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Home My WebLink AboutCOW 2024-05-13 COMPLETE AGENDA PACKET�J�11LA pv4 o tiz Tukwila ❖ COMMITTEE City Council THE Agenda WHOLE ❖ •OF 19OB -I� ? Thomas McLeod, Mayor Councllmembers: ❖ De'Sean Quinn ❖ Tosh Sharp Marty Wine, Interim City Administrator ❖ Armen Papyan ❖ Jovita McConnell Mohamed Abdi, Council President ❖ Dennis Martinez ❖ Hannah Hedrick ON -SITE PRESENCE: TUKWILA CITY HALL COUNCIL CHAMBERS REMOTE PARTICIPATION FOR THE PUBLIC: 1-253-292-9750, ACCESS CODE: 670077847# Click here to: Join Microsoft Teams Meeting 6200 SOUTHCENTER BOULEVARD For Technical Support: 1-206-433-7155 Monday, May 13, 2024; 7:00 PM • Ord #2728 • Res #2095 1. CALL TO ORDER / PLEDGE OF ALLEGIANCE 2. LAND ACKNOWLEDGEMENT The City of Tukwila is located on the ancestral lands of the Coast Salish people. We acknowledge their continuing connections to land, waters and culture. We pay our respects to their elders past, present and emerging. 3. PUBLIC COMMENTS including comment on items both on and not on the meeting agenda Those wishing to provide public comments may verbally address the City Council both on -site at Tukwila City Hall or via phone or Microsoft Teams for up to 5 minutes for items both on and not on the meeting agenda. To provide comment via phone or Microsoft Teams, please email citycouncil@tukwilawa.gov with your name and topic by 5:00 PM on the meeting date. Please clearly indicate that your message is for public comment during the meeting, and you will receive further instructions. 4. PRESENTATION a. A proclamation for Peace Officer's Memorial Day. Pg.1 5. SPECIAL ISSUES a. An ordinance adopting a Franchise Agreement with Astound Broadband. b. A resolution adopting Financial Policies. c. A resolution adopting a Purchasing and Contracting Policy. Pg.3 Pg.49 Pg.61 6. REPORTS a. Mayor b. City Council c. Staff 7. MISCELLANEOUS 8. EXECUTIVE SESSION 9. ADJOURNMENT This agenda is available at www.tukwilawa.gov, and in alternate formats with advance notice for those with disabilities. Remote Tukwila Council meetings are audio taped (and video taped as of 9/14/20). Available at www.tukwilawa.gov) M.P.If you are in need of translation or interpretation services at a Council meeting, ��grplease contact us at 206-433-1800 by 12:00 p.m. on the meeting date. WELCOME TO THE TUKWILA CITY COUNCIL MEETING The Tukwila City Council encourages community participation in the local government process and welcomes attendance and public comment at its meetings. MEETING SCHEDULE Regular Meetings are held at 7:00 p.m. on the 1st and 3rd Mondays of each month. The City Council takes formal action in the form of motions, resolutions and ordinances at Regular Meetings. Committee of the Whole Meetings are held at 7:00 p.m. on the 2nd and 4th Mondays of each month. The City Council considers current issues, discusses policy matters in detail, and coordinates the work of the Council at Committee of the Whole meetings. PUBLIC COMMENTS Members of the public are given the opportunity to address the Council for up to 5 minutes on items both on and not on the meeting agenda during Public Comments. The City Council will also accept comments on an agenda item when the item is presented in the agenda, but speakers are limited to commenting once per item each meeting. When recognized by the Presiding Officer, please go to the podium if on -site or turn on your microphone if attending virtually and state your name clearly for the record. The City Council appreciates hearing from you but may not respond or answer questions during the meeting. Members of the City Council or City staff may follow up with you following the meeting. PUBLIC HEARINGS Public Hearings are required by law before the Council can take action on matters affecting the public interest such as land -use laws, annexations, rezone requests, public safety issues, etc. The City Council Rules of Procedure provide the following guidelines for Public Hearings: 1. City staff will provide a report summarizing and providing context to the issue at hand. 2. City staff shall speak first and be allowed 15 minutes to make a presentation. 3. The applicant is then allowed 15 minutes to make a presentation. 4. Each side is then allowed 5 minutes for rebuttal. 5. After City staff and the applicant have used their speaking time, the Council may ask further clarifying questions of the speakers. 6. Members of the public who wish to address the Council on the hearing topic may speak for 5 minutes each. 7. Speakers are asked to sign in on forms provided by the City Clerk. 8. The Council may ask clarifying questions of speakers and the speakers may respond. 9. Speakers should address their comments to the City Council. 10. If a large number of people wish to speak to the issue, the Council may limit the total amount of comment time dedicated to the Public Hearing. 11. Once the Presiding Officer closes the public hearing, no further comments will be accepted, and the issue is open for Councilmember discussion. 12. Any hearing being held or ordered to be held by the City Council may be continued in the manner as set forth by RCW 42.30.100. For more information about the City Council, including its complete Rules of Procedure, please visit: https://www.tukwilawa.gov/departments/city-council/ r 7 Office of the Mayor City of Tukwila, Washington PROCLAMATION WHEREAS, the Congress of the United States has designated the week of May 12 through May 18 as National Police Week and May 15 as Peace Officers' Memorial Day; and WHEREAS, the City of Tukwila, stands together to recognize May 15 as Police Officers' Memorial Day; and WHEREAS, the law enforcement officer is our guardian of life and property; defender of the right to be free; leader in the war against crime; and dedicated to the preservation of life, liberty and the pursuit of happiness; and WHEREAS, our community joins with other cities and towns to honor all peace officers everywhere; as well as recognizes the service and sacrifice of U.S. law enforcement; and WHEREAS, the Tukwila Police Department will remember and honor their fallen brother and sister officers by wearing a black band over their badges on May 15; and WHEREAS, the Tukwila community also recognizes May 15 as Peace Officers' Memorial Day, when the flag at all City of Tukwila facilities will be flown at half-staff, In Memory of Many, in Honor of All; and NOW THEREFORE, I, Thomas McLeod, Mayor of the City of Tukwila, do hereby proclaim today: Peace Officers' Memorial Day in Tukwila and urge all community members to remember those officers who gave their lives serving the public. Presented this 13th day of May, 2024. cfpn44- itif Thomas McLeod, Mayor 1 2 COUNCIL AGENDA SYNOPSIS Initials Meeting Date Prepared by Mayor's review Council review 05/13/24 ESC 05/20/24 ESC ITEM No. 5.A. ITEM INFORMATION STAFF SPONSOR: ERIC COMPTON ORIGINAL AGENDA DATE: 04/22/24 AGENDA ITEM TITLE Franchise Agreement with Astound Broadband CATEGORY ❑ Discussion Mtg Date ❑ Al Motion Date ❑ Resolution Mtg Date ❑ Bid _Award Mtg Date ❑ Public Hearing Mtg Date ❑ Other Mtg Date a Ordinance Mtg Date 05/13/24 SPONSOR ❑ Council ❑ Mayor Svcs ❑ DCD ❑ Finance ❑ Fire ❑ P&R ❑ Police ❑ PW 0 Admin SPONSOR'S Astound Broadband is a local internet service provider that competes directly with Comcast SUMMARY and Century Link to provide internet to local consumers in Tukwila. Astound is looking to continue to increase their presence in Tukwila and provide competition in the local internet market. Council is being asked to approve the new ordinance for the franchise agreement that will allow Astound to continue developing their infrastructure and expand their service area. REVIEWED BY Trans&Infrastructure Svcs ❑ Community Svcs/Safety ❑ Finance & Governance ❑ Planning & Community Dev. ❑ Arts Comm. ❑ Parks Comm. ❑ Planning Comm. COMMITTEE CHAIR: ARMEN PAPYAN ❑ LTAC DATE: 4/22/24 RECOMMENDATIONS: SPONSOR/ADMIN. COMMITTEE Technology and Innovation Services / Joel Bush Unanimous Approval; Forward to Committee of the Whole COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $0 $0 $0 Fund Source: No FUNDING REQUIRED Comments: Under the terms of the Franchise, Astound is required to pay a $5000 administrative fee MTG. DATE RECORD OF COUNCIL ACTION 05/13/24 05/20/24 MTG. DATE ATTACHMENTS 05/13/24 Informational Memorandum dated 04/19/24 Draft Ordinance Minutes from the Transportation & Infrastructure Services Committee dated 04/22/24 05/20/24 3 4 TO: FROM: BY: City of Tukwila Thomas McLeod, Mayor INFORMATIONAL MEMORANDUM Transportation & Infrastructure Committee Joel Bush, Chief Information Officer Eric Compton, Franchise Analyst CC: Mayor Thomas McLeod DATE: 04/19/2024 SUBJECT: Franchise Agreement with Astound Broadband ISSUE Approve and ordinance granting Astound Broadband a new Franchise Agreement with a term of five (5) years. BACKGROUND State law provides cities the authority to establish franchises to telecommunication providers who wish to occupy city owned rights -of -way. Tukwila Municipal Code 11.32.060 requires all telecommunication providers to obtain franchise agreements with the City prior to approval to construct, maintain and operate within the City limits. DISCUSSION Astound Broadband is a local internet service provider providing competition to incumbent providers like Century Link and Comcast. They have a small presence in the City for the consumer market and a larger presence for back -haul services to connect regions across the US. Astound is seeking to continue to provide service in Tukwila and expand their footprint for consumer services providing increased competition in more neighborhoods across the City. Additionally, Astound has been a willing partner in terms of asset sharing and collaboration to bring services to the Tukwila community, potentially providing increased access for City services like Tukwila's Private LTE network. FINANCIAL IMPACT Under the terms of the Franchise, IIG is required to pay the City a $5000 administrative fee. RECOMMENDATION Council is being asked to approve the Ordinance granting Astound Broadband a Franchise Agreement and consider this item at the May 13, 2024, Committee of the Whole and then the May 20, 2024, Regular Consent Agenda. ATTACHMENTS Astound Franchise Agreement 5 6 DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING TO ASTOUND BROADBAND, LLC D/B/A ASTOUND BROADBAND AND ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND NONEXCLUSIVE FRANCHISE FOR FIVE YEARS, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A TELECOMMUNICATIONS NETWORK, IN, ACROSS, OVER, ALONG, UNDER, THROUGH AND BELOW CERTAIN DESIGNATED PUBLIC RIGHTS -OF - WAY OF THE CITY OF TUKWILA, WASHINGTON. WHEREAS, pursuant to Ordinance No. 2445, the City of Tukwila ("City") granted Astound Broadband, LLC ("Franchisee") a 5-year telecommunications franchise; and WHEREAS, pursuant to Ordinance No. 2607, the City Council granted Franchisee a one-year extension; and WHEREAS, Ordinance No. 2607 expired on August 11, 2020; and WHEREAS, pursuant to Ordinance No. 2632, the City Council granted Franchisee an additional year long extension to August 11, 2021; and WHEREAS, Franchisee has requested that the City Council grant it a new nonexclusive franchise; and WHEREAS, the City Council has the authority to grant franchises for the use of its streets and other public properties pursuant to RCW 35A.47.040. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Franchise. The franchise by the City Council under Ordinance No. 2445 is hereby terminated and replaced in its entirety by this franchise, attached and incorporated herein as Attachment A. The term of the franchise shall be for five (5) years, commencing on the date the last party executes the franchise. 2024 Legislation: Astound Franchise Agreement Version: 04/03/2024 Staff: E. Compton Page 1 of 2 7 Section 2. Terms & Conditions. The terms and conditions governing the franchise specified in Section 1. shall be those set forth on Attachment A to this Ordinance and incorporated herein by this reference as if set forth in full. Section 3. Deadline for Acceptance. The rights and privileges granted pursuant to this Ordinance shall not become effective until its terms and conditions are accepted by Astound Broadband, LLC. Such acceptance shall contain any required letter of credit, evidence of insurance, all applicable fees pursuant to Section 14. of the Franchise, and shall be filed with the City Clerk within sixty (60) days after the effective date of this Ordinance. Such instrument shall conform substantially to Attachment B, and evidence the unconditional acceptance of the terms hereof and a promise to comply with and abide by the provisions, terms and conditions hereof. Section 4. Severability. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. Section 5. Corrections by City Clerk or Code Reviser Authorized. Upon approval by the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section/subsection numbering. Section 6. Effective Date. This Ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2024. ATTEST/AUTHENTICATED: Andy Youn, MMC, City Clerk Thomas McLeod, Mayor APPROVED AS TO FORM BY: Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Office of the City Attorney Attachments: Exhibit A — Astound Broadband, LLC, Franchise Agreement Exhibit B — Astound Broadband, LLC, Statement of Acceptance 2024 Legislation: Astound Franchise Agreement Version: 04/03/2024 Staff: E. Compton Page 2of2 8 ATTACHMENT A [See attached.] 2024 Legislation: Astound Franchise Agreement Version: 04/03/2024 Staff: E. Compton Page 3 of 2 9 TELECOMMUNICATIONS FRANCHISE Between CITY OF TUKWILA, WASHINGTON and ASTOUND BROADBAND, LLC This Telecommunications Franchise is entered into by and between the City of Tukwila, Washington a municipal corporation, hereinafter ("the City") and Astound Broadband, LLC who is hereinafter known as ("Astound" or "Franchisee"). The City and Franchisee are sometimes referred to hereinafter collectively as the "parties." Section 1. Franchise Granted. Section 1.1. Pursuant to RCW 35A.47.040, the City hereby grants to Astound a non- exclusive franchise (the "Franchise") under the terms and conditions contained in this franchise ordinance (the "Franchise Ordinance"). Section 1.2. This Franchise grants Franchisee the right, privilege, and authority to construct, operate, maintain, replace, acquire, sell, lease and use all necessary Facilities for a telecommunications network, in, under, on, across, over, through, along or below the public Rights -of -Ways located in the City of Tukwila, as approved pursuant to City permits issued pursuant to this Franchise and in accordance with all applicable federal, state, and local codes. Tukwila Municipal Code ("TMC") Title 11 is hereby incorporated by reference, however, in the event of any conflict between this chapter and this Franchise, the Franchise shall govern. (a) "Facilities" as used in this Franchise means one or more elements of Franchisee's telecommunications network, with all necessary cables, wires, conduits, ducts, pedestals, antennas, electronics, and other necessary appurtenances. Equipment enclosures with air conditioning or other noise generating equipment shall meet all lawful TMC requirements. For the purposes of this Franchise the term Facilities excludes "microcell" facilities defined by RCW 80.36.375, and "macrocell" facilities, including towers and new base stations and other similar facilities (except for fiber optic cables) provided that such exclusion shall not apply to Facilities interconnecting with and serving such facilities. 10 (b) Public "Rights -of -Way" means land acquired or dedicated to the public or that is hereafter dedicated to the public and maintained under public authority, including, but not limited to, public streets or roads, highways, avenues, lanes, alleys, bridges, sidewalks, utility easements and similar public property located within the franchise area but does not include: State highways; land dedicated for road, streets, highways not opened and not improved for motor vehicle use by the public; structures including poles and conduits located within the right-of-way; federally granted trust lands or forest board trust lands; lands owned or managed by the State Parks and Recreation Commission; federally granted railroad rights -of -way acquired under 43 USC § 912 and related provisions of federal law that are not open for vehicular use; or leasehold or City -owned property to which the City holds fee title or other title and which is utilized for park, utility or a governmental or proprietary use (for example, buildings, other City -owned physical facilities, parks, poles, conduits, fixtures, real property or property rights owned or leased by the City not reserved for transportation purposes). Section 2. Authority Limited to Occupation of the Public Rights -of -Way Section 2.1. The authority granted pursuant to this Franchise is a limited authorization to occupy and use the Rights -of -Way throughout the City (the "Franchise Area"). No right to install any facility, infrastructure, wires, lines, cables, or other equipment, on any City property other than a Right -of -Way, or upon private property without the owner's consent, or upon any public or privately owned utility poles or conduits is granted herein. Franchisee hereby represents that it expects to provide the following services within the City: high speed data and fiber optic services, internet protocol -based services, internet access services, conduit and dark fiber leasing, telephone, data transport and other telecommunications and information services (the "Services"). Nothing contained herein shall be construed to grant or convey any right, title, or interest in the Rights -of -Way of the City to the Franchisee other than for the purpose of providing the Services, nor to subordinate the primary use of the Right -of -Way as a public thoroughfare. Franchisee may not occupy the Right -of -Way to provide Cable Services as defined in 47 U.S.C. § 522(6) nor occupy the Right -of -Way for the placement of small wireless facilities or macro facilities, without obtaining a new franchise or an amendment to this Franchise approved by the City Council. 11 Section 2.2. Notwithstanding the existence of this Franchise, the installation, construction, maintenance, use, operation, replacement and removal by Franchisee of any one or more Franchise Facilities will be subject to all applicable provisions of Title 11 TMC, including, but not limited to, the City's Infrastructure, Design, and Construction Standards, adopted by the City's Public Works Department of Public Works, the terms and conditions of City right-of-way use permits issued pursuant to Title 11 TMC, the terms and conditions of City building permits issued pursuant to Title 16 TMC, and all other applicable laws, rules and regulations. Section 2.3. Franchisee shall have the right, without prior City approval, to offer or provide capacity or bandwidth to its customers consistent with this Franchise, provided: (a) Franchisee at all times retains exclusive ownership over its telecommunications system, Facilities and Services and remains responsible for constructing, installing, and maintaining its Facilities pursuant to the terms and conditions of this Franchise; (b) Franchisee may not grant rights to any customer or lessee that are greater than any rights Franchisee has pursuant to this Franchise, provided that leases or other commercial arrangements for the use of the Facilities installed pursuant to this Franchise may extend beyond the term of the Franchise; (c) Such customer or lessee shall not be construed to be a third -party beneficiary under this Franchise; and (d) No such customer or lessee may use the telecommunications system or Services for any purpose not authorized by this Franchise, unless such rights are otherwise granted by the City. Section 3. Non -Exclusive Franchise. Section 3.1. This Franchise is granted to the Franchisee upon the express condition and understanding that it shall be a non-exclusive Franchise which shall not in any manner prevent or hinder the City from granting to other parties, at other times and under such terms and conditions as the City, in its sole discretion, may deem appropriate, other franchises or similar use rights in, on, to, across, over, upon, along, under or through any Public Rights -of -Way. Additionally, this Franchise shall in no way prevent, inhibit or prohibit the City from using any of the roads, Public Rights -of -Way or other public properties covered or affected by this Franchise, nor shall this 12 Franchise affect the City's jurisdiction, authority or power over any of them, in whole or in part. The City expressly retains its power to make or perform any and all changes, relocations, repairs, maintenance, establishments, improvements, dedications, or vacations of or to any of the roads, Public Rights -of -Way or other public properties covered or affected by the Franchise as the City may, in its sole and absolute discretion, deem fit, including the dedication, establishment, maintenance and/or improvement of new Public Rights -of -Way, thoroughfares and other public properties of every type and description. Section 4. Term; Early Termination. Section 4.1. The initial term of the Franchise shall be for a period of five (5) years (the "Initial Term"), beginning on the Effective Date of the Franchise, and continuing until the date that is one day prior to the fifth anniversary of the Effective Date (the "Initial Term Expiration Date"), unless earlier terminated, revoked or modified pursuant to the provisions of this Franchise. Section 4.2. The Franchise granted by this Franchise Ordinance shall automatically renew on the fifth anniversary of the Effective Date with the same terms and conditions as set forth in this Franchise, for one (1) additional five (5) year (the "Renewal Term," and, together with the Initial Term, the "Term"), unless either party provides one hundred twenty (120) days written notice to the other party to request an amendment to the Franchise. Section 5. Location of Facilities. Section 5.1. Franchisee is maintaining a telecommunications network, consisting of Facilities within the City. Franchisee may locate its Facilities anywhere within the Franchise Area consistent with the City's Infrastructure, Design and Construction standards and the Tukwila Municipal Code and subject to the City's applicable permit requirements. Franchisee shall not commence any construction or other similar work within a Public Right -of -Way until (i) a right- of-way use permit authorizing such work has been issued by the City pursuant to Title 11 TMC for a site -specific location or installation, including, but not limited to, relocations, and (ii) if required by Title 16 TMC, a building permit authorizing such work has been issued by the City. Section 5.2. To the extent that any Rights -of -Way within the Franchise Area are part of the state highway system ("State Highways"), are considered managed access by the City and are governed by the provisions of Chapter 47.24 RCW and applicable Washington State Department 13 of Transportation (WSDOT) regulations, Franchisee shall comply fully with said requirements in addition to local ordinances and other applicable regulations. Franchisee specifically agrees that: (a) any pavement trenching and restoration performed by Franchisee within State Highways shall meet or exceed applicable WSDOT requirements; (b) any portion of a State Highway damaged or injured by Franchisee shall be restored, repaired and/or replaced by Franchisee to a condition that meets or exceeds applicable WSDOT requirements; and (c) without prejudice to any right or privilege of the City, WSDOT is authorized to enforce in an action brought in the name of the State of Washington any condition of this Franchise with respect to any portion of a State Highway. Section 6. Relocation of Facilities Section 6.1. The Franchisee agrees and covenants that, upon reasonable notice, it will promptly, at its sole cost and expense, protect, support, temporarily disconnect, relocate, or remove from any Public Right -of -Way any portion of the Franchisee Facilities when so required by the City due to any of the following reasons: (i) traffic conditions, (ii) public safety, (iii) dedications of new rights -of -way and the establishment and/or improvement thereof, (iv) widening and/or improvement of existing rights -of -way, (v) right-of-way vacations, (vi) freeway construction, (vii) change or establishment of road grade, or (viii) the construction