HomeMy WebLinkAboutTIS 2021-01-25 COMPLETE AGENDA PACKET
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AGENDA
MONDAY, JANUARY 25, 2021 – 5:30 PM
Virtual Meeting - Members of the public may listen by dialing 1-253-292-9750 and entering conference ID 299274146#
Click here to join the meeting
6300 BUILDING, SUITE 100)
Next Scheduled Meeting: Monday, February 8, 2021
City of Tukwila
Transportation and
Infrastructure Services
Committee
❖ Verna Seal, Chair
❖ De’Sean Quinn
❖ Thomas McLeod
Distribution:
V. Seal
D. Quinn
T. McLeod
K. Kruller
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) Water Fund - Macadam Rd S Water Upgrade
Design Selection and Agreement (Adib Altallal)
a) Forward to 02/01/21 Regular
Consent Agenda
Pg. 1
b) Water Fund – Water Reservoir & Pump Station
Land Purchase Update (Adib Altallal)
b) Information only Pg. 9
c) 42nd Ave South Bridge Replacement
Draft Communication Plan Update (Adam Cox) c) Discussion only Pg. 27
d) Surface Water - S 131st Pl Drainage Improvements
Acceptance of KCFCD Grant (Ryan Larson)
d) Forward to 02/01/21 Regular
Consent Agenda
Pg. 35
e) King County Metro TDM Agreement (Alison Turner) e) Forward to 02/01/21 Regular
Consent Agenda
Pg. 43
f) Extenet Systems, Inc. Asset Sharing Agreement
(Eric Compton)
f) Forward to 02/01/21 Regular
Consent Agenda
Pg. 83
3. MISCELLANEOUS
Future Agendas:
• Vactor Unit Replacement
• 2021-22 KC Waste Reduction
Recycling Grant
https://tukwilawa.sharepoint.com/sites/publicworks/engineering/PW Drop Box/01 TIC Agenda/2021 Agenda Items/01-25-21 TIC/Water - Macadam PE/Info Memo PACE Macadam Water
2020.docx
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Hari Ponnekanti, Interim Public Works Director
BY: Adib Altallal, Utilities Engineer
CC: Mayor Allan Ekberg
DATE: January 22, 2021
SUBJECT: Water Fund - Macadam Rd S Water Upgrade
Project No. 90440105
Design Consultant Selection and Agreement
ISSUE
Approve design contract with PACE Engineers Inc. (PACE) for the Macadam Rd S Water
Upgrade.
BACKGROUND
In 2015, the City contracted with PACE as the design consultant for the Macadam Rd S Water
Upgrade Project along with the Andover Park E Water & Sewer Improvements under Contract
No. 15-116. In 2017, the design was put on hold due to construction cost estimates being
higher than proposed in the 2019-2024 Capital Improvement Program.
DISCUSSION
The Macadam Road South Water Upgrade project has been repeatedly prioritized as a critical
capital project by the Water Department. Funding was increased in the 2021-2026 Capital
Improvement Program to complete the design. Due to their local knowledge and sufficient
effort on the first iteration of the Macadam Rd S Water Upgrade, PACE Engineers were
selected once again to bring their existing design to completion.
FINANCIAL IMPACT
PACE has provided a cost not to exceed $77,339.16 to complete the design for the Macadam Rd S
Water Upgrade. The project costs are within budget.
Contract 2021 Design Budget
PACE Design Contract $77,339.16 $200,000.00
RECOMMENDATION
Council is being asked to authorize the Mayor to execute a consultant agreement for design
services with PACE Engineers in the amount of $77,339.16 for the Macadam Rd S Water
Upgrade Project and consider this item on the Consent Agenda at the February 1, 2021
Regular Meeting.
Attachments: 2021 CIP, page 61
PACE Consultant Agreement and Scope of Work
1
2021 - 2026 Capital Improvement Program 2
3
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Printed: 11/5/2020, 3:22 PM 8
https://tukwilawa.sharepoint.com/sites/publicworks/engineering/PW Drop Box/01 TIC Agenda/2021 Agenda Items/01 -25-21 TIC/1. Water Reservoir and Pump Station/Info Memo Reservoir Site Land Purchase.docx
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Services Committee
FROM: Hari Ponnekanti, Interim Public Works Director
BY: Adib Altallal, Utilities Engineer
CC: Mayor Allan Ekberg
DATE: January 22, 2021
SUBJECT: Water Fund – Water Reservoir and Pump Station
Project No. 91240102
Land Purchase Update
ISSUE
Authorize Public Works to begin negotiations with owners to purchase property for a future water reservoir.
BACKGROUND
During the City of Tukwila’s 2015 Water Comprehensive Plan, the consultant identified that the continued growth within the
City no longer meets the Department of Health’s water storage requirements. As a result, the Water Reservoir and Pump
Station was included in the Capital Improvement Program. During this year’s Water Comprehensive Plan update, the City’s
water storage deficiencies were highlighted again. A water reservoir is needed to meet the Department of Health’s water
storage requirements. Further development throughout the City and especially in the Ryan Hill area are likely to be hindered
or completely halted due to these water storage deficiencies.
ANALYSIS
By constructing a reservoir in the Ryan Hill area, the City would meet the Department of Health’s water storage requirements.
By placing the reservoir in the Ryan Hill area, the City would be using the natural topography to increase the use of gravity
and reduce pumping costs. Furthermore, placing a tank in the northern half of the City will complement the existing reservoir in
the southern half. Connecting the Ryan Hill water zone to the rest of the water system will also expand fire protection for
residential and commercial properties as well as create a redundant water supply that can be utilized in the event of a natural
disaster. To construct a water reservoir and a pump house, a property consisting of one to two flat acres is needed. For design
and subsequent construction of the reservoir to commence, land must be purchased first. The City will work diligently to
acquire property through negotiating a purchase with property owners with the goal to avoid the use of eminent domain. Time
is of the essence to begin negotiations. Once land is acquired, the project will be completed in phases over multiple years.
FISCAL IMPACT
The adopted 2021 Capital Improvement Program identified an estimated project budget of $10 million for the Water Reservoir
and Pump Station, a portion of which was dedicated to land acquisition. As land costs escalate in the region, we have the
potential to find a larger property and sell a portion of the property after the reservoir has been built, for a net match of the
budgeted amount dedicated to the land purchase.
Land Purchase 2021 CIP Budget
Water Reservoir Site $2,000,000.00
Future Sale of portion of site ($1,500,000.00)
Total $ 500,000.00 $500,000.00
RECOMMENDATION
Information only. Public Works to begin land purchase negotiations as part of the Water Reservoir and Pump Station Project
in an amount up to $2,000,000.00.
Attachments: 2021 CIP Page 60
PowerPoint Slides
9
Tukwila Water System Storage Needs
A brief history and a future outlook of Tukwila’s water system storage facilities
10
Overview
•Service area boundaries
•North Hill Reservoir/Pumpstation
Tukwila Water Dept. Distribution System
•Cascade Water Alliance/SPU
•Previous comprehensive plans storage requirements
Tukwila Water Dept. Historical Data
•Current storage deficit
Current Comprehensive Plan
•Resiliency
•Future development
•Changing demographics
Planning For The Future
11
City of Tukwila Distribution System
12
Pressure Zones
➢320 pressure zone~ Northern portion of East Marginal Way (Mainly serves Boeing properties)
➢340 pressure zone~ Lower Ryan Hill/MLK Jr. Way (Fed by 465 pressure zone)
➢360 pressure zone~ CBD, Valley floor (Largest zone by area and connections)
➢380 pressure zone~ Crystal Springs (Smallest zone, isolated from main distribution system)
➢400 pressure zone~ North Hill (Most residential connections, fed by North Hill Reservoir, can
be fed by 360 zone)
➢465 pressure zone~ Upper Ryan Hill (Isolated from main distribution system)
13
Cascade Water Alliance/SPU
Tukwila Water
Department is a member
of Cascade Water Alliance.
Cascade is a group of eight
water municipalities
formed to provide water
supply for the current and
future demands of the
members.
Tukwila receives 100% of
their water through
supply stations connected
to Seattle Public Utilities.
Tukwila has no means of
water production.
14
North Hill Reservoir & Pump Station
➢Built in 1991 to provide storage, increase pressure, and improve fire flow
➢Built in phases
I.Property was identified and purchased
II.Construction of transmission main from Southcenter Blvd up the trail(Old Denny’s, Macau
casino) to 57th Ave S.
III.Construction of Transmission main along Tukwila Parkway from Andover Park East to
Bahama Breeze curve(old movie theatre) and then bored under neath I-405 to
Southcenter Blvd.
IV.Tank/pump station was under construction concurrent to the construction of the
transmission mains.
15
North Hill Reservoir/Pump Station Specs
2015 Water Plan Storage Requirements
16
2021 Water Plan Storage Deficits
17
18
Properties
Assessed
Criteria:
➢Cost
➢Minimum Area
➢Access/Feasibility
➢Proximity to existing
distribution system
19
Planning for the Future
➢Resiliency
❖Emergency water storage
❖Located in Northern portion of the water system.
➢Development
❖Allows safe residential and commercial development
➢Changing demographics
❖Increase in multifamily residences
❖Increase in commercial/retail space
20
THANK
YOU!
21
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https://tukwilawa.sharepoint.com/sites/publicworks/engineering/PW Drop Box/01 TIC Agenda/2021 Agenda Items/01-25-21 TIC/42nd Ave S Bridge Replacement Project
Update/InfoMemo_42nd Ave S Bridge Replacement Project Update_2021-01-22.docx
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Services Committee
FROM: Hari Ponnekanti, Interim Public Works Director
BY: Adam Cox, Transportation Project Manager
CC: Mayor Allan Ekberg
DATE: January 22, 2021
SUBJECT: 42nd Ave South Bridge Replacement
Project No. 91810404
Project Update
ISSUE
Provide an update on the status of the 42nd Ave South Bridge Replacement Project.
BACKGROUND
At the September 21, 2020 TIC meeting, the cost and scope of work were presented for 30% and
100% design of the 42nd Ave S Bridge Replacement Project. At the November 2, 2020 Regular
Council meeting, Council approved proceeding with the 30% design.
ANALYSIS
The design process continues to move forward in an expressed timeline:
1. Notice to Proceed was issued to TranTech Engineering (TranTech) on November 17, 2020.
2. The project kick-off meeting was held on December 2, 2020 with City Staff, TranTech, and
all the subconsultants.
3. Surveying crews have collected location information
4. Soil samples were obtained and TranTech is using that information to further progress the
design and the Type, Size, and Location (TS&L) report.
5. City staff has attended community engagement strategy meetings with TranTech and their
subconsultant Enviroissues, Inc (Enviroissues) to discuss the public outreach plans for the
Allentown neighborhood and the major stakeholders that would be affected by the project.
6. Please see the attached draft Community Engagement Plan for your reference. The
intention is to conduct multiple virtual workshops and surveys to engage the community and
allow them to provide input for the project. Staff anticipates that outreach to Tukwila
residents will begin in February, 2020.
7. City staff is working with the design consultant, TranTech, to complete the application for
the 2021 Federal Local Bridge program through the Washington State Department of
Transportation (WSDOT) Local Bridge Program (formally known as BRAC). Electronic
application submittals are due on Friday, February 19, 2021.
8. The Local Program Bridge Engineer is tentatively scheduled to visit the project site in June
2021 and the finals results of the grant will be announced in October 2021.
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42nd Ave South Bridge Community Engagement
January 22, 2021
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https://tukwilawa.sharepoint.com/sites/publicworks/engineering/PW Drop Box/01 TIC Agenda/2021 Agenda Items/01-25-21 TIC/42nd Ave S Bridge Replacement Project
Update/InfoMemo_42nd Ave S Bridge Replacement Project Update_2021-01-22.docx
NEXT STEPS
1. City staff will continue to work with TranTech and Enviroissues on the community
engagement, 30% design, and the TS&L.
2. The City continues to research funding opportunities beyond the Local Bridge Program
grant and is exploring other possible funding partners and ot her funding sources to
accelerate the replacement of the 42nd Ave South Bridge.
3. The City will continue to meet with representatives from the Washington State Freight
Mobility Strategic Investment Board (FMSIB) and have maintained contacts at BNSF, both
of whom have expressed eagerness to assist the City with transportation and freight
movement grants.
4. In addition, the Mayor and City Administrator, with assistance from David Foster, the City’s
state government lobbyist, will continue to meet with each of the members of the 11th
District delegation, as well as other members in transportation leadership in both the State’s
House and Senate.
5. City staff will engage in conversations with State and Federal grant funders.
DISCUSSION ONLY.
Attachment: Community Engagement Plan Draft
28
Page 1 of 6
Community Engagement Plan Draft: 01/15/21
Not for distribution
Overview
This plan outlines the City of Tukwila and project team’s commitment to engage and communicate with
the community about the 42nd Avenue S Bridge Replacement Project from project initiation through
selection of the preferred solution. This plan includes a background on the project, our community
engagement goals, engagement tools to reach key stakeholders, equitable engagement strategies, key
messages, and evaluation metrics.
This plan is a living document and will be updated as needed based on strategy development, technical
needs, and information and feedback from stakeholders. Stakeholder interviews during Phase 1 may
influence outreach methods and additional key stakeholders. Outreach from final design through pre-
construction and construction will be included in a separate community engagement plan and contract.
Background
The 42nd Avenue South Bridge is coming to the end of its serviceable life and will need to be replaced in
the near future. The existing streel truss requires constant and costly maintenance. The cost to repair the
bridge would exceed the cost of replacing the bridge and would not provide an improved level of service.
Improving the level of service is important for this route that serves more than 10,000 vehicles per day
with 30% of vehicle traffic related to trucking. The bridge is the only viable route for container trucks
entering and leaving the Tukwila BNSF Intermodal Facility and Baker Commodities. It is currently load
posted restricting the free movement of freight. The bridge serves pedestrians and cyclists as its southern
end connects to the Green River Trail. It also provides a critical connection to the Tukwila Community
Center and the Allentown neighborhood. The 42nd Avenue South Bridge is a major east-west corridor for
the region as it one of the few routes to cross the Duwamish River.
