
governmental agency acting in a governmental capacity. In the event the City re quires
EXTENET to relocate its Facilities, the City shall provide EXTENET 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 d evelopment
of a relocation plan. The City and EXTENET 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. The City shall notify EXTENET as soon as practicable of the need
for relocation and shall specify the date by which relocation shall be completed. Except
in case of emergency such notice shall be no less than 90 d ays.
b. To ensure timely execution of relocation requirements, EXTENET shall,
upon written request from the City, provide at EXTENET'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
procedures), and other design, technical or operational requirements within the time
frame specified by the City.
c. EXTENET 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
EXTENET 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, EXTENET shall submit additional information to assist the City in making such
evaluation. The City shall give each alternative proposed by EXTENET full and fair
consideration. In the event the City, in its sole discretion, decides not to accept the
alternatives suggested by EXTENET, EXTENET shall relocate its Facilities as otherwise
specified in Section 6, subparagraph 5.
d. Upon final approval of the relocation plan by the City, EXTENET shall,
at its own expense, unless otherwise prohibited by statute, and at the time frame 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 al teration is
reasonably necessary for the construction, repair, maintenance, installation, public safety,
or operation of any public improvement in or upon the rights -of-way. In the event
relocation is required by reason of construction by a third party, non-governmental entity,
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for the sole benefit of the third party, non-governmental entity, then EXTENET's relocation
costs shall be borne by the third party.
e. If during the construction, repair, or maintenance of the City's public
improvement project an unexpected conflict occurs from EXTENET's Facilities,
EXTENET shall, upon notification from the City, respond within 24 hours to resolve the
conflict.
f. EXTENET acknowledges and understands that any delay by EXTENET
in performing the work to alter, adjust, relocate, or protect in place its Facilities within the
public rights-of-way may delay, hinder, or interfere with the work performed by the City
and its contractors and subcontractors in furtherance of construction, alteration, repair, or
improvement of the public rights-of-way, and result in damage to the City, including but
not limited to, delay claims. EXTENET shall cooperate with the City and its contractors
and subcontractors to coordinate such relocation work to accommodate the public
improvement project and project schedules to avoid delay, hindrance of, or interference
with such project.
g. Should EXTENET fail, within 30 days of receipt of written notice from the
City, to alter, adjust, protect in place or relocate any Facilities ordered by the City to be
altered, adjusted, protected in place, or relocated, within the time prescribed by the City,
given the nature and extent of the work, or if it is not done to the City's reasonable
satisfaction, the City may, to the extent the City may lawfu lly do so, cause such work to
be done and bill the reasonable cost of the work to EXTENET, including all reasonable
costs and expenses incurred by the City due to EXTENET's delay. In such event, the City
shall not be liable for any damage to any portion of EXTENET's system. In addition to any
other indemnity set forth in this Franchise Agreement, EXTENET will indemnify, hold
harmless, and pay the costs of defending the City from and against any and all claims,
suits, actions, damages, or liabilities for delays on public improvement construction
projects caused by or arising out of the failure of EXTENET to adjust, modify, protect in
place, or relocate its Facilities in a timely manner; provided that, EXTENET shall not be
responsible for damages due to delays caused by the City.
14. Removal or Abandonment. Upon the removal from service of any service
antennas or other associated structures, Facilities and amenities, EXTENET shall comply
with all applicable standards and requirements prescribed by the City of Tukwila's Public
Works Department for the removal or abandonment of said structures and Facilities. No
facility constructed or owned by EXTENET shall be abandoned without the express
written consent of the City.
15. Bond. Before undertaking any of the work, installation, improvements,
construction, repair, relocation, or maintenance authorized by this Franchise Agreement,
EXTENET shall, upon the request of the City, furnish one bond executed by EXTENET
for all of its Facilities in the City's rights-of-way, in such sum as may be set and approved
by the City as sufficient to ensure performance of EXTENET'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 EXTENET in the City rights-of-
way. At EXTENET's sole option, EXTENET 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
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security shall be in the form reasonably acceptable to the City. The bond shall be
conditioned so that EXTENET 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 EXTENET work or materials discovered in the City's roads, streets,
or property.
16. "One-Call" Location and Liability. EXTENET 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
EXTENET's system components or for interruptions in service to EXTENET customers
which are a direct result of work performed for any City project for which EXTENET 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 EXTENET system components or for interruptions in service to EXTENET customers
resulting from work performed under a permit issued by the City.
17. As-Built Plans Required. EXTENET shall maintain accurate engineering
plans and details of all installations within the City limits and shall provide, at no cost to
the City, 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 EXTENET pursuant to this Franchise Agreement. The City shall
reasonably determine the acceptability of any as-built submittals provided under this
section.
18. Recovery of Costs. EXTENET 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 in effect on the date the permits and authorizations are
issued for the affected Facilities. Where the City incurs actual reasonable 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, EXTENET shall pay such reasonable costs and
expenses directly to the City.
19. Taxes. Nothing contained in this Franchise Agreement shall exempt
EXTENET's obligation to pay any applicable utility tax, business tax, or ad valorem
property tax, now or hereafter levied against real or personal property owned by
EXTENET within the City, or against any local improvement assessment imposed on
EXTENET. Any fees, charges, and/or fines provided for in the City Municipal Code or any
other City ordinance, are separate from, and additional to, any and all federal, state, lo cal,
and City taxes as may be levied, imposed, or due from EXTENET.
20. 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 60 days written
notice to EXTENET, 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
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damages or loss to EXTENET by reason of such termination other tha n those provided
for in RCW 35.99.
Section 7. Franchise Compliance.
A. Franchise Violations. The failure by EXTENET 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 Agreement and requests remedial action within
60 days of receipt of such notice. If EXTENET has not attained full compliance at the end
of the 60-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 60-day period.
B. Emergency Actions.
1. If any of EXTENET's actions under this Franchise Agreement, or any failure
by EXTENET to act to correct a situation caused by EXTENET, is reasonably 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
EXTENET 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 EXTENET in writing and give
EXTENET an opportunity to correct within a specified time said threat, financial harm or
delay before undertaking such corrective measures. EXTENET shall be liable for all
reasonable 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 EXTENET and shall further be liable for all reasonable 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 EXTENET to take appropriate
action to correct a situation caused by EXTENET 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 the terms of this
Franchise Agreement.
2. If, during construction or maintenance of EXTENET'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, EXTENET 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 EXTENET'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, EXTENET shall, at its sole
expense, remove all system components and Facilities within 60 days of such
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termination, provided that the City, at its sole option, may allow EXTENET to abandon its
Facilities in place.
E. Receivership. At the option of the City, subject to applicable law and lawful
orders of courts of competent jurisdiction, this Franchise may be revoked after the
appointment of a receiver or trustee to take over and conduct the bu siness of EXTENET
whether in a receivership, reorganization, bankruptcy, or other action or proceeding,
unless:
1. The receivership or trusteeship is timely vacated; or
2. The receiver or trustee has timely and fully complied with all the terms and
provisions of this Franchise Agreement, and has remedied all defaults under the
Franchise Agreement. Additionally, the receiver or trustee shall have executed an
agreement duly approved by the court having jurisdiction, by which the receiver or trustee
assumes and agrees to be bound by each and every term, provision, and limitation of this
Franchise Agreement.
Section 8. Insurance.
A. EXTENET shall maintain Commercial General liability insurance during the full
term of this Franchise Agreement for bodily injury (including death) and property
damages. The limit of liability shall be a combined single limit in the amount of $2,000,000
for each occurrence and $2,000,000 general aggregate.
B. Such insurance shall include as additional insured, the City, its officers, officials,
and employees as their interest may appear under this Franchise Agreement, excluding
worker's compensation and employer's liability; shall apply as primary insurance; and
shall stipulate that no insurance affected by the City will be called on to contribute to a
loss covered thereunder. Upon receipt of notice from its insurer(s) that any insurance
required by this Franchise Agreement will be cancelled or will not be renewed, and
EXTENET will not replace such insurance with coverage as required by this Franchise
Agreement, EXTENET shall provide the City with 30 days prior written notice of such
cancellation. Notice shall be provided as required by Section 12 below. Should the City
receive such notice, at City's discretion, the City may send a notice of default to EXTENET
allowing EXTENET 15 days to cure its failure to maintain insurance as required by this
Franchise Agreement. If EXTENET fails to cure the default within such 15 -day period, the
City may unilaterally terminate this Franchise Agreement by sending a written notice of
termination to EXTENET.