of any public improvement or structure by any governmental agency acting in a governmental capacity; PROVIDED that the Franchisee shall generally have the privilege to temporarily bypass, in the authorized portion of the same Public Right -of -Way, upon approval by the Public Works Director, any Franchisee Facilities required to be temporarily disconnected or removed. The provisions of this Section 6. apply to all Franchisee Facilities wheresoever situated within any Public Right -of -Way, regardless of whether the Franchisee Facility at issue was originally placed in such location under the authority of an easement or other property interest prior to the property becoming a Public Right - of -Way. For the avoidance of doubt, such projects shall include any Right -of -Way improvement project, even if the project entails, in part, related work funded and/or performed by or for a third party, provided that such work is performed for the public benefit, and not primarily for the benefit of a private entity, and shall not include, without limitation, any other improvements or repairs undertaken by or for the sole benefit of third party private entities. Collectively all such projects 14 described in this Section 6.1 shall be considered a "Public Project". Except as otherwise provided by law, the costs and expenses associated with relocations or disconnections ordered pursuant to this Section 6.1 shall be borne by Franchisee. Nothing contained within this Franchise shall limit Franchisee's ability to seek reimbursement for relocation costs when permitted by RCW 35.99.060. Section 6.2. Upon the request of the City and in order to facilitate the design of City improvements to Public Rights -of -Way, Franchisee agrees, at its sole cost and expense, to locate and, if reasonably determined necessary by the City, to excavate and expose, at its sole cost and expense, portions of the Franchisee Facilities for inspection so that the location of the facilities may be taken into account in the Public Project design; PROVIDED, that Franchisee shall not be required to excavate and expose the Franchisee Facilities for inspection unless Franchisee's record drawings and maps of the Franchisee Facilities submitted pursuant to Section 13. of this Franchise are reasonably determined by the Public Works Director to be inadequate for the City's planning purposes. The decision to require relocation of any Franchisee Facilities in order to accommodate Public Projects shall be made by the Public Works Director upon review of the location and construction of the Franchisee Facilities at issue. Where the City incurs additional costs in performing any maintenance, operation, or improvement of or to public facilities due to measures taken by the City to avoid damaging or to otherwise accommodate one or more Franchisee Facilities, Franchisee shall reimburse the City for the full amount of such additional costs promptly upon receiving the City's invoice for same. Section 6.3. Any condition or requirement imposed by the City upon any person or entity (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals for permits for zoning, land use, construction or development) which reasonably necessitates the relocation of any Franchisee Facilities shall constitute a required relocation for purposes of this Section 6. Section 6.4. If the City determines that the Public Project necessitates the relocation of Franchisee's Facilities, the City shall provide Franchisee in writing with a date by which the relocation shall be completed (the "Relocation Date") consistent with RCW 35.99.060(2). In calculating the Relocation Date, the City shall consult with Franchisee and consider the extent of facilities to be relocated, the services requirements, and the construction sequence for the 15 relocation, within the City's overall project construction sequence and constraints, to safely complete the relocation, and the City shall endeavor to provide Franchisee at least sixty (60) days' notice prior to the Relocation Date. Franchisee shall complete the relocation by the Relocation Date, unless the City or a reviewing court establishes a later date for completion, as described in RCW 35.99.060(2). To provide guidance on this notice process, the City will make reasonable efforts to involve Franchisee in the predesign and design phases of any Public Project. After receipt of the written notice containing the Relocation Date, Franchisee shall relocate such facilities to accommodate the Public Project consistent with the timeline provided by the City and at no charge or expense to the City. Such timeline may be extended by a mutual agreement. Section 6.5. If Franchisee fails to complete this work within the time prescribed above and to the City's satisfaction, the City may cause such work to be done and bill the cost of the work to Franchisee, including all costs and expenses incurred by the City due to Franchisee's delay. In such event, the City shall not be liable for any damage to any portion of Franchisee's Facilities. Within thirty (30) days of receipt of an itemized list of those costs, Franchisee shall pay the City. In any event, if Franchisee fails to timely relocate, remove, replace, modify or disconnect Franchisee's facilities and equipment, and that delay results in any delay damage accrued by or against the City, Franchisee will be liable for all documented costs of construction delays attributable to Franchisee's failure to timely act. Franchisee reserves the right to challenge any determination by the City of costs for construction delays related to an alleged failure to act in accordance with this Section 6.5. Section 6.6. Franchisee will indemnify, defend, hold harmless, and pay the costs of defending the City, in accordance with the provisions of Section 19. against any and all claims, suits, actions, damages, or liabilities for delays on City construction projects caused by or arising out of the failure of Franchisee to remove or relocate its Facilities in a timely manner; provided, that Franchisee shall not be responsible for damages due to delays caused by circumstances beyond the control of Franchisee or the negligence, willful misconduct, or unreasonable delay of the City or any unrelated third party. Section 6.7. In the event of an emergency posing a threat to public safety or welfare, or in the event of an emergency beyond the control of the City which will result in severe financial 16 consequences to the City, which necessitates the relocation of Franchisee's Facilities, Franchisee shall relocate its Facilities within the time period specified by the City. Section 6.8. The provisions of this Section 6. shall in no manner preclude or restrict Franchisee from making any arrangements it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity other than the City, where the facilities to be constructed by said person or entity are not or will not become City -owned, operated, or maintained facilities, provided that such arrangements do not unduly delay a City construction project. Section 6.9. The provisions of this Section 6. shall survive the expiration, revocation, abandonment or termination of this Franchise during such time as Franchisee continues to have Facilities in the Rights -of -Way. Section 7. Undergrounding of Facilities. Section 7.1. Except as specifically authorized by permit of the City, Franchisee shall not be permitted to erect poles. All Facilities shall be installed underground. Franchisee acknowledges and agrees that if the City does not require the undergrounding of its Facilities at the time of permit application, the City may, at any time in the future, require the conversion of Franchisee's aerial facilities to underground installation at Franchisee's expense; provided that the City requires all other wireline utilities, except electrical utilities, with aerial facilities in the area to convert such facilities to underground installation at the same time. Unless otherwise permitted by the City, Franchisee shall underground its Facilities in all new developments and subdivisions, and any development or subdivision where all utilities, other than electrical utilities, are currently underground. Section 7.2. Whenever the City may require the undergrounding of the aerial utilities (other than electrical utilities and personal wireless services facilities) in any area of the City, Franchisee shall underground its aerial facilities in the manner specified by the City, concurrently with and in the area of the other affected utilities. The location of any such relocated and underground utilities shall be approved by the City. Where other utilities are present and involved in the undergrounding project, Franchisee shall only be required to pay its fair share of common costs borne by all utilities, in addition to the costs specifically attributable to the undergrounding of Franchisee's own Facilities. "Common costs" shall include necessary costs not specifically 17 attributable to the undergrounding of any particular facility, such as costs for common trenching and utility vaults. "Fair share" shall be determined for a project on the basis of the number and size of Franchisee's Facilities being undergrounded in comparison to the total number and size of all other utility facilities being undergrounded. Section 7.3. To the extent Franchisee is providing Services to personal wireless services facilities, Franchisee shall adhere to the design standards for such personal wireless services facilities, and shall underground its Facilities and/or place its Facilities within the pole as may be required by such design standards. For the purposes of clarity, this Section 7.3 does not require undergrounding or interior placement of Facilities within the pole to the extent that the personal wireless services facilities are located on utility poles that have pre-existing aerial wireline facilities and provided such construction of Franchisee's Facilities continue to comply with Section 7.1 or Section 7.2. Section 7.4. Franchisee shall not remove any underground cable or conduit that requires trenching or other opening of the Rights -of -Way along the extension of cable to be removed, except as provided in this Section 7.4. Franchisee may remove any underground cable and other related facilities from the Right -of -Way that has been installed in such a manner that it can be removed without trenching or other opening of the Right -of -Way along the extension of cable to be removed, or if otherwise permitted by the City. Franchisee may remove any underground cable from the Rights -of -Way where reasonably necessary to replace, upgrade, or enhance its Facilities, or pursuant to Section 6. When the City determines, in the City's sole discretion, that Franchisee's underground Facilities must be removed in order to eliminate or prevent a hazardous condition, Franchisee shall remove the cable or conduit at Franchisee's sole cost and expense. Franchisee must apply and receive a permit, pursuant to Section 9. , prior to any such removal of underground cable, conduit and other related facilities from the Right -of -Way and must provide as -built plans and maps pursuant to Section 13.1. Section 7.5. Both the City and Franchisee shall be entitled to reasonable access to open utility trenches, provided that such access does not interfere with the other parry's placement of utilities or increase such party's actual costs. Franchisee shall pay to the City the actual cost to the City resulting from providing Franchisee access to an open trench, including without limitation the pro rata share of the costs to access the open trench and any costs associated with the delay of 18 the completion of a public works project. The City shall pay to the Franchisee the incremental costs of providing such access to the open trench. Section 7.6. The provisions of this Section 7. shall survive the expiration, revocation, abandonment or termination of this Franchise. Nothing in this Section 7. shall be construed as requiring the City to pay any costs of undergrounding any of the Franchisee's Facilities. Section 8. Emergency Work/Dangerous Conditions. Section 8.1. In the event of any emergency in which any of Franchisee's Facilities located in or under any street endangers the property, life, health or safety of any person, or if Franchisee's construction area is otherwise in such a condition as to immediately endanger the property, life, health or safety of any individual, Franchisee shall respond within 24 hours to take the proper emergency measures to repair its Facilities, to cure or remedy the dangerous conditions for the protection of property, life, health or safety of individuals without first applying for and obtaining a permit as required by this Franchise. However, this shall not relieve Franchisee from the requirement of obtaining any permits necessary for this purpose, and Franchisee shall apply for all such permits not later than the next succeeding day during which the Tukwila City Hall is open for business. The City retains the right and privilege to cut or move any Facilities located within the Rights -of -Way of the City, in response to any public health or safety emergency. Section 8.2. The City shall not be liable for any damage to or loss of Facilities within the Rights -of -Way as a result of or in connection with any public works, public improvements, construction, grading, excavation, filling, or work of any kind in the Rights -of -Way by or on behalf of the City, except to the extent directly and proximately caused by sole negligence, intentional misconduct or criminal actions of the City, its employees, contractors, or agents. The City shall further not be liable to Franchisee for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section 8. except to the extent caused by the sole negligence, intentional misconduct or criminal actions of the City, its employees, contractors, or agents. Section 8.3. Whenever the construction, installation or excavation of Facilities conducted by Franchisee as authorized by this Franchise has caused or materially contributed to a condition that appears to substantially impair the lateral support of the adjoining street or public place, or endangers the public, an adjoining public place, street utilities or City property, the Public 19 Works Director may direct Franchisee, at Franchisee's own expense, to take reasonable action to protect the public, adjacent public places, City property or street utilities, and such action may include compliance within a prescribed time. In the event that Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, before the City can timely contact Franchisee to request Franchisee effect the immediate repair, the City may enter upon the property and take such reasonable actions as are necessary to protect the public, the adjacent streets, or street utilities, or to maintain the lateral support thereof, or reasonable actions regarded as necessary safety precautions, and Franchisee shall be liable to the City for the costs thereof. Section 9. Work in the Rights -of -Way. Section 9.1. During any period of relocation, construction or maintenance, all work performed by Franchisee or its contractors shall be accomplished in a safe and workmanlike manner, so to minimize interference with the free passage of traffic and the free use of adjoining property, whether public or private. Franchisee shall at all times post and maintain proper barricades, flags, naggers, lights, flares and other measures as required for the safety of all members of the general public and comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of Washington, including RCW 39.04.180 for the construction of trench safety systems. Section 9.2. Whenever Franchisee shall commence work in any Rights -of -Way for the purpose of excavation, installation, construction, repair, maintenance, or relocation of its cable or equipment, it shall apply to the City for a permit to do so and, in addition, shall give the City at least ten (10) working days prior notice (except in the case of an emergency) of its intent to commence work in the Rights -of -Way. The City shall only issue permits that are in compliance with the TMC and the City's generally applicable design standards. During the progress of the work, the Franchisee shall not unnecessarily obstruct the passage or proper use of the Rights -of - Way, and all work by the Franchisee in the area shall be performed in accordance with applicable City standards and specifications. In no case shall any work commence within any Rights -of -Way without a permit, except as otherwise provided in this Franchise. Section 9.3. If the Franchisee shall at any time plan to make excavations in any area covered by this Franchise and as described in this Section 9.3, the Franchisee shall afford the other, 20 upon receipt of a written request to do so, an opportunity to share such excavation, PROVIDED THAT: (a) Such joint use shall not unreasonably delay the work of the Franchisee causing the excavation to be made; (b) Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and (c) Franchisee may deny such request for safety reasons. Section 9.4. Except for emergency situations, Franchisee shall give at least seven (7) days' prior notice of intended construction to residents in the affected area prior to any underground construction or disturbance. Such notice shall contain the dates, contact number, nature and location of the work to be performed. At least twenty-four (24) hours prior to entering private property or streets or public easements adjacent to or on such private property, Franchisee shall physically post a notice on the property indicating the nature and location of the work to be performed. Door hangers are permissible methods of notifications to residents. Franchisee shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices. Following performance of the work, Franchisee shall restore the private property as nearly as possible to its condition prior to construction, except for any change in condition not caused by Franchisee. Any disturbance of landscaping, fencing, or other improvements on private property caused by Franchisee's work shall, at the sole expense of Franchisee, be promptly repaired and restored to the reasonable satisfaction of the property owner/resident. Notwithstanding the above, nothing herein shall give Franchisee the right to enter onto private property without the permission of such private property owner, or as otherwise authorized by applicable law. Section 9.5. Upon receipt of a permit (except in emergency situations), Franchisee may trim trees upon and overhanging on public ways, streets, alleys, sidewalks, and other public places of the City so as to prevent the branches of such trees from coming in contact with Franchisee's Facilities. The right to trim trees in this Section 9.5 shall only apply to the extent necessary to protect above ground Facilities. Franchisee's tree trimming activities shall protect the appearance, integrity, and health of the trees to the extent reasonably possible. Franchisee shall be responsible 21 for all debris removal from such activities. All trimming shall be at the expense of Franchisee. Franchisee may contract for such services, however, any firm or individual so retained must first receive City approval prior to commencing such trimming. Nothing herein grants Franchisee any authority to act on behalf of the City, to enter upon any private property, or to trim any tree or natural growth not owned by the City except to the extent it is necessary that Franchisee trims trees or vegetation upon, overhanging, or encroaching on public ways, streets, alleys, sidewalks, and other public places of the City so as to prevent such vegetation from coming in contact with Franchisee's Facilities. Franchisee shall be solely responsible and liable for any damage to any third parties' trees or natural growth caused by Franchisee's actions. Franchisee shall indemnify, defend and hold harmless the City from third -party claims of any nature arising out of any act or negligence of Franchisee with regard to tree and/or natural growth trimming, damage, and/or removal. Franchisee shall reasonably compensate the City or the property owner for any damage caused by trimming, damage, or removal by Franchisee. Except in an emergency situation, all tree trimming must be performed under the direction of an arborist certified by the International Society of Arboriculture, unless otherwise approved by the Public Works Director or designee. Section 9.6. Franchisee shall meet with the City and other franchise holders and users of the Rights -of -Way upon written notice as determined by the City, to schedule and coordinate construction in the Rights -of -Way. All construction locations, activities, and schedules shall be coordinated, as ordered by the City to minimize public inconvenience, disruption or damages. Section 9.7. Franchisee shall inform the City with at least thirty (30) days' advance written notice that it is constructing, relocating, or placing ducts or conduits in the Rights -of -Way and provide the City with an opportunity to request that Franchisee provide the City with additional duct or conduit and related structures necessary to access the conduit pursuant to RCW 35.99.070. Section 9.8. Prior to doing any work in the Rights -of -Way, the Franchisee shall follow established procedures, including contacting the Utility Notification Center in Washington and comply with all applicable State statutes regarding the One Call Locator Service pursuant to Chapter 19.122 RCW. Further, upon request from a third party or the City, Franchisee shall locate its Facilities consistent with the requirements of Chapter 19.122 RCW. The City shall not be liable for any damages to Franchisee's Facilities or for interruptions in service to Franchisee's customers that are a direct result of Franchisee's failure to locate its Facilities within the prescribed time 22 limits and guidelines established by the One Call Locator Service regardless of whether the City issued a permit. Section 9.9. The provisions of this Section 9. shall survive the expiration, revocation, abandonment, or termination of this Franchise. Section 10. Restoration. Section 10.1. Franchisee shall, after installation, construction, relocation, maintenance, or repair of its Facilities, or after abandonment approved pursuant to Section 22. , promptly remove any obstructions from the Rights -of -Way and restore the surface of the Rights -of -Way to at least the same condition the Rights -of -Way were in immediately prior to any such installation, construction, relocation, maintenance or repair, provided Franchisee shall not be responsible for any changes to the Rights -of -Way not caused by Franchisee. The Public Works Director or designee shall have final approval of the condition of such Rights -of -Way after restoration. All concrete encased survey monuments that have been disturbed or displaced by such work shall be restored pursuant to federal, state (such as Chapter 332-120 WAC), and local standards and specifications. Section 10.2. Franchisee agrees to promptly complete all restoration work and to promptly repair any damage caused by work to the Franchise Area or other affected area at its sole cost and expense and according to the time and terms specified in the construction permit issued by the City. All work by Franchisee pursuant to this Franchise shall be performed in accordance with applicable City standards. Section 10.3. If conditions (e.g. weather) make the complete restoration required under Section 10. impracticable, Franchisee shall temporarily restore the affected Right -of -Way or property. Such temporary restoration shall be at Franchisee's sole cost and expense. Franchisee shall promptly undertake and complete the required permanent restoration when conditions no longer make such permanent restoration impracticable. Section 10.4. In the event Franchisee does not repair a Right -of -Way or an improvement in or to a Right -of -Way within the time reasonably directed to by the Public Works Director, or designee, the City may repair the damage and shall be reimbursed its actual cost within sixty (60) days of submitting an invoice to Franchisee in accordance with the provisions of Section 14.3 and 23 Section 14.4. In addition, and pursuant to Section 14.3 and Section 14.4, the City may bill Franchisee for expenses associated with the inspection of such restoration work. The failure by Franchisee to complete such repairs shall be considered a breach of