Potential challenges to the public to consider:
• There are diverse stakeholders potentially impacted by this project, including bridge users taking
a variety of modes of travel, neighbors, businesses, BNSF, and other agencies.
• The nearly 1,000 neighbors that live in the Allentown neighborhood will be impacted.
• People walking, using a wheelchair, pushing a stroller and biking will be impacted by detours
during construction. We will need to understand their needs and how they use the bridge and
potentially look for alternative options.
• Those living and working along the future detour route will experience increased traffic and delays
and need to be made aware of the impacts and detour options. Identify ways to minimize truck
traffic through the residential neighborhood.
• Establishing appropriate routes for emergency responders will be key for general public safety
and maintaining peace of mind for those living nearby.
• Those attending events at the Tukwila Community Center will be best served by understanding
detour routes ahead of events. Coordinating with groups and communicating the detour routes
through the Community Center will be important.
• Detour access to important businesses like BNSF and Baker Commodities has to be
communicated well in advance.
Community engagement goals
The overall project goal is to design safe transportation infrastructure for the City and the community it
serves. To support that overall goal, we’ve identified goals for community engagement:
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DRAFT 42nd Avenue South Bridge Replacement: Community Engagement Plan
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• Deliver an engagement process that is inclusive and contributes to an improved corridor design
reflective of the community’s needs.
• Engage vulnerable and marginalized populations in the project area to advance equitable
engagement and reduce barriers to providing feedback.
• Acknowledge the inconvenience and difficulty of project impacts, listen to community concerns
and needs, provide information about potential mitigation measures, and provide feedback to the
project team about what we are hearing from the community to inform better decisions.
• Commit to share accurate and realistic information about project needs and limitations.
• Generate community understanding of the need for the bridge replacement.
• Build community support for detour and construction approach and buy-in on design elements,
communicating how community input was or wasn’t used.
• Gather input from the public and stakeholders to support bridge aesthetic design and
construction options within budget, technical and timeline constraints.
• Engage with BNSF, Baker Commodities, and other businesses that rely on the bridge and
associated infrastructure to ensure concerns are addressed.
Key stakeholders
The Outreach Consultant team, EnviroIssues, will use a variety of strategies and tools to engage and
inform the community. Community engagement will focus on building relationships with key stakeholders
and the community, allowing them to share their needs and interests, learn about the project’s value and
impacts, and provide feedback on technical options, tradeoffs, the preferred solution, and potential
construction impacts.
Below is a list of stakeholder groups that we will focus on building relationships with. A more detailed list
of project area stakeholders is in Appendix A of this document.
• Allentown residents, other neighbors
• BNSF
• Baker Commodities
• Tukwila Community Center
• Major employers
• Community-based organizations that serve historically underrepresented communities and/or
communities that speak a language other than English
• Commuting/traveling public, including people walking and biking
• Utility providers, schools and other area agencies
• King County Sherriff’s office
The Outreach Consultant team will lead coordination with the following key stakeholders, with support
from technical consultants as needed:
• City leadership, departments, and staff/subject-matter experts
• Area Tribes, including the Duwamish People, Muckleshoot Indian Tribe, others
• Partner/area agencies, including King County, WSDOT
• Emergency service providers, including Tukwila Fire and Police Departments
• Local utility providers (PSE, King County)
• Impacted parcels as it relates to right-of-way discussions
Community characteristics
Demographic analysis
EnviroIssues examined demographic data for the project area which included a one-mile radius from the
Tukwila Community Center. See map below. In this examined area:
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DRAFT 42nd Avenue South Bridge Replacement: Community Engagement Plan
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• There are just over 20,000 people living in Tukwila, 8,285 live in the project area and nearly 1,000
living in the Allentown neighborhood.
• The project area is home to a population that breaks down to 32% White, 27% Asian, 20% Black,
8% Other races, 8% Two or more races, 1% Native American,12% Latino
• Languages most spoken (over 5%) include, Spanish and Vietnamese
• The City has identified Spanish, Somali and Vietnamese as standard languages requiring
translation.
Strategies
• The demographic analysis suggests translating project materials to help engage more people in a
more equitable way. Spanish and Vietnamese-speaking audiences exist in higher relative
numbers within our project area and are also key priority languages for the City of Tukwila. Based
on demographic data and City guidelines, Spanish, Somali, and Vietnamese are key priority
languages for translation. Therefore, project fact sheets and other key pieces of outreach content
will be translated into these three languages.
• The City of Tukwila also translates some materials into Amharic, Burmese, and Nepali. These
languages and other languages should be considered when translating content.
• The community engagement team will coordinate translation and interpretation services.
• Social media will be coordinated with the City’s communications team.
Community engagement approaches and tools
Phase 1: Early engagement and coordination (at project initiation) January – February 2021
Build relationships with key stakeholders, share initial information about the project need and timeline,
and gather feedback on local avenues for project communications, community needs and concerns, and
how they would like to stay informed throughout the project. During this period, the following activities
utilizing associated tools will take place:
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DRAFT 42nd Avenue South Bridge Replacement: Community Engagement Plan
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Activity Audience Tool(s)
Stakeholder interviews with
key community organizations
and groups to provide an early
overview of the project and
further understand stakeholder
interests, concerns and
priorities.
• Allentown residents
• Tukwila Community Center
• BNSF
• Baker Commodities
• Major employers
• Community-based
organizations
• Preliminary fact sheet
• Webpage
Outreach summary of the
conversations with stakeholders
and their feedback.
• City staff
• Tukwila City Council
• Outreach summary report
Phase 2: Technical options and tradeoffs (with draft TS&L/pre 30% design) May – June 2021
Conduct broad public engagement to gather feedback on a construction concept(s) for design aesthetics
and construction approach within project constraints (i.e., budget, timeline, etc.). Initial surveying and
analyses will determine feasible options; we will only ask for public input on options that are feasible
within project constraints and the City will consider public feedback to the extent possible within the
project constraints. We will also focus on driving interested members of the public to sign up for an email
list to stay informed as the project progresses.
During this period, the following activities utilizing associated tools will take place:
Activity Audience Tool(s)
Stakeholder briefing
presentations with community
organizations and groups we
built relationships in Phase 1 to
share technical options and
tradeoffs and gather feedback.
• Allentown residents
• Tukwila Community Center
• BNSF
• Baker Commodities
• Major employers
• Community-based
organizations
• Full fact sheet/FAQ
• Presentation
• Webpage
Broad public notification to
invite the public to participate in
virtual community engagement
events* and build general
awareness about the project.
• Commuters, including
people walking and biking
• Green River Trail users
• Nearby neighbors
• Postcard
• Display ads
• Email updates
• Yard/roadway sign to notify
for online engagement
• Social media
Virtual public event and online
engagement to present
information about project need
and technical options and gather
feedback from the public to
influence the preferred solution.
• Commuters, including
people walking and biking
• Nearby neighbors
• Green River Trail users
• Participate.online site
• Presentation
Outreach summary of the
conversations with stakeholders
and the general public, outlining
their feedback
• City staff
• Tukwila City Councils
• Outreach summary report
*public events will be planned over virtual mediums due to COVID-19. In-person community engagement
will be dependent on COVID-19 safety measures.
Evaluation metrics
The following metrics will be a starting point to evaluate effectiveness of the community engagement
process over time:
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Quantitative
• Participation by the numbers (in-person and online)
• Number of key stakeholders engaged and their reach (e.g., email list serves, daily visitors)
• Time spent on online engagement opportunities (i.e., Google analytics)
• Representative engagement assessed through:
o Number of translated materials distributed and/or requested
• Notification efficacy assessed through participants sharing how they heard about public events
and online opportunities
Qualitative
• Satisfaction of engagement assessed through discussions with stakeholders at stakeholder
interviews, briefings, and public events
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Appendix A: Key stakeholders
Audiences to Consider Examples
Adjacent property owners and
tenants, including businesses and
residents
• BNSF, Baker Commodities, Gateway Corporate
Center, King County Metro South Base, Sabey
Data Centers
• Allentown Residents
Typical users of project area Pedestrians, cyclists, freight, drivers, commuters
Community groups and
neighborhood organizations
Duwamish Valley Youth Corps, Duwamish Alive,
Duwamish River Cleanup Coalition, Green Tukwila
Partnership, Bhutanese Community Resource Center
Cultural and religious organizations Abubakr Islamic Center of WA, Mien Evangelical, St.
Thomas, United Church of Christ, Bhutanese Nepali
Christian Community Church, India Pentecostal Church of
Seattle, Riverton Park United Methodist, Hmong Seattle
Alliance Church, Djibouti Community of America, Tukwila
Fellowship
Chambers of commerce and local
business organizations
Seattle Southside Chamber of Commerce
City of Tukwila Departments Parks and Recreation
Other agencies King County Executive Office, King County Council, King
County Metro Transit, Duwamish Tribe, Muckleshoot
Tribe, King County Water District 125
Public facilities Tukwila Community Center
Schools and childcare facilities Foster High, Cascade View Elementary, Tukwila School
District 406, Teri’s Daycare, AbuBakr Academy
Hospitals HealthPoint Tukwila, Cascade Behavioral Health Hospital
Social service organizations and
facilities (including those serving
people with disabilities)
Tukwila Pantry, Tukwila Children’s Foundation, They
Journey Project, American Legion Post 235
Bicycle and pedestrian advocacy
groups
Wabi Burien, West Seattle Bike Connections, Cascade
City of Tukwila Advisory Boards Bicycle, Pedestrian, Freight, Transit
Railroads BNSF
Freight Baker Commodities, YRC Freight, Western Cascade
Truck
Media Outlets Tukwila Blog, SeaTac Blog, B-town Blog, Tukwila
Reporter, Kent Reporter, Seattle Times, The Urbanist
Populations that may need targeted
outreach to due to cultural barriers,
language differences, etc.
Immigrant communities (ex. Hmong, Bhutanese, Indian,
Mien)
34
https://tukwilawa.sharepoint.com/sites/publicworks/engineering/PW Drop Box/01 TIC Agenda/2021 Agenda Items/01-25-21 TIC/S. 131st Grant Acceptance/Info Memo S 131st Pl Drainage
Improvment Grant Acceptance.docx
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Services Committee
FROM: Hari Ponnekanti, Interim Public Works Director
BY: Ryan Larson, Senior Program Manager
CC: Mayor Ekberg
DATE: January 22, 2021
SUBJECT: Surface Water Fund - S 131st Pl Drainage Improvements
Project No. 91641204
Acceptance of King County Flood Control District Grant
ISSUE
City acceptance of a King County Flood Control District (District) grant for Surface Water’s South 131st
Place Drainage Improvements Project.
BACKGROUND
In May 2020, Council authorized staff to submit a grant application to the District for the S 131st Place
Drainage Improvement Project. A grant application for project funding was submitted in the amount of
$300,000. The District received more grant requests then available funding and the City was awarded a
grant of $60,000.
According to City policy, staff must obtain approval from the full Council before accepting grants.
DISCUSSION
Staff worked with the District to revise the grant scope of work so tha t the grant funding is now entirely
for the design phase of the project. This will allow the City to apply for future District grant opportunities
for the construction phase.
FISCAL IMPACT
The S 131st Pl Drainage Improvement Project has $250,000 available in surface water funding for design.
The District grant funds will provide additional design funding for the project. Matching funds are
encouraged, but not required.
RECOMMENDATION
Council is being asked to formally accept the King County Flood Control District grant in the amount of
$60,000 for the S 131st Drainage Improvement Project and consider this item on the Consent Agenda at
the February 1, 2021 Regular Meeting.
Attachments: 2021 CIP Page 89
Grant Agreement
35
36
Project Name: South 131st Place Drainage Improvements Award Number: 4.20.22
{ADT2306701.DOCX;1/13175.000001/ } Page 1 of 6
AGREEMENT FOR AWARD OF
FLOOD REDUCTION GRANT FUNDS
BETWEEN THE CITY OF TUKWILA AND KING COUNTY
This Agreement (“Agreement”) is made between King County, a municipal corporation,
and the City of Tukwila (“Recipient”) (collectively referred to as the “parties” and in the
singular “party”), for the purposes set forth herein. This Agreement shall be in effect from the
date of execution to December 31, 2022.
Project Contacts:
Contact for King County – Kim Harper, Grant Administrator, 206-477-6079,
Kim.harper@kingcounty.gov.
Contact for Recipient – Ryan Larson, 206-431-2456, Ryan.larson@tukwilawa.gov.
SECTION 1. RECITALS
1.1 Whereas, the King County Flood Control District (“District”) is a quasi-municipal
corporation of the State of Washington, authorized to provide funding for flood control
and stormwater protection projects and activities; and
1.2 Whereas King County is the service provider to the District under the terms of an
interlocal agreement ("ILA") by and between King County and the District, dated
February 17, 2009, as amended, and as service provider implements the District's annual
work program and budget; and
1.3 Whereas, on November 12, 2013, the District’s Board of Supervisors passed Resolution
FCD2013-14 which established a Flood Reduction Grant Program and criteria for
awarding grant funding for projects, and on November 6, 2019, the Board passed
Resolution FCD2019-13, which authorized an allocation of $3,280,201 from the
District’s 2020 budget to fund flood reduction projects; and
1.4 Whereas, on September 9, 2020 the District’s Board of Supervisors passed Resolution
FCD2020-19, which approved the flood reduction projects described in Attachment A to
that Resolution; and
1.5 Whereas, in accordance with the terms of these Resolutions, and in its capacity as
service provider to the District, King County has established policies and procedures for
administering the flood reduction grant program, a copy of which has been furnished to
Recipient and which is incorporated herein by this reference (hereinafter “Grant Policies
and Procedures”); and
1.6 Whereas, the Recipient submitted an application to receive funds for a project to be
funded by the Flood Reduction Grant Program; and
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Project Name: South 131st Place Drainage Improvements Award Number: 4.20.22
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1.7 Whereas, the District’s Board of Supervisors approved funding of Recipient’s application
for the project (“Project”), as described in Attachment A to Resolution FCD2020-19 in
the amount of $60,000 (“Award”); and
1.8 Whereas, King County has received a Scope of Work and a Budget for the Project from
the Recipient and has determined that the Scope of Work, attached hereto and
incorporated herein as Exhibit B (“Scope of Work”), and the Budget, attached hereto and
incorporated herein as Exhibit C (“Budget”), are consistent with the Grant Policies and
Procedures, the Recipient’s application for the Project, and Resolution FCD2020-19; and
1.9 Whereas, King County and the Recipient desire to enter into this Agreement for the
purpose of establishing the terms and conditions under which King County will provide
funding from the District in accordance with Resolution FCD2020-19 and the Grant
Policies and Procedures, under which the Recipient will implement the Project.