C. EXTENET's contractors and subcontractors performing Work in the Public
Rights-of-Way shall comply with such bond, indemnity, and insurance requirements as
may be required by City code or regulations, or other applicable Law. Any contractors or
subcontractors performing Work within the Public Rights-of-Way on behalf of EXTENET
shall be deemed servants and agents of EXTENET for the purposes of this Franchise
Agreement and are subject to the same restrictions, limitations, and conditions as if the
Work were performed by EXTENET. EXTENET shall be responsible for all Work
performed by its contractors and subcontractors and others performing Work on its behalf
as if the Work were performed by it, and shall ensure that all such Work is performed in
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compliance with this Franchise Agreement and other applicable laws, and shall be jointly
and severally liable for all damages and correcting all damage caused by them. It is
EXTENET's responsibility to ensure that contractors, subcontractors, or other Persons
performing Work on EXTENET's behalf are familiar with the requirements of this
Franchise Agreement and other applicable Laws governing the Work performed by them.
Section 9. Other Permits and Approvals. Nothing in this Agreement shall relieve
EXTENET from any obligation to obtain approvals or necessary permits from applicable
federal, state, and City authorities for all activities in the Franchise Area.
Section 10. 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 EXTENET'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 EXTENET to another
person or entity controlling, controlled by, or under common control with EXTENET.
EXTENET may license Facilities to other users without the consent of the City provided
that EXTENET remains solely responsible for the terms and conditions outlined in this
Franchise Agreement.
B. The Parties acknowledge that Small Wireless Facilities or wireline facilities (“Site
Equipment”) deployed by EXTENET pursuant to this Agreement may be owned and/or
remotely operated by a third-party wireless carrier customer (“Carriers”) and installed and
maintained by EXTENET pursuant to existing agreements between EXTENET and a
Carrier. Such use of EXTENET’S equipment by third parties, or Attachment of third party
(Carrier) owned equipment shall not constitute an Assignment under this Agreement. The
Site Equipment shall be treated as EXTENET’s Site Equipment for all purposes under
this Franchise. EXTENET shall remain solely responsible and liable for the performance
of all obligations under this Franchise with respect to any Site Equipment owned and/or
remotely operated by a Carrier. EXTENET shall identify the Carrier on whose behalf it is
operating the Site Equipment on each Pole at the time of permitting. EXTEN ET is not
required to submit its contract with such Carrier.
C. In any transfer of this Franchise which requires the approval of the City,
EXTENET 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. This Franchise may
not be transferred without filing or establishing with the City the insurance certificates,
security fund, and performance bond as required pursuant to this Franchise. The
qualifications of any transferee shall be determined by a hearing before the City Council
and the approval to such transfer shall be granted by resolution of the City Council. Any
reasonable administrative costs associated with a transfer of this Franchise that requires
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the approval of the City shall be reimbursed to the City within 30 days of such transfer.
The transferee(s) shall thereafter be responsible for all obligations of EXTENET with
respect to the Franchise; provided, that the transfer shall not in any respect relieve
EXTENET, or any of its successors in interest, of responsibility for acts or omiss ions,
known or unknown, or the consequences thereof, if the acts or omissions occur before
the time of the transfer.
Section 11. Administrative Fees.
A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from
imposing franchise fees for "telephone businesses" as defined in RCW 82.16.010, or
"service provider" as defined in RCW 35.99.010, except that fees may be collected for
administrative expenses related to such franchise. EXTENET does hereby warrant that
its operations, as authorized under this Franchise Agreement, are those of a telephone
business as defined in RCW 82.16.010 or a service provider as defined in 35.99.010.
B. EXTENET shall be subject to a one-time $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 the 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 notice of franchise approval.
C. The City reserves the right to exercise authority it has or may acquire in the future
to charge a franchise fee as authorized by law and EXTENET shall in good faith endeavor
to negotiate a reasonable Franchise fee or other fee if future law permits the City to charge
a Franchise fee. However, the parties shall negotiate a site-specific charge acceptable to
the parties for facilities for personal wireless services that meet one of the criteria in RCW
35.21.860(1)(e)(i)-(iii). Pursuant to RCW 35.21.860(1)(e), the City is not required to
approve a use permit for the placement of a facility for personal wireless services t hat
meets one of the criteria set forth in RCW 35.21.860(1)(e)(i)-(iii) absent such an
agreement.
D. In the event EXTENET submits a request for work beyond the scope of this
Franchise Agreement, or submits a complex project that requires significant
comprehensive plan review or inspection, EXTENET shall reimburse the City for franchise
amendments and reasonable actual-incurred expenses associated with the project.
EXTENET shall pay such costs within 60 days of receipt of a bill from the City.
E. Failure by EXTENET 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 7 of this ordinance.
Section 12. Notices. Any notice to be served upon the City or EXTENET shall be
delivered to the following addresses respectively:
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City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila, WA 98188
Email: TukwilaCityClerk@tukwilawa.gov
Phone: 206-433-1800
With a copy to:
Public Works Director
City of Tukwila
6300 Southcenter Boulevard Ste. 100
Tukwila, WA 98188
EXTENET
ExteNet Systems, Inc.
Attn: CFO
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
With copy to General Counsel & COO at same address
Copy email to NOTICE@extenetsystems.com
Section 13. Indemnification.
A. EXTENET 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 within the Franchise Area. EXTENET shall release,
indemnify, defend, 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 act or omission of EXTENET, its officers, agents, servants or employees,
carried on in the furtherance of the rights, benefits, and privileges granted to EXTENET
by this Franchise, except in cases of City’s gross negligence. In the event any claim or
demand is presented to or filed with the City that gives rise to EXTENET's obligation
pursuant to this section, the City shall within a reasonable time notify EXTENET thereof
and EXTENET shall have a right, at its election, to settle or compromise suc h 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
EXTENET's obligation pursuant to this section, the City shall promptly notify EX TENET
thereof, and EXTENET 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, EXTENET 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 EXTENET 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,
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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 EXTENET and the City,
EXTENET'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 that arises out of any right, privilege, and authority granted by or
exercised pursuant to this Franchise Agreement 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 made by
EXTENET 's employees against the City, its officers, agents and employees,
EXTENET expressly waives its immunity under Title 51 of the Revised Code
Washington, the Industrial Insurance Act for injuries to its officers, agents and 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 EXTENET's officers, agents
or employees against the City. This waiver is mutually negotiated by the parties.
Section 14. Severability. If any section, sentence, clause or phrase of this
ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, the
City may elect to treat the portion declared invalid or unconstitutional as severable and
enforce the remaining provisions of this ordinance; provided that, if the City elects to
enforce the remaining provisions of the ordinance, EXTENET shall have the option to
terminate the Franchise Agreement.
Section 15. Reservation of Rights.
A. The parties agree that this Franchise Agreement is intended to satisfy the
requirements of all applicable laws, administrative guidelines, rules, orders and
ordinances in effect on the date the permits and authorizations are issued for the affected
Facilities. Accordingly, any provision of this Franchise Agreement or any local ordinance
that 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 th e
parties to preserve their respective rights and remedies under the law, and that the
execution of this Franchise Agreement does not constitute a waiver of any rights or
obligations by either party under the law.
B. Nothing in this Franchise Agreement shall prevent the City from constructing
sanitary or storm sewers; grading, changing grade, paving, repairing, widening or
otherwise altering any Public Rights-of-Way; laying down, repairing or removing water
mains; or installing conduit or fiber optic cable.
Section 16. Police Powers.
A. Nothing contained herein shall be deemed to affect the City's authority to
exercise its police powers. EXTENET 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
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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.
B. Nothing in this Franchise Agreement shall be deemed to impose any duty or
obligation upon the City to determine the adequacy or sufficiency of EXTENET's Facilities.