this Franchise and is subject to remedies by the City including the imposition of damages consistent with Section 24. . Section 10.5. The provisions of this Section 10. shall survive the expiration, revocation, abandonment, or termination of this Franchise. Section 11. Safety Requirements. Section 11.1. Franchisee shall, at all times, employ professional care and shall install and maintain and use industry -standard methods for preventing failures and accidents that are likely to cause damage, injuries, or nuisances to the public. All structures and all lines, equipment, and connections in, over, under, and upon the Rights -of -Ways, wherever situated or located, shall at all times be kept and maintained in a safe condition. Franchisee shall comply with all federal, State, and City safety requirements, rules, regulations, laws, and practices, and employ all necessary devices as required by applicable law during the construction, operation, maintenance, upgrade, repair, or removal of its Facilities. By way of illustration and not limitation, Franchisee shall also comply with the applicable provisions of the National Electric Code, National Electrical Safety Code, FCC regulations, and Occupational Safety and Health Administration (OSHA) Standards. Upon reasonable notice to Franchisee, the City reserves the general right to inspect the Facilities to evaluate if they are constructed and maintained in a safe condition. Section 11.2. If an unsafe condition or a violation of Section 11.1 is found to exist, and becomes known to the City, the City agrees to give Franchisee written notice of such condition and afford Franchisee a reasonable opportunity to repair the same. If Franchisee fails to start to make the necessary repairs and alterations within the time frame specified in such notice (and pursue such cure to completion), then the City may make such repairs or contract for them to be made. All costs, including administrative costs, incurred by the City in repairing any unsafe conditions shall be borne by Franchisee and reimbursed to the City pursuant to Section 14.3 and Section 14.4. Section 11.3. Additional safety standards include: 24 (a) Franchisee shall endeavor to maintain all equipment lines and facilities in an orderly manner, including, but not limited to, the removal of all bundles of unused cable on any aerial facilities. (b) All installations of equipment, lines, and ancillary facilities shall be installed in accordance with industry -standard engineering practices and shall comply with all federal, State, and local regulations, ordinances, and laws. (c) Any opening or obstruction in the Rights -of -Way or other public places made by Franchisee in the course of its operations shall be protected by Franchisee at all times by the placement of adequate barriers, fences, or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly marked and visible. Section 11.4. Stop Work Order. On notice from the City that any work is being performed contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as determined by the City, or in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the City. The stop work order shall: (a) Be in writing; (b) Be given to the person doing the work or posted on the work site; (c) Be sent to Franchisee by overnight delivery; (d) Indicate the nature of the alleged violation or unsafe condition; and (e) Establish conditions, consistent with the applicable laws, regulations, ordinances or generally applicable standards under which work may be resumed. Section 12. Work of Contractors and Subcontractors. Section 12.1. Franchisee's contractors and subcontractors shall be licensed and bonded in accordance with State law and the City's ordinances, regulations, and requirements. Work by contractors and subcontractors are subject to the same restrictions, limitations, and conditions as if the work were performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by Franchisee and shall ensure that all such work is performed in compliance with this Franchise and applicable law. 25 Section 13. Maps and Records. Section 13.1. The Franchisee agrees and covenants that it shall, within thirty 30 days of substantial completion of any construction project involving a Public Right -of -Way, provide to the City, at no cost to the City, accurate copies of as -built plans and maps stamped and signed by a professional land surveyor, engineer, or other person or entity of similar professional background and experience providing such information in industry standard format, in a form and content acceptable to the Public Works Director or designee. Section 13.2. Within thirty (30) days of a written request from the Public Works Director, the Franchisee shall furnish the City with information sufficient to demonstrate: (1) that the Franchisee has complied with all applicable requirements of this Franchise; and (2) that all taxes, including but not limited to sales, utility and/or telecommunications taxes, due the City in connection with the Franchisee's services and Facilities provided by the Franchisee have been properly collected and paid by the Franchisee. Section 13.3. Books, records, maps, and other documents maintained by Franchisee with respect to its Facilities within the Rights -of -Way and which are reasonably necessary to demonstrate compliance with the terms of this Franchise, shall, after reasonable prior notice from the City, be made available for inspection by the City at reasonable times and intervals but no more than one time each calendar year or upon the City's reasonable belief that there has been a violation of this Franchise by Franchisee; provided, however, that nothing in this Section 13.3 shall be construed to require Franchisee to violate state or federal law regarding customer privacy, nor shall this Section 13.3 be construed to require Franchisee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. Unless otherwise permitted or required by State or federal law, nothing in this Section 13.3 shall be construed as permission to withhold relevant customer data from the City that the City requests in conjunction with a tax audit or review; provided, however, Franchisee may redact identifying information such as names, street addresses (excluding City and zip code), Social Security Numbers, or Employer Identification Numbers related to any confidentiality agreements Franchisee has with third parties. Section 13.4. Franchisee shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature; provided, however, Franchisee shall disclose 26 such information to comply with a utility tax audit, or in the event the City is permitted to charge franchise fees as further described in Section 15.1, or as otherwise required in this Franchise. Franchisee shall be responsible for clearly and conspicuously identifying the work as confidential, trade secret, or proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under State or federal law. In the event that the City receives a public records request under Chapter 42.56 RCW or similar law for the disclosure of information Franchisee has designated as confidential, trade secret, or proprietary, the City shall promptly provide written notice of such disclosure so that Franchisee may take appropriate steps to protect its interests. Nothing in this Section 13.4 prohibits the City from complying with Chapter 42.56 RCW or any other applicable law or court order requiring the release of public records, and the City shall not be liable to Franchisee for compliance with any law or court order requiring the release of public records. The City shall comply with any injunction or court order obtained by Franchisee that prohibits the disclosure of any such confidential records; however, in the event a higher court overturns such injunction or court order and such higher court action is or has become final and non -appealable, Franchisee shall reimburse the City for any fines or penalties imposed for failure to disclose such records as required hereunder within sixty (60) days of a request from the City. Section 13.5. On an annual basis, upon thirty (30) days prior written notice, the City shall have the right to conduct an independent audit of Franchisee's records reasonably related to the administration or enforcement of this Franchise and the collection of utility taxes, in accordance with GAAP. If the audit shows that tax payments have been underpaid by three percent (3%) or more, Franchisee shall pay the total cost of the audit. Section 14. Costs and Fees. Section 14.1. Franchisee shall pay a one-time fee for the actual administrative expenses incurred by the City that are directly related to the receiving and approving this Franchise pursuant to RCW 35.21.860, including the costs associated with the City's legal costs incurred in drafting and processing this Franchise, not to exceed Five Thousand and no/100 Dollars ($5,000). No construction permits shall be issued for the installation of Facilities authorized until such time as the City has received payment of this fee; further, this Franchise shall be considered void if the fee is not paid within ninety (90) days of receipt of the invoice. Franchisee shall further be subject to 27 all permit fees associated with activities undertaken through the authority granted in this Franchise or under the laws of the City. Where the City incurs costs and expenses for review, inspection, or supervision of activities, including but not limited to reasonable fees associated with attorneys, consultants, City Staff and City Attorney time, undertaken through the authority granted in this Franchise or any ordinances relating to the subject for which a permit fee is not established, Franchisee shall pay such costs and expenses directly to the City in accordance with the provisions of Section 14.3. Section 14.2. In addition to Section 14.1, Franchisee shall promptly reimburse the City in accordance with the provisions of Section 14.3 and Section 14.4 for any and all costs the City reasonably incurs in response to any emergency situation involving Franchisee's Facilities, to the extent said emergency is not the fault of the City. Section 14.3. Consistent with state law, Franchisee shall reimburse the City within sixty (60) days of submittal by the City of an itemized billing for reasonably incurred costs, itemized by project, for Franchisee's proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing, altering, or maintaining any City facility as the result of the presence of Franchisee's Facilities in the Right -of -Way. Such costs and expenses shall include but not be limited to Franchisee's proportionate cost of City personnel assigned to oversee or engage in any work in the Right -of -Way as the result of the presence of Franchisee's Facilities in the Right -of -Way. Such costs and expenses shall also include Franchisee's proportionate share of any time spent reviewing construction plans in order to either accomplish the relocation of Franchisee's Facilities or the routing or rerouting of any utilities so as not to interfere with Franchisee's Facilities. Section 14.4. The time of City employees shall be charged at their respective rate of salary, including overtime if applicable, plus benefits and reasonable overhead. Any other costs will be billed proportionately on an actual cost basis. All billings will be itemized so as to specifically identify the costs and expenses for each project for which the City claims reimbursement. A charge for the actual costs incurred in preparing the billing may also be included in said billing. Billing will be made on a monthly basis. Section 15. City's Reservation of Rights 28 Section 15.1. Franchisee hereby represents that its operations as authorized under this Franchise are those of a telephone business as defined in RCW 82.16.010, or service provider as defined in RCW 35.21.860. As a result, the City will not impose a Franchise fee under the terms of this Franchise, other than as described herein. The City hereby reserves its right to impose a Franchise fee on Franchisee if Franchisee's operations as authorized by this Franchise change such that the statutory prohibitions of RCW 35.21.860 no longer apply or, if statutory prohibitions on the imposition of such fees are removed. In either instance, the City also reserves its right to require that Franchisee obtain a separate Franchise for its change in use. Nothing contained herein shall preclude Franchisee from challenging any such new fee or separate agreement under applicable federal, State, or local laws. Section 15.2. Franchisee acknowledges that its operation with the City constitutes a telecommunications business subject to the utility tax imposed pursuant to the TMC Chapter 3.50. Franchisee stipulates and agrees that certain of its business activities are subject to taxation as a telephone business and that Franchisee shall pay to the City the rate applicable to such taxable services under TMC Chapter 3.50, and consistent with state and federal law. The parties agree however, that nothing in this Franchise shall limit the City's power of taxation as may exist now or as later imposed by the City. This provision does not limit the City's power to amend TMC Chapter 3.50 as may be permitted by law. Nothing in this Franchise is intended to alter, amend, modify or expand the taxes and fees that may be lawfully assessed on Franchisee's Services. Section 16. Police Powers and City Ordinances. Section 16.1. Nothing in this Franchise Ordinance shall be deemed to restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of the Franchise granted by this Franchise Ordinance, including, but not limited to, any valid ordinance made in the exercise of the City's police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to control by appropriate regulations, including design standards and utility accommodation policies, the location, elevation, manner of construction, and maintenance of any Franchisee Facilities located within any Public Right -of -Way or affecting any Public Right -of -Way, and the Franchisee shall promptly conform with all such regulations, unless compliance would cause the Franchisee to violate other requirements of law. In the event of a conflict between the regulatory provisions of 29 this Franchise Ordinance and any other ordinance(s) enacted under the City's police power authority, such other ordinance(s) shall take precedence over the regulatory provisions set forth herein. Section 17. Limitation of City's Liability. Section 17.1. Administration by the City of the Franchise granted by this Franchise Ordinance shall not be construed to create the basis for any liability to any third party on the part of the City, its elected and appointed officials, officers, employees, and agents for any injury or damage from the failure of the Franchisee to comply with the provisions of this Franchise Ordinance; by reason of any plan, schedule or specification review, inspection, notice and order, permission, or other approval or consent by the City; for any action or inaction thereof authorized or done in connection with the implementation or enforcement of the Franchise by the City; or for the accuracy of plans submitted to the City. Section 18. Compliance with All Applicable Laws. Section 18.1. Each party agrees to comply with all present and future federal, state and local laws, ordinances, rules and regulations. Neither the City nor Franchisee waive any rights they may have under any such laws, rules or regulations. This Franchise is subject to ordinances of general applicability enacted pursuant to the City's police powers. Franchisee further agrees to remove all liens and encumbrances arising as a result of said use or work. Franchisee shall, at its own expense, maintain its Facilities in a safe condition, in good repair and in a manner reasonably suitable to the City. Additionally, Franchisee shall keep its Facilities free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or any interference with City services. City reserves the right at any time to amend this Franchise to conform to any hereafter enacted, amended, or adopted federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City ordinance enacted pursuant to such federal or state statute or regulation when such statute, regulation, or ordinance necessitates this Franchise be amended in order to remain in compliance with applicable laws, but only upon providing Franchisee with thirty (30) days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. Said amendment shall become automatically effective upon expiration of the notice period unless, before expiration of that period, Franchisee makes a written 30 request for negotiations over the terms of the amendment. If the parties do not reach agreement as to the terms of the amendment within ninety (90) days of the call for negotiations, either party may pursue any available remedies at law or in equity. Section 19. Indemnification Section 19.1. Franchisee releases, covenants not to bring suit, and agrees to indemnify, defend, and hold harmless the City, its officers, agents, employees, volunteers, elected and appointed officials, and contractors from any and all claims, costs, judgments, awards, or liability to any person, for injury or death of any person, or damage to property caused by or arising out of any acts or omissions of Franchisee, its agents, servants, officers, or employees in the performance of this Franchise and any rights granted within this Franchise. Section 19.2. Inspection or acceptance by the City of any work performed by Franchisee at the time of completion of construction shall not be grounds for avoidance by Franchisee of any of its obligations under this Section 19.. These indemnification obligations shall extend to claims that are not reduced to a suit and any claims that may be compromised, with Franchisee's prior written consent, prior to the culmination of any litigation or the institution of any litigation. Section 19.3. The City shall promptly notify Franchisee of any claim or suit and request in writing that Franchisee indemnify the City. Franchisee may choose counsel to defend the City subject to this Section 19.3. City's failure to so notify and request indemnification shall not relieve Franchisee of any liability that Franchisee might have, except to the extent that such failure prejudices Franchisee's ability to defend such claim or suit. In the event that Franchisee refuses the tender of defense in any suit or any claim, as required pursuant to the indemnification provisions within this Franchise, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Franchisee, Franchisee shall pay all of the City's reasonable costs for defense of the action, including all expert witness fees, costs, and attorney's fees, and including costs and fees incurred in recovering under this indemnification provision. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the City and the counsel selected by Franchisee to represent the City, then upon the prior written approval and consent of Franchisee, which shall not be unreasonably withheld, the City shall have the right to employ separate counsel in any action or proceeding and to participate in 31 the investigation and defense thereof, and Franchisee shall pay the reasonable fees and expenses of such separate counsel, except that Franchisee shall not be required to pay the fees and expenses of separate counsel on behalf of the City for the City to bring or pursue any counterclaims or interpleader action, equitable relief, restraining order or injunction. The City's fees and expenses shall include all out-of-pocket expenses, such as consultants and expert witness fees, and shall also include the reasonable value of any services rendered by the counsel retained by the City but shall not include outside attorneys' fees for services that are unnecessarily duplicative of services provided the City by Franchisee. Each party agrees to cooperate and to cause its employees and agents to cooperate with the other party in the defense of any such claim and the relevant records of each party shall be available to the other party with respect to any such defense. Section 19.4. The parties acknowledge that this Franchise may be subject to RCW 4.24.115. Accordingly, 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 Franchisee and the City, its officers, officials, employees, and volunteers, Franchisee's liability shall be only to the extent of Franchisee's negligence. It is further specifically and expressly understood that the indemnification provided constitutes Franchisee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. Section 19.5. Notwithstanding any other provisions of this Section 19. , Franchisee assumes the risk of damage to its Facilities located in the Rights -of -Way and upon City -owned property from activities conducted by the City, its officers, agents, employees, volunteers, elected and appointed officials, and contractors, except to the extent any such damage or destruction is caused by or arises from any sole negligence, intentional misconduct or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. In no event shall the City be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages, including by way of example and not limitation lost profits, lost revenue, loss of goodwill, or loss of business opportunity in connection with its performance or failure to perform under this Franchise. Franchisee releases and waives any and all such claims against the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Franchisee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages, lost profits and consequential damages, brought by or under users of Franchisee's Facilities as the result of 32 any interruption of service due to damage or destruction of Franchisee's Facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors except to the extent any such damage or destruction is caused by or arises from the sole negligence or intentional misconduct, or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Section 19.6. The provisions of this Section 19. shall survive the expiration, revocation, termination, or abandonment of this Franchise. Section 20. Insurance. Section 20.1. Franchisee shall procure and maintain for the duration of the Franchise and as long as Franchisee has Facilities in the rights -of -way, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the Franchise and use of the rights -of -way. (a) No Limitation. Franchisee's maintenance of insurance as required by the Franchise shall not be construed to limit the liability of Franchisee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. (b) Minimum Scope of Insurance. Franchisee shall obtain insurance of the types and coverage described below: (i) Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop gap liability, independent contractors, products -completed operations, personal injury and advertising injury, and liability assumed under an insured contract. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The City shall be named as an additional insured under Franchisee's Commercial General Liability insurance policy with respect this Franchise using ISO endorsement CG 20 12 05 09 or CG 20 26 07 04, or substitute endorsement providing at least as broad coverage. (ii) Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01. 