SECTION 2. AGREEMENT
2.1. The Recitals are an integral part of this Agreement and are incorporated herein by this
reference.
2.2. King County agrees to pay the Award amount to Recipient in the total amount of $60,000
from District funds. The Award shall be used by the Recipient solely for the performance
of the Project, as described in Exhibit A to this Agreement. Exhibit A, attached hereto
and incorporated herein by this reference, contains a description of the Project as
described in Attachment A to Resolution FCD2020-19. King County shall pay the
Recipient in accordance with the terms of the Grant Policies and Procedures.
2.3. The Recipient represents and warrants that it will only use the Award for the Scope of
Work of this Agreement and in accordance with the Project Budget. The Recipient shall
be required to refund to King County that portion of the Award which is used for work or
tasks not included in the Scope of Work. Further, the Recipient agrees that King County
may retain any portion of the Award that is not expended or remains after completion of
the Scope of Work and issuance of the Final Report, as further described in Section 2.6
below.
2.4. Activities carried out for this Project and expenses incurred by the Recipient may predate
the execution date of this Agreement provided that 1) they have been identified by
Recipient as being within the scopes of numbers 2) and 3) below, and have been
approved by King County as being within such scopes; 2) the activities are specified in
the Scope of Work of this Agreement; 3) the expenses are incurred in carrying out the
Scope of Work and are authorized by the Award as identified in the Budget of this
Agreement; 4) the activities occur after the District passes a resolution approving an
award for the Project; 5) such activities and expenses otherwise comply with all
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Project Name: South 131st Place Drainage Improvements Award Number: 4.20.22
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other terms of this Agreement; and 6) reimbursements shall be paid to the Recipient only
after this Agreement has been fully executed.
2.5. The Recipient shall invoice King County for incurred expenses using the Request for
Payment form and Progress Report form for those documented and allowable expenses
identified in the Budget and according to the rules set forth in the Grant Policies and
Procedures. Blank forms shall be provided to the Recipient by King County upon
execution of this Agreement. A progress report (with or without a request for payment)
shall be made no less frequently than every six months after the effective date of this
Agreement nor more frequently than every three months after the aforementioned date. A
Progress Report form shall be submitted with all payment requests. A one- time advance
of no more than 25% of the Award amount may be allowed, in the discretion of King
County, for expenses anticipated to be incurred in the three months following the date of
submission of the advance Request for Payment only for work that is included in the
Scope of Work of this Agreement and identified as such in the advance Request for
Payment. Documentation of payments made from the advance payment shall be
submitted to King County prior to any further requests for payment.
2.6. The Recipient shall be required to submit to King County a Final Report which
documents the Recipient’s completion of the work described in Scope of Work in
conformance with the terms of this Agreement within thirty (30) days after the
completion of the work. The Final Report may be submitted on the Closeout Report form
unless a more detailed Final Report is specified in the Scope of Work. A blank form shall
be provided to the Recipient by King County upon execution of this Agreement. The
Final Report shall include a summary of the Project’s successes and shall address the
flood reduction benefits accomplished by the work.
2.7. The Recipient's expenditures of Award funds shall be separately identified in the
Recipient's accounting records. If requested, the Recipient shall comply with other
reasonable requests made by King County with respect to the manner in which Project
expenditures are tracked and accounted for in the Recipient's accounting books and
records. The Recipient shall maintain such records of expenditures as may be necessary
to conform to generally accepted accounting principles as further described in Section 2.8
below, and to meet the requirements of all applicable state and federal laws.
2.8. The Recipient shall be required to track Project expenses using the Budget Accounting
and Reporting System for the State of Washington ("BARS") or Generally Accepted
Accounting Principles set forth by the Financial Accounting Standards Board or by the
Governmental Accounting Standards Board.
2.9. King County or its representative, and the District or its representative, shall have the
right from time to time, at reasonable intervals, to audit the Recipient's books and records
in order to verify compliance with the terms of this Agreement. The Recipient shall
cooperate with King County and the District in any such audit.
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Project Name: South 131st Place Drainage Improvements Award Number: 4.20.22
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2.10. The Recipient shall retain all accounting records and project files relating to this
Agreement in accordance with criteria established by the Washington State Archivist
Local Government Common Records Retention Schedule (CORE) as revised.
2.11. The Recipient shall ensure that all work performed by its employees, agents, contractors
or subcontractors is performed in a manner which protects and safeguards the
environment and natural resources and which is in compliance with local, state and
federal laws and regulations. The Recipient shall implement an appropriate monitoring
system or program to ensure compliance with this provision.
2.12. The Recipient agrees to indemnify, defend and hold harmless King County, and the
District, their elected or appointed officials, employees and agents, from all claims,
alleged liability, damages, losses to or death of person or damage to property arising out
of any acts or omissions of the Recipient, its employees, agents, contractors or
subcontractors in performing its obligations under the terms of this Agreement.
2.13. The Recipient agrees to acknowledge the District as a source of funding for the Project
on all literature, signage or press releases related to the Project. The Recipient may
obtain from King County a District logo that may be used in the acknowledgement.
SECTION 3. GENERAL PROVISIONS
1.1. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
1.2. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof. No prior or contemporaneous representation, inducement, promise
or agreement between or among the parties which relate to the subject matter hereof
which are not embodied in this Agreement shall be of any force or effect.
1.3. No amendment to this Agreement shall be binding on any of the parties unless such
amendment is in writing and is executed by the parties. The parties contemplate that this
Agreement may from time to time be modified by written amendment which shall be
executed by duly authorized representatives of the parties and attached to this Agreement.
1.4. Each party warrants and represents that such party has full and complete authority to
enter into this Agreement and each person executing this Agreement on behalf of a party
warrants and represents that he/she has been fully authorized to execute this Agreement
on behalf of such party and that such party is bound by the signature of such
representative.
1.5. The Project shall be completed by no later than December 31, 2022. In the event that the
Project is not completed by this date, King County has the discretion, but not the
obligation, to terminate this Agreement and retain any unexpended Award funds.
1.6. This Agreement may be signed in multiple counterparts.
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1.7. If any provision of this Agreement shall be wholly or partially invalid or unenforceable
under applicable law, such provision will be ineffective to that extent only, without in any
way affecting the remaining parts or provision of this Agreement, and the remaining
provisions of this Agreement shall continue to be in effect.
1.8. The amount of the Award has been fully funded by the District. To the extent that
funding of the Award requires future appropriations by the District, King County’s
obligations are contingent upon the appropriation of sufficient funds by the Board of
Supervisors of the District to complete the Scope of Work. If no such appropriation is
made, this Agreement will terminate at the close of the appropriation year for which the
last appropriation that provides funds under this Agreement was made.
.
KING COUNTY: RECIPIENT:
By By
Name Name
Title Title
Date Date
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Project Name: South 131st Place Drainage Improvements Award Number: 4.20.22
{ADT2306701.DOCX;1/13175.000001/ } Page 6 of 6
EXHIBIT A: PROJECT DESCRIPTION
PROJECT NAME RECIPIENT DESCRIPTION LEVERAGE AWARD
South 131st Place
Drainage
Improvements
City of
Tukwila
Southgate Creek overtops its banks approximately
twice annually and flows down a private driveway
resulting in nuisance flooding, debris cleanup, and
minor property damage. This project will replace an
undersized 48” culvert under S. 131st Place, raise
the roadway along the creek or construct a concrete
wall to provide additional freeboard to keep the
creek in its bank, provide added water quality for
the City roadway, and work with a downstream
property owner on private stream maintenance.
$1,190,000 $60,000
EXHIBIT B: SCOPE OF WORK
TASKS ACTIVITIES AND DELIVERABLES
APPROX.
PERCENT OF
AWARD
REQUEST
MONTH/YEAR
TASK WILL BE
COMPLETED
Task 1: Project
Administration
(Required task)
Submit reimbursement request forms, backup documentation
for billing, and progress reports at least every 6 months. Submit
a Fiscal Closeout form and a Closeout Report form with the final
reimbursement request.
0% December
2021
Task 2: Project
Design and
Permitting
Advertise, interview, and select a design consultant to design
the improvements and assist City staff members in project
permits. Deliverable will be complete, bid ready, Plans,
Specifications and Estimate.
100% Sept 2021
Task 3:
Construction
Hire a contractor to replace the existing 48” concrete cross
culvert with a box culvert, arch culvert, or other design approved
by the WDFW for fish passage. Deliverable will be as built
drawings.
0% December
2022
Task 4:
Construction
Hire a contractor to raise roadway grade or install a concrete
wall to increase freeboard of Southgate Creek. Deliverable will
be as built drawings.
0% December
2022
EXHIBIT C: BUDGET
BUDGET ITEM
GRANT
AWARD
REQUEST
FINANCIAL LEVERAGE (not required)
LEVERAGE
TOTAL
TOTAL
(Grant +
Leverage)
SOURCE NAME
City of
Tukwila
AMOUNT
STAFFING 0 50,000 50,000 50,000
COMMERCIAL SERVICES AND
CREW TIME
60,000 1,140,000 1,140,000 1,200,000
TOTAL $60,000 $1,190,000 $1,190,000 $1,250,000
42
City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Services Committee
FROM: Jack Pace, Department of Community Development Director
BY: Alison Turner, Sustainable Transportation Program Manager
Chris Andree, Sustainable Transportation Outreach Coordinator
CC: Mayor Ekberg
DATE: January 22, 2021
SUBJECT: King County Metro TDM Agreement 2021–2022
ISSUE
The Transportation Demand Management (TDM) Program is asking for approval to accept
passthrough funding from King County Metro. The funding source is a federal Congestion
Mitigation and Air Quality grant. Funding will be used to continue implementation of
Transportation Demand Management (TDM) activities in south King County.
BACKGROUND
The City of Tukwila TDM Program was previously awarded King County passthrough funding in
2016/17, 2017/19, and 2020 to enhance TDM services in south King County. TDM Program
staff implemented outreach on behalf of King County Metro to reduce congestion and increase
use of sustainable travel alternatives to driving alone.
DISCUSSION
A new funding opportunity has been offered to the City’s TDM Program to continue TDM
outreach services in south King County through November 30, 2022. The TDM Program will
work to increase the use of and access to transit and other sustainable modes of transportation
in south King County by targeting residents, commuters and employers for whom sustainable
transportation alternatives are a viable option. TDM services and outreach will be provided at
activity centers such as Tukwila Village or Sea-Tac Airport, schools and colleges, and
multifamily housing sites. A key strategy is to develop partnerships with community
organizations to reach target populations and improve long-term program outcomes.
FINANCIAL IMPACT
There will be no impact to the general fund.
RECOMMENDATION
Council is being asked to accept passthrough funding from King County Metro for the
Transportation Demand Management Program in the amount of $225,000 and consider this
item on the Consent Agenda at the February 1, 2021, Regular Meeting.
ATTACHMENTS
Attachment A: 2021–2022 Tukwila TDM Agreement.pdf
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TRANSPORTATION DEMAND MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF TUKWILA
AND
KING COUNTY
This Transportation Demand Management Agreement is made and entered into by and between
the City of Tukwila, a Washington municipal corporation (the “City”) and King County, a home
rule charter county of the State of Washington, through the Metro Transit Department (the
“County”), either of which entity may be referred to hereinafter individually as “Party” or
collectively as the “Parties.”
Whereas, the County has obligated a grant from the Federal Transit Administration (FTA)
(Award WA-2020-087-00) FY19 Congestion Mitigation Air Quality (“CMAQ”) to 5307 – TDM
Corridor Strategies Supporting Centers and Regional Park and Ride TDM Activities and Access
Improvements, awarded to the County on August 31, 2020 for a total award amount of
$6,488,278; and
Whereas, the CMAQ grant is for multi-modal transportation project planning and demonstration
programs, in order to reduce drive-alone vehicle travel and increase high occupancy vehicle use
to help reduce energy consumption, air pollution and traffic congestion. Limited research and
development are allowed under this grant but cannot be the primary element of the scope. The
Catalogue of Federal Domestic Assistance number for this grant is 20.507, Federal Transit
Formula Grants, and the County intends to use up to $242,500 of these grant funds as a sub-
award to the City for work performed in accordance with the terms and conditions of this
Agreement; and
Whereas, such projects and programs include strategies known as transportation demand
management (“TDM”) which may encompass incentives, outreach, promotions, website
development and maintenance, materials and services that facilitate travel by public
transportation, shared rides, bicycling, walking and teleworking; and
Whereas, the City, whose DUNS number is 010207504 and the County provide such TDM
programs to commuters, students and residents directly or through employers, schools and/or
property managers; and
Whereas, the City’s Transportation Demand Management program (the “Program”), including
activities conducted through the City’s TDM program, has been effective in reducing drive-alone
trips in Tukwila; and
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Whereas, the City and County have continued to adapt and demonstrate these strategies through
the Program by adding new market segments and new approaches to Tukwila area residents and
workers;
NOW THEREFORE, in consideration of the terms, conditions and covenants contained herein,
the Parties agree as follows:
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1. PURPOSE OF AGREEMENT
The purpose of this Agreement is to establish a mutually beneficial arrangement between the
City and the County that will help both Parties realize their respective TDM objectives. This
Agreement also creates a mechanism to allow the County to reimburse the City for costs incurred
to perform the tasks and implement the programs described in the Scope of Work (“SOW”), as
set forth in Exhibit A, which is attached and incorporated herein. In consideration of the City’s
performance of the tasks and responsibilities set forth in the SOW, the County will provide the
City up to $225,000 in grant funds.