City's approvals and inspections as provided herein are for the sole purpose of protecting
the City's rights as the owner and/or manager of the Public Rights-of-Way and shall not
constitute any representation or warranty, express or implied, as to the adequacy of the
design or Construction of the Facilities or Telecommunications System, suitability of the
Franchise area for Construction, or any obligation on the part of the City to insure that
Work or materials are in compliance with any requirements imposed by a governmental
entity. The City is under no obligation or duty to supervise the design, C onstruction, or
operation of the Telecommunications System.
Section 17. Future Rules, Regulations and Specifications. EXTENET
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 EXTENET, shall thereafter govern
EXTENET's activities hereunder; provided, however, that in no event shall regulations:
1. materially interfere with or adversely affect EXTENET's rights pursuant to
and in accordance with this Franchise Agreement; or
2. be applied in a discriminatory manner as it pertains to EXTENET and other
similar user of such facilities.
Section 18. Entire Agreement. This Franchise Agreement contains all covenants
and agreements between the City and EXTENET relating in any manner to the Franchise,
use, and occupancy of the Public Rights -of-Way and other matters set forth in this
Franchise Agreement. No prior agreements or understanding pertaining to the same,
written or oral, shall be valid or of any force or effect and the covenants and agreement
of EXTENET shall not be altered, modified, or added to except in writing signed by the
City and EXTENET and approved by the City in the same manner as the original
Franchise was approved.
Section 19. Calculation of Time. Except where a period of time refers to "business
days," all periods of time referred to herein shall include Saturdays, Sundays, and legal
holidays in the State of Washington, except that if the last day of any period falls on any
Saturday, Sunday, or legal holiday in the State of Washington, the period shall be
extended to include the next day which is not a Saturday, Sunday, or legal holiday in the
State of Washington; provided that, the effective date shall be determined as provided in
this Franchise Agreement.
Section 20. Time Limits Strictly Construed. Whenever this Franchise Agreement
sets forth a time for any act to be performed by EXTENET, such time shall be deemed to
be of the essence, and any failure of EXTENET to perform within the allotted time may
be considered a Default of this Franchise Agreement.
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Section 21. Joint Venture. It is not intended by this Franchise Agreement to, and
nothing contained in this Franchise Agreement shall, create any partnership, joint venture,
or principal-agent relationship or other arrangement between EXTENET and City. Neither
Party is authorized to, nor shall either Party act toward third Persons or the public in any
manner that would indicate any such relationship. The Parties intend that the rights,
obligations, and covenants in this Franchise Agreement and any collateral instruments
shall be exclusively enforceable by the City and EXTENET, their successors, and
assigns. No Person not a Party hereto, and no such Person shall have any right or cause
of action hereunder, except as may be otherwise provided herein. Further, EXTENET is
not granted any express or implied right or authority to assume or create any o bligation
or responsibility on behalf of or in the name of the City. However, nothing in this section
prevents an assignment as provided for in this Franchise Agreement.
Section 22. Binding Effect Upon Successors and Assigns. All of the provisions
contained in this Franchise Agreement shall be binding upon the heirs, successors,
executors, administrators, receivers, trustees, legal representatives, transferees and
assigns of EXTENET; and all privileges as well as any obligations and liabilities of
EXTENET shall inure to its heirs, successors, and assigns equally as if they were
specifically mentioned wherever EXTENET is named herein.
Section 23. Waiver. No failure by either Party to insist upon the performance of any
of the terms of this Franchise Agreement or to exercise any right or remedy consequent
upon a Default thereof, shall constitute a waiver of any such Default or of any of the terms
of this Franchise Agreement. None of the terms of this Franchise Agreement to be kept,
observed, or performed by either Party, and no Default thereof, shall be waived, altered,
or modified except by a written instrument executed by the injured Party. No waiver of
any Default shall affect or alter this Franchise Agreement, but each of the terms of this
Franchise Agreement shall continue in full force and effect with respect to any other then
existing or subsequent Default thereof. No waiver of any Default of the defaulting Party
shall be implied from any omission by the injured Party to take any action on account of
such default if such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the express waiver and then only for the time
and to the extent therein stated. One or more waivers by the injured Party shall not be
construed as a waiver of the subsequent Default of the same covenant, term, or
conditions.
Section 24. Survival of Terms. Upon the expiration, termination, revocation, or
forfeiture of the Franchise Agreement, EXTENET shall no longer have the right to occupy
the Franchise area for the purpose of providing services authorized herein. However,
EXTENET's obligations under this Franchise Agreement to the City shall survive the
expiration, termination, revocation, or forfeiture of these rights according to its terms for
so long as EXTENET's Telecommunications System or any part thereof shall remain in
whole or in part in the Public Rights-of-Way, or until such time as EXTENET transfers
ownership in all Facilities in the Franchise Area to the City or a third-Party, or until such
time as EXTENET abandons said Facilities in place, all as provided herein. Said
obligations include, but are not limited to: EXTENET's obligations to indemnify, defend,
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and protect the City, to provide insurance, to relocate its Facilities, and to reimburse the
City for its costs to perform EXTENET's work.
Section 25. Force Majeure.
A. In the event EXTENET is prevented or delayed in the performance of any of its
obligations herein due to circumstances beyond its control or by reason of a force majeure
occurrence, such as, but not limited to, acts of God, acts of terrorism, war, riots, civil
disturbances, natural disasters, floods, tornadoes, earthquakes, severe weather
conditions, employee strikes and unforeseen labor conditions not attributable to
EXTENET's employees, EXTENET shall not be deemed in Default of provisions of this
Franchise Agreement.
B. If EXTENET believes that circumstances beyond its control or by reason of a
force majeure occurrence have prevented or delayed its compliance with the provisions
of this Franchise Agreement, EXTENET shall provide documentation as reasonably
required by the City to substantiate EXTENET's claim. EXTENET shall have a reasonable
time, under the circumstances, to perform the affected obligation under this Franchise
Agreement or to procure a substitute for such obligation that is satisfactory to the City;
provided that EXTENET shall perform to the maximum extent it is able to perform and
shall take reasonable steps within its power to correct such cause(s) in as expeditious a
manner as possible, provided that EXTENET takes prompt and diligent steps to bring
itself back into compliance and to comply as soon as possible under the circumstances
with the Franchise Agreement without unduly endangering the health, safety, and integrity
of EXTENET's employees or property, or the health, safety, and integrity of the public,
Public Rights-of-Way, public property or private property.
Section 26. Attorneys' Fees. In the event a suit, action, arbitration, or other
proceeding of any nature whatsoever, whether in contract or in tort or both, is instituted
to enforce any word, article, section, subsection, paragraph, provision, condition, clause
or sentence of this Franchise Agreement or its application to any person or circumstance,
the prevailing Party shall be entitled to recover from the losing Party its reasonable
attorneys, paralegals, accountants, and other expert fees and all other fees, costs, and
expenses actually incurred and reasonably necessary in connection therewith, as allowed
by Washington law and as determined by the judge or arbitrator at trial or arbitration, as
the case may be, or on any appeal or review, in addition to all other amounts provide d by
Law. This provision shall cover costs and attorneys' fees related to or with respect to
proceedings in Federal Bankruptcy Courts, including those related to issues unique to
bankruptcy law. This provision shall not apply to the extent that the suit, action, arbitration,
or other proceeding is brought to interpret any term, condition, provision, section, article,
or clause of this Franchise Agreement.
Section 27. Venue. This Franchise Agreement shall be governed by, and construed
in accordance with the laws of the State of Washington. Any action brought relative to
enforcement of this Franchise Agreement, or seeking a declaration of rights, duties, or
obligations herein shall be initiated in the Superior Court of King County, and shall not be
removed to a federal court, except as to claims over which such Superior Court has no
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jurisdiction. Removal to federal court shall be to the Federal Court of the Western District
of Washington.
Section 28. Corrections by City Clerk or Code Reviser Authorized. Upon
approval of the City Attorney, the City Clerk and the code reviser are authorized to make
necessary corrections to this ordinance, including the correction of clerical errors;
references to other local, state or federal laws, codes, rules, or regulati ons; or ordinance
numbering and section/subsection numbering.