33 (iii) Contractors Pollution Liability insurance shall be in effect throughout the entire Franchise covering losses caused by pollution conditions that arise from the operations of Franchisee. Contractors Pollution Liability shall cover bodily injury, property damage, cleanup costs and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims. (iv) Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. (v) Excess or Umbrella Liability insurance shall be excess over and at least as broad in coverage as Franchisee's Commercial General Liability and Automobile Liability insurance. The City shall be named as an additional insured on the Contractor's Excess or Umbrella Liability insurance policy. (c) Minimum Amounts of Insurance. Franchisee shall maintain the following insurance limits. (i) Commercial General Liability insurance shall be written with limits no less than $5,000,000 each occurrence, $5,000,000 general aggregate. Limits may be satisfied utilizing Excess or Umbrella policies. (ii) Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $5,000,000 per accident. (iii) Contractors Pollution Liability insurance shall be written in an amount of at least $2,000,000 per loss, with an annual aggregate of at least $2,000,000. Limits may be satisfied utilizing Excess or Umbrella policies. (iv) Excess or Umbrella Liability insurance shall be written with limits of not less than $5,000,000 per occurrence and annual aggregate. The Excess or Umbrella Liability requirement and limits may be satisfied instead through Franchisee's Commercial General Liability and Automobile Liability insurance, or any combination thereof that achieves the overall required limits. (d) Other Insurance Provisions. Franchisee's Commercial General Liability, Automobile Liability, Excess or Umbrella Liability, Contractors Pollution Liability insurance policy or policies are to contain, or be endorsed to contain, that they shall be primary insurance as 34 respect the City. Any insurance, self-insurance, or self -insured pool coverage maintained by the City shall be excess of Franchisee's insurance and shall not contribute with it. (e) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. (f) Verification of Coverage. Franchisee shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Franchise. Upon request by the City, Franchisee shall furnish certified copies of all insurance policies required by Franchisee, including -endorsements, and evidence of all subcontractors' coverage. (g) Subcontractors. Franchisee shall cause each and every Subcontractor to provide insurance coverage that complies with all applicable requirements of Franchisee - provided insurance as set forth herein, except Franchisee shall have sole responsibility for determining the limits of coverage required to be obtained by Subcontractors. (h) Notice of Cancellation. Franchisee shall provide the City with written notice of any policy cancellation within two business days of their receipt of such notice. (i) Failure to Maintain Insurance. Failure on the part of Franchisee to maintain the insurance as required shall constitute a material breach of Franchise, upon which the City may, after giving five business days' notice to Franchisee to correct the breach, terminate the Franchise or, at its discretion, procure or renew such necessary and appropriate insurance coverage as required by the Franchise and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand. (j) City Full Availability of Franchisee Limits. If Franchisee maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by Franchisee, irrespective of whether such limits maintained by Franchisee are greater than those required by this Franchise or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by Franchisee. (k) Franchisee — Self -Insurance. If Franchisee is self -insured or becomes self -insured during the term of the Franchise, Franchisee or its affiliated parent entity shall comply 35 with the following: (i) provide the City, upon request, a copy of Franchisee's or its parent company's most recent audited financial statements, if such financial statements are not otherwise publicly available, subject to a mutually agreeable confidentiality agreement; (ii) Franchisee or its parent company is responsible for all payments within the self -insured retention; and (iii) Franchisee assumes all defense and indemnity obligations as outlined in Section 19. Section 21. Bonds. Section 21.1. Construction Performance Bond. Upon an application for a permit involving excavation, installation, construction, restoration or relocation of the Facilities and if required by the City, Franchisee shall furnish a performance bond ("Performance Bond") written by a corporate surety reasonably acceptable to the city in an amount equal to 150% of the construction cost, which should not be less than $2,000. The amount of the Performance Bond may be reduced during construction as determined by the City. The Performance Bond shall guarantee the following: (1) timely completion of construction; (2) construction in compliance with all applicable plans, permits, technical codes, and standards; (3) proper location of the Facilities as specified by the City; (4) restoration of the Rights -of -Way and other City properties affected by the construction; (5) submission of as -built drawings after completion of construction; and (6) timely payment and satisfaction of all claims, demands, or liens for labor, materials, or services provided in connection with the work which could be asserted against the City or City property. Said bond must remain in full force until the completion of construction, including final inspection, corrections, and final approval of the work, recording of all easements, provision of as - built drawings, and the posting of a Maintenance Bond as described in Section 21.2. Section 21.2. Maintenance Bond. Following excavation, installation, construction, restoration or relocation of the Facilities and if required by the City, Franchisee shall furnish a two (2) year maintenance bond ("Maintenance Bond"), or other surety acceptable to the City, at the time of final acceptance of construction work on Facilities within the Rights -of -Way. The Maintenance Bond amount will be equal to ten percent (10%) of the documented final cost of the construction work. The Maintenance Bond in this Section 21.2 must be in place prior to City's release of the bond required by Section 21.1. Section 21.3. Franchise Bond. Franchisee shall provide City with a bond in the amount of Twenty -Five Thousand Dollars ($25,000.00) ("Franchise Bond") running or renewable for the 36 term of this Franchise, in a form and substance reasonably acceptable to City. In the event Franchisee shall fail to substantially comply with any one or more of the provisions of this Franchise following notice and a reasonable opportunity to cure, then there shall be recovered jointly and severally from Franchisee and the bond any actual damages suffered by City as a result thereof, including but not limited to staff time, material and equipment costs, compensation or indemnification of third parties, and the cost of removal or abandonment of facilities hereinabove described. Franchisee specifically agrees that its failure to comply with the terms of this Section 20.1 shall constitute a material breach of this Franchise. The amount of the bond shall not be construed to limit Franchisee's liability or to limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. Section 22. Abandonment of Franchisee's Facilities. Section 22.1. Upon the expiration with no renewal request made within thirty (30) days of written notice by the City of the expiration, termination, or revocation of the rights granted under this Franchise, Franchisee shall remove all of its Facilities from the Rights -of -Way within sixty (60) days of receiving written notice from the Public Works Director or designee. The Facilities, in whole or in part, may not be abandoned by Franchisee without written approval by the City. Any plan for abandonment or removal of Franchisee's Facilities must be first approved by the Public Works Director or designee, and all necessary permits must be obtained prior to such work. Franchisee shall restore the Right -of -Way to at least the same condition the Rights -of -Way were in immediately prior to any such removal provided Franchisee shall not be responsible for any changes to the Right -of -Way not caused by Franchisee or any person doing work for Franchisee. Franchisee shall be solely responsible for all costs associated with removing its Facilities. Section 22.2. Notwithstanding Section 22.1 above, the City may permit Franchisee's improvements to be abandoned in place in such a manner as the City may prescribe. Upon permanent abandonment, and Franchisee's agreement to transfer ownership of the Facilities to the City, Franchisee shall submit to the City a proposal and instruments for transferring ownership to the City. Section 22.3. Any Facilities which are not removed within one hundred eight (180) days of either the date of termination or revocation or the date the City issued a permit authorizing 37 removal, whichever is later, shall automatically become the property of the City. Any costs incurred by the City in safeguarding such Facilities or removing the Facilities shall be reimbursed by Franchisee. Nothing contained within this Section 22. shall prevent the City from compelling Franchisee to remove any such Facilities through judicial action when the City has not permitted Franchisee to abandon said Facilities in place. Section 22.4. If Franchisee leases a structure in the Right -of -Way from a landlord and such landlord later replaces, removes or relocates the structure, for example by building a replacement structure, Franchisee shall remove or relocate its Facilities within the Right -of -Way within one hundred twenty (120) days of such notification from the landlord at no cost to the City. Section 22.5. The provisions of this Section 22. shall survive the expiration, revocation, abandonment, or termination of this Franchise and for so long as Franchisee has Facilities in Rights -of -Way. Section 23. Forfeiture and Revocation. Section 23.1. If Franchisee willfully violates or fails to comply with any of the provisions of this Franchise, or through willful misconduct or gross negligence fails to heed or comply with any notice given Franchisee by the City under the provisions of this Franchise, then Franchisee shall, at the election of the Tukwila City Council, forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the Council after a hearing held upon notice to Franchisee. Section 23.2. Such hearing shall be open to the public and Franchisee and other interested parties may offer written and/or oral evidence explaining or mitigating such alleged noncompliance. This hearing does not give the right to either the City or Franchisee to conduct discovery, subpoena witnesses, or take depositions. Within thirty (30) days after the hearing, the Tukwila City Council, on the basis of the record, will make the determination as to whether there is cause for revocation, whether the Franchise will be terminated, or whether lesser sanctions should otherwise be imposed. The Tukwila City Council may in its sole discretion fix an additional time period to cure violations. If the deficiency has not been cured at the expiration of any additional time period or if the Tukwila City Council does not grant any additional period, the Tukwila City Council may by resolution declare the Franchise to be revoked and forfeited or impose lesser sanctions. If Franchisee appeals revocation and termination, such revocation may 38 be held in abeyance pending judicial review by a court of competent jurisdiction, provided Franchisee is otherwise in compliance with the Franchise. Section 24. Remedies to Enforce Compliance. Section 24.1. The City may elect, without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling Franchisee to comply with the provisions of the Franchise and to recover damages and costs incurred by the City by reason of Franchisee's failure to comply. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. In addition to any other remedy provided in this Franchise, Franchisee reserves the right to pursue any remedy available at law or in equity to compel or require the City, its officers, employees, volunteers, contractors and other agents and representatives, to comply with the terms of this Franchise. Further, all rights and remedies provided herein shall be in addition to and cumulative with any and all other rights and remedies available to either the City or Franchisee. Such rights and remedies shall not be exclusive, and the exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. Provided, further, that by entering into this Franchise, it is not the intention of the City or Franchisee to waive any other rights, remedies, or obligations as otherwise provided by law equity, or otherwise, and nothing contained here shall be deemed or construed to effect any such waiver. The parties agree that in the event a party obtains injunctive relief, neither party shall be required to post a bond or other security and the parties agree not to seek the imposition of such a requirement. Section 24.2. If either party (the "Defaulting Party") shall violate, or fail to comply with any of the provisions of this Franchise, or should it fail to heed or comply with any notice given to such party under the provisions of this Franchise, the other party (the "Non -Defaulting Party") shall provide the Defaulting Party with written notice specifying with reasonable particularity the nature of any such breach and the Defaulting Party shall undertake all commercially reasonable efforts to cure such breach within thirty (30) days of receipt of notification. If the parties reasonably determine the breach cannot be cured within (30) thirty days, the Non -Defaulting Party may 39 specify a longer cure period, and condition the extension of time on the Defaulting Parry's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or the Defaulting Party does not comply with the specified conditions, the Non -Defaulting Party may pursue any available remedy at law or in equity as provided in Section 24.1 above, or in the event Franchisee has failed to timely cure or commence cure of the breach, the City may, at its discretion, (1) revoke this Franchise with no further notification pursuant to this Section 24. , (2) refuse to grant additional permits, or (3) claim damages of Two Hundred Fifty Dollars ($250.00) per day against the Franchisee, not to exceed $5,000 in any calendar year, or Franchise Bond set forth in Section 21.3. Section 25. Non -Waiver. Section 25.1. The failure of either party to insist upon strict performance of any of the covenants and agreements of this Franchise or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of any such covenants, agreements or option or any other covenants, agreements or option. Section 26. Acceptance. Section 26.1. Within ninety (90) days of the approval of this Franchise Ordinance, the Franchisee shall execute and return to the City its execution and acceptance of this Franchise in the form attached hereto as Attachment B. In addition, Franchisee shall submit proof of insurance obtained and additional insured endorsement pursuant to Section 20. , any applicable construction Performance Bond pursuant to Section 21.1, the Franchise Bond required pursuant to Section 21.3, and the administrative fee pursuant to Section 14.1. Section 27. Survival. Section 27.1. All of the provisions, conditions, and requirements of Section 6. , Section 7. Section 9. , Section 10. , Section 19. , Section 20. , Section 22. , Section 32.1, Section 35.3 and Section 35.4 of this Franchise shall be in addition to any and all other obligations and liabilities Franchisee may have to the City at common law, by statute, or by contract, and shall survive the City's Franchise to Franchisee for the use of the Franchise Area, and any renewals or extensions thereof. All of the provisions, conditions, regulations and requirements contained in this Franchise 40 shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of Franchisee and all privileges, as well as all obligations and liabilities of Franchisee shall inure to its heirs, successors and assigns equally as if they were specifically mentioned where Franchisee is named herein. Section 28. Assignment. Section 28.1. This Franchise may not be directly or indirectly assigned, transferred, or disposed of by sale, lease, merger, consolidation or other act of Franchisee, by operation of law or otherwise, unless prior written consent is provided to the City within ninety (90) days following the assignment. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such notice shall not be required unless and until the secured party elects to realize upon the collateral. For purposes of this Section 28.1, no assignment or transfer of this Franchise shall be deemed to occur based on the public trading of Franchisee's stock; provided, however, any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of this Franchise. Section 28.2. Any transactions which singularly or collectively result in a change of 50% or more of the (i) ownership or working control (for example, management of Franchisee or its Telecommunications facilities) of the Franchisee; or (ii) ownership or working control of the Franchisee's Telecommunications facilities within the City; or (iii) control of the capacity or bandwidth of the Franchisee's Telecommunication facilities within the City, shall be considered an assignment or transfer requiring notice to the City pursuant to this Franchise. Such transactions between affiliated entities are not exempt from notice requirements. A Franchisee shall notify the City of any proposed change in, or transfer of, or acquisition by any other party of control of a Franchisee within ninety (90) days following the closing of the transaction. Section 29. Entire Agreement. Section 29.1. This Franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon execution of this Franchise. Section 30. Extension. 41 Section 30.1. If this Franchise expires without renewal or is otherwise lawfully terminated or revoked, the City may, subject to applicable law: (a) Allow Franchisee to maintain and operate its Facilities on a month -to -month basis, provided that Franchisee maintains insurance for such Facilities during such period and continues to comply with this Franchise; or (b) The City may order the removal of any and all Facilities at Franchisee's sole cost and expense consistent with Section 22. Section 31. Eminent Domain. Section 31.1. The existence of this Franchise shall not preclude the City from acquiring by condemnation in accordance with applicable law, all or a portion of the Franchisee's Facilities for the fair market value thereof. In determining the value of such Facilities, no value shall be attributed to the right to occupy the area conferred by this Franchise. Section 32. Vacation. Section 32.1. If at any time the City, by ordinance, vacates all or any portion of the area affected by this Franchise, the City shall not be liable for any damages or loss to the Franchisee by reason of such vacation. If Franchisee has Facilities in the vacated portion of the Right -of -Way, the City shall use reasonable efforts to reserve an appurtenant easement for Franchisee within the vacated portion of the Right -of -Way within which Franchisee may continue to operate existing Facilities under the terms of this Franchise for the remaining period of the term set forth in Section 4. Notwithstanding the preceding sentence, the City shall incur no liability for failing to reserve such easement. The City shall notify the Franchisee in writing not less than sixty (60) days before vacating all or any portion of any such area, in which Franchisee is located. The City may, after sixty (60) days written notice to the Franchisee, terminate this Franchise with respect to such vacated area. Section 33. Hazardous Substances. Section 33.1. Franchisee shall not introduce or use any hazardous substances (chemical or waste), in violation of any applicable law or regulation, nor shall Franchisee allow any of its agents, contractors or any person under its control to do the same. Franchisee will be solely responsible for and will defend, indemnify and hold the City, its officers, officials, employees, 42 agents and volunteers harmless from and against any and all claims, costs and liabilities including reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration of the property to the extent caused by Franchisee's use, storage, or disposal of hazardous substances, whether or not intentional, and the use, storage or disposal of such substances by Franchisee's agents, contractors or other persons acting under Franchisee's control, whether or not intentional. Section 33.2. The obligations of the Franchisee under this Section 32.1 shall survive the expiration, revocation, abandonment, earlier termination of the Franchise granted by this Franchise Ordinance. Section 34. Notice Section 34.1. Any Notice or information required or permitted to be given to the parties under this Franchise agreement may be sent to the following addresses unless otherwise specified: CITY OF TUKWILA FRANCHISEE Richard Hayes Astound Broadband 3700 Monte Villa Parkway Suite 110 Bothell, WA 98021 rhays@wavebroadband.com 360-631-4134 Joseph Kahl Astound Broadband 650 College Road East, Suite 3100 Princeton, NJ 08540 joe.kahl@astound.com 609-681-2184 Section 34.2. The Franchisee's current emergency contact shall be Richard Hayes and is reachable via the following number 360-631-4134, and shall be available 24 hours a day, seven days a week. The Franchisee shall promptly notify the City of any change in the notice address or emergency contact (or title) and phone number. 43 Section 35. Miscellaneous. Section 35.1. Franchisee shall pay promptly and before they become delinquent, all taxes on personal property and improvements owned or placed by Franchisee and shall pay all license fees and public utility charges relating to the conduct of its business, shall pay for all permits, licenses and zoning approvals, shall pay any other applicable tax unless documentation of exemption is provided to the City and shall pay utility taxes and license fees imposed by the City. Section 35.2. City and Franchisee respectively represent that its signatory is duly authorized and has full right, power and authority to execute this Franchise. Section 35.3. If a suit or other action is instituted in connection with any controversy arising out of this Franchise, the prevailing party shall be entitled to recover all of its costs and expenses, including such sum as the court may judge as reasonable for attorneys' fees, costs, expenses and attorneys' fees upon appeal of any judgment or ruling. Section 35.4. This Franchise shall be construed in accordance with the laws of the State of Washington. Venue for any dispute related to this Franchise shall be the United States District Court for the Western District of Washington, or Snohomish County Superior Court. Section 35.5. Section captions and headings are intended solely to facilitate the reading thereof. Such captions and headings shall not affect the meaning or interpretation of the text herein. Section 35.6. Where the context so requires, the singular shall include the plural and the plural include the singular. Section 35.7. Franchisee shall be responsible for obtaining all other necessary approvals, authorizations and agreements from any party or entity and it is acknowledged and agreed that the City is making no representation, warranty or covenant whether any of the foregoing approvals, authorizations or agreements are required or have been obtained by Franchisee by any person or entity. Section 35.8. This Franchise may be enforced at both law and equity. Section 35.9. Franchisee acknowledges that it, and not the City, shall be responsible for the premises and equipment's compliance with all marking and lighting requirements of the FAA and the FCC. Franchisee shall indemnify and hold the City harmless from any fines or other 44 liabilities caused by Franchisee's failure to comply with such requirements. Should Franchisee or the City be cited by either the FCC or the FAA because the Facilities or the Franchisee's equipment is not in compliance and should Franchisee fail to cure the conditions of noncompliance within the timeframe allowed by the citing agency, the City may either terminate this Franchise immediately on notice to the Franchisee or proceed to cure the conditions of noncompliance at the Franchisee's expense. Section 35.10. This Franchise is subject to all current and future applicable federal, State and local laws, regulations and orders of governmental agencies as amended, including but not limited to the Communications Act of 1934, as amended, the Telecommunications Act of 1996, as amended and the Rules and Regulations of the FCC. Neither the City nor Franchisee waive any rights they may have under any such laws, rules, or regulations. Section 35.11. There are no third party beneficiaries to this Franchise. Attachment B STATEMENT OF ACCEPTANCE ASTOUND BROADBAND, LLC D/B/A ASTOUND BROADBAND, for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Franchise attached hereto and incorporated herein by this reference. By: Date: Name: Title: 45 STATE OF COUNTY OF On this day of , 2024, before me the undersigned, a Notary Public in and for the State of , duly commissioned and sworn, personally appeared, of , the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. Signature NOTARY PUBLIC in and for the State of Residing at MY COMMISSION EXPIRES: 46 City of Tukwila City Council Transportation & Infrastructure Services Committee Meeting Minutes April 22, 2024, 5:30 p.m. - Hybrid Meeting; Duwamish Conference Room & MS Teams Councilmembers Present: Armen Papyan, Chair; Dennis Martinez, Hannah Hedrick Staff Present: Hari Ponnekanti, Catrien de Boer, Seong Kim, Adib Altallal, Griffin Lerner, Cyndy Knighton, Pete Mayer, Eric Compton, Joel Bush, Adam Cox, Mike Ronda Chair Papyan called the meeting to order. I. BUSINESS AGENDA A. Ordinance: Franchise Agreement with Astound Staff is seeking approval of an ordinance granting Astound Broadband a new 5-year Franchise Agreement. Committee Recommendation Unanimous approval. Forward to May 13, 2024 Committee of the Whole. B. Project Completion: 2023 Overlay and Repair Project Staff is seeking approval of project completion with Lakeside Industries, Inc. in the amount of $1,098,038.59 for the 2023 Overlay and Repair Project. Committee Recommendation Unanimous approval. Forward to May 6, 2024 Regular Consent Agenda. C. Bid Award: 2024 Annual Overlay Project Staff is seeking approval of a contract with ICON Materials in the amount of $1,040,012.00 for the Project. Committee Recommendation Unanimous approval. Forward to May 6, 2024 Regular Consent Agenda. D. Contract Amendment: 2024 Annual Overlay Project Staff is seeking approval of an amendment with KPG Psomas, Inc. in the amount of $197,726.00 to include construction management services for the Project. Committee Recommendation Unanimous approval. Forward to May 6, 2024 Regular Consent Agenda. E. Consultant Contract: 2024 Annual Small Drainage Program Staff is seeking approval of a contract with KPG Psomas, Inc. in the amount of $377,518 for design and construction services for the Program. Committee Recommendation Unanimous approval. Forward to May 6, 2024 Regular Consent Agenda. 