2. AGREEMENT TERM AND MODIFICATIONS
This Agreement shall be effective as of January 1st, 2021, upon signature by both Parties, and
shall remain in effect unless otherwise terminated through December 31, 2022. If mutually
agreed, the Agreement may be extended by written amendment for up to an additional two (2)
years. Exhibits and attachments may be modified at that time as mutually agreed by the Parties.
Any extension shall be made in writing in accordance with Section 14 of the Agreement. The
County will enter into or extend this Agreement only on the condition that all City accounts with
the County are current.
3. CITY’S RESPONSIBILITIES
The City shall furnish the necessary personnel, equipment, material and/or services and
otherwise do all things necessary for or incidental to the performance of the work required as
related to program performance associated with the SOW in Exhibit A. The program tasks,
timelines and budget are stated in Exhibit A.
4. COUNTY’S RESPONSIBILITIES
The County will reimburse the City for actual costs incurred to satisfactorily perform the tasks
and implement the Program as provided for in the SOW. In no event shall the total
reimbursement made by the County to the City for work performed pursuant to this Agreement
exceed $300,000 (the “Reimbursement Cap”).
5. INVOICE AND PAYMENT PROCEDURES
The City shall submit completed invoice(s) to the County detailing expenses, quarterly activities,
outcomes and metrics within thirty (30) calendar days following each quarter’s end. The County
shall pay the City within thirty (30) calendar days after the County has received completed
invoices.
In no event will the total amount of the initial investment and quarterly payments exceed the
Reimbursement Cap specified at Section 4 of this Agreement without the Parties mutually
agreeing to amend this Agreement in accordance with Section 14 of the Agreement.
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6. FEDERAL REQUIREMENTS
A. This Agreement is subject to a financial assistance agreement between the County and the
FTA. The City shall comply with all applicable federal laws, regulations, policies, procedures
and directives, including but not limited to the following, which are attached hereto or
incorporated herein by this reference:
1. 2 CFR Part 200.300 through 2 CFR Part 345, contained in Subpart D, Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards. The text is available at: https://www.gpo.gov/fdsys/pkg/CFR-2015-title2-
vol1/xml/CFR-2015-title2-vol1.xml#seqnum200.300
2. 2 CFR Part 200.400 through 2 CFR Part 200.475, contained in Subpart E, Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards. The text is available at: https://www.gpo.gov/fdsys/pkg/CFR-2015-title2-
vol1/xml/CFR-2015-title2-vol1.xml#seqnum400.1
3. The requirements and obligations imposed on a “Recipient” under the applicable
provisions of the FTA Master Agreement. The Master Agreement text is available at:
https://www.transit.dot.gov/funding/grantee-resources/sample-fta-agreements/fta-master-
agreement-fiscal-year-2020
4. The requirements of FTA Circular 5010.1E Project Administration and Management.
Circular 5010.1E text is available at:
https://www.transit.dot.gov/regulations-and-guidance/fta-circulars/award-management-
requirements-circular-50101e
5. If the City contracts with a third party to provide all or a portion of the services
described in this Agreement, then the City shall comply with FTA Circular 4220.1F.
Circular 4220.1F text is available at:
https://www.transit.dot.gov/regulations-and-guidance/fta-circulars/third-party-
contracting-guidance
6. Applicable FTA Third Party Contract Provisions – Standard Terms and Conditions. The
text is attached as Exhibit B.
B. New federal laws, regulations, policies, procedures and directives may be adopted after the
date this Agreement is established and may apply to this Agreement. The City agrees to accept
and comply with all applicable laws, regulations, policies, procedures and directives as may be
amended or promulgated from time to time during the term of this Agreement.
C. The City shall not perform any act, fail to perform any act, or refuse to comply with any
requests by the County which would cause the County to be in violation of any federal law or
FTA requirement. The City’s failure to so comply with this Section shall constitute a material
breach of this Agreement.
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D. The County and City acknowledge and agree that, notwithstanding any concurrence by the
Federal Government in or approval of the solicitation or award of this Agreement, absent the
express written consent by the Federal Government, the Federal Government is not a party to this
Agreement and shall not be subject to any obligations or liabilities to the County, City, or any
other party (whether or not a party to this Agreement or any Agreement awarded pursuant
thereto) pertaining to any matter resulting from this Agreement.
E. The City agrees to extend application of the federal requirements to its subrecipients or
contractors, and their respective subcontractors, by including this Section and the related exhibits
in each contract and subcontract the City awards under this Agreement financed in whole or in
part with Federal assistance provided by FTA. It is further agreed that this Section shall not be
modified, except to change the names of the parties to reflect the subrecipient or contractor
which will be subject to its provisions.
F. The City acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U.S.C. 3801, et seq., and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 CFR Part 31, apply to its actions pertaining to the work under this Agreement.
Upon execution of this Agreement, the City certifies or affirms the truthfulness and accuracy of
any statement it has made, it makes, it may make, or causes to be made, pertaining to this
Agreement or the FTA-assisted project for which this work is being performed. In addition to
other penalties that may be applicable, the City further acknowledges that if it makes, or causes
to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the
Federal Government reserves the right to impose the penalties of the Program Fraud Civil
Remedies Act of 1986 on the City to the extent the Federal Government deems appropriate.
1. The City also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under
a contract connected with a project that is financed in whole or in part with Federal
assistance originally awarded by FTA under the authority of 49 U.S.C. 5307, the
Government reserves the right to impose the penalties of 18 U.S.C. 1001 and 49 U.S.C.
5323(l)(1) on the City, to the extent the Federal Government deems appropriate.
2. The City agrees to include the language in Section F and Section F(1) above in each
contract and subcontract it awards under this Agreement financed in whole or in part with
Federal assistance provided by FTA. It is further agreed that the clauses shall not be
modified, except to identify the contractor or subcontractor who will be subject to the
provisions.
G. Certification Regarding Debarment, Suspension and Other Responsibility Matters
This Contract is a covered transaction for purposes of 2 CFR part 1200. As such, the City is
required to verify that none of the City, its principals, as defined at 49 CFR 29.995, or affiliates,
as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and
29.945. The City is required to comply with 2 CFR 1200, Subpart C and must include the
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requirement to comply with 2 CFR 1200, Subpart C in any lower tier covered transaction it
enters into. By signing and submitting this Contract, the City certifies as follows:
The certification in this clause is a material representation of fact relied upon by King
County. If it is later determined that the City knowingly rendered an erroneous
certification, in addition to remedies available to King County, the Federal Government
may pursue available remedies, including but not limited to suspension and/or debarment.
The City agrees to comply with the requirements of 2 CFR 1200, Subpart C while this
offer is valid and throughout the period of any work or service that may arise from this
Contract. The City further agrees to include a provision requiring such compliance in its
lower tier covered transactions.
H. Because the County is sub-granting $25,000 or more of pass-through Federal Transit
Administration funds, the County must comply with the reporting requirements of The Federal
Funding Accountability and Transparency Act (FFATA or Transparency Act - P.L.109-282., as
amended by section 6202(a) of P.L. 110-252). The FFATA prescribes specific data to be
reported and the County hereby agrees to report sub-award data into the website
www.USASpending.gov via www.fsrs.gov. The City agrees to provide the County with the
information required in this paragraph within 30 calendar days from the execution date of this
Agreement:
a. Location of the City (physical address(es), including congressional district(s));
and
b. Place of performance (physical address(es), including congressional district(s));
and
c. Unique identifier of the City and its parent (DUNS Number, a unique nine-digit
number issued by Dun & Bradstreet (D&B) to a single business entity assigned to
each business location in the D&B database having a unique, separate, and
distinct operation for the purpose of identifying it); and
d. Total compensation and names of top five executives IF BOTH of the following
apply:
i. More than 80% of the City’s gross annual revenues are from the federal
government, and those revenues are greater than $25,000,000 annually,
and
ii. Compensation information is not already available through reporting to
the Securities and Exchange Commission.
I. The City agrees to provide the County with its Federal Central Contractor Registration
number within 30 calendar days of the execution of this Agreement. If it has not already
registered, the City agrees to register with the Federal Central Contractor Registration at
https://www.sam.gov/portal/public/SAM/ (formerly www.CCR.gov) and provide the County
with the registration number within 30 calendar days from the execution date of this Agreement.
Exceptions may be made on a case-by-case basis upon approval by the County.
J. The City agrees to provide the County with a copy of its Title VI implementation plan in
accordance with FTA Circular 4702.1B, Chapter III, Section 11. If the City does not have a Title
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VI plan, the County and the City agree to work together to sufficiently document the City’s
adoption of the County’s Title VI plan, or in the alternative, the City’s implementation of its own
Title VI plan.
K. In accordance with FTA Circular 4702.1B, Chapter II, Section 2, and by signing this
Agreement, the City certifies that it will comply with Title VI of the Civil Rights Act, as
amended, 42 U.S.C. § 2000d, U.S. Department of Justice “Guidelines for enforcement of Title
VI, Civil Rights Act of 1964, 28 CFR §50.3, U.S DOT regulations, “Nondiscrimination in
Federally-Assisted Programs of the Department of Transportation – Effectuation of Title VI of
the Civil Rights Act of 1964,” 49 CFR part 21.
7. DISPUTE RESOLUTION PROCESS
7.1 Designated Dispute Resolution Representatives. The following individuals are the
Designated Representatives for the purpose of resolving disputes that arise under this
Agreement:
For the County
Carol Cooper
Mobility Innovations
Managing Director
Metro Transit Department
201 South Jackson Street, M/S KSC-
TR-0411
Seattle, WA 98104
(206) 477-5871
carol.cooper @kingcounty.gov
For the City
Vicky Carlsen
Finance Director
City of Tukwila
6200 Southcenter Blvd.
Tukwila, WA 98188
(206) 433-1839
Vicky.Carlsen@tukwilawa.gov
7.2 The County representative and the City representative shall confer to resolve disputes that
arise under this Agreement as requested by either Party. The designated representatives
shall use their best efforts and exercise good faith to resolve such disputes.
7.3 In the event the Designated Representatives are unable to resolve the dispute, the
appropriate City Administrator or her/his designee and the General Manager of the
County’s Metro Transit Division or her/his designee shall confer and exercise good faith
to resolve the dispute.
7.4 In the event the City Administrator and the General Manager of Metro Transit are unable
to resolve the dispute, the Parties may, if mutually agreed in writing, submit the matter to
non-binding mediation. The Parties shall then seek to mutually agree upon the mediation
process, who shall serve as the mediator, and the time frame the Parties are willing to
discuss the disputed issue(s).
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7.5 If the Parties cannot mutually agree as to the appropriateness of mediation, the mediation
process, who shall serve as mediator, or the mediation is not successful, then either Party
may institute a legal action in the King County Superior Court, situated in Seattle,
Washington, unless another venue is mutually agreed to in writing.
7.6 The Parties agree that they shall have no right to seek relief in a court of law until and
unless each of the above procedural steps has been exhausted.
8. TERMINATION
8.1 Termination for Convenience. Either Party may terminate this Agreement upon thirty
(30) days’ written notice to the other Party. In the event of termination of this
Agreement, the Parties shall be liable only for performance rendered or costs incurred in
accordance with the terms of this Agreement prior to the effective date of termination.
8.2 Termination for Cause. If either Party does not fulfill in a timely and proper manner its
obligations under this Agreement, or if either Party violates any of these terms and
conditions, the aggrieved Party will give the other Party written notice of such failure or
violation. The responsible Party will be given the opportunity to initiate a correction of
the violation or failure within fifteen (15) calendar days. If failure or violation is not
corrected within the mutually agreed upon time period, this Agreement may be
terminated immediately by written notice of the aggrieved Party to the other.
8.3 Termination for Non-Appropriation or Loss of Grant Funding. This Agreement is
contingent upon federal grant funding and local legislative appropriations. As such, in
addition to termination for default or convenience, the County may terminate this
Agreement for non-appropriation or loss of grant funding by giving not less than thirty
(30) calendar days' written notice thereof to the City.
9. LEGAL RELATIONS
9.1 No Third Party Beneficiaries. It is understood that this Agreement is solely for the
benefit of the Parties hereto and gives no right to any other person or entity.
9.2 No Partnership or Joint Venture. No joint venture, agent-principal relationship or
partnership is formed as a result of this Agreement.
9.3 Independent Capacity. The employees or agents of each Party who are engaged in the
performance of this Agreement shall continue to be employees or agents of that Party and
shall not be considered for any purpose to be employees or agents of the other Party.
9.4 Jurisdiction and Venue. The King County Superior Court, situated in Seattle,
Washington, shall have exclusive jurisdiction and venue over any legal action arising
under this Agreement.
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9.5 Mutual Negotiation and Construction. This Agreement and each of the terms and
provisions hereof shall be deemed to have been explicitly negotiated between, and
mutually drafted by, both Parties, and the language in all parts of this Agreement shall, in
all cases, be construed according to its fair meaning and not strictly for or against either
Party.
9.6 Assignment. Neither this Agreement, nor any interest herein, may be assigned by either
Party without the prior written consent of the other Party.
9.7 Compliance with Applicable Laws. The Parties agree to comply with all applicable
federal, state, and local laws, rules, and regulations, including those pertaining to
nondiscrimination, and agree to require the same of any subcontractors providing services
or performing any work related to the Program using funds provided under this
Agreement.