Section 29. 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 ____________________, 2020.
ATTEST/AUTHENTICATED:
Christy O'Flaherty, MMC, City Clerk Allan Ekberg, Mayor
APPROVED AS TO FORM BY: Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
Office of the City Attorney
Attachment: Exhibit A – Franchise Agreement Acceptance Form
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EXHIBIT A
Extenet Franchise Agreement Acceptance Form
Date:
City of Tukwila
City Clerk's Office
6200 Southcenter Boulevard
Tukwila, WA 98188
Re: Ordinance No. _________, adopted on _____________________, 2020.
Dear City Clerk:
In accordance with and as required by Section 5 of City of Tukwila Ordinance
No. _______, passed by the City Council and approved by the Mayor on
________________________ (the "Ordinance"), Extenet Systems, Inc., a
Delaware limited partnership, hereby accepts the terms, conditions and obligations
to be complied with or performed by it under the Ordinance.
By: Extenet Systems, Inc.
_____________________________________
Signature
_____________________________________
Name
_____________________________________
Title
___________________________
Date
cc: Public Works Director, City of Tukwila, 6300 Southcenter Blvd., Tukwila, WA 98188
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City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Joseph Todd, Technology and Innovation Services Director
BY: Eric Compton, Franchise and Technology Specialist
CC: Mayor Ekberg
DATE: November 13, 2020
SUBJECT: Zayo Group, LLC Asset Sharing Agreement
ISSUE
Approve an Agreement between the City and Zayo granting the sharing of telecommunications
assets in a mutually beneficial manner.
BACKGROUND
Zayo is a global provider of telecommunication services that works with local Internet Service
Providers, Cable companies, and Wireless carriers. In order to facilitate the building of their
infrastructure, Zayo wishes to utilize certain City assets and in exchange provide access to their
infrastructure or other assets in a mutually beneficial manner. These agreements can help both
Zayo and Tukwila save money and expedite telecommunications growth in the community.
DISCUSSION
Zayo has signed a similar agreement with other local municipalities and has reached out to
Tukwila to partner with the City. Zayo has been an invaluable partner is previous City initiatives
such as the Municipal Wi-Fi project and Cloud PBX.
FINANCIAL IMPACT
No direct negative cost to the budget will be brought. This agreement is intended to save
money on projects while partnering with Zayo so share costs.
RECOMMENDATION
Council is being asked to approve the Agreement allowing Zayo Group, LLC. and consider this
item on the Consent Agenda at the November 23, 2020 Regular Meeting.
ATTACHMENTS
Zayo Asset Exchange Agreement
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THIS ASSET EXCHANGE LICENSE AGREEMENT (hereinafter referred to as the “Agreement”) is
made and entered into as of the date of the last signature below (the “Effective Date”), between Zayo Group,
LLC, a Delaware limited liability company, with primary offices at 1805 29th Street, Suite 2050, Boulder,
CO 80301 (“Zayo”), and City of Tukwila, a municipality in the State of Washington (“City”) Zayo and
City may be hereinafter referred to individually as “Party”, and collectively as “Parties.”
WHEREAS, each Party owns or has rights in Conduit or Fiber within the City and each Party wishes to
exchange certain Conduit or Fiber from their respective Conduit or Fiber systems within the City
boundaries, and enter into an agreement to facilitate future exchanges.
NOW, THEREFORE, for and in consideration of the mutual covenants and consideration set forth in this
Agreement, the Parties do hereby agree as follows:
1. Definitions. The following terms, whether in the singular or in the plural, when used in this
Agreement shall have the meaning specified in this Section 1. Use of the word “or” when
describing “Fiber or Conduit” is not intended to mean or convey that it is exclusively one or the
other unless the context specifically requires.
1.1 Authorizations: All governmental or municipal approvals and authorizations; all rights-of-
way and pole attachment agreements; and all leases, licenses, consents or other agreements
necessary for the Licensor to construct, install, maintain and repair its Conduit System and
to license portions of the Conduit System to a third party.
1.2 Asset: Conduit or Fiber within a Party’s Conduit System or otherwise agreed between the
Parties.
1.3 Asset Exchange Form (or “AEF”): The form exchanged between the Parties via email or
hardcopy, to communicate and agree to information related to an Asset Request, Asset Use
Authorization, and Notice of Asset Availability, as shown on Exhibit A.
1.4 Asset Request: A formal request for a license to use Conduit or Fiber, within a specific
portion of the other Party’s Conduit System (either the City Conduit System or the Zayo
Conduit System as defined), made by completion of the Asset Request section of an AEF.
1.5 Asset Use Authorization: Unless rejected upon request, Licensor’s acceptance and grant to
an Asset Request providing authorization to license specific Conduit or Fiber. The Asset
Use Authorization is executed by completing the Asset Use Authorization section of the
Asset Exchange Form.
1.6 City Conduit System: Existing Conduit or Fiber, owned by City, as more particularly
described on an AEF or exhibits attached thereto; provided that, subject to the terms of this
Agreement, such Conduit or Fiber may be modified from time-to-time in City’s sole
discretion provided such modifications do not impact Licensee use of the Licensed Conduit
or Fiber unless otherwise permitted herein.
1.7 Conduit: Conduit which (a) was installed for the purpose of, or capable of being used for,
communication fiber installation in accordance with Bellcore Standards, (b) is located in
the City, and (c) is owned by either Zayo or City, as the context requires.
1.8 Conduit System: Either the City Conduit System or the Zayo Conduit System, as context
requires.
1.9 Fiber: dark (unlit) fiber optic cable of one or more fibers owned by either the City or
Zayo, as the case may be, and as specified in an AEF or exhibits attached thereto.
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1.10 License or Licensed Asset: Asset Use Authorization by City or Zayo, as the case may be,
to use the Licensed Conduit or Fiber for the License Term.
1.11 License Term: The term of each license for use of Licensed Conduit or Fiber, as further
defined in Article 6 of this Agreement.
1.12 Licensee: The Party authorized under this Agreement and an AEF to use Licensed Conduit
or Fiber within the other Party’s Conduit System.
1.13 Licensor: The Party granting a License pursuant to an Asset Use Authorization.
1.14 Notice of Asset Availability: Notice from Licensor to Licensee that the Licensed Conduit
or Fiber meets the Specifications and is available for Licensee’s use, provided by
completion of the Notice of Asset Availability section of the Asset Exchange Form.
1.15 Specifications: The minimum specifications identified on an AEF that Licensed Conduit
or Fiber must meet as a precondition to the Notice of Asset Availability.
1.16 Zayo Conduit System: Existing Conduit or Fiber owned by Zayo, as described on an AEF
or exhibits attached thereto. on Exhibit A; provided that, subject to the terms of this
Agreement, such Conduit or Fiber may be modified from time-to-time in Zayo’s sole
discretion provided such modifications do not impact Licensee use of the Licensed Conduit
or Fiber unless otherwise permitted herein.
2. Exchanging Assets.
2.1 As set forth in an executed AEF, City agrees, subject to the terms and conditions of this
Agreement, to grant a License to Zayo to use available Conduit or Fiber within City’s
Conduit System, including the right and permission to access and use any City easement(s)
that the City’s Conduit System routes through. This only applies to those easements that
the City is authorized to grant access to Zayo and Zayo receives permission to access from
the City. As set forth in an executed AEF, Zayo agrees, subject to the terms and conditions
of this Agreement, to grant a License to City to use commercially available Conduit or
Fiber within Zayo’s Conduit System. Nothing in this agreement shall purport to give the
City the right to resell any Fiber it may acquire in this Agreement. Each segment of conduit
or fiber strands licensed will entitle the Licensor to the same amount of conduit or fiber
strands on the Licensee’s Conduit System.
2.2 City and Zayo agree that the assets to be exchanged must be available at the time of the
AEF exchange.
2.3 City and Zayo agree that the intent of the Parties is that the Licensed Assets exchanged
between the Parties will remain balanced and approximately equal. The Parties agree that
the initial AEF’s executed by the Parties on the same date as the Effective Date are an equal
exchange of Licensed Assets. Further AEF equity analysis will consider Licensed Asset
type, length (on a linear foot or a mile-for-mile basis, whichever is most applicable to the
request), capacity and location as agreed between the Parties. Licensed Assets within the
central business area, will be calculated at twice its length for purposes of exchanges of
Assets outside the central business area.