47 48 COUNCIL AGENDA SYNOPSIS Initials Meeting Date Prepared by Mayor's review Council review 5/13/24 LH 5/20/24 LH ITEM INFORMATION ITEM NO. 5.B. STAFF SPONSOR: LAUREL HUMPHREY ORIGINAL AGENDA DATE: 5/13/24 AGENDA ITEM TITLE Resolution updating Financial Policies CATEGORY ® Discussion Mtg Date 5/13/24 ❑ Motion Mtg Date ® Resolution Mtg Date 5/20/24 ❑ Ordinance Altg Date ❑ Bid Award Mtg Date ❑ Public Hearing Mtg Date ❑ Other Mtg Date SPONSOR ® Council ❑ Mayor ❑ Admin Svcs ❑ DCD Finance ❑ Fire ❑ P&R ❑ Police ❑ PW SPONSOR'S SUMMARY The draft resolution proposes minor updates to the City's Financial Policies. REVIEWED BY ❑ Trans&Infrastructure Svcs ❑ Community Svcs/Safety ® Finance & Governance ❑ Planning & Community Dev. ❑ LTAC ❑ Arts Comm. ❑ Parks Comm. ❑ Planning Comm. DATE: 4/22/24 COMMII`_LEE CHAIR: QUINN RECOMMENDATIONS: SPONSOR/ADMIN. COMMITTEE COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 5/13/24 5/20/24 MTG. DATE ATTACHMENTS 5/13/24 Information Memo Draft resolution Minutes from the 4/22 Finance & Governance Committee meeting 5/20/24 49 50 City of Tukwila Thomas McLeod, Mayor INFORMATIONAL MEMORANDUM T0: Finance & Governance Committee FROM: Laurel Humphrey, Legislative Analyst DATE: April 12, 2024 SUBJECT: Resolution updating Financial Policies ISSUE The draft resolution contains proposed amendments to the City's Financial Policies. BACKGROUND Staff presented the current Financial Policies to the Committee on February 26, 2024. During that discussion staff asked the Committee for support to amend Section 5. "Grants" to require Committee approval of grant applications only in situations where a required local match is unbudgeted. The Committee gave preliminary approval and requested no other changes at that time. The draft resolution incorporates that amendment as well as other amendments identified by staff to provide clarity and improvements to the document. RECOMMENDATION Staff is seeking Committee discussion on the proposed amendments and is asking for a recommendation to the Full Council, which could occur at the May 13, 2024 Committee of the Whole meeting. ATTACHMENTS 1. Draft Resolution 51 52 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, ADOPTING FINANCIAL POLICIES, AND REPEALING RESOLUTION NO. 2014. WHEREAS, the City Council is committed to the highest standard of financial management; and WHEREAS, financial policies adopted by the legislative body are a best practice to provide written guidance for how local government officials and staff should approach fiscal issues and core financial areas; and WHEREAS, financial polices outline a clear vision of how the City of Tukwila will manage its financial resources to provide the best value to the community; and WHEREAS, periodically updating and revising financial policies are important steps toward ensuring consistent and rational financial management; and WHEREAS, financial policies have traditionally existed in many different documents and the City Council desires to minimize confusion and eliminate redundancies or conflicts by consolidating financial policy direction to the extent feasible; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The Financial Policies attached hereto as Exhibit A are adopted. Section 2. The Financial Policies shall be reviewed on at least a biennial basis and updated as necessary. Section 3. Repealer. Resolution No. 2014 is hereby repealed. 2024 Legislation: Financial Policies Version: 04/3/2024 Staff: L. Humphrey Page 1 of 2 53 PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2024. ATTEST/AUTHENTICATED: Andy Youn, CMC, City Clerk Mohamed Abdi, Council President APPROVED AS TO FORM BY: Office of the City Attorney Attachment: Exhibit A — Financial Policies 2024 Legislation: Financial Policies Version: 04/3/2024 Staff: L. Humphrey Filed with the City Clerk: Passed by the City Council: Resolution Number: Page 2of2 54 Financial Policies Section 1. Purpose a. The City of Tukwila is accountable to the public and shall maintain the fiscal integrity of its operating, debt service, and capital budgets while providing an appropriate level of public services within the City's fiscal responsibilityfinancial capabilities. b. The City's Financial Policies are intended to provide guidelines for the financial planning and internal financial management of the City. Section 2. Budgeting Cross references: TMC Chapter 3.30. Resolution 1951 a. The City of Tukwila shall prepare and adopt a biennial budget in accordance with RCW Chapter 35A.34, and Tukwila Municipal Code (TMC) Chapter 3.30. Fiscal years begin January 1 and end December 31. b. The budget shall be prepared with a priority -based approach that enables resources to be allocated to the programs and services that provide the greatest value to the community. c. The budget must be developed in accordance with the policies and priorities set forth in long-term policy documents including the Equity Policy, Strategic Plan, Comprehensive Plan, City Council and community priorities, and federal and state laws. d. Within each budget cycle, the budget should be structurally balanced, which means that ongoing expenditures shall be provided for by anticipated ongoing revenue and one-time revenue should only be used for one-time expenditures unless explicitly authorized by the City Council. e. The City shall maintain a six -year Capital Improvement Program and update it with each budget cycle to ensure that all costs associated with projects are addressed. f. As part of each biennial budget process, the City shall prepare six -year expenditure and revenue forecasts for the principal operating and capital funds. Revenues will be estimated on a conservative basis. q. The City Council may informally approve mid -year budget amendments by motion prior to the submission of a comprehensive formal budget amendment at the end of the fiscal year. h. The City's employee classification and compensation plan will be maintained in a manner consistent with Council policy, applicable state and federal collective bargaining laws, and valid comparable cities. Page 1 of 5 55 Section 3. Revenues Cross references: TMC Title 3 a. The City will maintain a diversified and stable revenue system to shelter it from short-term fluctuations. The City shall develop and maintain a comprehensive schedule of fees and Section 3. Revenues (continued) b. The City shall develop and maintain a Revenue Guide that describes major revenue sources available to the City of Tukwila. c. Revenue sources should be reviewed in off -budget years to account for inflation, to stay in line with market, or to ensure cost recovery at a prescribed level depending on the revenue source. Section 4. Expenditures Cross references: - Purchasing Policy (Resolution9No. 2015) - Procurement Card Policy (Resolution No. 1750) - Expense Reimbursement Policy (Resolution No. 1874) a. The City shall maintain expenditure categories according to state statute and administrative regulation known as the State Auditor's Budgeting, Accounting, and Reporting System (BARS). b. Operating expenditures within funds must be supported by the operating revenues generated by that fund. c. Purchasing will be conducted with appropriate internal controls, observe fair and ethical business practices, and use wise and prudent judgement in the expenditure of public funds. Section 5. Grants Cross references: Grant Policy/Procedure in progress a. The City shall, whenever practical and advantageous, pursue grant funding. All potential grants shall be examined carefully for matching requirements, and to determine whether programs must be continued with local resources after grant funds are exhausted. b. Staff shall obtain approval from the appropriate City Council Committee before applying for any grants requiring an unbudgeted or previously unidentified local match, and staff shall obtain City Council approval prior to accepting grant agreements in amounts above the Mayor's signing authority. Section 6. Capital Improvement Program (CIP) a. Transportation improvements will be coordinated with related improvements such as utility, landscaping, sidewalks, etc. Page 2 of 5 56 b. Whenever feasible, capital improvements shall be coordinated with related improvements of adjacent jurisdictions. c. Capital Improvement Program projects shall, whenever possible, take advantage of grants, loans or other financing external to the City. If the proposed grants or mitigation are either not funded or are reduced, the City Council will reevaluate the respective project on the basis of its value and priority level placement in the Capital Improvement Program. Ed. General Fund support should not be relied upon for funding capital projects. Grants; and/or dedicated and restricted revenue sources should be utilized prior to seeking General Fund support. e. Non -transportation capital projects and improvements should be funded by operating revenues, grants or bonds as determined in the six -year Financial Planning Model. d f. Residential streets with safety issues, high traffic volumes, high pedestrian activity and poor roadway conditions will be considered the highest priority projects. e-g. Residential street designs will follow basic designs for arterials, collectors, and local access streets. Designs to accommodate individual properties shall be avoided. f-h. Design of connecting streets is strongly encouraged. i_For City -scheduled projects located on residential streets, the City will require the undergrounding of new electrical and communication facilities pursuant to TMC Chapter 11.28. I-LStreet and road improvement projects on slopes will include roadside plantings wherever feasible to help mitigate the land used for roadway and sidewalk improvements. hk. Donation of the property needed for rights -of -way and easements shall be pursued. j-(_Latecomer agreements, where appropriate, shall be considered an acceptable means of funding capital projects, improvements and replacements, in whole or in part. Ism. Right-of-way agreements for cable and electrical services should be utilized to discourage excessive wiring throughout the City. I n. Current arterial street improvements determined in the six -year CIP may be funded through a Local Improvement District (LID) or financing external to the City. The City may participate using operating revenues, grants or bonds based on health and safety needs or public benefit. The City may participate in the funding by financing the preliminary engineering design and professional service costs associated with planning and creating the LID. no. A majority of property owners on a street may petition the City to set up an LID to pay for residential street improvement projects, sidewalks and undergrounding of utilities. The City will evaluate the possibility of paying for the design, preliminary engineering, construction engineering, and LID formulation. Page 3 of 5 57 The residents will pay for undergrounding utilities in the street, undergrounding from the street to their residence, the actual construction costs, and any improvements on private property such as rockeries, paved driveways, or roadside plantings. n.a. Non transportation capital projects and improvements should be funded by perating revenues, grants or bonds as dctcrmincd in the six year Financial Planning Model. op. Pursuant to TMC Chapters 3.56 and 3.60, the first 1/4 cent Real Estate Transfer Tax (REET) shall be dedicated to park and open space land acquisition, and the second 1/4 cent shall be used for arterial streets, along with the parking tax, unless the City Council enacts other priorities consistent with state law distribution of REET funds. p q. Street and road improvement projects shall be evaluated for the inclusion of features that support the City's Parks, Recreation and Open Space (PROS) Plan and "Wai a'nd Roll Plan"Transportation Element of the Comprehensive plan in order to encourage walking, bicycling, and use of public transit. g-r. Policies will be reviewed annually and in concert with the adoption of growth management policies to ensure continuity. vs. Transportation impact fees shall be collected so that "growth may pay for growth" and growth -caused improvements may be constructed. Section 7. Enterprise Funds a. Utility fund expenditures shall be fully supported by their own rates, fees, and charges and not subsidized by the General Fund. b. Utility rates should be structured to ensure adequate infrastructure development and replacement. c. Each Enterprise Fund shall be reviewed bi-annually to ensure a rate structure adequate to meet its operations, maintenance, and long-term capital requirements. d. Enterprise Fund rate increases shall be small, applied frequently, and staggered to avoid an overly burdensome increase and undue impact in any given year. e. Enterprise Fund rate increases of external agencies will be passed through to the customer. f. Infrastructure improvements such as water reuse should consider conservation of resources such as water and electricity. Section 8. Debt Cross references: Debt Policy (Resolution No. 1840) a. Appropriate management of debt is an important factor in measuring the City's financial performance and condition. Section 9. Reserves 58 Page 4 of 5 a. Prudent financial management dictates that some portion of funds available to the City be reserved for future use. b. At the close of each fiscal year, the General Fund unassigned balance shall equal or exceed 18% and the Contingency Fund reserve balance shall equal or exceed 10% of the previous year General Fund revenue, exclusive of significant non - operating, non -recurring revenues such as real estate sales or transfers in from other funds. c. At the close of each fiscal year, the unrestricted balances of the Enterprise Funds shall equal or exceed 20% of the previous year revenue, exclusive of the effects of GASB Statement 68, as well as significant non -operating, non -recurring revenues such as real estate sales, transfers in from other funds or debt proceeds. d. Use or draw down of minimum balances shall occur only upon recommendation of City Administration and approval by City Council through a resolution. Should use or draw down occur, the City Administration shall establish a plan, no later than the end of the fiscal year following the year of decline, to restore the fund balance to the prescribed minimum level. The plan shall be presented to and approved by the City Council. e. A One-time Revenue Reserve shall be established and maintained in the Contingency Fund. The One-time Revenue Reserve shall be credited annually with 10% of the prior year one-time revenues to the extent General Fund surplus for the year is sufficient to cover the reserve funding. Use of the reserve shall occur only upon recommendation by City Administration and approval by City Council resolution. f. The City shall maintain a reserve in each of its self -insured health care funds in an amount equal to 1.5 times, or 150%, of the actuarially determined IBNR (incurred but not reported) balance. Use of the reserve shall occur only upon recommendation by City Administration and approval by City Council resolution. Section 10. Investments (Cross references: TMC 3.28, Resolution No. 182811 a. The City will strive to maximize the return on its investments with the primary objective of preserving capital in accordance with city policy and prudent investment practices. Section 11. Minimum Reporting Requirements a. The Finance Director shall provide a financial status update at least quarterly. b. City Administration shall provide the City Council with financial reports that reflect actual performance in various expenditures and revenues. c. City Administration shall provide the City Council with a quarterly report of all newly -executed contracts, including the amount, responsible department, scope of work, and expiration date. d. Once the annual audit is complete, City Administration shall provide a report to the City Council showing compliance with the Financial Reserve Policy. Page5of5 59 City of Tukwila City Council Finance & Governance Committee Meeting Minutes April 22, 2024 - 5:30 p.m. - Hybrid Meeting; Hazelnut Conference Room & MS Teams Councilmembers Present: Staff Present: I. BUSINESS AGENDA De'Sean Quinn, Chair; Tosh Sharp, Jovita McConnell Vicky Carlsen, Tony Cullerton, Laurel Humphrey, Marty Wine, David Rosen, Adam Schierenbeck A. Resolution: Change and Petty Cash Funds Staff is seeking Council approval of a resolution reducing or eliminating change fund levels in multiple departments. Committee Recommendation Unanimous approval. Forward to May 6, 2024 Regular Consent Agenda. B. Ordinance: City Tax Codes Staff is seeking approval of an ordinance that would amend the Municipal Code to administer the admission, commercial parking, gambling and utility tax more effectively. Committee Recommendation Unanimous approval. Forward to June 10, 2024 Committee of the Whole. C. Resolution: Financial Policies Staff is seeking approval of a resolution that would amend the Financial Policies to add *reference to compensation, remove reference to a comprehensive fee schedule, refine when grant applications need Committee approval, and update certain references in the Capital Improvement Program section. Committee Recommendation Unanimous approval. Forward to May 13, 2024 Committee of the Whole. D. Resolution: Purchasing Policy Staff is seeking approval of a resolution to amend the City's Purchasing Policy. Committee Recommendation Majority approval. Forward to May 13, 2024 Committee of the Whole. E. March 2024 General Fund Expenditures Staff presented the report. 60 COUNCIL AGENDA SYNOPSIS Initials Meeting Date Prepared by Mayor's review Council review 5/13/24 LH 5/20/24 LH ITEM INFORMATION ITEM NO. 5.C. STAFF SPONSOR: LAUREL HUMPHREY ORIGINAL AGENDA DATE: 5/13/24 AGENDA ITEM TITLE Resolution adopting a Purchasing Policy CATEGORY ® Discussion Mtg Date 5/13/24 ❑ Motion Mtg Date ® Resolution Mtg Date 5/20/24 ❑ Ordinance Altg Date ❑ Bid Award Mtg Date ❑ Public Hearing Mtg Date ❑ Other Mtg Date SPONSOR ® Council ❑ Mayor ❑ Admin Svcs ❑ DCD Finance ❑ Fire ❑ P&R ❑ Police ❑ PW SPONSOR'S SUMMARY The draft resolution updates the City's Purchasing Policy to uphold some cost thresholds and add additional clarity and detail regarding procurement. REVIEWED BY ❑ Trans&Infrastructure Svcs ❑ Community Svcs/Safety ® Finance & Governance ❑ Planning & Community Dev. ❑ LTAC ❑ Arts Comm. ❑ Parks Comm. ❑ Planning Comm. DATE: 4/22/24 COMMII`_LEE CHAIR: QUINN RECOMMENDATIONS: SPONSOR/ADMIN. COMMITTEE COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED $0 AMOUNT BUDGETED $ APPROPRIATION REQUIRED $ Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 5/13/24 5/20/24 MTG. DATE ATTACHMENTS 5/13/24 Information Memo Draft Resolution (revised after 4/22 Finance & Governance Committee) Minutes from the 4/22 Finance & Governance Committee 5/20/24 61 62 City of Tukwila Thomas McLeod, Mayor INFORMATIONAL MEMORANDUM TO: Finance & Governance Committee FROM: Laurel Humphrey, Legislative Analyst DATE: April 12, 2024 SUBJECT: Resolution updating Purchasing Policy ISSUE The draft resolution contains proposed amendments to the City's Purchasing Policy. BACKGROUND The City's Purchasing Policy was overhauled and adopted by City Council Resolution in December 2020. Staff has identified a few areas where amendments could streamline processes and/or provide clarity to staff. Per RCW 35A.11.010, the City's authority to contract, and be contracted with, is vested in the City Council, but the City Council can delegate some authority in service to meeting and process efficiency. Under the current policy, significant staff time is spent preparing items for Council review - writing and reviewing memos, completing scheduling and contract routing forms, attending multiple meetings. A 2023 Lean assessment of the Public Works contracting process identified Council meeting preparation as an area that could benefit from streamlining measures. Further, the April 2024 report on the Financial Sustainability Plan includes a recommendation of good stewardship of public resources, including building a culture and city processes to focus on quality and continuous improvement, and specifically suggests "increasing procurement limits and reducing the number of approval steps." Changing procurement limits would not reduce transparency. All city contracts are publicly available via the Digital Records Center as well as provided to the City Council in a quarterly report with links to all supporting documents. This report could be expanded to include all contract amendments as well. The City Council's Financial Policies require minimum standards of reporting, which includes a quarterly financial status report. Additionally, monthly departmental expenditure reports are provided to the Finance & Governance Committee, posted online and emailed to agenda subscribers. The proposals described below are recommendations for City Council consideration, but staff's intent is to facilitate the level of oversight, accountability and transparency that meets the City Council's needs. Capital Projects Under the proposal, the City Council would approve the preliminary project budget via adoption of the Capital Improvement Program. Contracts associated with the project that fall within this approved spending authority could be signed by the Mayor, but any contracts, contract amendments, or purchases that require additional project funding would need to be presented to the City Council for approval. This would include a transfer from another underspent project. 