10. FORCE MAJEURE
Either Party to this Agreement shall be excused from performance of its responsibilities and
obligations under this Agreement, and shall not be liable for damages due to failure to perform,
during the time and to the extent that it is prevented from performing by a cause directly or
indirectly beyond its control, including, but not limited to: late delivery or nonperformance by
vendors of materials or supplies; any incidence of fire, flood, snow, earthquake, or acts of nature;
strikes or labor actions; accidents, riots, insurrection, terrorism, or acts of war; order of any court
or civil authority; commandeering material, products, or facilities by the federal, state or local
government; or national fuel shortage; when satisfactory evidence of such cause is presented to
the other Party to this Agreement, and provided that such non-performance is beyond the control
and is not due to the fault or negligence of the Party not performing.
11. INDEMNIFICATION
Both Parties shall protect, defend, indemnify and save harmless each other, their officers,
employees, and agents while acting within the scope of their employment as such, from any and
all costs, claims, judgments, and/or awards of damages, arising out of or in any way resulting
from either Party’s negligent acts or omissions in performing their obligations under this
Agreement. The Parties agree that they are fully responsible for the acts and omissions of their
own contractors, subcontractors, employees, and agents, acting within the scope of their
employment as such, as they are for the acts and omissions of its own employees and agents.
The Parties agree that their obligations under this provision extend to any claim, demand, and/or
cause of action brought by or on behalf of any of their employees or agents. The foregoing
indemnity is specifically and expressly intended to constitute a waiver of both Parties immunity
under Washington’s Industrial Insurance Act, RCW Title 51, as respects the Parties only, and
only to the extent necessary to provide the Parties, their officers, employees, and agents with a
full and complete indemnity of claims made by the Parties employees. The Parties acknowledge
that these provisions were specifically negotiated and agreed upon by them. The provisions of
this Section 11 shall survive the expiration or earlier termination of this Agreement.
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12. WAIVER
A failure by either Party to exercise its rights under this Agreement shall not preclude that Party
from subsequent exercise of such rights and shall not constitute a waiver of any other rights
under this Agreement unless stated to be such in a writing signed by an authorized representative
of the Party and attached to the original Agreement.
13. SEVERABILITY
If any provision of this Agreement or any provision of any document incorporated by reference
shall be held invalid, such invalidity shall not affect the other provisions of this Agreement
which can be given effect without the invalid provision, if such remainder conforms to the
requirements of applicable law and the fundamental purpose of this Agreement, and to this end
the provisions of this Agreement are declared to be severable.
14. CHANGES AND MODIFICATIONS
This Agreement may be changed, modified, or amended only by written agreement executed by
authorized representatives of both Parties.
15. REPRESENTATION ON AUTHORITY OF SIGNATORIES
The signatories to this Agreement represent that they have the authority to bind their respective
organizations to this Agreement.
16. ALL TERMS AND CONDITIONS
This Agreement contains all the terms and conditions agreed upon by the Parties. No other
understandings, oral or otherwise, regarding the subject matter of this Agreement shall be
deemed to exist or to bind any of the Parties hereto.
17. CONTRACT MANAGEMENT
The contact persons for the management of this Agreement (the “Contract Managers”) are
identified and their contact information is provided herein and may be updated by either Party
for their agency only and shall be submitted in writing or electronic mail to the other Party. Any
update to the Contract Managers’ information shall state the effective date of said update.
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Contract Manager King County City of Tukwila
Contact Name Mitchell Lloyd Alison Turner
Title Transportation Demand Management
Lead (TDM Lead)
King County Metro
Market Innovation Section
Sustainable Transportation Program
Manager
City of Tukwila
Address 201 S. Jackson St.
M/S KSC-TR-0411
Seattle, WA 98104
6300 Southcenter Blvd #100
Tukwila, WA 98188
Telephone 206-263-3788 206-433-7142
E-Mail mlloyd@kingcounty.gov Alison.turner@tukwilawa.gov
18. RECORDS RETENTION AND AUDIT
18.1 During the progress of the work and for a period of not less than six (6) years from the
date of final payment by the County, the City shall keep available for inspection and audit
by the County and the federal government the records pertaining to the Agreement and
accounting therefore. Copies of all records, documents or other data pertaining to
performance of the Agreement will be furnished upon request. If any litigation, claim or
audit is commenced related to performance of the Agreement, the records along with
supporting documentation shall be retained until all litigation, claims and/or audit
findings have been resolved even though such litigation, claim or audit continues past the
six-year retention period.
18.2 All Agreement costs must be documented including copies of invoices and time sheets
showing hours worked and rates, or financial system expense reports documenting these
items.
18.3 The County, the U.S. Department of Transportation, the FTA, the State Auditor, and the
Inspector General and any of their duly authorized representatives shall have full access
to and right to examine, during normal business hours, all City records with respect to all
matters covered by this Agreement. Such representatives shall be permitted to audit,
examine and make excerpts or transcripts from such records, and other matters covered
by this Agreement.
18.4 Unless already published and available at the federally appointed online, accessible audit
reporting database the City agrees to submit to the County, a copy of the City's A-133
Single Audit report when requested by the County for sub recipient monitoring purposes.
19. EXECUTION OF AGREEMENT
This Agreement may be executed in multiple counterparts, any one of which shall be regarded
for all purposes as an original.
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IN WITNESS THEREOF the Parties hereto have executed this Agreement by duly authorized
representatives on the dates shown below their respective signatures.
KING COUNTY
By: ______________________________
Terry White
General Manager
Metro Transit Department
Date: ____________________________
CITY OF TUKWILA
By: ______________________________
Allan Ekberg
Mayor
City of Tukwila
Date: ____________________________
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Exhibit A
City of Tukwila
Transportation Demand Management Agreement with King County Metro
Scope of Work
January 1, 2021
The City will provide TDM services for travelers with an origin or destination in the cities of
Tukwila, Burien, Des Moines, Kent, Renton, and SeaTac through an extension of their Regional
Mobility Grant (RMG) program and the City’s TDM program.
The City and the County will mutually agree on messaging that will be included on program
materials for marketing and outreach purposes.
These services will be provided for the time period beginning with the execution of the
agreement and ending November 30, 2022.
Scope of Services
The City of Tukwila TDM Program will target residents, employees and employers for whom
sustainable transportation alternatives are a viable option. As described below, the program will:
• Educate residents, employees and students on sustainable transportation alternatives to
driving alone;
• Provide rewards and incentives related to sustainable transportation options;
• Work to improve people’s perceptions of these options;
• Inform residents, employees and students of Renton-Kent-Auburn Area Mobility Plan
news and engagement opportunities, such as RapidRide I line outreach, and work to
increase ORCA card usage;
• Explore options for amenities such as bike lockers, bike racks, bike repair stations,
wayfinding signage, etc.;
• Communicate the goals of keeping traffic moving and other topics related to road
construction and transit service changes; and
• Educate employers on available commute benefit strategies and programs.
An evaluation of the program will be provided to the County by November 30, 2022, outlining
what has been accomplished in the program and including trip reduction data during the period
following the execution of the agreement through the end of October 2022. The final invoice for
this scope of work shall be submitted to the County no later than January 5, 2023.
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Program Description
Issue/Problem
Employees and residents not affected by the CTR law may receive limited or no transportation
benefits/support. Smaller employers often have difficulty allocating funding for employee
transportation assistance and are unaware of commute benefits they could provide such as
ORCA passes or pre-tax transportation benefits.
Goals:
• Increase the use of and access to transit and other sustainable modes of transportation in
south King County (increase NDAT and decrease VMT);
• Reduce congestion along major regional corridors, including I-405, I-5, SR-99 and SR-
167; and
• Efficiently deliver TDM services by targeting employees, residents and students at large
activity centers (for example, presenting at employer meetings or providing
transportation trainings to school staff).
Potential Trip Markets
• Employment sites with clusters of non-CTR affected employers
• Multi-family residences (affordable and market rate housing)
• Technical colleges and high schools
• Industry-specific employers such as hotels
Potential activity centers and networks include:
o Sea-Tac Airport (partner with Port of Seattle, Airport Jobs, City of SeaTac)
o Westfield Southcenter Mall (partner with mall management and employers)
o Tukwila Village (partner with Independent Living, King County Library System
and employers)
o Foster High School and Showalter Middle School (partner with Tukwila School
District and SchoolPool)
o Colleges such as Renton Technical College and Highline College
o Seattle Southside Chamber and Discover Burien
o Renton Landing and Black River Business Park
o Multifamily housing sites (partner with property managers, cities, King County
Housing Authority, Hopelink, and other non-profits)
Equity and Social Justice
The City of Tukwila’s equity policy, adopted by council in 2017, guides city staff to serve the
community equitably. TDM Program staff participate in the Equity Policy Implementation
Committee with a focus on developing outreach best practices and tools. The equity policy has
six major goals:
• Our City workforce reflects our community
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• Community outreach and engagement is relevant, intentional, inclusive, consistent and
ongoing
• All residents and visitors receive equitable delivery of City services
• City government is committed to equity in the decision-making process
• Equity serves as a core value for all long-term plans moving forward
• The City will build capacity around equity within City government and the broader
community
Strategies
This program will market sustainable transportation through a direct, individualized approach
supporting and encouraging residents and employees to change their travel behavior.
Methodology will include individualized marketing; social marketing; and engaging community
and residential groups, individuals, businesses and other targeted groups of corridor users.
Marketing will promote sustainable transportation options that reduce single-occupant vehicle
travel such as transit, carpool, vanpool, active transportation, telecommuting, and new mobility
services.
Strategies may include, but are not limited to:
• Outreach and education on sustainable transportation options
• Distribution of ORCA incentives to encourage transit use; Facilitate access to reduced
fares for low-income, RRFP, seniors, and youth by partnering with ORCA Neighborhood
Pop-up, ORCA LIFT (Public Health – Seattle & King County), and ORCA Youth
• Administration of a sustainable transportation rewards program
• Distribution of safety/visibility gear for active transportation
• Attendance at community or employer resource fairs and meetings
• Install amenities such as bike racks, wayfinding signage, and parking designated for
carpool
• Translation, interpretation, transcreation of materials, and partnership development to
reach target populations
• Trip planning assistance
If COVID remains active, the program will continue to pivot by trying new remote outreach
methods such as developing webinars and connecting with users via partners. The program will
focus on providing TDM services and public health messages via trusted channels, developing
partnerships, and conducting outreach safely according to public health directives.
Performance Metrics
Transportation mode choice data will be collected via surveys. A pre-intervention survey will be
administered to capture baseline data when participants enroll in the transportation rewards
program. Follow-up surveys will be administered 1 month, 3 months, and 6 months later, as
capacity allows. Actual timing of follow-up surveys will vary depending on scheduling around
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holidays, current events, and synergy with partner agencies. Data captured at 2 or more points in
time will be used to report the final VT and VMT reduced by the program.
Additional strategies to measure success include:
• ORCA card usage rates
• Number of outreach events/attendees/contacts
• Number of sustainable transportation incentives distributed
• Estimating the reach of marketing efforts
• Qualitative customer feedback from participants and partner organizations
Anticipated Schedule and Deliverables
Deliverable Target Dates
Develop outreach materials (webpage, surveys, flyers, reward slips) January 1, 2021
Outreach to community groups, individuals, employers, property
managers, and other targeted groups of corridor users to promote use
of non-drive alone travel
through November 30, 2022
Administration of rewards program through November 30, 2022
Personalized trip planning assistance and employer/property manager
consultations
through November 30, 2022
Hold transportation trainings at interested employment centers,
housing sites and worksites
through November 30, 2022
Analysis of rewards program survey data to calculate VT and VMT
reduced
November 30, 2022
Submit progress reports, metrics, and invoices that include labor hours
and receipts for reimbursable expenses, at least quarterly
through January 5, 2023
Anticipated Budget through November 30, 2022
Project Element Budget
Administration $43,000
Incentives $22,000
Marketing $27,000
Outreach $83,000
Bicycle and Pedestrian Amenities $50,000
Total Project Cost $225,000
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Exhibit B
FEDERAL TRANSIT ADMINISTRATION (FTA) THIRD PARTY CONTRACT
REQUIREMENTS
This Contract shall be partially funded by the Federal Transit Administration (FTA). The following provisions
include, in part, certain standard terms and conditions required by the U.S. Department of Transportation. All
Contractual provisions required by the U.S. Department of Transportation, as set forth in FTA Circular 4220.1F, as
revised, dated March 18, 2013, as are the requirements of the Master Agreement between King County (“the
County”) and the U.S. Department of Transportation, including all “flow down” provisions to third party
Contractors and Subcontractors are hereby incorporated by reference. Unless stated otherwise, all FTA mandated
terms shall be deemed to control in the event of a conflict with other provisions contained in this Contract. The
Contractor agrees not to perform any act, fail to perform any act, or refuse to comply with any County requests that
would cause the County to be in violation of the FTA terms and conditions.
1-1 Disadvantaged Business Enterprise (DBE) Participation
A. Nondiscrimination 49 CFR part 26. The Contractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this Contract. The Contractor shall
carry out applicable requirements of 49 CFR part 26 in the award and administration of
United States Department of Transportation assisted contracts. Failure by the Contractor
to carry out these requirements is a material breach of this Contract, which may result in
the termination of this Contract or such other remedy, as the County deems appropriate.
Each subcontract the contractor signs with a subcontractor must include the assurance in
this paragraph (see 49 CFR 26.13(b)).
B. DBE Program. The DBE requirements of 49 CFR Part 26 apply to this Contract. King
County has determined that no DBE goal will be established for this Contract. However,
the County requires that the Contractor report any actual DBE participation on this Contract
to enable the County to accurately monitor DBE program compliance.
C. Efforts to Increase DBE Participation . Even though this Contract has no DBE goal, the
County still encourages Contractors to pursue opportunities for DBE participation. To that
end, Contractors are encouraged to:
1. Advertise opportunities for subcontractors and suppliers (“subcontractors”) in a
manner reasonably designed to provide DBEs capable of performing the work with
timely notice of such opportunities. All advertisements should include a provision
encouraging participation by DBE firms and may be done through general
advertisements (e.g., newspapers, journals, etc.) or by soliciting proposals directly
from DBEs.