2.4 If the amount of a Licensed Asset that one Party has Licensed, as to Conduit to Conduit or
Fiber to Fiber amounts, exceeds the amount of Licensed Asset that the other Party has
Licensed, and the difference is greater than 15% (“Disparate Licensed Asset Amount”),
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then the Party with excessive Licensed Asset will not request additional AEF until the
Disparate Licensed Asset Amount is corrected (meaning less than 15%). Notwithstanding
the foregoing, the Parties may agree to alternate consideration to correct a Disparate
Licensed Asset Amount.
2.5 Either Party may relinquish its right to use any segment of Licensed Asset prior to the end
of the License Term. If one Party relinquishes Licensed Asset which results in Disparate
Licensed Asset Amount, then the Party with excessive Licensed Asset will not request
additional AEF until the Disparate Licensed Asset Amount is corrected or the Parties
otherwise agree.
2.6 Each Party will maintain a record of the Licensed Assets exchanged pursuant to this
Agreement. Upon reasonable request by a Party, not greater than once per year, the Parties
will meet to review and validate these records.
2.7 This agreement does not remove the requirement that Zayo must obtain all permits or other
approval as required by law to perform any work under this agreement. Prior to a completed
exchange, if either Party is unable to obtain, through no fault of its own, permits or other
approvals required to perform any work under a particular AEF, that request, and its
corresponding exchange shall cease to exist and each Party shall return back into the
position they were in before the agreement was made.
2.8 Following a completed exchange, if one Party loses the ability to maintain required rights
for an exchanged Licensed Asset, then that Party shall pay the other party the fair market
value for the corresponding Licensed Asset which was exchanged.
3. Asset Requests and Use Authorization.
3.1 Submission of AEF. All requests for Licensed Assets shall be made utilizing a AEF, with
each Party completing information as Licensor or Licensee, as applicable, and forwarding
the AEF via email to both address of a Party as indicated below (two (2) required for back-
up purposes):
If to Zayo: david.boileau@zayo.com
If to City: eric.compton@tukwilawa.gov
joel.bush@tukwilawa.gov
3.2 When one Party wishes to use Assets of the other Party, such Party will complete the Asset
Request section of the AEF, and submit the form to the other Party’s email addresses.
Submission of an AEF to one email address but not both email addresses shall not, by itself,
constitute a failure to properly submit an AEF.
3.3 Acceptance or Denial of AEF. Within fifteen (15) business days of receipt of a completed
Asset Request, Licensor will complete the Asset Use Authorization section of the AEF and
return the form to Licensee. Licensor’s response will either authorize Licensee’s use of
the Asset upon Notice of Asset Availability or indicate denial of the Asset Request.
3.4 Notice of Asset Availability. Notice of Asset Availability can take place on the same date
as the Asset Use Authorization if the Asset meets the Specifications on the same date. If
the Notice of Asset Availability cannot take place on the same date as the Asset Use
Authorization, Licensor shall send back the AEF without completion of the Notice of Asset
Availability section. Licensor shall then promptly provide email notice to Licensee when
the Asset is available, and Licensee shall send back the AEF for Licensor’s completion of
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the Notice of Asset Availability. In all cases, upon completion of the Notice of Asset
Availability from Licensor, the License Term shall begin.
3.5 Licensor will use commercially reasonable efforts to ensure that the requested Asset
complies with all applicable Specifications and ready for Licensee’s use within thirty (30)
days of date of an Asset Use Authorization.
4. Access and Escort.
4.1 Handholes and Manholes. Unless otherwise specifically agreed in an AEF, Licensee will
install handholes and/or manholes as a means of accessing the Licensed Conduit or Fiber.
Licensee shall be responsible for all “one-call” responses and cable locate services for the
Licensed Conduit or Fiber. All costs associated with Licensee’s access to the Licensed
Conduit or Fiber will be borne by the Licensee. The City shall not be required to install
handholes or manholes for Conduit that has been installed prior to the entry of this
Agreement. If necessary, Zayo may install handholes or manholes at its own cost.
4.2 Activities Around or In Licensed Assets. If Licensee’s activities will be performed within
four (4) feet of Licensor’s Conduit System, Licensee must contact Licensor to schedule the
activity at a mutually agreed time allowing for Licensor to provide an escort, at Licensor’s
discretion and at Licensee’s cost. Escort services will be requested using the Request for
Field Activity (“RFA”) form attached as Exhibit B or such other form as mutually agreed
in writing. For Fiber placement within a Licensed Conduit, a RFA shall be made. Licensor
shall grant such access as agreed to in an RFA, provided however, that Licensor shall not
delay such an access request by more than ten (10) business days of receipt of such request.
Licensee shall be responsible for all costs, including Licensor’s costs for an RFA for Fiber
placement. Licensor’s costs for RFA may include a fifteen percent (15%) markup over
costs.
4.3 The Licensee shall have the right, but not the obligation, to supervise and oversee any work
performed by the Licensor in or to the Licensee’s facilities, at Licensee’s cost.
5. Repair and Maintenance
5.1 If either Party wishes to perform any repairs or maintenance they must follow all state and
local laws for any and all work within in the right of way or other locations that require
approval by state and local governing bodies, this includes permits and other requirements.
Zayo shall use commercially reasonable efforts to cause the Licensed Assets to continue to
meet the Specifications during the License Term. Zayo shall perform all routine
maintenance and operations for the shared conduit and fiber system at its own cost,
provided that City shall reimburse Zayo for its proportionate share of all emergency
maintenance and repair costs including but not limited to all costs associated with “one-
call” responses, cable locate services and placement of a locate wire for the Licensed
Conduit or Fiber and any other repair costs incurred due to damage caused by the City,
plus fifteen percent (15%). Proportionate share means the number of licensed fibers divided
by the total amount of fibers for the particular segment.
5.2 Routine Maintenance. From time to time, at the Zayo’s reasonable discretion, and after
adequate advance notice to the City (which shall be at least 72 hours), the Zayo will
schedule and perform specific periodic maintenance and repair checks and services on both
the Licensed Assets. This maintenance shall be provided at no cost to the City.
5.3 Emergency Maintenance.
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(a) Within two (2) hours after a Zayo receives a trouble report of imminent or actual failure
or impairment of the Licensed Conduit or Fiber, the Zayo shall commence all
commercially reasonable efforts to repair such failure or impairment to cause the
Licensed Conduit or Fiber to meet the Specifications. At a minimum, such
commercially reasonable efforts shall include dispatching at least one service
technician (or more if commercially reasonably prudent to do so) to the source of the
reported problem.
(b) Within four (4) hours after Zayo receives a trouble report of the type described in
section (a), upon the City’s request, Zayo shall provide adequate assurance that Zayo
is diligently pursuing remedial action. If the Zayo fails to initiate and diligently pursue
repair within six (6) hours after the trouble report, then the City may, but shall not be
obligated to, effect reasonable repair or replacement to restore the Licensed Conduit or
Fiber to the Specifications (“Self Help”). Zayo shall reimburse the City for all
reasonable costs and expenses for Self Help incurred within forty-five (45) days after
receipt of an invoice which shall include backup documentation for all charges. If the
City performs Self Help, the City shall be responsible to perform such Self Help in a
professional and workmanlike manner in accordance with industry standards and if
necessary shall indemnify Zayo in accordance with 12.2.
(c) If the City does not elect to repair the Licensed Conduit or Fiber pursuant to subsection
(b), and Zayo fails to restore the Licensed Conduit or Fiber to the Specifications within
twelve (12) hours after the trouble report, then upon the City’s request, Zayo shall
review its Conduit System and propose alternate Licensed Assets with the same end
points and capacity at least equal to the capacity or fiber count of the failed Licensed
Conduit or Fiber, if available. If such alternative Licensed Asset is not available, the
City may terminate the Licensed Asset pursuant to the terms of this Agreement.