63 INFORMATIONAL MEMO Page 2 Signing Authority for Other Purchases The Mayor's current signing authority is $40,000 which has been in place since 2009. Staff suggests that the City Council consider raising this limit to account for inflation and citywide efforts to streamline processes, and suggests a placeholder amount of $60,000 for consideration. Below is a spot-check sampling from other cities: Burien (Council -Manager): $50K Des Moines (Council -Manager): $50K Everett (Mayor -Council): $50K (for professional services) Kent (Mayor -Council): $100K Lake Stevens (Mayor -Council): $100K Monroe (Mayor -Council): $100K Poulsbo (Mayor -Council): $75K Renton (Mayor -Council): $100K SeaTac (Council -Manager): $100K Tacoma (Council -Manager) $500K Other Contracting Provisions The current Purchasing Policy is silent on many questions relating to contracting. The proposal seeks to correct this by adding Contracting to the policy title as well as a new section clarifying many areas of contracting and Council vs Mayoral authority. Threshold Cost Negotiation Requirements As a City over 20K population, Tukwila has authority to set bid limits through policy. Section 8 proposes to change the thresholds for purchases of supplies, equipment, and non- professional services. Section 9 proposes to streamline the bid requirements for Public Works contracts. Change Order Authority The current policy is silent on Change Orders, which are specific to construction contracts. A new section 9.J. proposes approval authority for change orders. Disposal of Surplus Property The proposal changes the threshold for city surplus property requiring a City Council resolution to $1500 from $500. RECOMMENDATION Staff is seeking Committee discussion on the proposed amendments and is asking for a recommendation to the Full Council, which could occur at the May 13, 2024 Committee of the Whole meeting. ATTACHMENTS 1. Draft Resolution 64 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, ADOPTING A PURCHASING AND CONTRACTING POLICY, AND REPEALING RESOLUTION NO. 2015. WHEREAS, the City Council is committed to the highest standard of financial management; and WHEREAS, the expenditures of public funds for the purchase of and contracting for goods, services, supplies, and materials must comply with all applicable state and local requirements; and WHEREAS, a comprehensive purchasing policy helps ensure that public funds are spent in the most economical and transparent way possible; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The Purchasing and Contracting Policy attached hereto as Exhibit A is adopted. Section 2. Repealer. Resolution No. 2015 is hereby repealed. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2024. ATTEST/AUTHENTICATED: Andy Youn, CMC, City Clerk Mohamed Abdi, Council President APPROVED AS TO FORM BY: Filed with the City Clerk: Passed by the City Council: Resolution Number: Office of the City Attorney Attachment: Exhibit A — Purchasing and Contracting Policy 2024 Legislation: Purchasing Policy Version: 04/12/2024 Staff: L. Humphrey Page 1 of 1 65 NOTE: Shaded text denotes changes made after the 4/22/24 Finance and Governance Committee meeting. CITY OF TUKWILA PURCHASING AND CONTRACTING POLICY TABLE OF CONTENTS 1. Procurement Policy Table 1 2. Administration 2 A. Purpose B. Controlling Laws C. Compliance with Policy D. Signing Authority and Approval 3. Determining Total Cost 2 A. Anticipated Cost B. Prohibition on "Bid Splitting" C. Total Costs to Include 4. Vendor Relations 3 A. Ethics of Procurement B. Buy Local C. Environmental Sustainability D. Social Equity 5. Grants and Federal Funding 4 A. General Rule B. Purchases of Goods or Service Reimbursable from a Federal Grant 6. Controlled Commodities 6 7. Types of Projects and Contracting Authority-Gentraet-App-Feva-I-L-evels 6 A. Public Works B. All Other Types of Purchases C. Other Contracting Provisions 66 8. Threshold Cost Negotiation Requirements 6 A. $10,000 or Less: Direct negotiation B. $10,000-$50,000: 3 quotes needed C. $50,000 or More: Competitive bids 9. Public Works Projects 7 A. Defining Project Costs B. City Labor C. Bid Requirements D. Small Works Roster E. Limited Public Works Process F. Prevailing Wages G. Bid Deposit, Performance Bond, and Payment Bond H. Retainage I. Public Works over $1 Million J. Alternative Public Works Contracting Procedures 10. Competitive Bidding Process 9 A. Public Notice B. Bid Specifications C. Award D. Cancellation E. Bid Submittal F. Bid Security G. Non -Collusion Affidavit 11. Service Categories 11 A. Professional Architectural and Engineering Services B. Personal Services C. Purchased Services 12. Materials, Supplies, Equipment (unrelated to Public Works, Services, A&E) 13 13. Exceptions to the Competitive Process 13 14. Disposal of Surplus Property 14 A. Policy Statement B. Definitions C. Procedures 67 15. Additional Considerations 16 A. Certificates of Insurance B. State Contractor's License C. City Business License 16. References 16 17. Glossary 17 68 1. PROCUREMENT POLICY TABLE PROJECT TYPE CITY/TOWN COMPETITIVE BIDDING REQUIREMENTS Public Works Project Same Requirement for ALL cities If your project is: <$75,500 $75,500 $350,000 >$350,000 Type of Bidding Required: Minimal Competition Process Small Works Roster Formal Competitive Bidding Agencies may seek quotes directly from individual vendors. No competitive bidding required. List of qualified contractors who can bid for an eligible project below $350,000. (RCW 35.04.155). Requires local agencies to award PW contracts to responsible bidder with lowest responsive bid. Purchase of goods, equipment, supplies, or materials (not connected with PW project) Cities under 20,000 population If your purchase is: <$7,500 $7,500-$15,000 >$15,000 Type of Bidding Required: Minimal Competition Process Vendor List Formal Competitive Bidding Agencies may seek quotes directly from individual vendors. No competitive bidding required. List of vendors who are interested in selling equipment, materials and supplies to the city. (RCW 39.04.190) Required to advertise the solicitation, but there is no required method or timeframe. Sealed bids and public bid opening required. Cities over 20,000 population Type of Bidding Required: State law does not establish any specific bid limits or competitive processes that first-class cities or code cities over 20,000 must follow for purchases. You should establish bid limits and competitive processes in policy. Professional Services Same Requirement for ALL cities Type of Bidding Required: All local governments must follow the same qualifications - based selection (QBS) process outlined in RCW 39.80. You must solicit competitive bids and evaluate them based on qualifications, without regard to cost. Personal Services Same Requirement for ALL cities Type of Bidding Required: State law does not require any thresholds or processes for personal services contracting. If your project receives any federal funding, must comply with federal competitive requirements. Purchased Services Same Requirement for ALL cities Type of Bidding Required: State law does not prescribe any thresholds or processes for purchased services contracting. However, some purchased services may require payment of prevailing wages. 1 City of Tukwila Purchasing Policy 12 1 2020-i1 12 21 5 7 24 69 2. ADMINISTRATION A. Purpose This policy is intended to direct the purchase of goods and services at a reasonable cost. An open, fair, and competitive process is to be used whenever reasonable and possible. It is the City's policy to follow state requirements regarding the expenditure of public funds, to provide a fair forum for those interested in bidding on public contracts and to help ensure that public contracts are performed satisfactorily and efficiently at the least cost to the public while avoiding fraud and favoritism. B. Controlling Laws The expenditures of public funds for the purchase of and contracting for goods, services, supplies, and materials shall comply with all applicable state law requirements as set forth in the Revised Code of Washington (RCW) and the Washington Administrative Code (WAC), in addition to other applicable local and federal laws and regulations. The City Attorney shall be consulted when questions regarding potential conflicts arise. C. Compliance with Policy The City's department heads shall implement, monitor, and enforce these policies. In the event of any conflict in procurement requirements or questions about proper procedure or other requirements, the matter shall be referred to the Finance Director. Willful or intentional violations of public procurement requirements may result in personal penalties, financial liabilities, and/or discipline per RCW 39.30.020. D. Signing Authority and Approval 1) Per RCW 35A.11.010, the City's authority to contract, and be contracted with, is vested in the City Council. City Council has delegated authority to the Mayor to execute contracts and contract modifications that meet the criteria of this Policy. 2) Any City staff member purchasing goods on behalf of the City without proper authorization may be personally liable to the vendor and the City, and subject to disciplinary action. 3) Electronic signatures of authorized City staff may be accepted pursuant to the City's Electronic Signature Policy. 4) All work or any purchase authorized with a particular vendor, consultant, or contractor that cumulatively is expected on a particular project to exceed an annual amount of $20,000 must be in writing, and approved according to the authority provided for within Section 7. 3. DETERMINING TOTAL COST A. Anticipated Cost The anticipated annual need for a good or service (when it can reasonably be projected) shall be used to determine the cost of that good or service, and thus which contract approval level, cost threshold, and other related purchasing requirements apply. City of Tukwila Purchasing Policy 12 1 2020_il 12 21 5 7 24 70 B. Prohibition on "Bid Splitting" The breaking of any project into units, or accomplishing any project by phases, is prohibited if it is done for the purposes of avoiding compliance with bidding statutes. RCW 35.23.352(1). To avoid bid splitting: 1) Combine all phases of a public work project when estimating cost. 2) Combine the total of foreseen identical items purchased at the same time or within a calendar year's time, in which the cost exceeds competition limits (i.e. office supplies, laundry services, janitorial paper products, etc.) 3) Items that are designed, or intended to be used together (i.e., water meters and covers), and the cost exceeds competition limits, should be bid together. C. Total Costs to Include Include costs such as taxes, freight, and installation charges when determining which cost threshold applies. Do not include the value of a trade-in. Trade-in value should be considered, however, to determine the lowest bid when competitive bidding is used. Further requirements for the total quantity of an item (when they can be reasonably projected) should be considered when determining which cost threshold and related purchasing requirements apply. Finally, if a project is to be completed in phases, the total accumulated cost for all phases should be considered when determining which cost threshold applies. 4. VENDOR RELATIONS A. Ethics of Procurement The City is committed to providing a very fair, transparent and equitable process to our purchases. We ask all staff participating in a solicitation and/or award process to be thoughtful of any perceived or actual conflicts of interest. See Tukwila Municipal Code (TMC) Section 2.95.030 ("Code of Ethics for Employees and Appointed Officials") for more information. The City seeks to avoid situations that involve conflicts of interests or the appearance of such conflicts based on inappropriate opportunities to influence the solicitation and/or award process. The City uses the measures of how a reasonable person would perceive the situation. A reasonable person standard might consider how the situation would appear if covered by a news story or viewed from the perspective of a public interest group. Common questions to ask are: Could you comfortably explain your actions? Would taxpayers believe you were acting in their best interest? City staff should refuse gifts, meals and invitations to events such as concerts or sporting events, that could be reasonably perceived as: improperly influencing performance of your official duties; a reward for awarding a contract; or offered or given to influence, find favor, or with a reasonable expectation of creating an obligation to the giver. Vendors are prohibited from offering gifts during the solicitation and ensuing contract award process. Contact the City Attorney for assistance if you encounter unusual situations. Finally, contact the City Attorney before initiating a contract with a former City employee to determine if doing so would create an actual conflict of interest or the appearance of a conflict of interest. 3 City of Tukwila Purchasing Policy 12 1 2020-i1 12 21 5 7 24 71 B. Buy Local It is the City's policy to take affirmative steps to encourage local businesses to apply to participate in the procurement process. Further, to the extent legally possible, the City will consider the use of those local businesses in order to support and enhance the local economy. C. Environmental Sustainability The City is committed to the protection of the environment and has taken steps towards becoming more sustainable. Accordingly, departments are strongly encouraged to purchase recycled and other environmentally preferable products whenever practicable and to encourage this of their contractors. However, nothing in this policy shall be construed as requiring the purchase of products that do not perform adequately or are not available at a reasonable price. D. Social Equity The City shall endeavor to contract with minority -owned businesses and contractors and materials suppliers pursuant to the goals outlined in the City's Equity Policy, which provides guidance to City elected officials, staff, boards and commissions, partners, residents, businesses and guests on how to actively promote equitable access to opportunities and services. 5. GRANTS AND FEDERAL FUNDING A. General Rule Not all grant funded projects are covered by this policy because many of the grants have their own procurement requirements. Grant Managers are responsible for grant purchases, but shall consult with Finance Director or designee prior to initiating any grant purchases. Grant managers are responsible for ensuring all grant purchases comply with grant procurement requirements. B. Purchases of Goods or Service Reimbursable from a Federal Grant When spending federal funding, the City complies with the Uniform Administrative Requirement, Cost Principals, and Audit Requirements for Federal Awards (Uniform Guidance) published in Title 2 of the Code of Federal Regulations (2 CFR 200), specifically 2 CFR 200.318 through 200.326, which can be accessed HERE. Please note that all grants are different, so one size does not fit all. Some grants simply require you to use your own procurement rules, while others require you to insert their contracting clauses into your contract. However, some general guidelines from the Uniform Standards are outlined below: 1) Section 200.62 of the Uniform Guidance requires and defines internal control over compliance requirements for federal awards to mean a process implemented by the City designed to provide reasonable assurance regarding the achievement of the following objectives for Federal awards: a. Transactions are properly recorded and accounted for, in order to: i. Permit the preparation of reliable financial statements and Federal reports; ii. Maintain accountability over assets; and iii. Demonstrate compliance with Federal statutes, regulations, and the terms and conditions of the Federal award; City of Tukwila Purchasing Policy 12 1 2020-i1 12 21 5 7 24 72 b. Transactions are executed in compliance with: i. Federal statutes, regulations, and the terms and conditions of the Federal award that could have a direct and material effect on a Federal program; and ii. Any other Federal statutes and regulations that are identified in the Compliance Supplement; and iii. Funds, property, and other assets are safeguarded against loss from unauthorized use or disposition. 2) Section 200.320 of the Uniform Guidance requires the City to ensure that purchases are procured in accordance with the following guidelines: a. Procurement of $3,000 and under: To the extent practicable, the City must distribute these purchases equitably among qualified suppliers. Purchases may be awarded without soliciting competitive quotations if the City considers the price to be reasonable. b. Procurement between $3,000 and $150,000: Price or rate quotations must be obtained from an adequate number of qualified sources. c. Procurement above $150,000: Sealed Bids or Competitive Proposals or Sole Source: i. Sealed Bids— Bids are publicly solicited and a fixed price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is the lowest in price. ii. Competitive Proposals — Used when more than one source has submitted an offer, and either a fixed price or cost -reimbursement type contract is awarded. It is generally used when conditions are not appropriate for the use of sealed bids. 3) Appendix II to Part 200 — Contract provisions for city contract under federal awards requires the City to verify that all contractors are not suspended or debarred from Federal funding. Prior to executing a federal -aid agreement, the City must verify status with the System for Award Management (SAM) at https://www.sam.gov/SAM/pages/public/searchRecords/search.Isf to determine if the contractor/consultant has been excluded from bidding on a federal aid contract. SAM is the electronic version of the Lists of Parties Excluded from Federal Procurement and Non -Procurement Programs (Lists), which identifies those parties that have been suspended, debarred, otherwise excluded from bidding on federal contracts or consultants that will not be eligible for federal aid reimbursement. 4) Pursuant to the Washington Secretary of State Local Government Records Retention Schedule, financial records pertaining to the purchase must be retained in accordance with the applicable Washington State Records Retention schedule. Further, each City Department awarded grant services shall maintain records of all purchases and be responsible for following grant requirements. 5 City of Tukwila Purchasing Policy 12 1 2020-'l 12 21 5 7 24 73 6. CONTROLLED COMMODITIES If the cost of the following item(s) is over $100.0075.00, purchase of the item requires approval from the Tukwila Technology and Innovation Services Department Director or designee: A. Computers and related equipment, fax machines, printers, scanners and copiers, cell phones, telephone equipment, pagers, software or systems. B. Anything the Tukwila Technology and Innovation Services Department is requested or required to install, connect, and/or service. 7. TYPES OF PROJECTS AND ONTRACTING AUTHOR! CONTRACT APPROVAL LEVELS It is necessary to establish a uniform practice for approval and execution of City of Tukwila contracts, ensure City Council review of important and legally required contracts and other legal instruments, provide for efficient, streamlined preparation and execution of other contracts not requiring Council review, while also ensuring accountability. The following types of projects and contract approval levels are intended to be for projects with previously allocated funds approved by City Council. A. Capital Projects°u ks: Project Budget. The preliminary project budget approved by the City Council in the Capital Improvement Program (CIP) establishes thc spending authority for a capital projcct. Thc preliminary budget is determined via a multitude of factors, including thc urgency of the project, awarded or prospective grant funding, revenue forecasts, and prior fund balance. If additional funds are required, including a transfer from another undcrspcnt projcct, thc request must be approved by thc City Council. Thc following thresholds apply to project contracts and contract amendments that can be included within thc approved preliminary projcct budget. 1) $20,000orless Approved by Department Director 2) $20,001 to *$99,999 Approved by Mayor, provided the project is in the Capital Improvement Program (CIP). 3) $100,000 or more Approved by City Council 1) $20,000 or less Approved by Department Director 2) $20,001 to $39,999 pprovcd by Mayo, provid Program (CIP). 3) 40 000 Approved by City Council All public works projects must be within the CIP budget. If additional funds arc required, the request must be approved by City Council. B. All other types of purchases (professional services, personal services, purchased services, materials/supplies/equipment): Professional services provided by a consultant that fall under architecture, engineering, land surveying, or landscape architecture. Contract approval levels: 6 City of Tukwila Purchasing Policy 12 1 2020_il 12 21 5 7 24 74 1) $20,000 or less Approved by Department Director 2) $20,001 to $59,99939,999 Approved by Mayor 3) $60,00040,000 or more Approved by City Council Cost modifications that, either singly or combined with all previous modifications, incr ase thc total contract amount from under to over thc $40,000 signature threshold shall be approved by City Council. C. Other Contracting Provisions: 1) All statutory bidding and contracting requirements as set forth in State law shall be followed. 2) To assist in contract management and retention, all contracts will include a date by which full performance of the contract shall be complete. Al All contracts will be approved as to form by the City Attorney. 4) All contracts will be processed and filed in accordance with administrative procedures required by the Finance Department and Office of the City Clerk. 5) Except as otherwise specified, the Mayor or his or her designee has authority to approve and sign the following types of contracts without need for separate Council approval or ratification: a. All contracts for which the Original Contract Value is less than $60,000. b. All contracts settling claims, litigation or threatened litigation for which the Original Contract Value, less any contribution from a City insurance policy, does not exceed $250,000. c. Contracts and/or contract amendments specifically authorized by other Council action. d. Work orders issued pursuant to RCW 39.10.450 so long as the overarching Job Order Contract was previously approved by Council. e. Annual technology hardware, software, or services renewal agreements including annual license renewals, subscription services, support and maintenance extensions, and general services renewals which do not exceed $250,000. f. Acquisitions of easements, right-of-way, or title incident to a public works project budgeted by the City Council. 6) The following types of contracts require advance Council approval prior the Mayor or designee's signature: a. Interlocal Agreements — all contracts, agreements, memoranda of understanding, or other documents between the City of Tukwila and any other governmental agency or agencies. An agreement in association with a grant application is not considered an interlocal agreement for purposes of this subsection but is subject to the monetary thresholds in Subsection B. b. Any contract for the sale or purchase of real estate except for acquisitions of easements, right-of-way or title incidental to a City public works project budgeted by the City Council. c. Any contract to lease or otherwise encumber City -owned real estate for a period of more than one (1) year unless the contract provides the City with an option to terminate the lease early without cause or damages by providing no more than six (6) months' notice of termination. 7 City of Tukwila Purchasing Policy 12 1 2020-'l 12 21 5 7 24 75 d. Public Works contracts that require award by the City Council pursuant to Chapter 39.04 RCW. e. Any contract that transfers risk to the City of third party claims arising out of a contractor's misconduct or negligence if the risk transferred thereby would not be covered by the City's insurance policies. f. Any contract that, pursuant to applicable law, requires authorization from the City Council g. Any contract of any amount not consistent with the adopted budget. 7) Contract Amendments a. Amendments that do not change the total value of the contract (i.e. a new expiration date) may be signed by the Department Director. b. Amendments that, either singly or combined with all previous amendments, increase the total contract amount from under to over the Mayor's signature threshold require City Council approval. ac. Amendments that, either singly or combined with all previous amendments, exceed 10% of the original contract or the Mayor's signature threshold, whichever is less, require City Council approval 8. THRESHOLD COST NEGOTIATION REQUIREMENTS The following cost thresholds apply for purchases of supplies, equipment, and non-professional services. Non-professional services include routine and continuing functions predominately related to physical activities. The cost thresholds below do not apply to purchase constituting public works or professional services (including architectural or engineering services). Refer to Section 13 for situations involving sole source or emergency purchases. A. $15,00010,000 or Less: Direct negotiation Purchases in this price range may be entered into through direct negotiation. Competition is not required, though departments should still make every effort to receive the best price possible. Documentation on all quotes should be retained. B. $15,00140,000 to $50,000: 3 quotes needed For purchases in this price range, at least three quotes shall be obtained. Quotes may be obtained by telephone or in writing. Documentation on all quotes will be retained. The documentation will include the date, time, vendor contact name, phone number, email (if applicable), price quoted and any reasons for acceptance or refusal of the quote. C. $50,00150,000 or More: Competitive Bids For purchases in this price range, competitive bids shall be obtained from at least 3 vendors. Bids do not need to be sealed but shall be in writing. See Section 10 on competitive bidding for a detailed description of the procedures to be followed. 