2. Effectively use the services of available minority/women community organizations,
Contractors’ groups, local, state, and Federal minority/women business assistance
offices; Disadvantaged Business Enterprise and other organizations as allowed on a
case-by-case basis to provide assistance in the recruitment and placement of DBEs
and other small businesses.
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5. Establish delivery schedules, where requirements of the contract allow and encourage
participation by DBEs and other small businesses.
6. Achieve DBE attainment through joint ventures.
7. Solicit through all reasonable and available means (e.g., attendance at pre-bid
meetings, advertising and/or written notices) DBE and other small businesses that
have the capability to perform the Work of the Contract.
8. Select portions of the Work to be performed by Subcontractors to increase the
likelihood that DBE and other small businesses’ goals will be achieved
9. Provide interested Subcontractors with adequate information about the plans,
specifications, and requirements of the contract in a timely manner to assist them in
responding to a solicitation.
10. Negotiate in good faith with interested DBEs and other small businesses.
11. Avoid rejecting DBEs and other small businesses as being unqualified without sound
reasons based on a thorough investigation of their capabilities. The Contractor’s
standing within its industry, membership in specific groups, organizations, or
associations and political or social affiliations (for example union vs. non-union
employee status) are not legitimate causes for the rejection or non-solicitation of bids
in the Contractor’s efforts to obtain DBE and other small business participation.
12. Make efforts to assist interested DBEs and other small businesses in obtaining
bonding, lines of credit, or insurance as required by the recipient or Contractor.
13. Make efforts to assist interested DBEs and other small businesses in obtaining
necessary equipment, supplies, materials, or related assistance or services.
D. DBE Listing. A current list of DBE firms accepted as certified by the Washington State Office of
Minority and Women’s Business Enterprises (OMWBE) is available from that office at (360) 753-
9693. For purposes of this Contract, a DBE firm must be certified by OMWBE as of the date of
contract award.
E. Procedure Applicable when DBEs Are Utilized. Concurrent with the use of any DBE subcontractor
or supplier the Contractor shall provide notice of such use in writing to the King County Office of
Business Development and Contract Compliance (BDCC). Upon receipt of said notice, BDCC
shall provide the Contractor with the applicable procedures for counting DBE participation.
Assistance with this Section is available from BDCC at (206) 263-9717. Notice referenced herein
should be delivered to the following address:
King County Department of Finance
Office of Business Relations and Economic Development
401 Fifth Avenue, Suite 350
MS CNK-ES-0350
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Seattle, WA 98104
Phone: (206) 263-9717
Fax: (206) 205-0840
F. The Contractor is required to pay its subcontractors performing work related to this
contract for satisfactory performance of that work no later than 30 days after the
contractor’s receipt of payment for that work from the County. In addition, the contractor
may not hold retainage from its subcontractors, but may require the purchase of a
retainage bond by the subcontractor.
G. The Contractor must promptly notify the County whenever a DBE subcontractor
performing work related to this contract is terminated or fails to complete its work, and
must make good faith efforts to engage another DBE subcontractor to perform at least the
same amount of work. The Contractor may not terminate any DBE subcontractor and
perform that work through its own forces or those of an affiliate without prior written
consent of the County.
1-2 Federal Changes
Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and
directives, including without limitation those listed directly or by reference in the Master
Agreement between the County and FTA, as they may be amended or promulgated from time to
time during the term of this contract. Contractor's failure to so comply shall constitute a material
breach of this contract.
1-3 No Federal Government Obligations to Third Parties
The Contractor acknowledges and agrees that, notwithstanding any concurrence by the Federal
Government in or approval of the solicitation or award of this Contract, absent the express written
consent by the Federal Government, the Federal Government is not a party to this Contract and shall
not be subject to any obligations or liabilities to the Contractor or any other party (whether or not a
party to this Contract) pertaining to any matter resulting from this Contract.
The Contractor agrees to include the above clause in each subcontract financed in whole or in part
with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified,
except to identify the subcontractor who will be subject to its provisions.
1-4 Civil Rights
The following requirements shall apply to this Contract and all third-party contracts:
(A) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C.
§ 2000d, U.S. Department of Justice “Guidelines for enforcement of Title VI, Civil Rights Act of
1964, 28 CFR §50.3, U.S DOT regulations, “Nondiscrimination in Federally-Assisted Programs of
the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964,” 49
CFR part 21, Section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102,
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section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 and Federal transit law at 49 U.S.C. § 5332, the
Contractor agrees that it will not discriminate against any person on the basis of race, color, religion,
national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable
Federal implementing regulations and other implementing requirements FTA may issue.
(B) Equal Employment Opportunity - The following equal employment opportunity requirements
apply to the underlying contract:
(1) Race, Color, Religion, National Origin, Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, section 503 of the Rehabilitation Act of 1973,
as amended 29 U.S.C. §793 and Federal transit laws at 49 U.S.C. § 5332, the Contractor
agrees to comply with all applicable equal employment opportunity requirements of U.S.
Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et
seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as
amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to
Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable
Federal statutes, executive orders, regulations, and Federal policies that may in the future
affect construction activities undertaken in the course of the Project. The Contractor agrees
to take affirmative action to ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, color, religion, national origin,
sex, age, or disability. Such action shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. In addition, the Contractor agrees to comply with any
implementing requirements FTA may issue.
(2) Sex - In accordance with Title IX of the Education Amendments of 1972, as amended,
20 U.S.C. Sections 1681 et seq. and implementing Federal regulations, “Nondiscrimination
on the Basis of Sex in Education Programs or Activities Receiving Federal Financial
Assistance,” 49 CFR Part 25, and FTA Circular 4220.1F Chapter IV, Section 2(a)(5)(b),
the Contractor agrees to refrain from discrimination against present and prospective
employees on the basis of their sex. In addition, the Contractor agrees to comply with any
implementing requirements FTA may issue.
(3) Age - In accordance with The “Age Discrimination Act of 1974, as amended, 42 U.S.C.
Sections 6101 et seq., and Department of Health and Human Services implementing
regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving
Federal Financial Assistance, 45 CFR Part 90, and section 4 of the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. §§ 623 and Federal transit law at 49
U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and
prospective employees for reason of age. In addition, the Contractor agrees to comply with
any implementing requirements FTA may issue.
(4) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as
amended, 42 U.S.C. § 12101 et seq., the Contractor agrees that it will comply with the
requirements of U.S. Equal Employment Opportunity Commission, "Regulations to
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Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29
C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the
Contractor agrees to comply with any implementing requirements FTA may issue.’
(C) Information and Reports - The Contractor shall provide all information and reports required by
the regulations or directives issued pursuant thereto and shall permit access to its books, records,
accounts, other sources of information, and its facilities as may be determined by the County or the
Federal Transit Administration (FTA) to be pertinent to ascertain compliance with such regulations,
orders and instructions. The Contractor shall maintain all required records for at least three (3)
years after the County makes final payment and all other pending matters are closed. Where any
information is required and it is in the exclusive possession of another who fails or refuses to furnish
this information, the Contractor shall so certify to the County or the Federal Transit Administration,
as appropriate, and shall set forth efforts made to obtain the information.
(D) Sanctions for Noncompliance - In the event of the Contractor's noncompliance with the
nondiscrimination provisions of this Contract, the County shall impose such contract sanctions as
it or the FTA may determine to be appropriate, including, but not limited to:
1. Withholding of payments to the Contractor under the Contract until the Contractor
complies, and/or,
2. Cancellation, termination or suspension of the Contract, in whole or in part.
(E) Incorporation of Provisions - The Contractor shall include the provisions of paragraphs A through
E of this section in every subcontract, including procurements of materials and leases of equipment,
unless exempt by the regulations or directives issued pursuant thereto. The Contractor shall take such
action with respect to any subcontract or procurement as the County or the FTA may direct as a means
of enforcing such provisions, including sanctions for noncompliance. Provided, however, that, in the
event the Contractor becomes involved in or is threatened with litigation with a subcontractor or
supplier as a result of such direction, the Contractor may request the County to enter into such
litigation to protect the interests of the County, and in addition, the Contractor may request the United
States to enter into such litigation to protect the interests of the United States.
1-5 Labor Provisions - Non-Construction Contracts (For Contracts in excess of $100,000)
The Contractor agrees to comply, and assures the compliance by each subcontractor or
subconsultant at any tier with any applicable employee protection requirements for non-
construction employees of Section 102 of the Contract Work Hours and Safety Standards Act, as
amended, 40 U.S.C. Sections 3701-3702 et seq., and U.S. DOL regulations, "Labor Standards
Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also
Labor Standards Provisions Applicable to Non-construction Contracts Subject to the Contract
Work Hours and Safety Standards Act)," 29 C.F.R. Part 5. These include but are not limited to the
following:
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A. Overtime Requirements
No contractor or subcontractor contracting for any part of the contract work which may require or
involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic
in any work week in which he or she is employed on such work to work in excess of forty (40) hours
in such work week unless such laborer or mechanic receives compensation at a rate not less than one
and one-half (1.5) times the basic rate of pay for all hours worked in excess of forty (40) hours in
such work week. (29 CFR § 5.5(b)(1)).
B. Violation: Liability for Unpaid Wages: Liquidated Damages
In the event of any violation of the clause set forth in paragraph A of this section, the Contractor and
any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such
Contractor and subcontractor shall be liable to the United States (in the case of work done under
contract for the District of Columbia or a territory, to such district or to such territory) for liquidated
damages. Such liquidated damages shall be computed with respect to each individual laborer or
mechanic, including watchmen and guards, employed in violation of paragraph A of this section in
the sum of ten ($10) dollars for each calendar day on which such individual was required or permitted
to work in excess of the standard work week of forty (40) hours without payment of the overtime
wages required by paragraph A of this section. (29 CFR § 5.5(b)(2)).
C. Withholding for Unpaid Wages and Liquidated Damages
The Department of Transportation or the County shall upon its own action or upon written request of
an authorized representative of the Department of Labor withhold or cause to be withheld, from any
monies payable on account of work performed by the Contractor or subcontractor under any such
contract or any other federal contract with the same prime Contractor, or any other federally-assisted
contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same
prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such
Contractor or subcontractor for unpaid wages and liquidated damages as provided in paragraph B of
this section. (29 CFR § 5.5(b)(3)))
D. Payrolls and Basic Records
The Contractor or subcontractor shall maintain payrolls and basic payroll records during the course
of the work and shall preserve them for a period of three (3) years from the completion of the contract
for all laborers and mechanics, including guards and watchmen, working on the contract. Such
records shall contain the name and address of each such employee, social security number, correct
classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions
made and actual wages paid. Further, the records to be maintained under this paragraph shall be made
available by the Contractor or subcontractor for inspection, copying or transcription by authorized
representatives of the Department of Transportation and the Department of Labor, and the Contractor
or subcontractor will permit such representatives to interview employees during working hours on
the job. (29 CFR § 5.5(c)).
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E. Subcontracts
The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs A
through E of this section and also a clause requiring the subcontractors to include these clauses in any
lower tier subcontracts. The prime Contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in paragraphs A through E of this
section. (29 CFR § 5.5(b)(4)). The Contractor is required to pay its subcontractors performing work
related to this contract for satisfactory performance of that work no later than 30 days after the
contractor’s receipt of payment for that work from the County. In addition, the contractor may not
hold retainage from its subcontractors, but may require the purchase of a retainage bond by the
subcontractor.
1-6 Fly America Requirements
The Contractor agrees to comply with 49 U.S.C. 40118 (the “Fly America” Act) in accordance with
the General Services Administration’s regulations at 41 CFR Part 301-10, which provide that
recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air
carriers for U.S Government-financed international air travel and transportation of their personal
effects or property, to the extent such service is available, unless travel by foreign air carrier is a
matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign
air carrier was used, an appropriate certification or memorandum adequately explaining why
service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air
carrier and shall, in any event, provide a certificate of compliance with the Fly America
requirements. The Contractor agrees to include the requirements of this section in all subcontracts
that may involve international air transportation.
1-7 Audit and Inspection of Records
Access to Records - The following access to records requirements apply to this Contract:
A. Where the FTA Recipient or a subgrantee of a FTA Recipient (“Purchaser”) is the County, the
Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of
the United States or any of their authorized representatives access to any books, documents,
papers and records of the Contractor which are directly pertinent to this contract for the purposes
of making audits, examinations, excerpts and transcriptions in accordance with 2 C.F.R. 200.336.
Contractor also agrees to provide the County and the FTA Administrator or his authorized
representatives including any PMO Contractor, pursuant to 49 C.F.R. 633.17, access to
Contractor's records and construction sites pertaining to a major capital project, defined at 49
U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described
at 49 U.S.C. 5307, 5309 or 5311.
B. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA
Recipient, the Contractor agrees to provide the Purchaser, the FTA Administrator or his
authorized representatives, including any PMO Contractor, access to the Contractor's records and
construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is
receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or
5311. By definition, a major capital project excludes contracts of less than the simplified
acquisition threshold currently set at $100,000 (49 CFR Part 633.5).
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C. Where the Purchaser enters into a negotiated contract for other than a small purchase or under
the simplified acquisition threshold and is an institution of higher education, a hospital or other
non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 2 C.F.R. 200.336, the Contractor agrees to provide the Purchaser, FTA
Administrator, the Comptroller General of the United States or any of their duly authorized
representatives with access to any books, documents, papers and record of the Contractor which
are directly pertinent to this contract for the purposes of making audits, examinations, excerpts
and transcriptions.
D. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement
(defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall
make available records related to the contract to the Purchaser, the Secretary of Transportation
and the Comptroller General or any authorized officer or employee of any of them for the
purposes of conducting an audit and inspection.
E. The Contractor agrees to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
F. The Contractor agrees to maintain all books, records, accounts and reports required under this
contract for a period of not less than three (3) years after the date of termination or expiration of
this contract, except in the event of litigation or settlement of claims arising from the performance
of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA
Administrator, the Comptroller General, or any of their duly authorized representatives, have
disposed of all such litigation, appeals, claims or exceptions related thereto.