(d) Notice of interruption arising from relocation, condemnations and Force Majeure (as
defined in Section 14) events shall be treated as a trouble report for purposes of this
Section 5 and shall require prompt notice via email to both address of a Party as
indicated below (two (2) required for back-up purposes):
If to Zayo: david.boileau@zayo.com
If to City: eric.compton@tukwilawa.gov
joel.bush@tukwilawa.gov
6. Term. The term of this Agreement, shall begin on the Effective Date, and shall end on the
expiration of the last AEF License Term. Each License Term shall begin upon receipt of Notice of
Asset Availability, and shall end on the last day of the AEF License Term.
7. Representations Regarding Authorizations.
7.1 Licensor represents, warrants and covenants that:
(a) it has obtained, and will use commercially reasonable efforts to maintain all
Authorizations throughout any License Term; and
(b) it has the full right and authority under the Authorizations to enter into this
Agreement and perform its obligations hereunder, and the same will not violate the
Authorizations (with or without the giving of notice or the lapse of time or both)
or require any consent, approval, filing or notice under the Authorizations or under
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any provision of any law, rule or regulation, court order, judgment or decree
applicable to the Licensor; and
(c) it has no knowledge of any defect in the normal operating condition of the Conduit
System that would have an adverse effect on the ability of the other Party to utilize
Licensed Conduit or Fiber to provide telecommunications services to its
customers; and
(d) it will exercise its rights and perform its obligations hereunder only in accordance
with all applicable laws, rules and regulations; and
(e) it will perform all maintenance services in a professional and workmanlike manner
in accordance with industry standards.
7.2 Licensee represents, warrants and covenants that:
(a) Licensee’s use of the Licensed Conduit or Fiber will be limited to the provision of
communication services in accordance with all Federal, State and local laws, rules,
regulations, codes, statutes and subject to all Authorizations; and
(b) Licensee has obtained all rights of way, authorizations and consents necessary to
use the Licensed Conduit or Fiber. Licensee will indemnify, defend and hold
harmless Licensor from any claims related to its use of the Licensed Conduit or
Fiber; and
(c) it has the full right and authority under the Authorizations to enter into this
Agreement and perform its obligations hereunder, and the same will not violate the
Authorizations (with or without the giving of notice or the lapse of time or both)
or require any consent, approval, filing or notice under the Authorizations or under
any provision of any law, rule or regulation, court order, judgment or decree
applicable to the Licensor; and
(f) it will perform all work related to access and use of the Licensed Conduit or Fiber
in a professional and workmanlike manner in accordance with industry standards.
8. Default and Termination.
8.1 Neither Party shall be in default under this Agreement herein unless and until such Party
has received written notice of such default from the other Party, and has failed to cure the
default within thirty (30) days after receipt of such notice, excep t for a payment default
which must be cured within ten (10) days after receipt of such notice. Notwithstanding,
when a default (unrelated to payment) cannot reasonably be cured within such thirty (30)
day period, the time for curing such default shall be extended for a period no longer than
sixty (60) days from the date of the receipt of the default notice if the Party proceeds
promptly to cure the default with due diligence.
8.2 Unless otherwise provided herein, a Party shall be in default if (i) such Party breaches any
term or provision of this Agreement or fails to comply with the provisions of this License;
(ii) such Party becomes insolvent; (iii) a petition under any of the bankruptcy laws is filed
by or against such Party; (iv) such Party makes a general assignment for the benefit of
creditors; or (v) a receiver, whether temporary or permanent, is appointed for the property
of such Party or any part thereof.
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8.3 Upon the failure by the defaulting Party to timely cure any default, the non-defaulting Party
may (i) take such action as it determines, in its sole discretion, to be necessary to correct
the default, and/or (ii) pursue any legal remedies it may have under applicable law or
principles of equity relating to such breach. Notwithstanding the above, if the defaulting
Party certifies to the non-defaulting Party in writing that a default has been cured, such
default shall be deemed to be cured unless the non-defaulting Party notifies the defaulting
Party in writing within fifteen (15) days of receipt of the defaulting Party’s notice of cure.
8.4 In the event of a payment default which has not been cured, Licensor may suspend
Licensee's use of the Licensed Conduit or Fiber, without further notice and by whatever
means Licensor deems appropriate, until the payment default is cured and for as long as
thirty (30) days from the date of notice. If the payment default has not been cured within
such thirty (30) day period, then Licensor may immediately terminate this Agreement and
pursue any legal remedies it may have under applicable law or principles of equity relating
to Licensee’s breach.
8.5 Notwithstanding the foregoing, no termination of this Agreement shall affect the rights or
obligations of any Party hereto with respect to any payment hereunder for services rendered
prior to the date of termination and the non-defaulting Licensee shall not be required to
relinquish its rights in the Licensed Conduit or Fiber as a result of a Licensor’s default and
failure to cure.
8.6 City shall use the Licensed Assets for City’s own use. Under no circumstances shall City
resell, lease, license, provide an IRU, or otherwise provide use of Licensed Assets, to any
third party. A violation of this Section 8.6 shall be grounds for immediate termination of
the Licensed Asset.
9. Taxes.
9.1 Each Party shall pay the taxes that apply to their use of facilities under this agreement. Zayo
shall have the ability to transfer, sell, assign, swap, exchange, lease, sublease, license,
sublicense, resell or grant indefeasible or other rights of use in or to all or any part of the optical
fiber strands it pulls within the Licensed Asset(s) it acquires under this Agreement as “dark
fiber” as such term is commonly understood in the telecommunications industry. Zayo’s resell
rights do not include the right to transfer bear legal title. Zayo is responsible for any actions
that may violate this Agreement by those entities that have been granted access or use of optical
fiber strands by Zayo.
10. Relocation of the Facilities.
If the need arises either through law, permit, or other circumstances to relocate the Conduit System
and/or Licensed Conduits or Fiber, or a portion thereof. Each Party shall be responsible for its
proportionate share (as defined in Section 5.1) of relocation costs. Licensor shall give the Licensee
at least three (3) months’ prior notice, or as soon as practicable, of any relocation or of any
governmental proceedings that might result in a relocation, or such lesser amount of notice as the
Licensor receives from such governmental authority. Relocation costs means the net relocation
costs adjusted for amounts Licensor may receive from any third-party.
11. Condemnation.
11.1 If at any time during the Agreement Term, all or any significant portion of the Conduit
System or the Licensed Conduit or Fiber shall be taken for any public or quasi public
purpose by any authority by the exercise of the right of condemnation or eminent domain,
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such a taking shall be an interruption of use that shall be handled in accordance with Section
5, Repair, Maintenance and Continuity.
11.2 Each Party shall notify the other Party immediately upon learning of any condemnation
proceeding filed against its Conduit System which may impact the other Party’s Licensed
Conduit or Fiber.
12. Indemnification and Exclusion of Certain Damages.
12.1 Zayo shall defend, indemnify and hold the City, its officers, officials, employees and volunteers
harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising
out of or in connection with its performance of this Agreement, except for injuries and damages
caused by the sole negligence of the City.
The City shall defend, indemnify and hold Zayo, its officers, officials, employees and volunteers
harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising
out of or in connection with its performance of this Agreement, except for injuries and damages
caused by the sole negligence of Zayo.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115,
then, in the event of liability for damages arising out of bodily injury to persons or damages to
property caused by or resulting from the concurrent negligence of Zayo, its officers, officials,
employees and volunteers and the City, its officers, officials, employees, and volunteers, Zayo’s
liability hereunder shall be only to the extent of Zayo’s negligence and the City’s liability hereunder
shall be only to the extent of the City’s negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes Zayo's and the City’s waiver of
immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification.
This waiver has been mutually negotiated by the parties. The provisions of this section shall survive
the expiration or termination of this Agreement.