9. PUBLIC WORKS PROJECTS 8 City of Tukwila Purchasing Policy 12 1 2020-i1 12 21 5 7 24 76 Public works projects are defined by RCW 39.04.010 to include but are not limited to work, construction, alteration, repair, or improvement (other than ordinary maintenance, engineering analysis, and design and other professional services) executed at the City's cost, or which is by law a lien or charge on any property therein. If the City contracts out for maintenance or repairs, the work is a public work for bidding and prevailing wage purposes. A. Defining Project Costs The cost of a public works project includes the costs of materials, supplies, equipment, and labor on the construction of that project. It is important to determine the estimated total construction of each project in order to correctly apply bid limit dollar amounts to determine if the public works project must be competitively bid. If the total project amount is over the bid thresholds, then all contracts, no matter the individual dollar amount, must be procured through the bid process. The estimate may be prepared by an outside third party; however, the final cost estimate must be validated by the City. B. City Labor The City may use Public Works staff to perform and execute all projects not exceeding $116,155 (multiple crafts), or not exceeding $75,000 (single craft). RCW 35.23.352. These projects include equipment, material, supplies, and labor costs. However, the City must provide a report to the state auditor of the costs of all public works in excess of $5,000 that are not let by contract. For any project using City workers that costs in excess of $25,000, the City must publish a description of the project and its estimated cost in its official newspaper at least 15 days before beginning the work. RCW39.04.020. C. Bid Requirements Washington State law requires the City to call for bids whenever the cost of a public work will exceed $116,155, if more than one craft or trade is involved. If only a single craft or trade is involved, or if the project is for street signalization or street lighting, bids must be called for if the cost is greater than $75,000. The City has established the following additional guidelines for the bidding process: 1) Public Works Contracts $50,000 or less: Minimal competition. Place inquiries to 1— 3 qualified firms or individuals describing the desired services, request prices, schedules and qualifications. 2) Public Works Contracts $50,001 to $300,000: Informal competition. Select from appropriate consultant roster or other list and ask for proposals. 3) Public Works Contracts $300,001 or more: Formal competitive bidding. Advertise and call for bids using the formal bid process. 4) Exceptions: If the public works project is funded in whole or in part by Federal funds, a formal bid process may be required. Refer to the Uniform Guidance procurement standards in 2 CFR § 200.318- 200.327. 41—Public--WeFks-PFejeet-s--$0-to $500: No competitive bidding is needed. 2) Public—Werks-Projects $501 to $2,500: Solicit 3 informal quotes by telephone or in writing. 3) Pub,lic Woks-P ojests-$27 50-1 to $1^ 0Solicit 3 informal quotes by telephone or in writing, preferably from the Small Works Rostcr. 9 City of Tukwila Purchasing Policy 12 1 2020_il 12 21 5 7 24 77 4) Public Works Projects 1O 001 to $ze,000 Solicit 3 quotes from the Small Works Roster. 5) Public Works Projects $35,001 to $150,000: Solicit quotes from at I ast five contractors on the Small Works Roster in a manner that will equitably distribute opportunities. remaining contractors on the Roster that quotes on the work are being sought. 7) Except►ons. If thepublic works preject is $250,000 or greater and is funded in whole or in part with federal funds, a formal bid proccss is required. This threshold is sct by thc federal government at 2 CFR § 200.88 and 48 CFR § 2.101 ("Simplified acquisition threshold") and is subject to periodic adjustment for inflation pursuant to 41 U.S.C. § 1908. ' process. All contracts are to be awarded to the lowest responsible bidder. RCW 39.04.350 outlines criteria that a bidder must meet in order to be considered responsible. D. Small Works Rester if thc public works contract is less than $350,000, state law authorizes cities to use a small works roster proccss rather than thc general competitive bidding requirements to award public contracts. The City has contracted with MRSC (Municipal Res arch and Services Center) for the use of a statewide electronic database for small public works contractors, consulting services, and vendors. u€. Limited Public Works Process The limited public works process is a type of small works roster process that applies only to contracts estimated to cost less than $50,000. While no advertisement is required, the City must still solicit electronic or written quotations from a minimum of three contractors from the appropriate Small Works Roster. This process is described in RCW 39.04.155(3) and allows the City to waive the payment and performance bond requirements of Chapter 39.08 RCW and the retainage requirements of Chapter 60.28 RCW. However, prevailing wage affidavits and insurance are still required. Consult with the City Attorney for prior approval when waiving both of these requirements. E1. Prevailing Wages The City is required by RCW 39.12.040 to require contractors to pay prevailing wages on all public works contracts. A "Statement of Intent to Pay Prevailing Wages" must be received from a contractor before any payment is made, and an "Affidavit of Wages Paid" must be received following final acceptance of the work. F. Bid Deposit, Performance Bond, and Payment Bond The City may require a bid deposit when soliciting competitive quotes or bids. The bid deposit can be in the form of a certified check or bid bond in an amount equal to and not less than 5% of the total bid and shall be specified in the call for bids. All public works contractors shall furnish a performance bond and a payment bond in an amount equal to the total amount of the contract on a form approved by the City Attorney. In lieu of a performance bond on contracts of $150,000 or less, a contractor may request to have 10% of the contract retained for a period of 30 days after the date of final acceptance. The request will be evaluated and accepted or rejected by the City Attorney. 10 City of Tukwila Purchasing Policy 12 1 2020_il 12 21 5 7 24 78 Gkl. Retainage Chapter 60.28 RCW outlines the requirements related to retainage. The intent of the retainage is to guarantee that laborers and material suppliers will be protected for payment of any claims arising under the contract and with respect to taxes, increases, penalties or liens related to a public improvement project (RCW 60.28). Retainage may also be used to satisfy tax claims by the Department of Revenue and/or the City, prevailing wage related claims by the Department of Labor and Industries, unemployment compensation related claims by the Employment Security Department, and contract performance claims by the City itself. State law requires the City to withhold up to 5% of the contract price for retainage purposes. H4. Public Works over $1 Million RCW 39.30.060 specifies that in order for their bid to be considered responsive, every bidder for a public works contract of over $1 million must submit (either with their bid or within one hour of the bid submittal time) the names of all subcontractors that will be used for heating, ventilation and air conditioning, plumbing and electrical work. Id. Alternative Public Works Contracting Procedures Chapter 39.10 RCW permits alternative public works contracting procedures. The State legislature finds that the traditional process of awarding public works contracts in lump sum to the lowest responsible bidder is a fair and objective method of selecting a contractor. However, under certain circumstances, alternative public works contracting procedures may best serve the public interest if such procedures are implemented in an open and fair process based on objective and equitable criteria. If the City desires to utilize the alternative procedures, it shall follow the requirements set out in RCW 39.10. J. Change Order Authority A change order is a written amendment or modification of a contract for the construction of a capital project, includi, but not limited to, contracts for construction of a public work using alternative public works processes authorized by state law. The following outlines the Mayor's approval authority only for change orders that do not materially change the intended scope of the project. Change orders that change the intended scope of the project or that exceed the cost thresholds outlined below require City Council approval. 1) Capital project under $499,999. The Mayor is authorized to sign change orders on a capital project where the original construction contract value is under $500,000 to the extent the sum of the change orders do not exceed 20% of the original contract value. 2) Capital project between $500,000 to $999,999. The Mayor is authorized to sign change orders on a capital project where the original construction contract value is $500,000 - $999,999 to the extent the sum of the change orders do not exceed an amount equal to $100,000 plus 15% of the original contract value that exceeds $500,000. 3) Capital project between $1,000,000 to $4,999,999. The Mayor is authorized to sign change orders on a capital project where the original construction contract value is at least one million dollars and less than five million dollars to the extent the sum of the change orders do not exceed an amount equal to one hundred seventy-five thousand dollars plus 10% of the original contract value that exceeds $1,000,000. 4) Capital projects of at least $5,000,000. The Mayor is authorized to sign change orders on a capital project where the original construction contract value is at least $5,000,000 to the extent the sum of 11 City of Tukwila Purchasing Policy 12 1 2020-'l 12 21 5 7 24 79 the change orders does not exceed an amount equal to $575,000 plus 5% of the original contract value that exceeds $5,000,000. 445)Before or during the course of a particular capital project, the City Council may authorize different or additional limits for change orders or withdraw the authority granted y this section. 10. COMPETITIVE BIDDING PROCESS A. Public Notice RCW 35.23.352(1) sets out the advertising requirements for the public works bidding process. For all contracts that require bids, notice shall be published in the official newspaper at least 13 days prior to the due date for bids. B. Bid Specifications Bid specifications should incorporate a clear and accurate description of the technical requirements for the material, product, or service to be purchased. Such descriptions should not contain features that unduly restrict competition. When it is impractical or uneconomical to make clear and accurate description requirements, a "brand name or equal" description may be used. The responsibility of demonstrating to the City's satisfaction that a product is "equal" to that specified shall be on the vendor proposing the substitution. Requests for approval of substitutions must be made with sufficient time to allow the City to adequately review the proposal, including time for vendors to respond to questions and requests for additional information or clarification. The City has no obligation to accept proposed substitutions. Acceptance of a substitute product proposed as an "equal" to that specified will be made in writing. If this acceptance occurs prior to the bid, other bidders will be notified to the extent practical. C. Award The contract will be awarded to the lowest responsive and responsible bidder whose bid meets the requirements and criteria included in the invitation for bids, or all bids will be rejected. RCW 39.04.350 outlines criteria that a bidder must meet in order to be considered responsible. The City also requires that the contractor must: • Have or agree to obtain a current City business license • Be current with all applicable licenses, taxes, and fees owed to the City of Tukwila In addition, the City adopts the following supplemental criteria which may be used in connection with specified projects: • The ability, capacity, and skill of the bidder to perform the contract or provide the service required • The character, integrity, reputation, judgment, experience, and efficiency of the bidder • Whether the bidder can perform the contract within the time specified • The quality of performance of previous contracts or services • The previous and existing compliance by the bidder with laws relating to the contract or services • Such other information as may be secured having a bearing on the decision to award the contract 12 City of Tukwila Purchasing Policy 12 1 2020_4 12 21 5 7 24 80 When using the supplemental criteria described above, the City will include the supplemental criteria in the bidding documents, together with a basis for evaluation, deadline for bidder to submit required documentation, and deadline for bidder to appeal a "not responsible" determination. When a trade-in option exists and is in the City's best interest, the price offered on the trade-in will be considered when determining the lowest responsive and responsible bid. RCW 39.30.040 allows any local sales tax revenue generated by the purchase to be considered in determining the lowest responsive and responsible bid. Other preferences favoring local businesses are not permitted. D. Cancellation An invitation for bids may be cancelled. Additionally, the City (at is sole discretion) may choose to reject any or all bids, in whole or in part. A resolution is the preferred method for rejecting all bids; examples may be found in the City's Digital Records Center or by contacting the City Clerk's Office. E. Bid Submittal Bids will be submitted as specified in the Invitation for Bid by the appointed date and time listed in the invitation. Each bid will be dated, and time stamped as it is received. Late bids will not be accepted. If the bid is for a sealed bid process, all qualified bids will be opened and read aloud publicly at the appointed time. No City representative shall inform a contractor of the terms or amount of any other contractor's bid for the same project prior to the bid opening date and time. Once bids have been submitted (and opened, if the bids are sealed), the City may not negotiate with bidders. The contract must be awarded to the lowest responsive and responsible bidder, or else all bids must be rejected. A written record shall be made of each contractor's bid on a project and of any conditions imposed on the bid. Immediately after an award is made, the bid quotations shall be recorded, open to public inspection, and available by telephone inquiry. F. Bid Security RCW 35.23.352(1) provides that each bid must be accompanied by a bid proposal deposit in the form of a cashier's check, postal money order, or surety bond to the City Council for at least 5% of the bid amount, including sales tax. The statute adds that "no bid shall be considered unless accompanied by such bid proposal deposit." G. Non -Collusion Affidavit Each bidder shall be required to warrant that their bid is genuine, and that they have not entered into collusion with other bidders, by submitting with their bid an executed and notarized affidavit on a form approved by the City Attorney. 11. SERVICE CATEGORIES There are several different categories of services, so it is important to determine what service you need because that may guide the manner of solicitation. A. Professional Architectural and Engineering Services Professional architectural and engineering (A&E) services are services provided by any person, other than an employee of the agency, that fall under the general statutory definitions of: 13 City of Tukwila Purchasing Policy 12 1 2020-i1 12 21 5 7 24 81 • Chapter 18.08 RCW (Architects) • Chapter 18.43 RCW (Engineers and Land Surveyors) • Chapter 18.96 RCW (Landscape Architects) 1) Purchase of A&Eservices. By law, A&E consultants are first selected based upon their qualifications as opposed to price. See Chapter 39.80 RCW. This statute says that a city may not consider price in the selection process for professional A&E services. Rather, the City must select the most qualified firm and then negotiate a price for the work contemplated. There are two ways to select an A&E consultant: • Use a Request for Proposal (RFP). This requires the City to draft a written scope of the project and list the criteria used to select the consultant from the City's MRSC architectural, landscape architectural, and engineering service roster pursuant to the process in Chapter 39.80 RCW. • Use a Request for Qualifications (RFQ). This requires following the formal RFQ process in Chapter 39.80 RCW. Once consultants have submitted their proposals or qualifications, as applicable, the City will negotiate a contract with the most qualified firm at a price the City deems fair and reasonable. In making its determination, the City will take into account the estimated value of the services to be rendered as well as the scope, complexity, and professional nature of the service to be provided. lithe City is unable to negotiate a satisfactory contract with the firm selected at a price that is determined fair and reasonable, negotiations with that firm will be formally terminated. Another firm will then be selected, and the process continued until an agreement is reached or the process terminated. 2) Publication. RCW 39.80.030 requires that the City shall publish in advance the City's requirement for professional services. The City may comply with this section by: (1) publishing an announcement on each occasion when professional services provided by a consultant are required by the City; or (2) announcing generally to the public its projected requirements for any category or type of professional service to create a Consultant Roster. Advertising for the Consultant Roster must be done at least once a year by MRSC on the City's behalf. The MRSC Consultant Roster will distinguish between professional architectural and engineering services as defined in RCW 39.80.020 and other consulting services. Firms or persons providing consulting services shall be added to the appropriate Roster at any time they submit a written request and necessary records. The City reserves the right to publish an announcement on each occasion when professional services or other consulting services are required. B. Personal Services Personal services are those provided by independent consultants that require specialized knowledge, advanced education, and/or professional licensing to provide intellectual service. This includes but is not limited to accountants, attorneys, strategic planners, studies/analysis, and trainings. Purchases of Personal Services. Personal services can be purchased in a variety of ways. The City can send a written solicitation to qualified firms or individuals describing the needed services. 14 City of Tukwila Purchasing Policy 12 1 2020_'l 12 21 5 7 24 82 This solicitation should request prices, schedules, and qualifications. If helpful, utilize the MRSC Consultant Roster. Alternatively, develop a formal RFP and advertise for the services desired. C. Purchased Services Purchased services include those provided by vendors for routine, necessary and continuing functions of the City. These services are usually repetitive, routine, or mechanical in nature, support the agency's day- to-day operations, involve the completion of specific tasks or projects, and involve minimal decision - making. There are a number of purchased services, however, that hover over that thin gray line between purchased services and public works contracting. For example, the Department of Labor and Industries considers some service contracts, such as HVAC maintenance or road striping, to be public works projects and subject to public bidding requirements. If a particular contract is very near the gray line, the conservative approach is to consider it a public works contract. Purchases of Purchased Services. Similar to personal services, purchased services can be procured in a variety of ways. The City can obtain quotes, or use a formal bid, or an RFP. If obtaining quotes, include request for price, schedules, and qualifications. Evaluate proposals received and determine the lowest responsive bidder. 12. MATERIALS, SUPPLIES, EQUIPMENT (UNRELATED TO PUBLIC WORKS, SERVICES, A&E) Distinguishing between public works and materials, supplies, and equipment not used in public works is important because different bidding requirements apply to each. Some "materials, supplies, and equipment" not used in connection with a public works project or improvement are fairly easy to identify (rubber bands, fire trucks, copy machines), as well as many "services." Some materials, supplies, and equipment are more ambiguous. Other materials, including telecommunications, data processing, and software have specific purchasing guidelines established in state law. A. Telecommunications, Data Processing and Software. The State Legislature, recognizing the unique aspects of computer and telecommunication systems, established an alternative process for making such purchases. RCW 39.04.270, which is available to all municipalities, allows purchases through use of an alternative competitive negotiation process requiring, at a minimum, the following steps: 1) A request for proposals (RFP) must be published in a newspaper of general circulation at least 13 days before the last date on which the proposals will be received. 2) The RFP must identify significant evaluation factors, including price, and their relative importance. 3) The City must provide reasonable procedures for technical evaluation of the proposals, identification of qualified sources, and selection for awarding the contract. the City. 4) The award must be made to the qualified bidder whose proposal is "most advantageous" to 5) The City may reject all proposals for good cause and request new proposals. B. Additional guidance regarding purchases of materials, supplies and equipment can be found in Section 8. Refer to the Procurement Policy Table in Section 1 of this policy, and ask questions if you are uncertain. 15 City of Tukwila Purchasing Policy 12 1 2020-i1 12 21 5 7 24 83 13. EXCEPTIONS TO THE COMPETITIVE PROCESS State law provides for exceptions to the bidding requirements outlined in above sections. These exceptions only waive the competitive bidding requirements, not the contractual requirements, approvals, or insurance requirements. City staff may not use personal preference as the basis for claiming a single source of supply. Exceptions to the competitive bidding requirements include: • Purchases that are clearly and legitimately limited to a single source of supply such as: o Licensed or patented good or service o Items that are uniquely compatible with existing equipment, inventory, systems, programs or services o Meets City standards (i.e. water meters) o Factory -authorized warranty services A resolution is the preferred method for sole source purchases; examples may be found in the City's Digital Records Center or by contacting the City Clerk's Office. • Purchases involving special facilities or market conditions o Item is of special design, shape or manufacture that matches or fits with existing equipment, inventory, systems o Item will be sold before the City can conduct the bid process when over bid thresholds • Purchases in an emergency (see TMC Chapter 2.57, "Emergency Management") A resolution is the preferred method for declaring an emergency as a prerequisite to purchases during an emergency; examples may be found in the City's Digital Records Center or by contacting the City Clerk's Office. • Inter -Governmental Cooperative Purchases • Purchases of insurance or bonds • Pollution control facilities and some neighborhood "self-help" projects may be exempt from bidding requirements • Cities may hire the state or county to do road projects without going out for bids • Real property. Acquisition of real property is exempt from the competitive bidding requirements of this policy. Upon approval of the City Council, the City Administrator may proceed to acquire real property through negotiation. Such negotiations shall be based upon an independent fee appraisal of the property. 