G. FTA does not require the inclusion of these requirements in subcontracts.
1-8 FTA Protest Procedures
Bidders are hereby notified that if this Contract is funded in whole or in part by the Federal
Department of Transportation, the Federal Transit Administration (FTA) may entertain a protest
that alleges that the County failed to have or follow written protest procedures. Bidders must file a
protest with the FTA not later than 5 working days after the County renders a final decision or 5
working days after the Bidder knows or has reason to know that the County has failed to render a
final decision. The protesting party must notify the County if it has filed a protest with the FTA.
After 5 days, the County will confirm with FTA that FTA has not received a protest. Protests to the
FTA must be filed in accordance with FTA Circular 4220.1F (as periodically updated).
The County will not award a contract for 5 working days following its decision on a Bid protest or
while a protest to the FTA is pending unless the County determines that: (1) the items to be procured
are urgently required; (2) delivery of performance will be unduly delayed by failure to make the award
promptly; or (3) failure to make prompt award will otherwise cause undue harm to the County or the
Federal Government.
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1-9 Privacy
Should the Contractor, or any of its subcontractors, or their employees administer any system of
records on behalf of the Federal Government, the Privacy Act of 1974, 5 USC § 552a, imposes
information restrictions on the party administering the system of records.
For purposes of the Privacy Act, when the Agreement involves the operation of a system of records
on individuals to accomplish a government function, the recipient and any contractors, third party
contractors, subcontractors and their employees involved therein are considered to be government
employees with respect to the government function. The requirements of the Act, including the civil
and criminal penalties for violations of the Act, apply to those individuals involved. Failure to comply
with the terms of the Act or this provision of this contract will make this contract subject to
termination.
The Contractor agrees to include this clause in all subcontracts awarded under this Contract, which
involve the design, development, operation, or maintenance of any system of records on individuals
subject to the Act.
1-10 Certification Regarding Debarment, Suspension and Other Responsibility Matters
Pursuant to Executive Order 12549 and 12689, “Debarment and Suspension,” 31 USC § 6101 note
and federal regulations in 2 CFR Part 180.300 and 2 CFR Part 1200, entities and individuals who are
debarred or suspended by the federal government are excluded from obtaining federal assistance
funds under this contract. To assure that such entities and individuals are not involved as participants
on this FTA-financed contract, if the contract exceeds $25,000, each Bidder shall complete and
submit, as part of its Bid, the certification contained in Attachment A for itself, its principals and its
subcontractor(s) for any subcontract in excess of $25,000. The inability of a Bidder to provide a
certification in Attachment A will not necessarily result in denial of consideration for contract award.
A Bidder that is unable to provide a certification must submit a complete explanation attached to the
certification form. Failure to submit a certification or explanation shall disqualify the Bidder from
participation under this Bid. The County, in conjunction with FTA, will consider the certification or
explanation in determining contract award. No contract will be awarded to a potential third-party
contractor submitting a conditioned debarment or suspension certification, unless approved by the
FTA.
The certification is a material representation of fact upon which reliance is placed in determination of
award of contract. If at any time the Bidder or Contractor learns that its certification was erroneous
when submitted or has become erroneous by reason of changed circumstances, it shall immediately
provide written notice to the County. If it is later determined that the Bidder knowingly rendered an
erroneous certification, or failed to notify the County immediately of circumstances that made the
original certification no longer valid, the County may disqualify the Bidder. If it is later determined
that the Contractor knowingly rendered an erroneous certification, or failed to notify the County
immediately of circumstances which made the original certification no longer valid, the County may
terminate the contract, in addition to other remedies available including FTA suspension and/or
debarment.
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1-11 Subcontractors' Certification Regarding Debarment, Suspension or Ineligibility
By submitting a Bid for this Contract, the Bidder agrees that should it be awarded the Contract, it
shall not knowingly enter into any subcontract exceeding $25,000 with an entity or person who is
debarred, suspended, or who has been declared ineligible from obtaining federal assistance funds;
and shall require each subcontractor to complete the certification provided in Attachment B.
Each subcontract, regardless of tier, shall contain a provision that the subcontractor shall not
knowingly enter into any lower tier subcontract with a person or entity who is debarred, suspended
or declared ineligible from obtaining federal assistance funds, and a provision requiring each lower-
tiered subcontractor to provide the certification set forth in Attachment B.
The Contractor shall require each subcontractor, regardless of tier, to immediately provide written
notice to the Contractor if at any time the subcontractor learns that its, or a lower-tier certification
was erroneous when submitted or has become erroneous by reason of changed circumstances. The
Contractor may rely upon the certifications of the subcontractors unless it knows that a certification
is erroneous. The Contractor's knowledge and information regarding any subcontractor is not
required to exceed that which is normally possessed by a prudent person in the ordinary course of
business.
1-12 Disclosure of Lobbying Activities
Bids in excess of $100,000 require Attachment C, “Certification Regarding Lobbying,” and
Attachment D, “Disclosure of Lobbying Activities” (if appropriate), be completed and submitted to
the County with the proposal, in accordance with the instructions contained in Attachment F to this
Agreement, as required by 49 CFR Part 20, “New Restrictions on Lobbying.”
The Contractor certifies that it will not and has not used Federal appropriated funds to pay any person
or organization for influencing or attempting to influence an officer or employee of any agency, a
member of Congress, officer or employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other award covered by the Byrd Anti-
Lobbying Amendment, 31 USC § 1352. The Contractor shall disclose the name of any registrant
under the Lobbying Disclosure Act of 1995, codified at 2 USC § 1601 et seq., who has made lobbying
contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award
covered by 31 USC § 1352. Such disclosures are to be forwarded to the County.
The Contractor will include the language of this certification in all subcontract awards at any tier and
require that all recipients of subcontract awards in excess of $100,000 shall certify and disclose
accordingly.
1-13 False or Fraudulent Statements or Claims
(A) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act
of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of
the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any
statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying
contract or the FTA assisted project for which this contract work is being performed. In addition
to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or
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causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification,
the Federal Government reserves the right to impose the penalties of the Program Fraud Civil
Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate.
(B) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a
contract connected with a project that is financed in whole or in part with Federal assistance
originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the
right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor,
to the extent the Federal Government deems appropriate.
(C) The Contractor agrees to include the above two clauses in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not
be modified, except to identify the subcontractor who will be subject to the provisions.
1-14 Energy Conservation
The Contractor agrees to comply with mandatory standards and policies relating to energy efficiency
that are contained in the State Energy Conservation plan issued in compliance with the Energy Policy
and Conservation Act, 42 USC §§ 6321 et seq.
The Contractor agrees to include this clause in all subcontracts awarded under this Contract.
1-15 Environmental Requirements
The Contractor agrees to comply with all applicable standards, orders or requirements as follows:
A. Environmental Protection
The Contractor agrees to comply with the applicable requirements of the National
Environmental Policy Act of 1969, as amended, 42 USC §§ 4321, et seq., consistent with
Executive Order No. 11514, as amended, “Protection and Enhancement of Environmental
Quality,” 42 USC § 4321 note. FTA statutory requirements on environmental matters at 49
USC § 5324(b); Council on Environmental Quality regulations on compliance with the
National Environmental Policy Act of 1969, as amended, 42 USC § 4321 et seq. and 40 CFR
Part 1500 et seq.; and joint FHWA/FTA regulations, “Environmental Impact and Related
Procedures,” 23 CFR Part 771 and 49 CFR Part 622.
B. Air Quality
The Contractor agrees to comply with all applicable standards, orders, or regulations issued
pursuant to the Clean Air Act, as amended, 42 USC §§ 7401, et seq. The Contractor agrees
to report each violation to the County and understands and agrees that the County will, in
turn, report each violation as required to assure notification to FTA and the appropriate U.S.
Environmental Protection Agency (EPA) Regional Office.
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The Contractor agrees to include this clause in each subcontract exceeding $100,000 financed
in whole or in part with Federal assistance provided by FTA.
C. Clean Water
The Contractor agrees to comply with all applicable standards, orders, or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 USC §§ 1251 et seq.
The Contractor agrees to report each violation to the County and understands and agrees that
the County will, in turn, report each violation as required to assure notification to FTA and
the appropriate Environmental Protection Agency (EPA) Regional Office.
The Contractor agrees to protect underground sources of drinking water consistent with the
provisions of the Safe Drinking Water Act of 1974, as amended, 42 USC §§ 300h et seq.
The Contractor agrees to include these requirements in each subcontract exceeding $150,000
financed in whole or in part with Federal assistance provided by FTA.
D. Use of Public Lands
The Contractor agrees that no publicly owned land from a park, recreation area, or wildlife
or waterfowl refuge of national, state, or local significance as determined by the federal,
state or local officials having jurisdiction thereof, or any land from a historic site of
national, state, or local significance may be used for the Project unless the FTA makes the
specific findings required by 49 USC § 303.
E. Historic Preservation
The Contractor agrees to assist the Federal Government in complying with section 106 of
the National Historic Preservation Act, as amended, 16 USC § 470f, Executive Order No.
11593, “Protection and Enhancement of the Cultural Environment,” 16 USC § 470 note,
and the Archaeological and Historic Preservation Act of 1974, as amended, 16 USC §§
469a-1 et seq. involving historic and archaeological preservation as follows:
1. The Contractor agrees to consult with the State Historic Preservation Officer about
investigations to identify properties and resources listed in or eligible for inclusion
in the National Register of Historic Places that may be affected by the Project, in
accordance with Advisory Council on Historic Preservation regulations,
“Protection of Historic and Cultural Properties,” 36 CFR Part 800, and notifying
FTA of those properties so affected.
2. The Contractor agrees to comply with all federal requirements to avoid or mitigate
adverse effects on those historic properties.
F. Mitigation of Adverse Environmental Effects
The Contractor agrees that if the Project should cause adverse environmental effects, the
Contractor will take all reasonable steps to minimize those effects in accordance with 49
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USC § 5324(b), and all other applicable federal laws and regulations, specifically, the
procedures of 23 CFR Part 771 and 49 CFR Part 622.
1-16 Termination Provisions Required
All contracts and subcontracts in excess of $10,000 shall contain contractual provisions or conditions
that allow for termination for cause and convenience by the County including the manner by which
it will be effected and the basis for settlement.
(Required by FTA Circular 4220.1F, Page IV-13).
1-17 Breach Provisions Required
All contracts in excess of $100,000 shall contain contractual provisions or conditions that will
allow for administrative, contractual, or legal remedies in instances where the Contractor violates
or breaches the terms of this Contract, including sanctions and penalties as may be appropriate.
The Contractor agrees to include this provisional requirement in all subcontracts in excess of
$100,000 awarded under this Contract.
(Required by FTA Circular 4220.1F, Page IV-13).
1-18 Incorporation of FTA Terms
The preceding provisions include, in part, certain Standard Terms and Conditions required by the
U.S. Department of Transportation, whether or not expressly set forth in the preceding contract
provisions. All contractual provisions required by the U.S. Department of Transportation, as set
forth in FTA Circular 4220.1F, dated November 1, 2008, are hereby incorporated by reference.
Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to
control in the event of a conflict with other provisions contained in this Contract. The Contractor
agrees not to perform any act, fail to perform any act, or refuse to comply with any County
requests that would cause the County to be in violation of the FTA terms and conditions.
1-19 Sensitive Security Information
The Contractor shall protect, and take measures to ensure that its subcontractors at each tier, protect
“sensitive security information” made available during the administration of a third party contract
or subconstract to ensure compliance with 49 U.S.C. 40119 (b) and implementing DOT regulations,
“Protection of Sensitive Security Information,” 49 CFR Part 15, and with 49 U.S.C. § 114 (r) and
implementing Department of Homeland Security Regulations, “Protection of Sensitive Security
Information,” 49 CFR Part 1520.
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1-20 Seatbelt Use
Contractor shall adopt and promote on-the-job seatbelt use policies and programs for its
employees and other personnel that operate company owned, rented, or personally operated
vehicles in compliance with Federal Executive Order No. 13043, “Increasing Seatbelt Use in the
United States,” April 16, 1997, 23 U.S.C. § 402 note. This provision shall be included in each
third party subcontract involving this project.
1-21 Texting While Driving and Distracted Driving
Contractor shall promote policies and initiatives for its employees and other personnel that adopt
and promote safety policies to decrease crashes by distracted drivers, including policies to ban
text messaging while driving consistent with Executive Order No. 13513, “Federal Leadership on
Reducing Text Messaging While Driving,” October 1, 2009, 23 U.S.C. § 402 note, and DOT
Order 3902.10, “Text Messaging While Driving,” December 30, 2009. This provision shall be
included in each third party subcontract involving this project.
1-22 Use of $1 Coins
The Contractor and the County agree to comply with Section 104 of the Presidential $1 Coin Act of 2005,
31 U.S.C. Section 5312(p), FTA assisted property that requires the use of coins or currency in public
transportation service or supporting service must be fully capable of accepting and dispensing $1 coins.
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ATTACHMENT A
CERTIFICATION REGARDING DEBARMENT, SUSPENSION
AND OTHER RESPONSIBILITY MATTERS -
PRIMARY COVERED TRANSACTIONS
Federal Transit Administration (FTA)
The prospective Primary Participant (potential contractor for a major third-party contract),
________________ ____________________certifies to the best of its knowledge and belief, that
it and its principals:
1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from covered transactions by any federal department or agency;
2. Have not within a three (3) year period preceding this Bid been convicted of or had a civil
judgment rendered against them for commission of fraud or a criminal offense in connection
with obtaining, attempting to obtain or performing a public (federal, state or local) transaction
or contract under a public transaction; violation of federal or state antitrust statutes or
commission of embezzlement, theft, forgery, bribery, falsification or destruction or records,
making false statements or receiving stolen property;
3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental
entity (federal, state or local) with commission of any of the offenses enumerated in
Paragraph 2 of this certification; and
4. Have not within a three (3) year period preceding this Bid had one or more public
transactions (federal, state or local) terminated for cause or default.