12.2 Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE
UNDER ANY CIRCUMSTANCES TO THE OTHER PARTY FOR SPECIAL, INDIRECT,
PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES,
INCLUDING LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY OR OTHER SIMILAR
DAMAGES RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, BY STATUTE,
IN TORT OR CONTRACT
13. Insurance.
13.1 The parties agree that they shall procure and maintain for so long as that party is in use of the IRU
Conduit or IRU Fiber, as the case may be, insurance against claims for injuries to persons or
damages to property which may arise from or in connection with the exercise of rights, privileges
and authority granted to that party, its agents representatives or employees. The parties shall require
that every contractor and subcontractor maintain substantially the same insurance coverage with
substantially the same limits as required of that party. The parties shall procure insurance from
insurers with a current A.M. Best rating of not less than A-VII. Zayo shall provide a copy of a
certificate of insurance and additional insured endorsement to the City for its inspection at the time
of or prior to acceptance of this Agreement. The parties shall maintain insurance that includes:
(a) Automobile Liability insurance with limits no less than $2,000,000 combined single limit
per occurrence for bodily injury and property damage. Automobile Liability insurance
covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on
Insurance Services Office (ISO) form CA 00 01 or a substitute form that provides
equivalent liability coverage.
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(b) Commercial General Liability insurance, written on an occurrence basis with limits no less
than $3,000,000 per occurrence and $5,000,000 aggregate for personal injury, bodily injury
and property damage. Coverage shall include but not be limited to: blanket contractual;
premises; operations; independent contractors; stop gap liability; personal injury; products
and completed operations; broad form property damage; explosion, collapse and
underground (XCU); and employer’s liability. Commercial General Liability insurance
shall be written on Insurance Services Office (ISO) occurrence form CG 00 01 and shall
cover products liability. The City shall be named as an additional insured under Grantee’s
Commercial General Liability insurance policy using ISO Additional Insured-State or
Political Subdivisions-Permits CG 20 12 or a substitute endorsement providing equivalent
coverage;
(c) Workers’ Compensation coverage as required by the Industrial Insurance laws of the State
of Washington. No deductible is presently required for this insurance; and
(d) Umbrella liability policy with limits not less than $1,000,000 per occurrence and
$5,000,000 in the aggregate.
13.2 Maintenance of insurance shall not be construed to limit the liability of either party to the coverage
provided by such insurance, or otherwise limit a party’s recourse to any remedy available at law or
equity. Further, a party’s maintenance of insurance policies required by this agreement shall not
be construed to excuse unfaithful performance by that party.
13.3 If the Zayo maintains higher insurance limits than the minimums shown above, the City shall be
insured for the full available limits of Commercial General and Excess or Umbrella liability
maintained by the Zayo, irrespective of whether such limits maintained by Zayo are greater than
those required by this contract or whether any certificate of insurance furnished to the City
evidences limits of liability lower than those maintained by Zayo.
13.4 Zayo shall provide the City and all Additional Insureds for this work with written notice of any
policy cancellation within two business days of their receipt of such notice.
13.5 Failure on the part of the Zayo to maintain the insurance as required shall constitute a material
breach of contract, upon which the City may, after giving five business days notice to Zayo to
correct the breach, immediately terminate the contract or, at its discretion, procure or renew such
insurance and pay any and all premiums in connection therewith, with any sums so expended to be
repaid to the City on demand, or at the sole discretion of the City, offset against funds due Zayo
from the Public Entity.
14. Force Majeure.
Neither party shall be liable to the other or deemed in breach or default for any failure or delay in
performance under this Agreement during the time and to the extent its performance is prevented
by reasons of Force Majeure. For the purposes of this Agreement, Force Majeure means an
occurrence that is beyond the reasonable control of and without fault or negligence of the party
claiming force majeure and which, by exercise of due diligence of such party, could not have been
prevented or overcome. Force Majeure shall include natural disasters, including fire, flood,
earthquake, windstorm, avalanche, mudslide, and other similar events; acts of war or civil unrest
when an emergency has been declared by appropriate governmental officials; acts of civil or
military authority; freight embargoes; epidemics; quarantine restrictions; labor strikes; boycotts;
terrorist acts; riots; insurrections; explosions; and nuclear accidents. A party claiming suspension
or termination of its obligations due to force majeure shall give the other party prompt written
notice, but no more than fourteen (14) working days after the event, of the impediment and its effect
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on the ability to perform; failure to provide such notice shall preclude recovery under this
provision. Such delay shall cease as soon as practicable and written notification of same shall be
provided. The time of completion shall be extended by Agreement modification for a period of
time equal to the time that the results or effects of such delay prevented the delayed party from
performing in accordance with this Agreement.
15. Assignment.
City shall use the Licensed Conduit or Fiber for City’s own use. Under no circumstances shall City
resell, lease, license, provide an IRU, or otherwise provide use of Licensed Conduit or Fiber Stands,
to any third party. Notwithstanding, Zayo may assign this Agreement in its entirety without the
City’s consent, to an entity in which such Zayo or its parent company directly or indirectly owns a
majority of the voting interests, or to any person, firm or corporation into or with which it may be
merged or consolidated or that purchases all or substantially all of Zayo’s assets by providing notice
of such assignment to the City.
16. Notice.
16.1 Other than notice for AEF and maintenance, all other notices, t o be effective, must be in
writing and delivered by pre-paid commercial overnight delivery service, or by first class
mail, return receipt requested, addressed as follows:
If to Zayo: Zayo Group, LLC
ATTN: General Counsel
1805 29th Street, Suite 2050
Boulder, CO 80301
If to City: CITY of Tukwila
ATTN: IT Manager
6300 Southcenter Blvd
Tukwila, WA 98168
Either Party may change its notice address(es) by written notice to the other Party.
16.2 Notice shall be effective on the date of the addressee’s receipt or refusal, as the case may
be.
17. Dispute Resolution and Governing Law.
In the event of any claim or dispute under or in connection with this Agreement, the Parties shall
negotiate in good faith to resolve the claim or dispute or, upon the failure to resolve such claim or
dispute through good faith negotiations, this Agreement shall be governed by and construed in
accordance with the laws of the State of Washington without giving effect to the principles of
conflicts of laws. Venue for any dispute arising under this Agreement shall be in Pierce County
Superior Court.
19. Miscellaneous.
This Agreement, including all Exhibits, sets forth the entire agreement of the Parties with respect
to the subject matter hereof and supersedes all prior understandings and agreements on such subject
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matter. No amendment or modification to this Agreement shall be valid unless in writing and signed
by both Parties. The only relationship between the Parties is that of licensor and licensee with
respect to the Licensed Conduit, and otherwise as independent contracting Parties, and specifically,
but without limitation, the Parties are not partners in any undertaking. THIS AGREEMENT
SHALL BE INTERPRETED AND ENFORCED UNDER THE LAWS OF WASHINGTON
WITHOUT REGARD TO CONFLICTS OF LAWS. If any provision of this Agreement is
unenforceable, it shall be deemed stricken from this Agreement and shall have no effect on any
other provision. This Agreement shall be binding upon and inure to the benefit of Parties and their
respective representatives, successors and assigns. Headings are for convenience only and shall
not affect the interpretation of this Agreement. This Agreement shall become effective only upon
execution by both Parties. Both Parties have been represented by counsel and neither Party shall
be deemed to be the drafter of this document for purposes of interpreting an ambiguity against the
drafter. There are no third party beneficiaries of this Agreement. “Days” shall mean calendar days,
unless otherwise specified. Business days shall mean all days other than Saturdays, Sundays and
Federal holidays. No waiver shall be valid unless in writing and signed by the Party against whom
enforcement is sought.
20. Waiver. No delay or omission by either party to exercise any right or power occurring upon non-
compliance or failure of performance by the other party shall impair that right or power or be
construed to be a waiver thereof. A waiver by either party of any of the covenants, conditions or
agreements to be performed by the other party shall not be construed to be a general waiver of any
such covenants, conditions or agreements, but the same shall be and remain at all times in full force
and effect.
21. Severability. In the event any term, covenant or condition of this Agreement, or the application of
such term covenant or condition, shall be held invalid as to any person or circumstance by any court
having jurisdiction, all other terms, covenants and conditions of this Agreement and their
application shall not be affected thereby, but shall remain in force and effect unless a court holds
that the invalid term, covenant or condition is not separable from all other terms covenants and
conditions of Agreement.
IN WITNESS WHEREOF, the Parties have caused this Asset Exchange Agreement to be executed by their
respective duly authorized representatives as of the day and year first above written.