14. DISPOSAL OF SURPLUS PROPERTY A. Policy Statement City assets in excess of $1,500 500 that are no longer useable, are no longer of value to the City, or are surplus to the City's needs may not be removed from City ownership, sold, or in any other way disposed 16 City of Tukwila Purchasing Policy 12 1 2020_'l 12 21 5 7 24 84 without a declaration by resolution of the City Council. Similarly, items in excess of $100 that are no longer useable, are no longer of value to the City, or are surplus to the City's needs may not be removed from City ownership, sold, or in any other way disposed without approval by the Mayor or City Administrator. All items of $100 or less may be disposed in accordance with the direction of department directors. B. Definitions City Asset means any tangible item purchased with City funds valued in excess of $100. TIS Asset means computers and related equipment, fax machines, printers, scanners and copiers, cell phones, telephone equipment, pagers, software or systems, and anything the Tukwila Technology and Innovation Services Department is requested or required to install, connect, or service. C. Procedures 1) Disposal of City property valued less than $499 shall follow this process: O When a City department determines an item of this value is surplus to its needs, the department shall notify the Mayor's Office and all other City departments of the item's availability, seeking first to reassign its use to another City department. TIS Assets shall be exempt from this notification requirement to City departments other than the Mayor's Office. O If no other departments are interested in the item, it may be disposed in the method seen most prudent by the department director. The director should first notify the Mayor's Office and Finance Department of the intended method of disposal prior to finalizing the process for disposal. 2) Disposal of City property valued at $500 or more shall follow this process: O Reassignment of Assets. When a City department makes a determination that a City or TIS Asset with a value of $500 or more is surplus to its needs, the department shall notify the Mayor's Office. The Mayor's Office shall assess whether the City Asset can be reassigned within another City department where it can be of use or value. TIS Assets shall be exempt from the requirement to be reassigned to other City departments. O Minimum Requirements. If it is not possible to reassign the City Asset or the item is a TIS Asset, the Mayor's Office shall prepare the asset for a declaration of surplus by the City Council. Each asset requiring a declaration of surplus must have a value assigned and a recommended method of disposal. O Methods of Disposal. The primary method of disposal to the general public is by sale. Recognized methods of sale include direct sale, sealed bid, trade-in or auction. Other methods of disposal to the general public must be clearly detailed in writing and must have the consent of the City Council. O Transfer to Another Public Agency. The City Council may transfer a surplus asset to another public agency upon written request and a determination that it is in the public interest to do so. Such request shall specify the asset and the inability of the other public agency to otherwise afford to buy it. The City Council may elect to trade assets, authorize the Mayor to negotiate payment or transfer the asset without compensation. A resolution is the preferred method for surplussing of City property; examples may be found in the City's Digital Records Center or by contacting the City Clerk's Office. 17 City of Tukwila Purchasing Policy 12 1 2020-i1 12 21 5 7 24 85 3) Additional Requirements: O Assets over $50,000. If the value of the asset is estimated to be more than $50,000, and if the sale or conveyance is to another governmental entity, the provisions of RCW Section 39.33.020 shall apply. This includes several requirements, including a public hearing and certain notice provisions. O Utility Assets. If the asset was originally purchased for utility purposes, the provisions of RCW Section 35.94.040 shall apply. This includes several requirements, including a resolute and public hearing. O Trade -Ins: Trade-in of old equipment to upgrade similar or reasonably related equipment is permitted when it is in the best interest of the City. The requesting Department Director shall be responsible for the sale, trade, or other disposition of surplus property and scrap belonging to the City of Tukwila when used for a trade-in. Trade-ins must be negotiated, documented at "Fair Market Value" by the Department Director, and declared surplus ahead of time by the City. Fair Market Value can be determined by finding comparable units that have been sold at online auctions. O Other: If the asset proposed as surplus is evidence released by the Court, seized assets or unclaimed property, the Mayor's Office shall review the appropriate statutes prior to asking the City Council to declare it surplus. 4) Final Determination of Value When disposal is made to the general public through direct sale, sealed bid or auction, final determination of value shall be the highest responsible bid or offer. 5) Prohibited Benefit It is recognized that City Council members and Mayor are prohibited by state law from benefiting from the disposal of public assets of the City. Great care should be taken to assure that a perception of benefit to employees and others doing business with the City does not occur. 6) Delegation of Authority The City Council may elect to delegate the task of declaring items surplus to the Mayor by amending or adding to this policy and identifying the conditions thereof within this policy. If such a delegation is made, the prohibition of benefiting from the disposal of public assets is extended to the Mayor and his/her immediate staff. 15. ADDITIONAL CONSIDERATIONS A. Certificates of Insurance The contractor or consultant may be required to provide the City with a Certificate of Insurance, naming the City as a primary and noncontributory additional insured with an additional attached endorsement. Insurance requirements are determined by WCIA (Washington Cities Insurance Authority) and the City Attorney. B. State Contractor's License It is unlawful for the City to hire anyone to perform public work on our property that does not have a valid State of Washington Contractor's License. If someone is not properly licensed, DO NOT HIRE THEM. You may look up a contractor to determine if they have a valid Contractor's License at via the Washington State Department of 18 City of Tukwila Purchasing Policy 12 1 2020-i1 12 21 5 7 24 86 Labor and Industry's website: https://Ini.wa.gov/licensing-permits/contractors/hiring-a-contractor/verify- contractor-tradesperson-business C. City Business License A City of Tukwila business license may be required for any person or business working inside the city limits. See TMC Title 5, "Business Licenses and Regulations" for specifics. 16. REFERENCES Revised Code of Washington (RCW) 39.80 (Contracts for Architectural and Engineering Services) RCW 39.04 (Public Works) RCW 39.34 (Interlocal Cooperation Act) RCW 35A.40 (Fiscal Provisions applicable to Code Cities), 35.23 (Second Class Cities) Municipal Research Services Center (MRSC) publication: "City Bidding Book —Washington State" Federal Office of Management and Budget (OMB) Uniform Guidance CFRs: Title 2 CFR 200. et al City of Tukwila Grants Policy (TBD) Procurement Card (Pcard) User Manual City of Tukwila Administrative Policy - Equity Policy City of Tukwila Administrative Policy 400-05 — Processing of Contracts/Agreements City of Tukwila Capital Improvement Program Policies and Procedures 17. GLOSSARY Amendment — Written modification or addition to a purchase order or contract authorized by the appropriate authority. Bid — The executed document submitted by a bidder in response to a notice inviting bids, a proposal, or a request for qualifications. Bid Bond — A bond or deposit submitted with a bid, fora sum not less than 5% of the bid amount (including sales tax). Designed to help ensure that a bid has been made in good faith and that the bidder will enter into a contract if a bid is accepted. Bidder —A person or legal entity who submits a bid in response to a solicitation. Competitive Bidding — The submission of prices by individuals or firms competing for a contract, privilege, or right to supply merchandise or services. Contract — A verbal or written, legally binding mutual promise between at least two parties. Designee — A duly authorized and appointed representative of an employee that holds a superior position to the person appointed to represent him or her. Emergency — Unforeseen circumstances beyond the City's control that present a real, immediate threat to the proper performance of essential functions, or that will likely result in material loss to property, bodily injury, or loss of life if immediate action is not taken. "Equitably distribute"— Means the City may not favor certain contractors on the appropriate Small Works Roster over other contractors on the appropriate Small Works Roster who perform similar services. 19 City of Tukwila Purchasing Policy 12 1 2020-'l 12 21 5 7 24 87 Lowest (Responsive and) Responsible Bidder — The bidder submitting the lowest price that is also capable of performing the proposed contract. See also "responsive bidder" and "responsible bidder." Non -Professional Services or Purchased Services — Services provided by vendors for routine, necessary and continuing functions of a local agency, relative to a physical activity. Examples include, but are not limited to: • Courier services • Janitorial services • Disposal services • Vehicle inspection, repair or up -fitting • Office furnishing installation • HVAC system maintenance Ordinary Maintenance — Work not performed by contract and that is performed on a regular basis (daily, weekly, monthly — but not less than once per year) to service, check or replace items that are not broken. Also defined as work not performed by contract that is not regularly scheduled, but is required to maintain an asset so that repair does not become necessary. Prevailing Wages — The hourly wages, usual benefits, and overtime paid in the largest city in each county to the majority of workers, laborers, and mechanics. Prevailing wages are established by the Washington State Department of Labor and Industries for each trade and occupation employed in the performance of public work. They are established separately for each county, and are reflective of local wage conditions. Professional Services — Services which provide professional or technical expertise to accomplish a specific study, project, task, or other work statement. Examples include, but are not limited to: • Architectural, engineering or design services • Accounting and auditing • Bond or insurance brokerage • Consulting services • Legal services • Real estate appraisals or title abstracts • Relocation assistance • Surveying • Soils analysis or core testing • Water quality monitoring Public Work— All work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the City, or which is by law a lien or charge on any property therein. Quotation — A statement of price, terms of sale, and description of goods or services offered by a prospective seller to a prospective purchaser, usually for purchases below the amount requiring formal bidding. For professional service contracts, quotes would typically include the qualifications of the provider and may or may not include pricing information depending on the situation. 20 City of Tukwila Purchasing Policy 12 1 2020-'l 12 21 5 7 24 88 Request for Proposal (RFP) — All documents, whether attached or incorporated by reference, utilized for soliciting competitive proposals. The RFP procedure permits negotiation of proposals and prices, as distinguished from competitive bidding and a notice inviting bids. The procedure allows changes to be made after proposals are opened and contemplates that the nature of the proposals and/or prices offered will be negotiated prior to award. Request for Qualification (RFQ) — A document generally used for obtaining a summary of qualification from prospective providers of professional services. Responsible Bidder — A person or legal entity who has the capability in all respects to perform in full the contract requirements, and the integrity and reliability which will assure good faith performance. Responsive Bidder — A person or legal entity who has submitted a bid conforming in all material respects to the terms and conditions, specifications and other requirements in a request for bids. Sealed Bid — A bid which has been submitted in a sealed envelope to prevent its contents from being revealed before the deadline for the submission of all bids. Sole Source— An award for a purchase to the only reasonably known capable vendor due to the unique nature of the requirement, the vendor, or market conditions. Specifications — A description of what the purchaser seeks to buy or accomplish — and consequently what a bidder must be responsive to in order to be considered for award of a contract. May be a description of the physical or functional characteristics, or the nature of a supply or service. May also include a description of any requirements for inspecting, testing, or preparing a supply or service item for delivery. Surplus property— Any tangible, personal property owned by the City that is no longer needed or usable, presently or in the foreseeable future. 21 City of Tukwila Purchasing Policy 12 1 2020_il 12 21 5 7 24 89 90 City of Tukwila City Council Finance & Governance Committee Meeting Minutes April 22, 2024 - 5:30 p.m. - Hybrid Meeting; Hazelnut Conference Room & MS Teams Councilmembers Present: Staff Present: I. BUSINESS AGENDA De'Sean Quinn, Chair; Tosh Sharp, Jovita McConnell Vicky Carlsen, Tony Cullerton, Laurel Humphrey, Marty Wine, David Rosen, Adam Schierenbeck A. Resolution: Change and Petty Cash Funds Staff is seeking Council approval of a resolution reducing or eliminating change fund levels in multiple departments. Committee Recommendation Unanimous approval. Forward to May 6, 2024 Regular Consent Agenda. B. Ordinance: City Tax Codes Staff is seeking approval of an ordinance that would amend the Municipal Code to administer the admission, commercial parking, gambling and utility tax more effectively. Committee Recommendation Unanimous approval. Forward to June 10, 2024 Committee of the Whole. C. Resolution: Financial Policies Staff is seeking approval of a resolution that would amend the Financial Policies to add reference to compensation, remove reference to a comprehensive fee schedule, refine when grant applications need Committee approval, and update certain references in the Capital Improvement Program section. Committee Recommendation Unanimous approval. Forward to May 13, 2024 Committee of the Whole. D. Resolution: Purchasing Policy Staff is seeking approval of a resolution to amend the City's Purchasing Policy. Committee Recommendation Majority approval. Forward to May 13, 2024 Committee of the Whole. E. March 2024 General Fund Expenditures Staff presented the report. 91 92 UPCOMING MEETINGS AND EVENTS MAY 2024 City Council meetings and Council Committee meetings will be conducted in a hybrid model, with in -person and virtual attendance available. MAY 13 MON May14 TUE May 15 WED MAY 16 THU MAY 17 FRI MAY 18 SAT * Community Services and Safety Committee Meeting 5:30 PM City Hall — Hazelnut Room Hybrid Meeting * Planning and Community Development Meeting 5:30 PM 6300 Building — 2nd Floor Duwamish Conference Hybrid Meeting * City Council Committee of the Whole Meeting 7:00 PM City Hall Council Chambers Hybrid Meeting GREEN TUKWILA RESTORATION AT RIVERTON Help Tukwila stewards clear weeds for fall plantings. 11:30AM-1:30PM Riverton Park 13263 Macadam Rd S Click here for information. PEACE OFFICERS MEMORIAL CEREMONY Join us for this annual ceremony in honor of our Peace Officers. 9:00 AM City Hall Flag Pole 6200 Southcenter Blvd * Art Commission 6:00 PM Hybrid Meeting * Civil Services and Commission 5:00 PM Hybrid Meeting GREEN } TUKWILA IP WALK & TALK, LITTER CLEAN UP You can make a difference by cleaning up trash while chatting with friends. 10:00 AM —11:30 AM Duwamish Hill Preserve 3800 S 115th St Click here for information. FREE RECYCLING COLLECTION 9:00 AM — 3:00 PM Tukwila Community Center 12424 42nd Ave S Click here for information. Or call 206-938-8262. GREEN } TUKWILA RESTORE DUWAMISH HILL Join the Friends of the Hill to help restore this area. 10:00 AM — 1:00 PM Duwamish Hill Preserve 3800 S 115t^ St Click here for information. TEDDY BEAR CLINIC Fun -filled, free family event hosted by Puget Sound Fire. First 400 children receive a free teddy bear! 10:00 AM —1:00 PM PSF Station #74 24611 116th Ave SE, Kent Click here for information. MAY20 MON May21 TUE May 22 WED MAY23 THU MAY 24 FRI MAY 25 SAT * Work Session 5:30 PM City Hall Council Chambers Hybrid Meeting * City Council Regular Meeting 7:00 PM City Hall Council Chambers Hybrid Meeting KING COUNTY BAR NEIGNBORN000 LEGAL CLINICS NEIGHBORHOOD LEGAL CLINICS INFO SESSION KCBA will provide information about the program. First come, first served. 10:30 AM —1:00 PM Tukwila Library 14380 Tukwila Intl Blvd Click here for information. * Special Transportation and Infrastructure Services Meeting 5:30 PM 6300 Building — 2n° Floor Duwamish Conference Hybrid Meeting Give Blood = Save 3 Lives URGENT NEED THIS SPRING! DONATE AND ENTER TO WIN A $1,000 GIFT CARD! It takes 1,000 donors a day to sustain a blood supply for patients in our community. Click here to schedule an appointment. Or call 1-800-398-7888. You can also donate cord blood after the birth of your baby to save a life. Click here for information. * Work Session 6:30 PM Hybrid Meeting King County PET LICENSE LATE FEES WAIVED THRU JUNE 30! A pet license provides peace of mind should your pet get lost. King County reunited 831 lost pets with their owner last year. Your license also helps fund vital, life-saving work. 8:30 AM — 4:00 PM Mondays — Thursdays Tukwila City Hall 6200 Southcenter Blvd Or license online here. Or call 206-296-2712. s! LIB® srsL-N COMMUNITY RESOURCE FAIR Serves community members in need of support. Social service providers will be available to help connect attendees with resources such as health care, education, legal clinics and more. Reasonable accommodation for people with disabilities is available by request. 11:30 AM — 2:30 PM Tukwila Library 14380 Tukwila Intl Blvd Click here for information. CITY HALL & 6300 BUILDINGS ARE OPEN TO THE PUBLIC MONDAYS THRU THURSDAYS 8:30 AM — 4:00 PM FREE PUZZLE PARTY SOCIALS AGES 8 AND UP JUN 13, JUL 11 & AUG 8 6:00 PM — 8:00 PM TUKWILA COMMUNITY CENTER This is a monthly social gathering to swap puzzles or practice for our next Puzzle Palooza. PEACE OFFICERS MEMORIAL CEREMONY MAY 15 9:00 AM CITY HALL — 6200 SOUTHCENTER BLVD Join us for this annual ceremony to pay tribute to the brave local, state and federal peace officers who have died or been disabled in the line of duty. FREE RECYCLING COLLECTION EVENT MAY 18 9:00 AM -3:00 PM TUKWILA COMMUNITY CENTER —12424 42ND AVE S Click here for information. Or call 206-938-8262. FOOD BANK OPENS: TUESDAYS, THURSDAYS AND SATURDAYS 10:00 AM — 2:30 PM 3118 S 140TH ST, TUKWILA 7� VOLUNTEERS — In need of volunteers for food packaging or food distributions. To volunteer, click here to sign up. DONORS — Please donate at tukwilapantry.org/please-donate/. Donations can be dropped off on Tuesday -Saturday from 8 AM —11 AM or by appointment. Click here for a current list of items in need. STILL WATERS SNACK PACK NEEDS YOUR DONATIONS AND VOLUNTEER HELP! SnackPack distributes food bags on Fridays to Tukwila students in need. Click here for the Snack Pack list. VOLUNTEERS NEEDED ON WEDNESDAYS. Pack snacks every Wednesday at 9:30 AM. To volunteer, email Stillwatersfamilyservices@gmail.com. To deliver food, click here to register with Tukwila School District. Please donate to feed our Tukwila kids. Click here to donate online or mail checks to Still Waters, PO Box 88984, Tukwila WA 98138. Ic N G FREE ONLINE TUTORING AND HOMEWORK HELP FOR GRADES K THRU 12 COUNTY Use a computer, tablet, smartphone or home phone to connect with tutors by phone or on Zoom. Click here for information. FUN ACTIVITIES AND OTHER EVENTS AT TUKWILA LIBRARY Click here for information. LIBRA RSCHEDULE YOUR FREE BULK ITEM PICKUP! Tukwila residents can schedule a pickup of up to 4 free non -appliance bulky items, plus extra trash and smaller items. Click here for information. To schedule Recology. pickup, call 206-944-3900 or email Tukwila@recology.com. 93 94 Tentative Ag da Schedule MEETING 1— REGULAR MEETING 2 — C.O.W. MEETING 3 — REGULAR MEETING 4 — C.O.W. MAY 6 See below links for the agenda packets to view the agenda items: May6,2024 Work Session May 6, 2024 Regular Meeting MAY 13 See below links for the agenda packets to view the agenda items: May13,2024 Committee of the Whole Meeting MAY 20 MAY meeting Community 27 WORK SESSION * * * * * 2023-2024 Comprehensive Plan Update: Housing and other issues. MEMORIAL DAY REMEMBER & HONOR * * _ REGULAR MEETING CONSENT AGENDA - Ordinance adopting Franchise Agreement with Astound Broadband. - Authorize the Mayor to sign a grant agreement with Washington State EMD for upgrades to the City's MHz radio system in the amount of $49,000.00. - Resolution on 2024 South King Housing and Homelessness Partners (SKHHP) Work Plan and Budget. UNFINISHED BUSINESS - Update on Surface Water Comprehensive Plan. - Resolution adopting Financial Policies. - Resolution adopting Purchasing Policy. - Authorize the Mayor to sign a contract with Washington State Energy Savings Performance Contracting (ESPC) for a Limited Notice to Proceed with Phase 1 of the Tukwila Community Center HVAC Replacement project, in the amount of $1.6 million. NEW BUSINESS Update on 42"d Avenue South Detour Bridge. Committee of the Whole cancelled due to the holiday. City offices and Center closed. MEETING 1— REGULAR MEETING 2 — C.O.W. MEETING 3 — REGULAR MEETING 4 — C.O.W. JUNE 3 JUNE 10 PUBLIC HEARING A resolution adopting the 2025-2030 Transportation Improvement Program. SPECIAL ISSUES - A resolution adopting the 2025-2030 Transportation Improvement Program. - An ordinance updating the City's Tax Codes. - Ordinance adopting Franchise Agreement with Intermountain Infrastructure Group. JUNE 17 JUNE 24 SPECIAL ISSUES - 2024 Council meeting schedule. - Ordinance updating Accessory Dwelling Unit (ADU) regulations. WORK SESSION WORK SESSION Utility Rate Study: Revenue Requirements and Cost of Service Analysis. REGULAR MEETING PRESENTATIONS - Introduction of the "Tukwila, City of Opportunity Scholarship" recipients. - Climate Change Capstone project presentation. - Equity Index Capstone project presentation. CONENT AGENDA - Authorize the Mayor to accept the TIB Complete Streets grant for the 2024 Overlay Program in the amount of $400,000.00. - Award a bid and authorize the Mayor to sign a contract for the Sewer Lift Station #5 Retrofit project, in the amount of $1,110,000.00. - Authorize the Mayor to sign a contract for the 2024 Pavement Condition Index (PCI) study. - Authorize the Mayor to sign a contract for a Citywide traffic signal assessment, in the amount of $176,622.00. - Authorize the Mayor to sign contract amendment for the Gilliam Creek Fish Barrier Removal and Habitat Enhancement project, in the amount of $400,000.00. - Authorize the Mayor to sign contract amendment for the South 131't Place Drainage Improvement project, in the amount of $139,733.00. UNFINISHED BUSINESS Budget discussion. Ordinance relating to tenant protections. REGULAR MEETING CONSENT AGENDA - Ordinance adopting Franchise Agreement with Intermountain Infrastructure Group. - Ordinance revising TMC 3.14 "Sales and Use Tax for Affordable Housing". UNFINISHED BUSINESS - An ordinance updating the City's Tax Codes. - Update on Surface Water Comprehensive Plan. - A resolution adopting the 2025-2030 Six -Year Transportation Improvement Program.