[If the primary participant (applicant for an FTA grant, or cooperative agreement or potential third-
party contractor) is unable to certify to any of the statements in this certification, the participant shall
attach an explanation to this certification.]
THE PRIMARY PARTICIPANT (POTENTIAL CONTRACTOR FOR A MAJOR THIRD-PARTY
CONTRACT) CERTIFIES OR AFFIRMS THE TRUTHFULNESS AND ACCURACY OF THE
CONTENTS OF THE STATEMENTS SUBMITTED ON OR WITH THIS CERTIFICATION AND
UNDERSTANDS THAT THE PROVISIONS OF 31 USC SECTIONS 3801, ET SEQ., ARE
APPLICABLE THERETO.
Name of Firm:
Authorized Signature:
Printed Name:
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Title:
Date:
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ATTACHMENT B
CONTRACT NO:
CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
AND OTHER INELIGIBILITY AND VOLUNTARY EXCLUSION –
LOWER-TIER COVERED TRANSACTIONS
(This Attachment may be completed and submitted to the Buyer after award of Contract.)
The Lower-Tier Participant (potential sub-grantee or sub-recipient under a Federal Transit
Administration (FTA) project, potential third-party contractor, or potential subcontractor under a
major third-party contract), __________________________ certifies, by submission of this Bid, that
neither it nor its principals are presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from participation in this transaction by any federal department or
agency.
The Lower-Tier Participant will not knowingly enter into any lower-tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. The prospective Lower-Tier Participant agrees by submitting this proposal that it will include this requirement in all lower-tier covered transactions and in all solicitations for lower-tier covered transactions.
If the Lower-Tier Participant (potential sub-grantee or sub-recipient under an FTA project, potential
third-party contractor, or potential subcontractor under a major third party contract) is unable to
certify to any of the statements in this certification, such participant shall attach an explanation to
this Bid.
THE LOWER-TIER PARTICIPANT (POTENTIAL SUB-GRANTEE OR SUB-AGREEMENT
UNDER AN FTA PROJECT, POTENTIAL THIRD-PARTY CONTRACTOR, OR POTENTIAL
SUBCONTRACTOR UNDER A MAJOR THIRD-PARTY CONTRACT) CERTIFIES OR AFFIRMS
THE TRUTHFULNESS AND ACCURACY OF THE CONTENTS OF THE STATEMENTS
SUBMITTED ON OR WITH THIS CERTIFICATION AND UNDERSTAND THAT THE
PROVISIONS OF 31 USC §§ 3801, ET SEQ., ARE APPLICABLE THERETO.
Name of Firm:
Authorized Signature:
Printed Name:
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Title:
Date:
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ATTACHMENT C
CERTIFICATE OF LOBBYING ACTIVITIES
CONTRACT NO. ________
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No federally appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person
for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, or officer
or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any
federal contract, the making of any federal grant, the making of any federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment or modification of any federal
contract, grant, loan or cooperative agreement.
(2) If any funds other than federally appropriated funds have been paid or will be paid to any person for influencing
or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress or an employee or a Member of Congress in connection with this federal contract, grant, loan or
cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to
Report Lobbying," to the contract administrator.
(3) The undersigned shall require that the language of this certification be included in the award documents for all
sub-awards at all tiers (including sub-contracts, sub-grants and contracts under grants, loans and cooperative
agreements) and that all recipients of subcontract awards in excess of $100,000 shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was
made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction
imposed by § 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to
a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Name of Firm:
Authorized Signature:
Printed Name:
Title:
Date:
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ATTACHMENT D
DISCLOSURE FORM TO REPORT LOBBYING
DISCLOSURE OF LOBBYING ACTIVITIES
Complete this form to disclose lobbying activities pursuant to 31 U.S. C. 1352
(See reverse for public burden disclosure.)
1. Type of Federal Action:
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
2. Status of Federal Action:
a. bid/offer/application
b. initial award
c. post-award
3. Report Type:
a. initial filing
b. material change
For material change only:
year_________
quarter______
Date of last report:________
4. Name and Address of Reporting Entity:
Prime Subawardee
Tier________, if known:
Congressional District, if known:
5. If Reporting Entity in No. 4 is Subawardee, Enter
Name and Address of Prime:
Congressional District, if known:
6. Federal Department/Agency: 7. Federal Program Name/Description:
CFDA Number, if applicable: _______________
8. Federal Action Number, if known: 9. Award Amount, if known:
$
10. a. Name and Address of Lobbying Entity
(If individual, last name, first name, MI):
b. Individuals Performing Services (including address
if different from No. 10a)
(Last name, First name, MI):
11. Amount of Payment (check all that apply): 13. Type of Payment (check all that apply):
a. retainer
b. one-time fee
c. commission
d. contingent fee
e. deferred
f. other; specify: ______________________
12. Form of Payment (check all that apply):
a. cash
b. in kind; specify: nature __________
value __________
14. Brief Description of Services Performed or to be Performed and date(s) of service, including officer(s), employee(s), or
member(s)
contacted, for payment indicated in Item 11:
(Attach Continuation Sheet(s) SF-LLL-A, if necessary)
15. Continuation Sheet(s) SF-LLL-A attached): Yes No
16. Information requested through this form is authorized by title
31 USC § 1352. This disclosure of lobbying activities is
a material representation of fact upon which reliance was
placed by the tier above when this transaction was made or
entered into. This disclosure is required pursuant to 31 USC §
1352.
This information will be reported to the Congress semi-annually
and will be available for public inspection. Any person who
fails to file the required disclosure shall be subject to a civil
penalty of not less than $10,000 and not more than $100,000
for each such failure.
Signature:__________________________________
Print Name:________________________________
Title: _____________________________________
Telephone No: ______________________________
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Date: _____________________________________
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ATTACHMENT E
INSTRUCTIONS FOR COMPLETION OF SF-LLL, DISCLOSURE OF LOBBYING ACTIVITIES
This disclosure form shall be completed by the reporting entity, whether subawardee or prime federal recipient, at the initiation or receipt
of a covered federal action, or a material change to a previous filing to title 31 USC § 1352. The filing of a form is required for each
payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an
officer or employee of congress, or an employee of a Member of Congress in connection with a covered federal action. Use the SF-LLL-
A Continuation Sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the initial
filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional
information.
1. Identify the type of covered federal action for which lobbying activity is and/or has been secured to influence the outcome of a
covered Federal action.
2. Identify the status of the covered federal action.
3. Identify the appropriate classification of this report. If this is a follow-up report caused by a material change to the information
previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted
report by this reporting entity for this covered federal action.
4. Enter the full name, address, city, state and zip code of the reporting entity. Include Congressional District, if known. Check
the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime or subaward recipient.
Identify the tier of the subawardee, e.g., the first subaward of the prime is the 1st tier. Subawards include but are not limited to
subcontracts, subgrants and contract awards under grants.
5. If the organization filing the report in item 4 checks "Subawardee," then enter the full name, address, city, state and zip code of
the prime federal recipient. Include Congressional District, if known.
6. Enter the name of the federal agency making the award or loan commitment. Include at lease one organizational level below
agency name, if known. For example, Department of Transportation, United States Coast Guard.
7. Enter the federal program name or description for the covered federal action (item 1). If known, enter the full Catalog of Federal
Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments.
8. Enter the most appropriate federal identifying number available for the federal action identified in item 1 - (e.g., Request for
Proposal (RFP) number, Invitation for Bid (IFB) number, grant announcement number, the contract, grant, or loan award
number, the application/proposal control number assigned by the federal agency). Include prefixes, e.g., "RFP-DE-90-001."
9. For a covered federal action where there has been an award or loan commitment by the federal agency, enter the federal
amount of the award/loan commitment for the prime entity identified in item 4 or 5.
10. (a) Enter the full name, address, city, state and zip code of the lobbying entity engaged by the reporting entity identified
in item 4 to influence the covered federal action.
(b) Enter the full name, of the individual(s) performing services, and include full address if different from 10(a). Enter
Last Name, First Name, and Middle Initial (MI).
11. Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity (item 4) to the lobbying entity
(item 10). Indicate whether the payment has been made (actual) or will be made (planned). Check all boxes that apply. If this
is a material change report, enter the cumulative amount of payment made or planned to be made.
12. Check the amount of box(es). Check all boxes that apply. If payment is made through in-kind contribution, specify the nature
and value of the in-kind payment.
13. Check the appropriate box(es). Check all boxes that apply. If other, specify nature.
14. Provide a specific and detailed description of the services that the lobbyist has performed, or will be expected to perform, and
the date(s) of any services rendered. Include all preparatory and related activity, not just time spent in actual contact with
federal officials. Identify the federal official(s) or employee(s) contacted or the officer(s), employee(s), or Member(s) of
Congress that were contacted.
15. Check whether or not an SF-LLL-A Continuation Sheet(s) is attached.
16. The certifying official shall sign and date the form, print his/her name, title, and telephone number.
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Public reporting burden for this collection of information is estimated to average 30 minutes per response, including time for
reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information,
including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046),
Washington, D.C. 20503.
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City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Joel Bush, Technology and Innovation Services Director
BY: Eric Compton, Franchise and Technology Specialist
CC: Mayor Ekberg
DATE: January 22, 2021
SUBJECT: Extenet Systems, Inc. Asset Sharing Agreement
ISSUE
Approve an Agreement between the City and Extenet Systems, Inc. granting the sharing of
telecommunications assets in a mutually beneficial manner.
BACKGROUND
Extenet is a partner in developing small cell 5G wireless facilities across the country. In order to
facilitate the building of their infrastructure, Extenet wishes to utilize certain City assets (conduit)
and in exchange provide access to their infrastructure (fiber) or other assets in a mutually
beneficial manner. These agreements can help both Extenet and Tukwila save money and
expedite telecommunications growth in the community.
DISCUSSION
FINANCIAL IMPACT
No direct negative cost to the budget will be brought. This agreement is intended to save
money on projects while partnering with Extenet to share costs.
RECOMMENDATION
Council is being asked to approve the Agreement allowing Extenet Systems, Inc. and consider
this item on the Consent Agenda at the February 1, 2020 Regular Meeting.
ATTACHMENTS
Extenet Asset Exchange Agreement
83
1
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 ExteNet
Systems, Inc., a Delaware corporation with primary offices at 3030 Warrenville Road, Suite 340, Lisle,
Illinois 60532 (“ExteNet”), and City of Tukwila, a municipality in the State of Washington (“City”)
ExteNet 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
ExteNet 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 ExteNet or City, as the context requires.
1.8 Conduit System: Either the City Conduit System or the ExteNet Conduit System, as
context requires.
1.9 Fiber: dark (unlit) fiber optic cable of one or more fibers owned by either the City or
ExteNet, 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 ExteNet, 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 ExteNet Conduit System: Existing Conduit or Fiber owned by ExteNet, 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 ExteNet’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 ExteNet 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 ExteNet and ExteNet receives permission to
access from the City. As set forth in an executed AEF, ExteNet agrees, subject to the terms
and conditions of this Agreement, to grant a License to City to use commercially
available Conduit or Fiber within ExteNet’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 ExteNet agree that the assets to be exchanged must be available at the time of
the AEF exchange.
2.3 City and ExteNet agree that the intent of the Parties is that the Licensed Assets exchanged
between the Parties will remain balanced and approximately equal. The Par ties 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 Dispa rate
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 ExteNet 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 ExteNet: noc@extenetsystems.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, ExteNet 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.
ExteNet shall use commercially reasonable efforts to cause the Licensed Assets to
continue to meet the Specifications during the License Term. ExteNet shall perform all
routine maintenance and operations for the shared conduit and fiber system at its own
cost, provided that City shall reimburse ExteNet 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 ExteNet’s reasonable discretion, and after
adequate advance notice to the City (which shall be at least 72 hours), the ExteNet 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 ExteNet receives a trouble report of imminent or actual
failure or impairment of the Licensed Conduit or Fiber, the ExteNet 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 ExteNet receives a trouble report of the type described in
section (a), upon the City’s request, ExteNet shall provide adequate assurance that
ExteNet is diligently pursuing remedial action. If the ExteNet 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”). ExteNet 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 ExteNet in
accordance with 12.2.
(c) If the City does not elect to repair the Licensed Conduit or Fiber pursuant to subsection
(b), and ExteNet 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,
ExteNet 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 term s 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 ExteNet: noc@extenetsystems.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
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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, except 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 n otice 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.
ExteNet 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.
ExteNet’s resell rights do not include the right to transfer bear legal title. ExteNet 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 ExteNet.
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 th e 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 ExteNet 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 ExteNet, 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 ExteNet.
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 ExteNet, its officers, officials,
employees and volunteers and the City, its officers, officials, employees, and volunteers,
ExteNet’s liability hereunder shall be only to the extent of ExteNet’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 ExteNet'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. ExteNet 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 ExteNet maintains higher insurance limits than the minimums shown abo ve, the City shall
be insured for the full available limits of Commercial General and Excess or Umbrella liability
maintained by the ExteNet, irrespective of whether such limits maintained by ExteNet 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 ExteNet.
13.4 ExteNet 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 ExteNet 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 ExteNet 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
ExteNet 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, F orce 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, ExteNet may assign this Agreement in its entirety without the
City’s consent, to an entity in which such ExteNet 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 ExteNet’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, to 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 ExteNet: ExteNet Systems. Inc.
ATTN: CFO
3030 Warrenville Rd, Suite 340
Lisle,IL 60532
With copy to General Counsel at same address
Notice@extenetsystems.com
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.
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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, Sun days 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.
ETEXTENET SYSTEMS, INC. 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 ExteNet 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:
EMAIL: Phone:
□ 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 ExteNet’s Network Control and
Management at .
ExteNet 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*************
***************APPROVALS***************
Date requested: Time: Expected Duration of Activity:
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