ZAYO GROUP, LLC CITY OF TUKWILA
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
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EXHIBIT A
ASSET EXCHANGE FORM
This Asset Exchange Form shall be processed in accordance with the Asset Exchange Agreement by and
between Zayo and City of Tukwila dated . If a License is granted hereunder, the
license shall be for the term listed below.
ASSET REQUEST (completed by the Licensee):
Requesting Party:
Date:
Contact Person:
Phone: EMAIL:
AEF Term:
AEF Renewal Term:
Conduit Request
Specifications:
A Location:
Z Location:
Number of Conduit:
Size of Conduit:
Access Points:
Fiber Request
Specifications (fiber type,
requirements, etc.):
A Location:
Z Location:
Fiber Count:
Is Fiber within above Conduit?:
Splice Points:
ASSET REQUEST CONFIRMATION (completed by the Licensee):
Date:
Signature:
ASSET USE AUTHORIZATION (LICENSE) (completed by the Licensor):
Party:
Date:
Contact Person:
Phone: EMAIL:
□ License Granted □ License Denied (check one)
If Granted, Approximate Availability Date:
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(Licensor to attach a drawing to this AEF of the License, including access and splice points.)
Licensor Signature:
Printed Name:
Title:
Date:
NOTICE OF ASSET AVAILABILITY (completed by the Licensor):
Date of Asset Availability:
Licensor Signature:
Printed Name:
Title:
Date:
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EXHIBIT B
TO BE AGREED UPON BY THE PARTIES. FORM MAY INCLUDE:
City shall coordinate all activity on a Licensed Asset with Zayo’s Network Control and Management
at___________________.
Zayo shall coordinate all activity on a Licensed Asset with City’s Network Operations Center at 1-800-
___-____.
Originator: Phone #: Date Originated:
Responsible Party: Phone #: Cell/Pager#:
Additional Vendor
Contact Info: Phone:
Maintenance Spans affected:
Job Locations: City: State:
Brief Job Description:
*************ACTIVITY CLASSIFICATION*************
Date requested: Time: Expected Duration of Activity:
***************APPROVALS***************
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80
Tukwila City Council Transportation & Infrastructure Committee – 2020 Work Plan
1 City of Tukwila Updated October 22, 2020
Cynthia Delostrinos Johnson, Chair; Verna Seal, Kate Kruller
Description Qtr Action or
Briefing Status
Transportation
1. 42nd Avenue South Phase III/Gilliam Creek Culvert
Project Closeout 1 A Finishing up punch list items.
2. 53rd Avenue S (S 137th – S 144th St) & Water/Sewer/SSWM
Project Closeout 2 A Working on punch list and physical
completion will follow.
3. Neighborhood Traffic Calming Program/Residential Safety
Various activities/updates As
needed
B On hold due to COVID impacts, 53rd Ave S
traffic revisions completed with PD
enforcement ongoing.
Consultant Agreement for On-Call Engineering 1 A Complete
4. Residential Streets Grant Applications
• 46th Ave S Safe Routes to School
• Macadam Rd. South Complete Street
• S. 152nd St Safe Routes to School
As
needed A S 152nd SRTS grant with Sound Transit
approved by Council 10/19/20
5. TIB Rechannelization
Final Report with alternative options 2 B Briefing complete 4/6
6. Annual Overlay and Repair Program
2019 Project Closeout 1 A Complete
Options for 2020 1 B Complete
Bid Award for 2020 Project 2 A Complete
2021 Design Contract 4 A
Pavement Analysis Report 4 A Complete
7. Annual Bridge Inspections and Repairs
Annual contract A
8. West Valley Hwy (I-405-Strander)
Project Update/Supplemental Agreement 3 A Complete
Bid Award 4 A
9. Boeing Access Road over Airport Way Seismic Retrofit
81
Tukwila City Council Transportation & Infrastructure Committee – 2020 Work Plan
2 City of Tukwila Updated October 22, 2020
Construction Management Amendment #2 2 A Complete
Bid Award 2 A Complete
10. TUC Ped/Bike Bridge
Project Closeout 1 A Complete
11. 42nd Ave S Bridge Replacement
Direction on next steps 1 A Complete (proceed with inspection/initial
design)
Temporary Closure Update 2 B Complete
Inspection Report 3 B Complete
Design Contract 3 A On hold with Full Council
13. Transportation Element of the Comp Plan/Walk & Roll
Consultant Agreement 3 A
14. BNSF Access
Preferred alternative 1 B
15. S. 196th-S. 200th St Bridge Repair Project
Completion 1 A Complete
Interlocal Agreement with City of Kent for shared ownership 2 A Complete
16. OTHER
Grant Applications and Acceptances 1-4 A Ongoing
Transportation Demand Management Programs Updates & Grants 1-4 A,B Ongoing
Transportation Improvement Program Resolution 2 A Complete
Surplus Equipment Resolution - Fleet 2 A Complete
Legislation: Concurrency Management Update 3 A Complete
Traffic Impact Fees Update (Bi-annual) 4 A Concurrency completed
2021-2022 Budget Components: Residential Street, Arterial Street,
Public Works Dept., Fleet, Debt Service Funds, PW Shops Fund,
Street Dept.
Budget components through full Council
Work Sessions this year.
82
Tukwila City Council Transportation & Infrastructure Committee – 2020 Work Plan
3 City of Tukwila Updated October 22, 2020
Utilities
1. 58th Avenue South Water Main Replacement
Bid Award A TBD
2. Macadam Rd S Water Upgrade
Bid Award A TBD – grant dependent
3. CBD Sanitary Sewer Rehabilitation
Design 2020 A Complete
2020 Bid Award 3 A Complete
2020 Strander Repair 3 A Complete
4. Water & Sewer Comprehensive Plans
5. Fort Dent Park BNSF Sewer Relocation
Bid Award A TBD
Project Closeout A TBD
6. GIS Inventory of Water/Sewer/SWM System
Consultant Agreement 2 A TBD
7. Annual Small Drainage Program
Closeout 2018 2 A Complete
Closeout 2019 3 A Complete
2020 Project List Review/ Design Contract 1 A Complete
Bid Award 2020 2 A
8. Tukwila 205 Levee Certification
Status Update 2 B
9. Stormwater Quality Retrofit Project Updates and grants
Grant Application 3 A
10. East Marginal Wy S Stormwater Outfalls
Bid Award 4 A Complete
11. Chinook Wind
Consultant Agreement 3 A
12. Gilliam Creek Fish Barrier Removal
Grant Application 2-3 A Complete
13. Riverton Creek Flapgate Removal
Bid Award 2 A Complete
83
Tukwila City Council Transportation & Infrastructure Committee – 2020 Work Plan
4 City of Tukwila Updated October 22, 2020
14. Nelson Side Channel
Grant Application 1 A Complete
15. S. 131st Place Drainage Improvements
Consultant Agreement 2 A
Grant application to FCD 3 A Complete
16. Other
Resolution for Water, Sewer, Surface Water Utility Rates 2021-2022 At Council for 2021 Budget
2021-2022 Enterprise Fund Budget Components 4 A Completed at Budget
Workshop
Metropolitan Water Pollution Abatement Advisory Committee
contract Public comment from
11/25/19 Council meeting
Flood prevention and utility infrastructure; Legislation to update
Flood Plain Management
1, 3
A Complete
Franchise utility agreements and approvals (SCL, Century Link,
Comcast, Cascade Water, Sewer district) As needed
Sewer services in Duwamish neighborhood 1 B Hand out/discussion on 2/3
Tukwila Community Center Phase 3 – Siding repairs 3 A Complete
15. Standard Reports/Briefings Frequency Dept.
Facility Tours As needed PW
SCATBD
Monthly CM
Hougardy/Laur
el
Now reported at full Council
Committee Work Plan 2-4X Council, Staff
Waste Management Update Annual PW Complete 8/17/20
NPDES Annual PW
Public Works Facilities
16. Monthly Update
1-4 B Ongoing
17. SCL Temporary Construction Permit 1 A Complete
18. Consultant Agreement – Geotechnical Engineering Soil Exploration 1 A Complete
19. Minkler Interim Improvements 4 B Complete
84